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,

(a) (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.

DATE: July 5, 2019

COURT FILE NO.: C12068/17

ONTARIO COURT OF JUSTICE

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO

JULIA O'BYRNE, for the APPLICANT

APPLICANT

- and -

Y.M., S.O. and Y.B.

KATHERINE LONG, for the RESPONDENT, Y.M. KATHARINA JANCZARUK, for the RESPONDENT, S.O. THE RESPONDENT, Y.B., not attending and found in default on March 21, 2019 LAUREN ISRAEL, counsel for the OFFICE OF THE CHILDREN'S LAWYER, on behalf of the child N.B.

RESPONDENTS

HEARD: JUNE 3-7, 10-14, 17-18 and 20, 2019

JUSTICE S.B. SHERR

REASONS FOR JUDGMENT

Part One – Introduction

[1] This was a child protection trial concerning two children - N.B., who is a 10-year-old girl and M.M., who is an 18-month-old girl.

[2] The respondent Y.M. (the mother) is the mother of both children (the children).

[3] The respondent S.O. (M.M.'s father) is M.M.'s father and N.B.'s stepfather.

[4] The respondent Y.B. is N.B.'s father. He did not participate in this case and was found in default.

[5] M.M. has been in the care of the Children's Aid Society of Toronto (the society) since December 14, 2017 – […] days after her birth. The mother and M.M.'s father exercise supervised access to her at the society's office.

[6] N.B. lived with the mother until August 2, 2017. She then lived with Y.B. until October 30, 2017. Since then she has resided with S.B. and J.A. (the kin caregivers). The mother and M.M.'s father exercise supervised access with N.B. at the society's offices.

[7] Y.B. exercised access with N.B. until he left for the Philippines in January, 2019. The court was advised that he will be staying there indefinitely.

[8] N.B. was found to be a child in need of protection pursuant to clause 74 (2) (h) (risk of emotional harm) of the Child, Youth and Family Services Act, 2017 (the Act) on October 2, 2018 by Justice Robert Spence.

[9] The society seeks an order that N.B. be placed in the custody of the kin caregivers, pursuant to section 102 of the Act. It also seeks incidents of custody for the kin caregivers, including the ability to obtain documentation for N.B. and to travel with her outside of Canada, without anyone's consent. It seeks an order that the mother and M.M.'s father have access to N.B. twice each month, for two hours each visit, at a supervised access centre and that Y.B.'s access to N.B. be in the discretion of the kin caregivers.

[10] The society also seeks a finding that M.M. is a child in need of protection pursuant to subclause 74 (2) (b) (i) of the Act. It seeks a dispositional order that M.M. be placed in extended society care. It seeks an order that M.M. have supervised access twice each year with her parents, with the child being the access holder and her parents being the access recipients. Lastly, the society seeks an order for sibling access a minimum of four times each year, with the children being both access holders and access recipients.

[11] The mother and M.M.'s father seek an order that N.B. be placed in their joint care, with terms of society supervision. In the alternative, they seek an order that N.B. be placed in M.M.'s father's care, subject to terms of society supervision, with liberal and generous access to the mother.

[12] The mother and M.M.'s father ask that the society's protection application for M.M. be dismissed on the basis that she is not a child in need of protection. If a finding in need of protection is made, they seek a determination that intervention through a court order is not necessary to protect M.M. in the future. This would result in M.M. being returned to their care, as they had charge of the child immediately before society intervention under the Act. In the alternative, they seek an order that M.M. be placed in their joint care, subject to terms of society supervision. In the further alternative, they seek an order that M.M. be placed in M.M.'s father's care, subject to society supervision, with liberal and generous access to the mother. In the further alternative, they seek an extension order pursuant to subsection 122 (5) of the Act that N.B. be placed in interim society care.

[13] The mother also seeks a nominal order of costs against the society.

[14] The Office of the Children's Lawyer, on behalf of N.B., supports the parenting orders sought by the society regarding N.B. It also asks for an order that sibling access take place a minimum of 12 times each year with both children being access holders and access recipients.

[15] The mother and M.M.'s father seek generous unsupervised access to both children, if one or both are not returned to their care. In the case of M.M., they seek an order that the court make them both access holders and access recipients.

[16] The society called 18 witnesses at trial. The court heard from multiple society employees who worked with the family. Their direct evidence was provided by affidavit and they were all cross-examined by counsel for the mother and M.M.'s father. The court heard oral evidence from community witnesses who had dealt with the mother and M.M.'s father, including a hospital social worker, a social assistance worker and a paramedic. The court also heard from S.B. (one of the kin caregivers); N.B.'s paternal aunt and M.M.'s foster mother.

[17] The mother and M.M.'s father both testified. M.M.'s father provided most of his direct evidence by affidavit with some supplementary oral evidence. The mother provided part of her direct evidence by affidavit and presented most of her evidence orally over 3 days.

[18] The society and the mother both filed business record briefs on consent. These included school report cards and attendance records regarding N.B. and hospital, medical and prescription drug records regarding N.B. and the mother.

[19] Counsel worked well together to determine which of N.B.'s statements would be admitted at trial and the purpose for their admission. Many of her statements were admitted for her state of mind and some were admitted for the truth of their contents.

[20] The society had planned to call expert evidence about urine testing conducted on the mother and a voir dire was scheduled. However, the society chose to withdraw this evidence and did not rely upon it.

[21] The trial was conducted as a blended proceeding regarding M.M. The court did not consider evidence solely related to disposition when considering whether she should be found to be a child in need of protection.

[22] The main issues for this court to determine are as follows:

a) Is M.M. a child in need of protection?

b) If so, is a further protection order required to protect her?

c) If so, what dispositional order is in her best interests?

d) If an order is made placing M.M. in extended society care what access orders are in her best interests, including who should be an access holder and who should be an access recipient?

e) If M.M. is placed in her father's care, what access orders are in her best interests?

f) Is a further protection order required to protect N.B.?

g) If so, what dispositional order is in her best interests?

h) If N.B. is placed in the custody of the kin caregivers, what incidents of custody are in her best interests?

i) If N.B. is placed in the care of the kin caregivers, what access orders are in her best interests?

j) If N.B. is placed in the care of M.M.'s father, what access orders are in her best interests?

Part Two – Background Facts and Court History

[23] The mother is 39 years old. She was born in Kiev. She came to Canada at age 17 in 1997 and was a student at a missionary college in Alberta. She moved to Toronto in 1998 and worked as a nanny. She has lived in Toronto since that time.

[24] The mother testified that she has had many jobs – most recently as a paralegal and a law clerk doing personal injury work. She said that her paralegal licence was suspended at a disciplinary hearing and she hopes to have it reinstated. She has been in receipt of social assistance throughout 2019. She testified that she has supplemented this income with occasional part-time work, cleaning buildings and working as a server at a banquet hall.

[25] The mother lived with Y.B. from December, 2005 until 2009. She described it as an abusive relationship. Y.B., she said, was addicted to painkillers and was an alcoholic. He would physically and emotionally abuse her.

[26] The mother said that she acted as a stepmother to Y.B.'s child (D.B.) from another relationship. D.B. was two years old when the mother began her relationship with Y.B.

[27] N.B. is the only child that the mother and Y.B. had together.

[28] Children's Aid Societies were involved with Y.B. and the mother regarding D.B. primarily due to the high-conflict relationship between Y.B. and D.B.'s mother.

[29] York Region Children's Aid Society (York) received a referral from the hospital when N.B. was born in 2009 as she appeared to be going through withdrawal after birth. Hospital staff conducted a drug screen on the baby which returned positive for Lorazepam and Oxycodone.

[30] The mother deposed that the drugs in her system were drugs that had been prescribed to her by her doctors for depression and anxiety. She said that in 2007 she started having panic attacks and was diagnosed with a major depressive disorder and panic attacks – primarily as a result of Y.B.'s abusive behaviour and alcohol abuse. The mother deposed at one point in this case that she might have put a few of her Percocet pills in a Tylenol bottle and had inadvertently taken one prior to N.B.'s birth.

[31] The mother said that she took N.B. and left Y.B. in December of 2009 because of his abusive behaviour. D.B. stayed with Y.B.

[32] The mother said that she worked cooperatively with York and it closed its file with her in the spring of 2010. The mother had no further involvement with child protection agencies for 6 years.

[33] The mother testified that Y.B. did not see N.B. for 6 months after their separation. Subsequently, she said, his access with N.B. was variable. At times, he would see N.B. regularly, including overnights. At other times, he would go several months without seeing her.

[34] York became involved with the mother again in May, 2016 after N.B.'s school made a report to it over N.B.'s frequent absences.

[35] In the 2015/2016 school year, N.B. missed at least 59 days of school.

[36] In the fall of 2016, N.B. missed 31 days of school and was late an additional 27 times.

[37] A police officer from York Region called the society on December 22, 2016 to report that N.B.'s school had called alleging that N.B. had not attended school since December 8, 2016.

[38] The mother and M.M.'s father moved in together in Toronto in December, 2016 and York referred the case to the society.

[39] M.M.'s father is 41 years old and was born in Russia. He came to Canada in 1998 as a Convention Refugee.

[40] M.M.'s father has worked most of his adult life as a truck driver. He said that he quit his full-time job at the end of 2018. He said that his job prevented him from regularly exercising access with the children as he would be driving overnight to different cities several times each week. He said that he used to work 70 hours each week, taking only Saturdays off. He said that he still works as a driver on occasion, doing local drives. He has been in receipt of social assistance during 2019.

[41] The society only dealt with the mother at the start of its involvement. The mother asked the society not to involve M.M.'s father at that time. She testified that it was a new relationship and she didn't want to cause M.M.'s father stress in dealing with them.

[42] N.B.'s school attendance remained a problem from January to June, 2017. N.B. missed 43 days of school in that time period and was late 16 times.

[43] During this time, the society received calls from Y.B. and Y.B.'s sister alleging that both the mother and M.M.'s father were drug users. The mother and M.M.'s father denied all allegations and said they were made maliciously as Y.B. had wanted to reconcile and was jealous of M.M.'s father.

[44] The society's intake worker acknowledged that Y.B. had a long history with child protection agencies. The history indicated significant physical abuse by Y.B. to D.B.'s mother, threatening behaviour to D.B.'s mother and to society workers and coaching D.B. to make false allegations about her mother on videotape.

[45] During this time, the mother was struggling with her health. She was diagnosed with gallbladder issues on March 2, 2017. She deposed that later in March she was told that she had 4 gallstones.

[46] The mother testified that she was scheduled to have gallbladder surgery on April 28, 2017, but the surgery was cancelled on April 25, 2017 when she learned that she was pregnant.

[47] The mother was hospitalized several times in 2017 and 2018 due to severe abdominal pain. She said that she was frequently taken to different hospitals by ambulance because she didn't drive.

[48] On May 22, 2017, the mother was prescribed a course of hydromorphone, to be taken sparingly on an as needed basis.

[49] On July 27, 2017, the mother was hospitalized for two days due to onset of acute cholecystitis related to her gallstones. She was prescribed Amoxicllin and Percocet when discharged.

[50] On August 2, 2017, the mother became unconscious on a TTC bus. The fire department and paramedics were called.

[51] The lead paramedic who treated the mother testified at trial. He was unable to revive the mother and transported her to the hospital. She was unconscious for over 50 minutes.

[52] The mother tested positive at the hospital for morphine. She explained that this was the medication prescribed for her just a few days before.

[53] The society told the mother that N.B. could not stay with her and advised her that N.B. would live with Y.B. The mother asked if N.B. could stay with M.M.'s father, and the society did not agree, as it did not know M.M.'s father The mother reluctantly agreed to this placement.

[54] The society agreed that M.M.'s father could take N.B. to and from school every day. The worker eventually learned that the mother was also coming with M.M.'s father and N.B. The worker did not object to this.

[55] N.B.'s placement with Y.B. quickly fell apart. Y.B. was abusing prescription drugs and alcohol during the time that N.B. lived with him.

[56] The mother testified that at some point in September, 2017, N.B. began spending most of her time with her and M.M.'s father.

[57] During the first three weeks of September, 2017, N.B. was late or absent from school 75% of the time, although M.M.'s father and the mother were supposed to take her to school. A meeting was held with the school on October 4, 2017 to discuss this issue. The mother testified that N.B.'s school attendance improved after this meeting.

[58] On or about October 30, 2017, Y.B. was charged with two counts of assaulting the mother.

[59] The mother called the society worker on October 30, 2017 to report that Y.B. had been criminally charged. The worker then spoke to Y.B., who admitted to her that N.B. had been staying at the mother's home sometimes over the past few months without the society knowing. He also made allegations of drug use against the mother and M.M.'s father

[60] The worker said that she subsequently met with the mother, who acknowledged that N.B. had been staying with her some nights. She told the worker that Y.B. had been drunk when she came to drop off N.B. with him the weekend before. She said that Y.B. made sexual advances towards her and pushed her on the floor. She also said that Y.B. was harassing M.M.'s father. The mother denied any drug use by either her or M.M.'s father.

[61] On October 30, 2017, N.B. was placed with the kin caregivers. The kin caregiver S.B. is the sister-in-law of the father's sister (L.B.). S.B. is a primary school teacher. She and her husband J.A. do not have any children.

[62] Supervised access by the mother and M.M.'s father to N.B. began to take place twice each week at the society's office.

[63] The society advised the mother and M.M.'s father that it would conduct meconium testing on the baby at birth and then determine whether the baby could be placed in their care.

[64] M.M. was born on […], 2017. Meconium testing was conducted, but the results were delayed. The mother and M.M. remained in the hospital.

[65] The society brought M.M. to a place of safety on December 14, 2017. The meconium test results were still not available.

[66] On December 19, 2017, the society issued its protection application regarding M.M. and obtained a temporary without prejudice order placing her in the care of the society, with access to the mother and M.M.'s father in its discretion.

[67] The mother and M.M.'s father began having supervised access visits with M.M. twice each week at the society's office.

[68] On January 10, 2018, M.M.'s meconium tests came back negative. The society decided against returning M.M. to the care of her parents. The society asked the mother and M.M.'s father to participate in random urine screens and they agreed.

[69] A society worker deposed that on February 8, 2018, the mother advised her that she no longer agreed to N.B. living with the kin caregivers.

[70] The society issued a protection application regarding N.B. on February 14, 2018.

[71] On March 1, 2018, after a contested temporary care and custody hearing, Justice Spence placed N.B. in the temporary care of the kin caregivers, with access to the mother, M.M.'s father and Y.B. in the society's discretion.

[72] The society had difficulty coordinating urine testing with the mother in the spring of 2018. It agreed to suspend the testing, as the mother was scheduled for surgery.

[73] On April 3, 2018, the mother and M.M.'s father were referred to the society's Therapeutic Access Program (TAP). This is a society program for parenting instruction and an internal assessment of a parent's ability to parent. For parents in the TAP, the society schedules longer-than-normal visits and looks to see how well the parents structure their visits, interact with the children, manage the children's needs and integrate the worker's feedback into their parenting. It also looks to see if the parents can attend visits consistently and on time. The visits are scheduled for longer periods of time than are normally scheduled for parents to see if they can meet the needs of their children.

[74] On May 3, 2018, the mother had surgery to have her gallbladder removed.

[75] The urine testing on the mother started again on June 11, 2018. The attempts at testing did not go smoothly. Only two tests were obtained from the mother – one positive (that the mother explained as being her prescription medication) and one negative. The society stopped trying to test the mother at the end of October, 2018.

[76] The father had three urine tests completed in the spring of 2018 – all were negative.

[77] The mother and M.M.'s father had a dispute with their landlord and in the fall of 2018, the mother moved into a women's shelter. M.M.'s father testified that he spent many nights sleeping in his truck. Both confirmed that they were still together as a couple.

[78] On September 11, 2018, M.M.'s father submitted a plan to care for both children.

[79] On October 2, 2018, the protection finding for N.B. was made by Justice Spence. The issue of disposition for N.B. was adjourned.

[80] The TAP program was terminated by the society at the end of October, 2018.

[81] The visits were resumed at the society offices.

[82] The society amended its protection application for N.B. on November 23, 2018, seeking a custody order in favour of the kin caregivers pursuant to section 102 of the Act.

[83] On December 11, 2018, a date was set for a summary judgment motion regarding N.B., to be heard on March 21, 2019.

[84] On December 20, 2018, the society amended its protection application for M.M., seeking a disposition that she be placed in the extended care of the society with no access to her parents.

[85] At some point in December, 2018, the mother and M.M.'s father moved in together into a home in Thornhill, Ontario.

[86] On January 7, 2019, the society held a Family Group Conference with the mother and M.M.'s father to discuss M.M.'s father's plan to care for the children. M.M.'s father and the mother proposed that a friend of the mother's from Ukraine would come to Canada and move in with them.

[87] The society agreed to explore this plan further and told the mother and M.M.'s father that they would assess M.M.'s father as the primary caregiver. The structure of the visits was changed to allow times when M.M.'s father would be M.M.'s primary caregiver.

[88] On February 27, 2019, Justice Spence granted the society's motion to fully supervise the mother's access with N.B., based on evidence that the mother was inappropriately pressuring N.B. to return to her care and discussing the court case with her.

[89] On March 7, 2019, the mother and M.M.'s father sought an adjournment of the summary judgment motion regarding N.B. This request was granted over the objections of the society and counsel for N.B. A new summary motion date was set for April 18, 2019.

[90] The mother moved for another adjournment of the summary judgment motion, supported by M.M.'s father This request was also granted over the objections of the society and counsel for N.B. See: Children's Aid Society of Toronto v. Y.M., 2019 ONCJ 209.

[91] The parties subsequently agreed to have a trial regarding both children and the society decided not to proceed with N.B.'s case by way of summary judgment motion.

[92] The mother and M.M.'s father testified that they left their home in Thornhill after a dispute with the landlord and are now living in a shelter. The mother testified that the move took place on May 16, 2019 – the father had earlier testified that it had taken place earlier in May. The mother said that the shelter they are staying in does not accept children. M.M.'s father said that they do not have a room, but share a bed together.

[93] The mother exercises supervised access with N.B. at the society offices on two afternoons each week. The visits last 90 minutes.

[94] M.M.'s father has supervised access with M.M. at the society offices two days each week for two hours. In the second hour, the mother joins the visit. The society has asked M.M.'s father to take the lead in caring for M.M. during this hour. The mother then has an additional hour alone with M.M.

[95] Access was temporarily suspended on June 6, 2019, as the mother and M.M.'s father both had the MRSA virus and active symptoms.

[96] At the outset of the trial on June 3, 2019, on consent, the court made the statutory findings under subsection 90 (2) of the Act pertaining to M.M., as set out in the society's amended protection application.

Part Three – Credibility and Reliability

3.1 M.M.'s Father

[97] M.M.'s father was not a reliable or credible witness.

[98] M.M.'s father claimed that he had a very bad memory. The court observed that his memory became worse when he was asked uncomfortable questions.

[99] The court found M.M.'s father to be avoidant when asked difficult questions, particularly about his drug use and his failure to allow the society to make home visits.

[100] There were many examples that supported the court's finding that M.M.'s father is not a credible witness. They include the following:

a) He failed to advise the society that he and the mother are now living in a shelter. In his trial affidavit (sworn on May 27, 2019), he still used his old Thornhill address, even though he had been in the shelter, according to his testimony, for several weeks. M.M.'s father was asked why he didn't tell the society worker that he was living in a shelter. He responded, "she didn't ask me". However, the family service worker testified that she had been making considerable efforts trying to ascertain where the mother and M.M.'s father were living.

b) He has given different addresses to institutions in 2019. He led the society to believe that he and the mother were living together in Thornhill until the trial. He gave an Ajax, Ontario address to St. Michael's Hospital in June, 2019 and he and the mother have given social assistance two separate addresses throughout 2019 – neither being an address that had been provided to the society.

c) He and the mother have been claiming as single dependants to get increased social assistance throughout 2019, even though M.M.'s father testified that they have been together 90% of the time. When he was asked if he told social assistance that they were living together 90% of the time, M.M.'s father answered, "no, how were we supposed to tell them"?

d) He is collecting social assistance even though he testified that he was earning $300 to $400 a week as a truck driver. He later said that he is not working every week. It is highly unlikely that he has reported this income to social assistance.

e) His evidence about his employment kept changing. In his trial affidavit, he said he was working part-time. In his oral testimony, he claimed that he wasn't working, but when the inconsistency was put to him, he claimed that he was taking jobs in the city. This was a common pattern where his evidence shifted when confronted with inconsistencies.

f) He unsuccessfully opposed a mid-trial motion for production of his recent hospital records. Those records revealed that he told a treating physician that he had used a line of crack cocaine on June 3, 2019 – the first day of trial. He did not attend court on that first day of trial.

g) He deposed in his trial affidavit that he never took or sold drugs. When confronted with this inconsistency, he tried to minimize this, claiming he had only tried cocaine 3 or 4 times, so he did not consider himself a user. He deflected some questions, at one time stating that his memory was bad and at another time stating there was a difference between using and selling. When asked if he knew what crack was, he said, "I have an inkling". The court did not consider his claims about infrequent drug usage to be credible.

h) The society made it clear to him and the mother that N.B. was not to spend overnights with them after she went to live with Y.B. on August 3, 2017. He and the mother breached this direction – N.B. was spending many nights at their home without the society's knowledge. He testified that it was right to break society rules if he felt they weren't best for N.B.

3.2 The Mother

[101] The mother was also not a reliable or credible witness.

[102] What was particularly striking about this case was the volume of excuses the mother provided the society and the court about her actions. These excuses fell into three categories. Some of them were legitimate and backed up by independent documentation. Some were clearly not plausible. And most fell into a category of seeming plausible if looked at in isolation and if one were to give her the benefit of the doubt, but became far less plausible when looked at together with the sheer number of them.

[103] These multiple excuses extended to multiple areas of concern, including N.B.'s frequent absences from school, breaking the society's direction in 2017 that N.B. not stay overnight with her, her cancellation of multiple home visits, her erratic attendance at access, her passing out on a TTC bus in August, 2017 and her troubling presentation at many access visits.

[104] N.B.'s poor school attendance was a good example of the mother providing multiple excuses. Over the course of this case the mother has given the following excuses for N.B.'s attendance:

a) The mother was suffering from gallbladder pain and was having trouble getting up on some mornings.

b) N.B. was anxious about attending a new school.

c) N.B. did not like her teacher.

d) N.B. was suffering from joint pain.

e) N.B. was suffering from severe headaches.

f) N.B. was frequently sick.

g) N.B. was up many nights and the mother didn't want to wake her up many of those mornings to go to school.

h) The mother was frequently sick.

i) N.B. did not want to go to school.

j) Many of the absences were Y.B.'s fault.

k) The mother and M.M.'s father moved to a new area and it was hard to get to the new school.

[105] The mother provided little medical evidence to back up her claims of N.B.'s illnesses. Much of what was provided in those reports was self-reported by the mother. There was no medical evidence that a doctor told the mother to keep N.B. home from school.

[106] N.B.'s poor school attendance extended over her attending two schools, making the excuses about distance and adjustment far less credible.

[107] When M.M.'s father was asked why the mother was frequently late coming to court during the trial, he said that she takes a long time to get ready in the morning. N.B. also reported to society worker Tina Hatton that her mother didn't pay attention to the time that N.B. went to bed. These are more likely the reasons for N.B.'s dismal school attendance.

[108] These absences had a significant impact on N.B. Her school marks were poor and she had several subjects marked as incomplete on her report card.

[109] Once N.B. was placed with the kin caregivers, her school attendance was excellent. She has had no health problems (other than nosebleeds that were quickly cleared up). N.B. now loves school and has many friends there. She is getting excellent marks – A's and B's.

[110] This instant improvement informs the court that the mother's blaming N.B.'s poor school attendance on N.B.'s health and dislike of school was not credible.

[111] At times during the trial, the mother was able to give detailed and comprehensive evidence about events. However, the court found that her evidence became much more evasive and imprecise (and, as noted above, contained multiple excuses) when questioned about events that placed her in a bad light, such as her housing issues, reasons for missed visits, reasons for N.B. missing school and breaking the society's direction for N.B. not to spend overnights with her after August 3, 2017.

[112] There are several other reasons the court has found that the mother is not a credible or reliable witness, including:

a) She failed to advise the society that she is living in a shelter. She claimed that she wanted to speak to the worker in May, 2019 about this but didn't have a chance. The court does not find this believable. The mother claimed to have moved into the shelter on May 16, 2019, but at a visit on May 17, 2019, she asked the society worker to fax a letter to social assistance from her landlord confirming she had been living in the landlord's residence since December, 2016 so she could get social assistance benefits. She had plenty of opportunities to be forthcoming with the society. She knew that her lack of housing was problematic and hid this problem as long as possible.

b) In her May 27, 2019 trial affidavit, the mother used her old Thornhill address. The society did not learn where she was living until the trial started.

c) The mother has claimed social assistance as a single person since December, 2016. She did not report that she was together with M.M.'s father 90% of the time during this period, which would likely have reduced her payments. She went so far as providing social assistance with a separate North York address, even though she said at trial that she was primarily living with M.M.'s father in Thornhill until May 16, 2019.

d) The social assistance worker testified that the mother claimed that the children were with her every weekend. This permitted her to get extra funds. This information was false. The mother gave the excuse that this was a mix-up as this was old information in the file given to this new worker. However, the social assistance worker was very credible, saying that the mother gave her this information and she recorded it in her notes, in quotes.

e) The social worker from the hospital that the mother attended after the TTC incident on August 2, 2017 testified that the mother told her that she had no children and had no relationship with the father of the child she was pregnant with. The mother denied saying this to her. The court prefers the evidence of the social worker who had no reason to misrepresent this evidence.

f) It became clear to the court that the mother deliberately broke the society's direction for N.B. to spend each night with Y.B. from August 3 to October 30, 2017. She hid this from the society. Her statement that she received permission for this from the society on October 4, 2017 was mentioned for the first time at trial and was not credible.

g) The mother testified that she had lost her paralegal licence and had been provided with no notice of the hearing. The law society tribunal decision was subsequently filed as an exhibit by the society and revealed a story very consistent with the pattern of events in this case. The decision sets out the following:

(i) The Law Society brought a Notice of Application on December 10, 2018 alleging misconduct by the mother.

(ii) The mother had been administratively suspended for some time due to non-payment of fees.

(iii) On January 2, 2018, the Law Society received a complaint that the mother was providing legal services while under suspension.

(iv) The Law Society investigator made multiple attempts to contact the mother at addresses she had provided.

(v) The investigator finally contacted the mother in July, 2018 and confirmed new home and email addresses for her.

(vi) The mother scheduled three interviews with the investigator and cancelled each interview on the day of the interview, claiming a medical emergency. She offered to provide medical evidence and never did.

(vii) On August 13, 2018, the investigator sent his seventh letter to the mother asking for her response to the complaint and medical evidence. This letter was returned unopened.

(viii) The mother made no further efforts to contact the Law Society or advise it of her new contact information.

(ix) The tribunal was satisfied that the mother was given notice of the hearing.

(x) The mother did not attend the hearing.

(xi) The mother was found guilty of professional misconduct by failing to cooperate with the investigation and not advising it of her new address as required to do so by the Law Society Act.

(xii) The mother's licence was suspended for one month following the end of her administrative suspension. She was also fined.

h) It is highly unlikely that the mother was unaware of the Law Society hearing. On the day of the Law Society hearing, she arrived late for her access visit, advising family service worker Pamela Dawe that she was at Osgoode Hall all day at a hearing. It is highly unlikely that this was a coincidence.

i) The mother testified that she went to Osgoode Hall a day or two after the hearing to speak to the investigator and learned that the hearing had been held. The court finds it highly unlikely that she would not have followed through and obtained a copy of the decision once it was released. It is far more likely that she was well aware of the hearing and the result and hoped that the society and the court would not learn about this. This conclusion is consistent with her pattern of deceit.

3.3 The Society Witnesses

[113] While the court questioned some of the decisions made by the society workers, it generally found their evidence to be reliable and credible.

[114] The society workers kept contemporaneous notes of events. The court found that the workers readily admitted positive qualities of the mother and M.M.'s father and tried to directly answer questions to the best of their ability.

[115] One area of concern with the evidence of the society workers was the notation by many of them of marks on the mother's face and her picking at them. These observations started in the fall of 2018. The court asked one worker why so many workers were putting this observation in their affidavits. She stated it was because Y.B. had told her that the mother breaks out in this fashion when using drugs. However, this wasn't directly stated by any worker in their affidavits. It was unfair of these workers to try and create a specter of drug use by the mother without stating why they were making these observations.

[116] The message the court wants to give is that the society should say what it means when presenting its evidence. It was disingenuous and not helpful to the court to present this evidence in this form.

[117] The evidence of the non-society professional witnesses was given in a direct and fair manner. These workers had contemporaneous notes of their observations. None of them were defensive or tried to over-state their evidence. They were confident in their observations. The court found the evidence of these witnesses to be both reliable and credible.

[118] The kin caregiver S.B. and M.M.'s foster mother were excellent witnesses. Both answered questions directly and in a fair and balanced matter. Both had clear memories of important events in the children's lives and expressed them clearly. Both showed a deep understanding of the children in their care and spoke about their issues in a kind and empathetic manner. S.B. demonstrated that she was very aware of the importance of the mother and M.M.'s father for N.B. It was apparent to the court that she has worked very hard to foster that relationship.

[119] The court treated the evidence of one society witness, the paternal aunt (L.B.), with considerable caution. It was apparent to the court that L.B. had a contemptuous view of the mother. She had reported protection concerns about the mother's alleged alcohol and drug abuse to the society, but only after having an argument with her. She did not report her concerns about the mother's alleged long-standing drug and alcohol abuse to the society before then. She never reported her brother Y.B. to the society even though she acknowledged that he was an addict. She has also acted inappropriately by recently calling M.M.'s father an ugly pig to N.B. and demeaning the mother in front of N.B.

[120] With the exception of L.B., the court preferred the evidence of the society workers, professional witnesses, S.B. and M.M.'s foster mother when it conflicted with that of either the mother or M.M.'s father.

[121] The court treated the evidence of the mother and M.M.'s father with extreme caution when it was not supported by independent evidence.

Part Four – The Finding in Need of Protection for M.M.

4.1 Legal Considerations

[122] The society seeks a finding that M.M. is in need of protection pursuant to subclause 74 (2) (b) (i) of the Act. This subclause reads as follows:

74 (2)

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

[123] The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.

[124] The risk of harm under clause 74 (2) (b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T..

[125] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See: Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754, (Ont. Fam. Ct.); Children's Aid Society of Toronto v. R.M., 2019 ONSC 2251; Catholic Children's Aid Society of Toronto v. A.T., 2019 ONSC 3191. The parties had disclosure of the relevant evidence in this case.

[126] At paragraph 94 of Children's Aid Society of Toronto v. R.M., supra, Justice Carolyn Horkins wrote the following:

94 In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.

4.2 Analysis

4.2.1 Initial Discussion

[127] The evidence was overwhelming that M.M. has been a child in need of protection from the date she was born until today.

[128] While the focus of the society's protection concerns at the outset of M.M.'s protection application was about the mother's misuse of prescription drugs, the mother and M.M.'s father's inability to get N.B. to school and their lack of insight into the protection concerns, many more protection concerns emerged throughout the case related to their stability and functioning. These included protection concerns about:

a) The mother's health issues which were adversely impacting her access.

b) The mother's struggles to properly address her health issues.

c) Descriptions of the mother zoning out, falling asleep, swaying on her feet or looking "wobbly" at several access visits.

d) The many missed access visits of the mother and M.M.'s father, as well as late attendances.

e) The inability of the mother and M.M.'s father to keep most home visits scheduled with society workers.

f) The personal instability of the mother and M.M.'s father, related to their housing and employment.

g) The secrecy and the dishonesty of the mother and M.M.'s father.

h) M.M.'s father's use of crack cocaine during the trial.

[129] A lot of time was spent during this case over whether the mother was abusing drugs. The society believes that she has been abusing prescription medication. The mother vehemently denies this has been the case.

[130] However, it is unnecessary for the court to determine this issue to find M.M. to be a child in need of protection.

[131] It became apparent to the court during the trial that the dominant theme in this case is that the mother and M.M.'s father have been unable to sufficiently function in a manner where they could adequately parent a child. They are unable to provide the minimum amount of stability, consistency and reliability that a child needs from a parent. This has placed and continues to place both children at risk of neglect and both physical and emotional harm.

[132] While the mother, and in particular, M.M.'s father, have made gains in their parenting skills during access visits, their ability to function has not improved. Rather, it seriously declined in the months up to and including the trial.

[133] The evidence also showed that the mother and M.M.'s father continue to have little insight into the protection concerns and that they have taken minimal steps to address them.

4.2.2 Neglect of N.B.

[134] N.B. was a neglected child. Her school attendance was terrible for a long period of time. The mother and M.M.'s father could not sufficiently function to get her to school on time, or at all. N.B. suffered academically. She missed opportunities for socialization. The court finds that she primarily missed school due to the neglect of the mother and M.M.'s father, not due to her own issues. Her instant turnaround in school attendance and performance and the absence of the medical issues described by the mother, once she started to live with the kin caregivers, support this conclusion.

[135] The mother also neglected to give N.B. any of her vaccinations after she was 18 months old. The mother explained that she was worried about anti-vaccination articles. She said that she knows these articles have been "debunked", but could not explain why she didn't start the vaccinations once she learned this.

[136] On October 2, 2018, the mother and M.M.'s father agreed to a finding that N.B. was a child in need of protection due to a risk of emotional harm. It is hard to believe that M.M., a vulnerable infant, would not similarly have been at risk of harm at that time.

4.2.3 – The TTC Incident

[137] On August 2, 2017, the mother passed out on a TTC bus.

[138] The mother explained that she fainted due to being pregnant, walking around all day and because of the severe heat.

[139] The evidence was clear that the mother didn't just faint. The paramedic who testified stated that the mother was unresponsive for the 52 minutes he was involved in the matter. He testified that he gave her a needle for an IV and did compression on her with his knuckle and she still did not respond. He indicated that she had sluggish pupils. The fire department showed him empty prescription bottles for painkillers, although he did not note the date on the bottles. He said that in his 29-years-experience as a paramedic he had never seen somebody faint for that period of time.

[140] The mother gave different explanations to several society workers about this incident. She told one worker that she had likely taken two extra painkiller pills accidentally, she told another worker that she had taken one or two pills and she told a third worker that she had taken just one pill.

[141] At trial, the mother claimed that she was just giving hypothetical explanations to these workers. None of these workers said that the mother had provided them with this qualification.

[142] The society, in submissions, pointed out that this incident paralleled the mother's explanation for why N.B. tested positive for drugs at birth. On that occasion, the mother also said that she might have accidentally taken prescription medication.

[143] The court finds it more probable than not that the mother took one or two additional prescription painkiller pills on August 2, 2017. It may very well be that other factors, such as the mother's pregnancy and the heat contributed to this incident, but the court finds that the mother taking additional prescription pills was a significant contributor to this serious incident.

[144] This incident created a protection concern about the mother's ability to take care of herself, let alone a child.

4.2.4 The Mother and M.M.'s Father's Health Issues and Struggles in Addressing Them

[145] Health issues on their own are not usually a protection concern. Parents can have periods where their health issues temporarily impair their parenting, but they either recover or adapt to the illness, so that they are able to adequately parent. Often, the parent obtains supports to assist them to parent the child.

[146] However, when the parent's health issues are part of a constellation of factors that are indicative that a parent cannot adequately function as a parent, then they are very relevant – particularly when they appear to be chronic and inadequately managed.

[147] The mother has been in poor health since at least 2017.

[148] The mother was in frequent pain with her gallbladder issues during 2017 and early 2018 and was often admitted to emergency departments. This was exacerbated in 2017 by her pregnancy. The mother chose not to have surgery due to risks to the child and was prescribed painkillers to be used on occasion.

[149] The mother was advised by one doctor in 2017 to see someone for consistent pain management, but she did not follow up on this.

[150] The mother had a C-section for M.M. in December, 2017 and described complications after that surgery.

[151] The mother had her gallbladder surgery in May, 2018.

[152] The mother also described an array of ailments she has had over the past two years, including frequent viruses, pneumonia, bronchitis, a concussion, dehydration and eye infections.

[153] On June 6, 2019, the mother was diagnosed with the MRSA virus.

[154] The mother also testified that she has had vision issues. She attributes the society's observations about her closing her eyes on visits and being unable to focus at times on problems with her contact lenses. She has been telling society workers since November, 2018 that she intends to get new contacts and that new glasses are on the way, but this still hasn't happened. The mother gave confusing testimony about this issue, talking at length about changing prescriptions.

[155] During the trial, the mother discussed the trauma she has suffered in her life. She described how her father was persecuted in Ukraine and how her family lived in fear. She discussed her abuse by Y.B. She talked about how she was diagnosed with depression and anxiety prior to N.B.'s birth and treated with prescription medication. During the trial, she talked about how anxious this proceeding has made her. At one point during her testimony, the mother slumped in the witness stand and became unresponsive to questions. The case was adjourned for the day. The explanation given was that the mother had a panic attack.

[156] The mother is not being treated for her anxiety although she claims she is on a waiting list to see someone. The society offered to make a referral for trauma counseling for her in 2018, but the mother does not trust the society and did not follow up.

[157] M.M.'s father has also used illness as a frequent excuse to miss access. He also used illness as a reason that he missed the first two days of trial.

[158] M.M.'s father was cancelling his visits from May 23, 2019 due to illness and twice told the worker he was going to the hospital, but didn't do this. He finally went to the hospital on June 4, 2019 and was diagnosed with the MRSA virus. He was told to bring in the mother right away for testing, but she didn't come in for testing until June 6, 2019 and she too, apparently tested positive for this virus.

[159] M.M.'s father attended at court on June 5 and 6 and told no one that he had this infectious virus. On June 7, 2019, the mother provided this information to counsel. The trial date was adjourned so that further information could be obtained as to whether the presence of the mother and M.M.'s father posed a health and safety risk to the public.

[160] The mother and M.M.'s father withdrew their consent for the society to obtain their medical records and opposed a mid-trial oral motion that day for production of them. The records ordered by the court revealed that M.M.'s father had been taking crack cocaine on the first day of trial that he did not attend.

[161] M.M.'s father's mishandling of his medical issue gives the court no confidence that he could adequately make responsible medical judgments for M.M. and this puts her at risk of physical harm.

4.2.5 The Mother's Functioning at Access Visits

[162] For the most part, the mother has had very good access visits with the children. However, a theme through this case has been how the mother has appeared at many visits.

[163] The mother has often been described as "zoning out" for periods of time and staring blankly ahead. She has been observed as struggling to stay awake and keeping her eyes open at some visits and at times has been observed as being unsteady on her feet. She has been observed on occasions as being hyper, talking quickly and incomprehensibly and moving about the access room without purpose. She has been observed slurring her words. Several society workers expressed their belief that she has attended access impaired. The society supervisor testified that the mother has patterns of high energy followed by sleepiness. These types of observations have been made by multiple workers over a period of time – increasing in frequency in 2019.

[164] S.B., the kin caregiver, described how on April 6, 2019, N.B. called the mother at 8:50 a.m. on a Saturday morning. S.B. monitors these calls. She described how the mother fell asleep during the call and started snoring. The mother did not deny this incident. She said that she was very tired, having been up much of the night.

[165] M.M.'s father testified that sometimes the mother is unfocused and assured the court that he will not leave her alone with M.M. if she is unwell.

[166] The mother has given various explanations for this behaviour. She says that she has long trips by transit to come to the society office for visits, has sometimes worked the night before and she will be tired. She blamed much of her presentation on her problems with her contact lenses – but hasn't dealt with this problem. The mother said that on one occasion she was swaying with M.M. in her arms because she was so happy, not because she was nodding off. Maybe. The worker certainly didn't think that was the case. The mother says that she has always mumbled. The court observed that this was the mother's natural speaking style. However, the court is more concerned with the fact that the workers described the mother's hyperactivity at these visits as being out of character with her character at other visits.

[167] Many of these observations of the mother were apparent during the trial. At times the mother would appear to fade out and we needed to take frequent breaks. One day had to be ended early as it was reported that the mother had fainted in the court hallway. There was the other occasion when the mother became unresponsive in the witness stand and court had to be adjourned. At other times the mother would become restless and bustle about the courtroom.

[168] The society believed that this behaviour by the mother was evidence of prescription drug misuse. Perhaps this is the case – it is unnecessary to decide this. There may be other explanations for this behaviour, including a combination of physical and mental health issues. What the court is concerned about is the behaviours themselves and the risk they could pose for M.M. The court does not think that the mother would ever deliberately hurt M.M., but this is strong evidence that M.M. is at physical risk of harm if the mother is in this condition while parenting her alone.

4.2.6 The Inconsistent Access Visits

[169] The poor functioning of the mother and M.M.'s father has resulted in many periods of inconsistent attendance at access visits. Many visits have been missed and they have often been late.

[170] The mother and M.M.'s father were told at the outset of the TAP program that this would be an opportunity for them to show that they could consistently attend access visits on time. They were told that this was an important factor in determining if they could provide the children with the stability, consistency and reliability that they needed.

[171] Despite knowing how important this factor was, the mother and M.M.'s father missed almost one-third of the scheduled visits. As with other aspects of this case, multiple excuses were provided by them. Their inconsistent access was a significant factor in the termination of their participation in this program in October, 2018. On October 2, 2018, Justice Spence ordered that the mother had to confirm whether or not she was attending her access visit the day before because of her inconsistent attendance.

[172] The attendance of the mother and M.M.'s father improved after the TAP ended, although there were still missed visits and the mother in particular would sometimes be late.

[173] However, their attendance began to decline again in April, 2019. They explained that some visits were missed due to a friend's emergency and they went to Ottawa for a week – a puzzling choice given that the trial was approaching.

[174] The mother and M.M.'s father then started missing a number of visits starting in mid-May, 2019. M.M.'s father had not seen M.M. since May 16, 2019.

[175] The missed visits coincided with the instability in the housing issues of the mother and M.M.'s father.

[176] On May 22, 2019, the society instituted a new policy that the mother had to attend 45 minutes early for visits with N.B., as N.B. was coming to visits and when the mother did not attend, it was difficult to get a driver to take her back to school. This now means that the mother has to attend at the society office before N.B. is taken out of school and brought to the office.

[177] It is very troubling to the court that with so much at stake for the mother and M.M.'s father that in the time leading up to the trial the mother and M.M.'s father struggled in this area.

[178] Also concerning is that M.M.'s father chose not to attend many visits when the mother was ill, despite being given the opportunity. He explained that the mother needed him more. It leaves the court to wonder if he will make the mother or M.M. his priority.

4.2.7 The Home Visits and Review Meetings

[179] The society needed to conduct home visits to determine if the mother and M.M.'s father could provide a safe and suitable home for the children.

[180] The evidence established that the mother and M.M.'s father have actively avoided the society's attempts to see their home.

[181] The intake worker described in detail how the mother continually cancelled home visits during 2017. The mother would frequently cancel on the day of the visits. Home visits were cancelled by the mother on February 23, March 2, April 5, May 26 and 29 of 2017. The mother only kept one scheduled home visit – on June 27, 2017. The society was also able to meet the mother on one unscheduled home visit on June 12, 2017.

[182] The intake worker also had difficulty contacting the mother as the mother's phone was often out of service.

[183] The present family service worker also testified about how the mother and M.M.'s father have avoided multiple home visits despite her persistent attempts and her emphasis to them of their importance. She has only been able to have three home visits since she took over the file in August, 2018. She testified that at the last home visit on March 1, 2019, their home was a mess. M.M.'s father's response was, "why would she assume that is where we planned to live?"

[184] The mother merely testified that she always had a good excuse to cancel these visits.

[185] The court draws an adverse inference from the mother and M.M.'s father's avoidant behaviour. It is apparent that they didn't want to show their home to the society. It is also likely that they didn't want the society to know about their living arrangements in much of 2019.

[186] It was interesting to observe how the society worker's experience in dealing with the mother in this area mirrored the experience of the Law Society investigator.

[187] The evidence shows that the mother has a clear pattern of avoidance and disorganization. This increases the risk of harm to M.M.

[188] M.M.'s father also missed important review meetings scheduled with the society to discuss his plan of care. He externalized responsibility for missing these meetings by claiming it was the society's job to send him a reminder of the meetings. When informed that the society worker had left him a voicemail reminder for one meeting, he responded, "she knows I don't check my voicemail".

4.2.8 Unstable Housing and Employment

[189] The poor functioning of the mother and M.M.'s father is reflected in their employment and housing struggles.

[190] The mother has lost her paralegal licence. It is unclear how much, if at all, M.M.'s father has been working. He said that he quit his job at the end of 2018 that was paying him over $100,000 per year prior to society involvement.

[191] The mother and M.M.'s father lost their housing after a dispute with their landlord in August, 2018. M.M.'s father lived in a truck during the rest of 2018, the mother in a shelter.

[192] The housing situation of the mother and M.M.'s father has been unclear in 2019 and they actively tried to keep the society from learning what it was. They say they were together, but they kept separate addresses and reported separate addresses to social assistance. They left the Thornhill home after another dispute with a landlord and gave contradictory evidence as to when this happened. They are now living in a shelter.

[193] The mother and M.M.'s father have been secretive and deceitful in their dealings with the society. How can the society or the court have confidence in their parenting abilities when they are evasive, deceitful and untruthful about such matters as their health, employment, M.M.'s father's drug use and their housing?

[194] The court wants to emphasize that poverty by itself is not a protection concern. However, the main protection concern in this case is the poor overall functioning of the mother and M.M.'s father and their resultant inability to provide the children with the minimum amount of stability, consistency and reliability that they require. The housing and employment issues are amongst the many indicia of this poor functioning.

4.2.9 M.M.'s Father's Crack Cocaine Use

[195] The use of drugs will usually not be a protection concern unless there is some link to the parent's parenting. See: Catholic Children's Aid Society of Toronto v. A.V., [2010] O.J. No. 5835 (OCJ); Children's Aid Society of Toronto v. T.L., 2018 ONCJ 691.

[196] M.M.'s father adamantly denied throughout this case that he ever uses drugs.

[197] That statement was proven false with the production of his hospital records from June 4, 2019.

[198] The court does not believe M.M.'s father's evidence that he has only tried cocaine 3 or 4 times. He never stated this before and it appeared to be a poor attempt to control the damage of him being caught using drugs.

[199] It also stretches credulity that the mother, who was with M.M.'s father on June 3, 2019, was unaware of his drug use – particularly since the court does not find the mother to be a credible witness.

[200] What is jarring about this evidence is that M.M.'s father was taking crack cocaine instead of coming to court on the first day of trial. How can he possibly expect the court to find that he can meet M.M.'s needs when he acts in this manner?

[201] When M.M.'s father did not attend at court on one of the most important days of his child's life – the start of the trial to determine her future home, and instead was home taking crack cocaine, there was a direct link between his drug use and parenting.

4.2.10 – The Mother and M.M.'s Father's Attendance at Court

[202] Another indicator of the poor functioning of the mother and M.M.'s father was their erratic court attendance.

[203] Neither the mother nor M.M.'s father attended court on the first day of trial or contacted anyone to say that they couldn't attend. The mother said she was sick and slept in and only woke up at 1 p.m. – again, on what should have been one of the most important days of her children's lives.

[204] M.M.'s father did not attend the second day of the trial. He did not contact anyone. The mother came to court 35 minutes late.

[205] On the third day of trial, the mother and M.M.'s father both arrived 75 minutes late.

[206] On occasion during the trial, M.M.'s father would arrive at court on time and the mother came later.

[207] The court attendance of the mother and M.M.'s father improved as the trial went on, although they were late again on the final day of trial.

[208] During the trial, the court constantly emphasized to the mother and M.M.'s father the importance of coming on time. Despite knowing how important this was, they still could not consistently come on time. Combined with the other risk concerns, this was very informative to the court. If they can't even get to court with everything at stake, how will they be able to get M.M. to school, medical appointments and to any of her activities?

[209] The risk of M.M. suffering the same instability experienced by N.B., particularly the neglect of her schooling needs, remains just as high today, if not higher, than on the day she came into society care.

4.2.11 – Conclusion on Finding for M.M.

[210] For the numerous reasons set out above, the court finds that M.M. is a child in a need of protection pursuant to subclause 74 (2) (b) (i) of the Act.

[211] Also for these reasons, if the request had been made, the court would have found M.M. to be a child in need of protection pursuant to clause 74 (2) (h) of the Act (risk of emotional harm).

Part Five – Disposition – Legal Considerations

[212] Subsection 101(1) of the Act provides that where a court finds that a child is in need of protection, it must first satisfy itself that intervention through a court order is necessary to protect the child in the future.

[213] Subsection 101 (8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act.

[214] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[215] In determining if a protection order is necessary to protect the child in the future, the importance of emotional ties between a child and the child's caregiver are an important consideration. In Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2. S.C.R. 165, the Supreme Court expressed, at para. 37, that the Child and Family Services Act "seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the time recognizing that the best interests of the child must always prevail". Because of this goal, the best interests of the child is "an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[216] If a court order is determined to be necessary to protect a child in the future, the court shall make one of the orders set out in subsection 101 (1) or section 102 of the Act in the child's best interests. These read as follows:

Order where child in need of protection

101 (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 102, 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.

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody 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 a total of 12 months.

102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (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.

[217] The mother is seeking an alternative disposition of an extension order for an interim society care order under subsection 122 (5) of the Act for M.M. Section 122 of the Act sets out the time limit for making an interim society care order. It reads as follows:

Expiry of Orders

Time limit

122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding,

(a) 12 months, if the child is younger than 6 on the day the court makes the order; or

(b) 24 months, if the child is 6 or older on the day the court makes the order.

Calculation of time limit

(2) The time during which a child has been in a society's care and custody pursuant to the following shall be counted in calculating the period referred to in subsection (1):

1. An agreement made under subsection 75 (1) (temporary care agreement).

2. A temporary order made under clause 94 (2) (d) (custody during adjournment).

Previous periods to be counted

(3) The period referred to in subsection (1) shall include any previous periods that the child was in a society's care and custody under an interim society care order made under paragraph 2 of subsection 101 (1) or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society's care and custody.

Deemed extension of time limit

(4) Where the period referred to in subsection (1) or (5) expires and,

(a) an appeal of an order made under subsection 101 (1) has been commenced and is not yet finally disposed of; or

(b) the court has adjourned a hearing under section 114 (status review),

the period is deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 114, as the case may be.

Six-month extension

(5) Subject to paragraphs 2 and 4 of subsection 101 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

[218] Section 122 is relevant for M.M., as she has now been in care for almost 19 months – beyond the 12-month time limit for a child under 6 years of age. Section 122 does not apply to N.B. as she is not in society care.

[219] There is conflicting case law as to whether the court has jurisdiction under subsection 122 (5) of the Act to extend an order for a child to remain in the interim care of the society for more than 6 months in excess of the statutory limits set out in subsection 122 (1). It is unnecessary for the court to review this conflicting law as the evidence does not come anywhere close to supporting a finding that an extension order is in M.M.'s best interests – even with the most liberal interpretation of subsection 122 (5).

[220] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part V of the Act.

[221] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[222] Subsection 101 (4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.

[223] In determining the appropriate disposition, the court must decide what order is in the children's best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

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.

[224] In Children's Aid Society of Toronto v. S.B., 2014 ONCJ 518, this court discussed the importance of a parent providing a child with a safe, stable and secure home as follows:

[112] The major protection issue is the mother's ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.

[225] An order placing a child in the extended society care of the society is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton- Wentworth v. G. (J) (1997), 23 R.F.L. 4 th 79 (SCJ- Family Branch).

[226] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused. See: Children's Aid Society of Toronto v. D.S..

[227] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H..

Part Six - Is Intervention Through a Protection Order Required to Protect the Children in the Future?

[228] Subsection 101 (1) requires the court to ask this question before turning to the disposition options in the Act. If the answer is no, then each child must be returned to the person who had charge of them prior to society intervention under Part V of the Act.

[229] For all the reasons set out in Part 4.2 of this decision, and the reasons that will follow below, the court finds that intervention through a protection order is required to protect both children in the future.

Part Seven - The Children

[230] The children were described in glowing terms by the mother, M.M.'s father and many society witnesses.

[231] N.B. was described as lovely, bright, energetic, thoughtful and kind. She likes to make gifts for her friends and family. She has won two awards at school for kindness.

[232] N.B. is doing excellently at school and is involved in many activities. She enjoys being involved in Girl Guides and the Boys and Girls Club. She has been described as being very artistic and went to a visual arts program last year.

[233] N.B. is a healthy and happy child.

[234] N.B. has attended individual counseling at Yorktown Child and Family Centre.

[235] N.B. loves her mother very much and enjoys her time with her. She discusses matters openly with her.

[236] N.B. also loves M.M.'s father and enjoys spending time with him.

[237] N.B. and M.M. love each other and their time together.

[238] M.M. was described as a "spectacular little girl". She is a healthy and happy child and was described as having a lovely and tenacious personality. She loves music and dancing.

[239] M.M. is meeting all of her developmental milestones.

[240] M.M. enjoys her time with her parents. She recognizes them and is excited to see them. She interacts very well with both of them.

Part Eight - Services Provided by the Society for the Mother, M.M.'s Father and the Children

[241] The society has provided the following services for the mother, M.M.'s father and the children:

a) It referred the mother to the Jean Tweed Centre in 2017. This service provider offers parenting programs, counseling and addiction services. The mother went to their Moms and Kids Too program with M.M. during January and February of 2019.

b) It provided the mother and M.M.'s father with the intensive TAP program in 2018.

c) At the conclusion of the TAP program, referrals were offered to the mother for trauma therapy and the society indicated it could make referrals for her to deal with her pain and stress management. The mother chose not to follow up on these offers, as she had lost trust in the society.

d) The family service worker offered to speak to the mother's housing worker at her shelter, but the mother did not accept this offer. She explained that she did not want the society dealing with her service providers.

e) It provided a kinship worker to assist the kin caregivers and help navigate any issues between them and M.M.'s father and the mother.

f) It convened a Family Group Conference to explore plans for the children.

g) It provided a Russian interpreter for M.M.'s father in January, 2019. The society has observed that M.M.'s father has been less frustrated and has communicated better with it since the interpreter was obtained.

h) It provided family service workers for the mother and M.M.'s father. However, the mother and M.M.'s father were not well-served by having 3 different family service workers (and for a time the society supervisor for coverage) during this case. Further, one of the workers went on leave just before M.M.'s birth, creating considerable communication challenges for the mother and M.M.'s father at an important juncture of this case. Some of the problems caused by these changes of workers were as follows:

(i) The mother and M.M.'s father were under the impression that if M.M.'s meconium testing was negative, that it was likely she would be returned to their care. The worker who went on leave said that wasn't the case. If she had stayed on the case she could have given clearer messaging to M.M.'s father and the mother.

(ii) It was unclear what the negative meconium testing meant in terms of drug use. The mother said that her worker initially said it would show that she had been clean of drugs for up to 3 months. After M.M. was born, the worker then told her that it only showed that she was clean from drugs for 2-3 days. The mother told her that her own research said it showed that she was clean from drugs for 4 to 5 months. The worker went back to her medical director at the society (it is unclear whether he is a doctor) who said there was conflicting information about this and that the worker should check with a toxicologist.

(iii) The worker said that she left a voice-mail with a toxicologist, but the call wasn't returned. Shortly after, the worker went on leave. She said that she didn't discuss the matter with the next family service worker. She assumed that her supervisor or the next family service worker would read her recordings and follow up. No one ever did.

(iv) The first family service worker stressed the importance to the mother of attending the Jean Tweed Centre. The second family service worker said she thought that the Jean Tweed Centre would help the mother, but only if she wanted to attend (which she was resisting). She thought it was more important for the mother to attend to her health issues. The mother interpreted this to mean that it was no longer necessary for her to go to the Jean Tweed Centre. The third family service worker then expected the mother to attend the Jean Tweed Centre. It is not surprising that the mother did not attend this program until January, 2019.

i) The society provided child service workers for both children.

j) Counseling was arranged for N.B. at Yorktown Child and Family Centre.

[242] The mother and M.M.'s father are to be credited for obtaining some services on their own. They arranged and attended the Nobody's Perfect parenting program. The mother also contacted CAMH and the PARC programs. She said that she attended for an addictions intake interview and was advised that she did not need to attend the program. She followed up with the Jean Tweed Centre program and started it in January, 2019.

[243] The mother and M.M.'s father submit that the society failed in its obligation to provide them with services. The court does not agree. While the court would have liked to have seen the workers be more proactive in assisting the mother and M.M.'s father with getting services, appropriate services were offered and many were turned down. M.M.'s father and the mother had a reciprocal obligation to take the necessary steps to address the protection concerns.

Part Nine - Community or Family Plans

[244] The society found and supported an excellent family plan for N.B.

[245] The society rejected an early community plan for M.M. proposed by the mother. The court received little evidence about this plan.

[246] No further community or family plan was put forward by the mother or M.M.'s father for M.M.

Part Ten – Assessment of the Plans of Care

10.1 The Society's Plans of Care

10.1.1 N.B.

[247] The society's plan is for the kin caregivers to have custody of N.B.

[248] The evidence indicates that N.B. has thrived in the care of the kin caregivers. Her academic turnaround was remarkable once she came into their care. N.B. enjoys school and has many friends.

[249] S.B. testified and showed she was very attuned to N.B.'s needs and committed to meeting them.

[250] The kin caregivers provide structure and rules for N.B. and she has responded well to this.

[251] The kin caregivers have N.B. involved in many activities that she enjoys.

[252] N.B. feels safe, secure and loved in the kin caregivers' home.

[253] N.B. has also developed positive relationships with the extended paternal family.

[254] The society's kinship worker testified that S.B. is highly committed to supporting N.B.'s relationship with her mother and M.M.'s father. The court listened to S.B. and came to the same conclusion. She has done an excellent job in difficult circumstances putting N.B.'s needs first – including her need to spend meaningful time with her mother and M.M.'s father.

[255] N.B. is finally achieving her potential with the kin caregivers.

10.1.2 - M.M.

[256] The society's plan is to have M.M. placed in extended society care for the purpose of adoption.

[257] The society's adoption worker testified that M.M. is very adoptable. She says that a number of families are viable candidates to adopt her.

[258] The adoption worker testified that the society would search for a family with a cultural match for M.M.

[259] The adoption worker also said that the society would reject any adoptive family that was not supportive of sibling access between M.M. and N.B. The society would also seek an adoptive family that was amenable to an openness order for future contact between M.M. and her parents.

10.2 Plan of the Mother and M.M.'s Father

[260] The mother and M.M.'s father support any plan that places the children back in the care of at least one of them. They would prefer that the children be placed in their joint care, but if required, the mother is prepared to move out of the home so that one or both children can live with M.M.'s father.

[261] The mother testified that their plan is to move into a Family Residence Shelter if the children are returned to their care. The mother and M.M.'s father would then look for suitable housing. The mother testified that she believes it would only take a few days to obtain a placement in a Family Residence Shelter.

[262] M.M.'s father testified that he would like to go back to work as soon as "he can shake CAS from his tail". He also said he is prepared to stay off work to look after the children.

[263] The mother testified that she hopes to find a daycare so that she and M.M.'s father can go back to work. She expressed confidence that she and M.M.'s father could quickly find work – "it's never been a problem", she said. She expects little difficulty restoring her paralegal licence.

[264] The mother provided the name of a doctor that she would take the children to.

[265] The mother hopes to keep N.B. in her present school. She also wants to keep her in Girl Guides and have her do a physical activity like gymnastics.

[266] The mother and M.M.'s father said that they have many friends and family who can help support their plan and provide parenting relief when needed.

[267] The mother said that she would ensure that N.B. continues to see the kin caregivers and that M.M. continues to see her foster parents.

[268] The society and counsel for N.B. submitted that this plan of care is very thin, unrealistic and doesn't meet the needs of either child. It was described as a "plan to have a plan". The court agrees with this submission.

[269] It was very revealing that when M.M.'s father was asked in cross-examination about whether he would sign consents to let the society speak to the children, he answered, "they don't need it. We are not planning to take the children, we are nowhere near it". The court agrees with this candid comment.

[270] There are numerous deficiencies with the plan of the mother and M.M.'s father including:

a) They presently have no residence for the children. They acknowledged that the children cannot live in their current shelter. They provided no independent evidence about how long it would take for them to get into a Family Residence Shelter.

b) M.M.'s father said that he and the mother have not put their names on the waiting list for subsidized housing as this takes 3 to 7 years. He was asked if he has worked with the shelter's housing worker and he said, "there was nothing good with her".

c) There is no evidentiary basis to believe that the mother and M.M.'s father will be able to find suitable housing for the children. They have left their last two residences after disputes with their landlords. M.M.'s father lived in a truck for most of the fall of 2018. The mother has spent much of the past year in shelters.

d) The plan was very unclear about who would stay home with the children. Both the mother and particularly M.M.'s father expressed a desire to return as soon as possible to work.

e) The plan was very unclear about who would care for the children if and when the mother was too ill – particularly since if M.M.'s father works again as a driver he will likely be unavailable most of the time. The mother and M.M.'s father provided no information about who their supports would be. No one came to testify at trial on their behalf. Both the mother and M.M.'s father stated that this is because they did not want the society to become involved with any of these people.

f) The mother and M.M.'s father had proposed at the Family Group Conference in January, 2019 that the mother's friend could come from Ukraine to assist them. However, this plan poses an array of issues, including:

(i) Where would this friend live? It is unlikely that she can stay at the Family Residence Shelter.

(ii) Can this friend obtain immigration eligibility to come to Canada, and if so, when and for how long?

(iii) The friend has a 9-year-old child. How does she fit into the plan?

g) The mother's optimism about restoring her paralegal licence is misplaced. This will be a difficult process. She will need to clear up her administrative suspension, pay costs, possible fines, and cooperate with the Law Society about the initial complaint before her licence can be restored. The mother has shown no inclination to take any of these steps to this point.

h) The mother and M.M.'s father were unclear about where N.B. would attend school in September. The mother expressed a preference not to change N.B.'s school, but provided no evidence that she will be able to find a suitable residence close to N.B.'s present school. If she lives at a distance from this school so that N.B. can't walk there herself, history has shown that she will be unable to regularly get N.B. to school.

i) At the Family Group Conference held in January, 2019, the society asked M.M.'s father to take the necessary steps to ensure that his home was safe for M.M. He did not take these steps. When asked why, M.M.'s father answered, "by then I realized what CAS was – I didn't want to do anything for nothing. Buying, purchasing anything was pointless".

Part Eleven – Views and Wishes of the Children

[271] Subsection 74 (3) of the Act now mandates that the court in determining the best interests of a child must consider that child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[272] M.M. is too young to verbalize her views and wishes. She enjoys spending time with her parents and is excited to see them. She loves N.B.

[273] N.B. has expressed consistent views and wishes for over one year that she wants to live with the kin caregivers and continue to see the mother and M.M.'s father regularly. She also wants to continue to see M.M.

[274] N.B. has expressed concern to the society's family service worker that she doesn't like when the mother asks her questions about adult stuff and won't stop asking them.

[275] The mother and M.M.'s father submitted that N.B.'s views and wishes have been guided by the society and the kin caregivers. They point to the incident where L.B. called M.M.'s father ugly and demeaned the mother. While inappropriate, this does not support the finding that the mother and M.M.'s father seek. To the contrary, the evidence supports a finding that the kin caregivers have worked very hard to support N.B.'s relationship with the mother and M.M.'s father. This was the observation of the kinship worker and this court's assessment after hearing from S.B. N.B. has expressed her feeling to the society that she does not feel pressured by the kin caregivers.

[276] The evidence indicates that N.B. is a mature, considerate and thoughtful child. She has been able to articulate both positive and negative observations about the mother, M.M.'s father and the kin caregivers. Her views and wishes should be given considerable weight.

[277] N.B.'s views and wishes are also fully understandable. Her needs were neglected by a mother who was struggling to meet her own needs. According to the mother, N.B. was stressed and anxious in her care. All of her physical and emotional needs are now being met. Any anxiety that N.B. had in the mother's home is gone. She feels safe and secure in the kin caregivers' home. Although she always felt loved by the mother, she did not always feel well-cared for.

[278] The court is concerned that the mother and M.M.'s father have been unable to accept N.B.'s clear views and wishes. It shows a lack of respect for the child's feelings and an inability to understand or accept why she feels the way she does.

Part Twelve – Strengths of the Mother and M.M.'s Father

[279] The evidence revealed that the mother and M.M.'s father have strengths as parents.

[280] The mother has the following strengths:

a) She loves her children very much.

b) When she has attended access, the visits have generally been positive.

c) She is loving and affectionate with both children.

d) She promotes a healthy sibling relationship.

e) She is aware of the likes and dislikes of both children.

f) She is calm and patient with the children. She never loses her temper.

g) She praises the children.

h) She has a very comfortable relationship with N.B. They talk freely with each other. The mother shows interest in her and N.B. loves talking to her about what is happening in her life.

i) She has been able to put N.B.'s needs over her own by rearranging her access to allow N.B. to go to special events and on vacations with the kin caregivers.

j) She has shown that she can take care of M.M.'s instrumental needs such as changing her and feeding her.

k) She has improved in reading M.M.'s cues at visits. This was a criticism of her in the TAP program. Subsequent workers have observed that her parenting has improved in this area.

l) She is able to calm M.M. when M.M. is distressed.

m) She takes interest in and joy in M.M.'s development.

n) She works very well as a team with M.M.'s father in parenting the children at access visits.

o) She has consistently been civil and respectful with society workers. She was described as pleasant to work with. She has been able to do this even though she has often felt frustrated in this process. This speaks highly to her ability to regulate her emotions in difficult circumstances.

p) She is always interested in the society's expectations of her and will ask what she can do to improve. She asks appropriate questions of the workers.

q) She actively participated in Plan of Care meetings with the society.

r) She developed an excellent relationship with M.M.'s foster mother. She expressed appreciation for everything the foster mother has done. She communicates regularly about M.M. in a communication book.

s) S.B. testified that the mother is always pleasant and courteous with her. She said that the mother was very forthcoming about medical information about N.B.

t) She takes pride in her culture, religion and heritage and shares it with the children.

[281] The evidence also showed that M.M.'s father has strengths including:

a) He loves M.M.

b) He considers himself a parent for N.B. and loves her.

c) When he attends access, his visits with both children are positive.

d) He plays very well with both children.

e) He is kind and gentle with the children. He never loses his patience with them.

f) He praises the children.

g) He promotes a healthy sibling relationship.

h) He initially let the mother take the lead at access. It has been observed that his parenting skills have improved since he was given the opportunity to take the lead in parenting M.M. on visits. He has made gains in understanding child development.

i) He has shown interest in learning parenting skills.

j) He is skilled at comforting M.M. when she is upset.

k) He takes joy in watching M.M.'s development.

l) He has a very easy-going relationship with N.B. They like to joke with each other and enjoy each other's company.

m) Although he has sometimes been frustrated and expressed considerable disdain for the society at trial, he has been pleasant and civil with society workers.

n) He has been civil and cordial with M.M.'s foster mother.

o) He works well with the mother when parenting the children during access visits.

p) He takes pride in his culture, religion and heritage and shares it with the children.

Part Thirteen – Reasons Why Neither Child Can Be Placed with the Mother or M.M.'s Father

[282] The evidence indicated that the mother and M.M.'s father have, for the most part, become good access parents in a supervised setting when they attend the visits.

[283] However, the risks of returning either child to the care of both or one of them remain far too high.

[284] Most of the risk concerns have been detailed in Part 4.2 above, but will be reviewed here as follows:

a) The mother and M.M.'s father have been unable to consistently function well enough to provide the children with the minimum amount of stability, security and reliability to meet their basic needs. At this point, neither parent is functioning nearly well enough to parent a child.

b) The lives of the mother and M.M.'s father continue to be unstable and chaotic. Their employment and housing status has been a moving target. They have been dishonest with the society about these issues. M.M.'s father took crack cocaine on the first day of trial and didn't come to court for the first two days. The mother didn't come to the first day of trial, claiming she slept in.

c) Minimal steps have been taken by the mother or M.M.'s father to address why they are not functioning well. The mother does not have a regular doctor. She should be exploring if previous mental health issues – such as anxiety and depression - have resurfaced. She has not engaged in trauma counseling to address the trauma she says that she has suffered in her life. M.M.'s father should be exploring why he missed the first two days of trial and was taking crack cocaine.

d) The issues that led to N.B. being neglected have not been adequately addressed. The mother and M.M.'s father are still inconsistent in attending access. They have been avoiding home visits and have been unable to keep other important appointments – such as review meetings or meetings with the Law Society investigator. The mother and M.M.'s father could not get to court for the trial consistently. The court has no confidence that anything would change if the children were returned to their care. Both children would be at high risk of having their needs neglected – particularly their schooling and medical needs.

e) M.M.'s father demonstrated absolutely no insight into the protection concerns at trial. He has decided to turn a blind eye to very serious problems. He is not concerned about very evident problems with the mother. He would like to return to work as soon as possible. This means that the mother would be alone with the children. He feels there is no basis for society involvement. He wants to "shake them from his tail". This has not changed throughout the case. He expressed a contemptuous view of the society at trial. He feels that the society has done everything to destroy his family. He said, "when CAS became involved I had housing, two cars, the mother was at home, look at where we are now with your society". He took no responsibility for his change in circumstances. This perspective makes him a poor candidate to be protective of the children and to make any meaningful change.

f) M.M.'s father also showed no insight into his drug use on the first day of trial. He minimized this and didn't think it was relevant.

g) The mother has also shown limited insight into the protection concerns. She said that she made mistakes with N.B. in not getting her to school regularly, but demonstrated little understanding of the basis for those mistakes. She continued to rationalize N.B.'s attendance record at trial, attributing much of the blame to Y.B., N.B.'s teacher and to the child herself. She has limited insight into how her health challenges (physical and perhaps mental or emotional) have impacted her poor functioning.

h) The mother also minimized M.M.'s father's crack cocaine use and stated that she believed him about his level of drug use and had no concerns about his parenting the children on his own if necessary.

i) Children need parents who will exercise good judgment. The mother and M.M.'s father do not exercise good judgment. Their poor judgment was evident in the court's analysis set out in Part 4.2 above. That analysis described their poor decision-making regarding N.B.'s school attendance, their breach of the society direction that N.B. not stay overnight with them while she lived with Y.B., their avoidance of home visits by the society, misuse by the mother of prescription drugs on August 2, 2017, their decisions to miss many access visits, the mother's poor management of her health issues, their deception around housing and employment issues and M.M.'s father using crack cocaine on the first day of trial. Additional evidence of the poor judgment of the mother and M.M.'s father that came out in the evidence includes the following:

(i) The mother keeping N.B. home from school on some Mondays in 2016 and 2017 so that they could go to the lake. This was at a time when N.B. was floundering academically. At trial, the mother still showed little understanding about why this was an important concern, saying that school isn't everything, children need to have fun too.

(ii) The mother deposed that on or about October 28, 2017, when she went to drop off N.B. with Y.B. for the weekend, Y.B. was drunk, violent and he sexually assaulted her (the mother). She said that he passed out and she then waited three to four hours for him to wake up instead of just leaving with N.B. She then left N.B. with him. It was apparent that the mother did this because she was afraid that Y.B. would inform the society that she had been breaching its rules about where N.B. was supposed to live. This decision placed N.B. at serious risk of harm.

(iii) M.M.'s father chose to stay with the mother whenever she was ill and not see the children at access visits.

(iv) M.M.'s father showed very poor medical judgment in how he recently handled his MRSA virus, potentially putting other people at risk.

(v) The mother did not take advantage of many service referrals offered by the society.

(vi) The mother has improperly pressured N.B. to live with her. This resulted in her access becoming fully supervised in February, 2019 and caused stress to N.B. The mother put her own needs ahead of N.B.'s.

(vii) The mother and M.M.'s father have unnecessarily put N.B. through the anxiety and uncertainty of this trial when it should have been apparent to them that she was thriving and doing well in her placement. They showed no appreciation of the impact this process might have on her. They put their own needs ahead of N.B.'s.

[285] As set out in Part 10.2 above, the mother and M.M.'s father have been unable to provide a viable plan for the children.

[286] The court has also considered that the mother and M.M.'s father are only having supervised access with the children. It would be irresponsible for a court to return the children to the care of M.M.'s father or the mother until they could demonstrate that they could adequately parent the children without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place the children with either M.M.'s father or the mother without first testing whether they could adequately parent the children, 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 6 to 9 months for the court to effectively evaluate whether a return of a 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 without supports on an extended basis. The time to attempt extended access in this manner has long passed.

[287] The court is required to choose the least disruptive disposition alternative consistent with the best interests of a child and must consider if a supervision order would be adequate to protect either child.

[288] The response to that option in this case is a definitive no.

[289] The court finds that the risk concerns remain far too high to be adequately addressed with a supervision order.

[290] Further, for the court to make a supervision order, it would need to be confident that the mother and M.M.'s father would comply with the order. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196, and this court's comments in Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227.

[291] The court has no confidence that either M.M.'s father or the mother would consistently cooperate with a supervision order. Numerous examples have already been set out about their deceitful behaviour with authorities, including the society, the Law Society and social assistance. M.M.'s father testified that he felt it was acceptable to break rules if he felt it was best for the children. He says that he does not work with the society's family service worker because he does not believe that she has any authority. He stated that the society is evil. His hostility towards the society informs the court that he will do what he chooses, not what the court orders.

Part Fourteen – Should an Extension Order Be Granted Under Subsection 122 (5) of the Act for M.M?

[292] It must be in a child's best interests for the court to make an extension order pursuant to subsection 122 (5) of the Act enabling it to make the child an interim society ward beyond the time limit set out in subsection 122 (1).

[293] It is definitely not in M.M.'s best interests to make an extension order.

[294] As stated by M.M.'s father, he and the mother are nowhere near ready to have M.M. come home.

[295] The evidence does not give the court any confidence that M.M.'s father and the mother will be able to adequately parent M.M. for the foreseeable future.

[296] M.M. needs to move forward with her life. It is important for her long-term development that she be placed in a permanent adoptive home. Every day that is lost at this point compromises her future.

Part Fifteen – Summary of Best Interest Considerations

[297] In addressing the relevant clauses in subsection 74 (3) of the Act, the court finds that:

a) The society's plan for N.B. is consistent with her independent views and wishes that should be given considerable weight due to her age and maturity.

b) The society's plan will better meet the children's physical, mental and emotional needs.

c) The society's plan will better meet the children's physical, mental and emotional level of development.

d) The society's plan will better meet the children's needs for continuity and stability - in the case of N.B., through an excellent family placement and in the case of M.M., by a stable place in a family through adoption.

e) The risk of placing either child with the mother and M.M.'s father is unacceptably high. The children would be moving from stable environments to an unstable environment.

f) The society's plan will better address the children's needs than the plan proposed by the mother and M.M.'s father.

g) The society's plans for the children are the only realistic plans.

h) This case should not be delayed any further and the children should receive a permanent home as soon as possible.

[298] The least disruptive disposition, consistent with M.M.'s best interests, is to place her in the extended care of the society.

[299] The least disruptive disposition, consistent with N.B.'s best interests is to place her in the care and custody of the kin caregivers pursuant to section 102 of the Act.

[300] The court also finds that it is in N.B.'s best interests to order the incidents of custody sought by the society and counsel for N.B. It is in her best interests that the kin caregivers be able to obtain her documentation and to travel with her without complication. The evidence indicates that at times, the mother and M.M.'s father can be difficult to contact. They have also been inconsistent in this case in providing timely consents.

Part Sixteen – Access

16.1 – Legal Considerations

[301] Section 104 of the Act sets out the court's powers in relation to access. It reads as follows:

104 (1) – Access order

The court may, in the child's best interests,

a) When making an order under this Part; or

b) Upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[302] Subsection 105 (4) of the Act states that where the court makes an order that a child be placed in extended society care, any order for access is terminated.

[303] Subsection 105 (5) of the Act sets out that in considering the issue of access to a child in extended society care, the best interests of the child is the test. The court may not order access to such a child unless it is satisfied that the order would be in the child's best interests.

[304] Subsection 105 (6) of the Act sets out additional factors to be considered in determining whether an access order would be in the best interests of a child in extended society care. These are:

a) Whether the relationship 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.

[305] The approach to access for children placed in extended society care has significantly shifted as a result of the passage of the Act in 2017. It is now a best interests test. Whether the child's relationship with a parent is meaningful and whether access would impair the child's opportunities for adoption while important, are only two of many factors to consider. The presumption against access under the Act's predecessor (the Child and Family Services Act) no longer applies. See: Kawartha- Haliburton Children's Aid Society v. M.W., 2019 ONCA 316.

[306] In Children's Aid Society of Toronto v. J.G., 2019 ONCJ 333, this court wrote the following in paragraphs 81-88:

[81] When a court considers a child's best interests it should consider all relevant factors, whether they be past, present or future considerations. That is what courts do in making custody and access decisions - there is a predictive element in all of these decisions. There is no need for a court to confine itself to past or present circumstances in conducting its analysis. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. The more expansive analysis will permit courts to make the best possible decisions for children.

[82] The new access test should also not be interpreted in a vacuum. It is the natural progression in the evolving approach towards the relationship between parents and their children who are placed in permanent care, as well as to how we view these relationships post-adoption. These changes are best reflected in the amendments increasing the availability of openness orders for families.

[83] These legislative changes, that began incrementally under the CFSA and which have been expanded in the CYFSA, reflect a reality that an outright severance of a parent-child relationship is not always appropriate and often not in a child's best interests.

[84] The Act envisions that access orders will sometimes change to openness orders. There is no need to ignore that reality. This is reflected in subsection 105 (7) of the Act that mandates the court to name who is an access holder and who is an access recipient when it orders a child to be placed in extended society care. The importance of this subsection is that only an access holder has the right to bring an openness application, if and when the society files a notice of intent to place a child for adoption under section 195 of the Act.

[86] It is also consistent with the commentary in Kawartha to consider the potential benefits of an access order that may (or may not) transition into an openness order in determining a child's best interests – the Act should be looked at as a whole. Its components should not be artificially put in silos. Whether these benefits are assessed under the beneficial and meaningful consideration or as part of the more general best interests considerations is really just a matter of form and not substance.

[87] At any openness hearing, the best interests of the child will again be the primary consideration. If an openness order is not in the child's best interests, contact with the access holder will end. At this point, the court is not considering the benefits of an openness order – rather it is merely recognizing that it doesn't have to disregard the future benefits of access just because a custody order terminates when a notice of intention to place a child for adoption is served on the parent – the openness option will still be available.

[88] While the onus is still on the mother to satisfy the court that an access order is in the child's best interests, there is no longer a presumption against access and the court is not constrained by the narrow pre- CYFSA case law in making this determination.

[307] This court also commented in paragraph 95 of J.G. that when we are discussing the future of a 15-month-old child, this factor will almost always be relevant. Permanency planning, which would be adoption in this case, should not be delayed for the child.

[308] A child can now be placed for adoption when there is an existing access order.

[309] In paragraphs 166 to 169 of Children's Aid Society v. A.F., 2015 ONCJ 678, this court discussed the attributes of a parent that would impair a child's future opportunities for adoption. They are as follows:

[166] The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

[167] The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

[168] The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

[169] The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

[310] The phrase "impair the child's future opportunity for adoption" means more than just impairing a child's opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369.

[311] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters, won't, and will be ordered. See: Children's Aid Society of Toronto v. C.J., 2014 ONCJ 221; Catholic Children's Aid Society of Toronto v. S.B., 2013 ONSC 7087; Children's Aid Society of Toronto v. J.G., supra.

[312] The challenge in making an access order for a child in extended society care is finding the fine balance between what will preserve a relationship in the best interests of the child and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the child in their new adoptive home. See: Children's Aid Society of Ottawa v. J.B., 2017 ONSC 1194.

[313] The jurisprudence has established that there are qualitative differences in the amount of contact a party will have with the child before and after an extended society care order is made, and then again after a child is placed for adoption and an openness order is made. The granting of an extended society care order means the end of any effort to return the child to the parent's care. Part of the reason for access prior to an extended society care disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After an extended society care disposition, the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. See: Native Child & Family Services of Toronto v. J.E.G., 2014 ONCJ 109; Children's Aid Society of the Region of Peel v. A.R., [2013] O.J. No. 2969 (OCJ).

[314] Openness allows for a form of contact by the biological parent or member of the biological family post-adoption. After an adoption order is made, the parent-child relationship that previously existed between the child and her biological parents and which was terminated by the extended society care order becomes vested in the adoptive parents. Thus, it is not the parent-child aspect of the relationship that is being continued post-adoption by way of an openness order. See: Re S.M., 2009 ONCJ 317; Native Child & Family Services of Toronto v. J.E.G.; Catholic Children's Aid Society of Toronto v. S.-K., 2016 ONCJ 242.

[315] The distinction between who has been granted an access order (the access holder) and who is the person with respect to whom an access order has been granted (the access recipient) has now become a critical consideration because only the access holder has the right to bring an openness application if served with a notice of intent to place a child for adoption. The access recipient does not have the right to bring an openness application; the access recipient only has the right to be served with the society's notice of intent to place a child for adoption.

[316] Subsection 105 (7) of the Act recognizes the importance of the distinction between who is an access holder and who is an access recipient, by requiring such identification when making an access order to child who is placed in extended society care.

16.2 – Access Between N.B. and the Mother and M.M.'s Father

[317] The position of the society, counsel for N.B. and the kin caregivers is that the mother and M.M.'s father should have access to N.B. at the Toronto Supervised Access Centre twice each month for two hours each visit. The society is prepared to supervise access until this process starts.

[318] The mother and M.M.'s father seek liberal and generous unsupervised access with N.B.

[319] In considering N.B.'s best interests, the court is first mandated to consider her views and wishes, given due weight in accordance with her age and maturity.

[320] The court heard that N.B.'s relationship with her mother and M.M.'s father is very important to her.

[321] The court also heard how much N.B. enjoys and looks forward to her visits with her mother and M.M.'s father. It is in N.B.'s best interests to preserve the best aspects of those relationships.

[322] The court has considered the parenting strengths of the mother and M.M.'s father set out in Part Twelve above.

[323] The court has also considered that in difficult circumstances the mother has been consistently pleasant with S.B.

[324] However, a critical best interests consideration for N.B. is that her placement with the kin caregivers not be destabilized. This placement is her best chance for success. The mother has already had her access fully supervised due to the pressure she was placing on N.B. to return home.

[325] The failure of the mother and M.M.'s father to accept the risk concerns creates a higher risk that they will not accept that the custody order is in N.B.'s best interests and that they will engage N.B. in an unacceptable tug of war with the kin caregivers.

[326] Layered into this complicated dynamic is the mother's resentment that N.B. is living with Y.B.'s side of the family after Y.B. abused her during their relationship. This makes it much more difficult for her to accept the placement. She has expressed to workers that she worries that the kin caregivers are "making a play" for her children. At a contested motion on February 27, 2019, she told the court, "….and I feel very strongly that somewhere, somehow, some- someone, I don't know exactly who it is and how it happened, is, is – you know, is basically brainwashing N.B.". She strenuously objected when she learned that M.M. was exercising sibling access in the kin caregivers' home.

[327] It is also problematic that the mother and M.M.'s father don't accept that N.B. loves the kin caregivers and wants to stay with them. The mother minimized N.B.'s close relationship with the kin caregivers, stating that kissing and hugging the kin caregivers doesn't mean that she is happy there since N.B. will take affection where she can get it.

[328] The court has considered that this new arrangement will be a challenge for the kin caregivers. They have done an admirable job to this point, although S.B. has expressed some frustration to society workers recently that every concern about her raised by the mother has to be addressed with them while the mother and M.M.'s father are rarely held accountable for their behaviour. The kin caregivers will no longer have the buffer of the society to smooth over any issues they have with the mother and M.M.'s father. The court will want to be careful at the start of this arrangement that it doesn't overload the kin caregivers with responsibilities in dealing with the mother and M.M.'s father.

[329] The risk concerns and the potential for destabilization of N.B.'s placement with the kin caregivers dictate that the access between N.B. and the mother and M.M.'s father remain controlled and supervised for the time being. The court will provide for some expansion of access over the next year.

[330] The present frequency of access is no longer in N.B.'s best interests. The focus is no longer on reunifying her with the mother and M.M.'s father The priority is in maintaining her placement with the kin caregivers. It is not in N.B.'s best interests to leave school early twice each week for access.

[331] There will be a waiting period before the Toronto Supervised Access Centre can take the case. Until this can take place, access will continue twice each week for two-hour visits during the summer at the society offices. Once school starts in September, this will be reduced to one two-hour visit each week, so that N.B. is not disrupted as much during her school week.

[332] Once the family is accepted at the Toronto Supervised Access Centre, access shall take place twice each month for two hours. Logistics are a consideration in reducing the frequency of access as the kin caregivers will no longer have society drivers to transport N.B. to access once visits start outside the society office. This access schedule will also permit N.B. the opportunity to have uninterrupted weekends with the kin caregivers and allow her more time to socialize with friends on weekends.

[333] The court recognizes that the Toronto Supervised Access Centre is not an ideal location for a 10-year-old child to have access. Once N.B. is stabilized in the kin caregivers' home and this new reality is consolidated, it is in N.B.'s best interests to have some carefully structured unsupervised access with the mother and M.M.'s father.

[334] The court will order that after six months of visits (a minimum of 12 visits) at the Toronto Supervised Access Centre, N.B. can have unsupervised visits with the mother and M.M.'s father for four hours every other weekend with exchanges to take place at the Toronto Supervised Access Centre. Other conditions of access will be included in the order.

[335] In the event that the mother and M.M.'s father do not consistently attend access or if they act in a manner that attempts to undermine N.B.'s placement, the kin caregivers may bring a motion to change access.

16.3 – Access Between Y.B. and N.B.

[336] The society, counsel for N.B. and the kin caregivers ask that Y.B.'s access with N.B. be in the discretion of the kin caregivers.

[337] The court finds that this order is in N.B.'s best interests.

[338] N.B. has expressed that she loves Y.B. and she wants to see him.

[339] S.B. demonstrated a firm grasp of Y.B.'s addiction issues at trial. The court trusts her to raise N.B. and to be protective of her.

16.4 – Access Between the Mother, M.M.'s Father and M.M.

16.4.1 – Positions of the Parties

[340] The society's position is that two supervised visits with the mother and M.M.'s father each year is in M.M.'s best interests. It also asks that only M.M. be made an access holder. It is concerned that any other order would impair M.M.'s future opportunities for adoption and not be in her best interests.

[341] The mother and M.M.'s father seek liberal and generous unsupervised access with M.M. and that they be made access holders so they can bring an openness application if the society serves a notice of intent to place M.M. for adoption.

16.4.2 Beneficial and Meaningful

[342] The society agreed that M.M.'s access with her parents is meaningful and beneficial for her.

[343] The court has considered the positive aspects of M.M.'s relationship with the mother and M.M.'s father set out in Part Twelve above.

[344] The court has considered that access will benefit M.M. as follows:

a) Access permits her to maintain a connection with her biological parents.

b) Access will permit her to better understand her roots and Russian and Ukranian culture and language.

c) Access will permit her to have exposure to her parents' religions.

d) She will have two more people in her life who will care about and love her.

e) Access could mean that her medical information and family history will be more readily available for her.

16.4.3 The Adoption Worker's Evidence

[345] The court finds that the possible impairment of M.M.'s future opportunities for adoption is highly relevant to her best interests and must be considered.

[346] The court heard evidence from the society's adoption worker. She deposed that as of May 10, 2019, there were at least 11 families that would be a potential match for M.M., with the possibility that additional potential families could be approved in the near future.

[347] The adoption worker deposed that when she looks at prospective adoptive parents for a particular child, she looks at their ability to meet all of the child's needs, including openness.

[348] The adoption worker testified that from her experience, adoptive families are more comfortable with letter/picture exchanges with the birth family as opposed to face-to-face contact and that face-to-face contact is more readily accepted with grandparents or siblings as opposed to birth parents. Further, her experience has been that adoptive parents are more accepting of openness orders when the parent has consented to the extended care order or where they have had a pre-existing relationship with the parent.

[349] The adoption worker said that most adoptive parents will find two visits each year to be reasonable, provided that the parent is supportive of the placement.

[350] The adoption worker acknowledged that the society, to her knowledge, is not keeping any statistics about how various levels of access are impacting either the pool of adoptive parents or the length of time it takes to adopt a child. It would be helpful for the society and the court to have that data, as opposed to anecdotal evidence, so that more informed access orders for children being placed in extended society care can be made.

[351] The adoption worker discussed the changing nature of the adoptive parent. The traditional adoption model was the severance of the child's relationship with the birth parents – the adoptive parents had the expectation that they would not have anything to do with them.

[352] This model first changed with the changes to the Child and Family Services Act in 2011 which recognized that it was not always in a child's best interests to sever the parental relationship. There were benefits to maintaining these relationships, the adoption worker testified, including the child being aware of where she came from, culturally and religiously. The child would have the opportunity to directly ask questions of her birth parents and wouldn't have unfulfilled curiosity growing up. The child would also be able to get relevant medical information from the birth parents.

[353] The adoption worker testified that the emotional needs of a child might include contact with her birth parents. She also acknowledged that depending on the relationship, maintaining contact with a birth parent can be a protective factor against adoption breakdown.

[354] The adoption worker said that the society has engaged in educational training for adoptive parents about the benefits of openness orders. Adoptive parents are provided Adoption Readiness Training and taught about openness and attachment. She says that the society has done a lot of work to take the fear out of openness.

[355] The adoption worker says that this has resulted in a change of attitude with adoptive parents – they are increasingly becoming more willing to accept openness orders. However, she said that this change is a process and it is happening gradually. She says that the society tries not to accept adoptive parents that are opposed to openness.

[356] The adoption worker also acknowledged that new provisions in the Act, as enacted in 2017, will likely result in a further acceptance of openness orders by adoptive parents. She noted that these new provisions promote that shift – specifically the changes to access to children in extended society care and the increased emphasis on the voice of the child.

[357] Continued education will be necessary to educate potential adoptive parents that contact with the birth parents will be happening more frequently with the new legislative provisions in the Act and that adoptive parents who accept this reality should be prioritized.

16.4.4 - Impairment of the Child's Future Opportunities for Adoption

[358] In considering the attributes of parents who are likely to impair a child's future opportunities for adoption discussed in Children's Aid Society of Toronto v. A.F., supra, (see paragraph 310 above) the court makes the following findings:

a) The mother and M.M.'s father do not have difficulties with aggression, anger or impulse control. To the contrary, they are consistently pleasant and polite.

b) There was some evidence to indicate that the mother and M.M.'s father might support an adoptive placement such as:

(i) The mother had an excellent relationship with M.M.'s foster mother. However, the foster mother has always indicated that she would not adopt M.M. and was not a threat to the mother or M.M.'s father

(ii) The mother and M.M.'s father have always been civil with the kin caregivers.

(iii) The mother and M.M.'s father have not interfered in the kin caregivers' ability to make decisions for N.B.

c) However, there was more concerning evidence that the mother and M.M.'s father would not be supportive of an adoptive placement, including:

(i) The mother and M.M.'s father do not believe there are any legitimate reasons for M.M. to be placed in extended society care.

(ii) The minimization by the mother and M.M.'s father of their parenting limitations, combined with their firm belief that they should be parenting M.M., is a bad recipe for their support of an adoptive placement for the child. As M.M. gets older, there is a real possibility that she will receive confusing messages about who her "real parents" are.

(iii) The mother's access with N.B. was ordered to be fully supervised on February 27, 2019 by Justice Spence because the mother put pressure on N.B. to return home. She had been warned by the society's family service worker twice in January, 2019 not to talk to N.B. about the case, yet continued to do so.

(iv) The mother has not been as supportive of N.B.'s placement and, in the court appearance on February 27, 2019, she expressed her belief that N.B. was being brainwashed.

(v) It was noteworthy that the mother and M.M.'s father had very little positive to say about the kin caregivers.

(vi) M.M.'s father gave the court little confidence that he would support an adoptive placement at trial. His attitude was hostile and dismissive. When asked if he had provided any child support for the kin caregivers, he answered, "why should I?"

d) The court has found that the mother and M.M.'s father are dishonest and secretive.

e) Parents are entitled to litigate every aspect of a child protection case. However, once an order is made placing a child in extended society care the court will consider whether the parents take reasonable litigation positions when determining if they should be made access holders. This is because if the parents are made access holders and don't take reasonable litigation positions, this will likely result in protracted openness litigation. This is not in a child's best interests as the prospect of such litigation is likely to dissuade adoptive parents from coming forward and it will delay permanency planning for the child.

Here, it was unrealistic of the mother and M.M.'s father to expect that the court would return N.B. to them and they unnecessarily put her through the anxiety of a lengthy legal process.

It should also have been apparent to the mother and M.M.'s father on these facts that a finding in need of protection would be made regarding M.M. and she wouldn't be returned to their care – the mother and M.M.'s father did not have a viable plan. The focus of this case should have been about access to M.M. and N.B.

The litigation decisions by the mother and M.M.'s father are reflective of their lack of insight into the protection concerns. This makes it more likely that they would take untenable positions that would unduly protract future openness litigation if they were made access holders. This could have a chilling effect on potential adoptive applicants.

[359] The adoption worker's evidence that adoptive parents are more accepting of an openness arrangement if the parents have accepted the adoption decision makes common sense. The evidence indicates that having to engage with the mother and M.M.'s father may dissuade many adoptive prospects from coming forward for M.M.

[360] What further concerns the court about the mother and M.M.'s father is the likelihood that they would delay any openness application if they were made access holders. The mother and M.M.'s father delayed the society's investigation process by frustrating home visits and missing review meetings. The mother delayed the Law Society investigation of the complaint against her through her lack of cooperation. The mother sought, and was very reluctantly granted delays of the hearing of this case by Justice Spence. The mother and M.M.'s father delayed this trial by not attending court on time. Trial time was lost on two occasions as the mother broke down either physically or emotionally during the trial. The prospect of a delayed process may also dissuade many adoptive parents from coming forward.

[361] The court's preference is always, where it is in the child's best interests, to make the parents access holders. This gives them a say in the contact they will have with the child post-adoption and they don't have to rely on the society or the Office of the Children's Lawyer (if the child is made the access holder) to determine the contact. However, in this case, the court finds that it is not in M.M.'s best interests to make the mother and M.M.'s father access holders. The court finds that there is an unacceptable risk that the pool of adoptive families might be reduced due to prospective adoptive parents being worried about engaging with openness issues with the mother and M.M.'s father, given the evidence set out in paragraphs 358-360 above. This could result in an undue delay in M.M. being adopted and being placed in a secure and permanent home. This is not in M.M.'s best interests.

[362] The court also finds that granting the mother and M.M.'s father extensive access to M.M., as they have requested, would impair M.M.'s future opportunities for adoption and is not in her best interests, as there would be an unacceptable risk that the pool of adoptive families would be reduced because they would not want that level of engagement with the mother and M.M.'s father.

16.4.5 Best Interests Factors

[363] The court has considered the remaining best interests factors set out in subsection 74 (3) of the Act as follows:

a) M.M. is too young for the court to be able to ascertain her views and wishes.

b) An access order is unlikely to interfere with M.M.'s physical, mental or emotional needs. Having the mother and M.M.'s father play some small role in her life may actually help M.M. meet her mental or emotional needs – helping her to develop a deeper understanding of her identity.

c) An access order is unlikely to interfere with M.M.'s physical, mental or emotional level of development. In fact, contact with the mother and M.M.'s father may assist her in obtaining her medical and family history.

d) An access order will help M.M. maintain her cultural and linguistic heritage. It is speculative whether the society will be able to find adoptive parents with Russian or Ukranian heritage or the religion of either parent.

e) M.M. will be having sibling access. N.B. will have access to the mother and M.M.'s father. It might become confusing for M.M. (and unfair to her) to know that N.B. is seeing the mother and M.M.'s father, but she can't.

f) An access order, if properly structured, should not interrupt M.M.'s continuity of care.

g) Any risk of harm to M.M. can be met through a strictly supervised access order.

h) An access order should not unduly delay permanency planning for M.M., if it is not too extensive and the mother and M.M.'s father are not made access holders. It is likely that an openness order will closely resemble the access order that will be made.

[364] Balancing all of these considerations, the court finds that it is in M.M.'s best interests to order access between her and the mother and M.M.'s father, and to make M.M. the access holder and the mother and M.M.'s father the access recipients. The expectation is that once a notice of intent to place M.M. for adoption is served, the Office of the Children's Lawyer will bring an openness application on behalf of M.M. and negotiate an openness order.

16.4.6 – What Access Order is in M.M.'s Best Interests?

[365] While the court finds that it is in M.M.'s best interests to maintain some connection with the mother and M.M.'s father, the focus is no longer on seeing if she can be returned to their care – it is time for her to move on with her life. The court must balance the benefits to M.M. of maintaining that connection with the mother and M.M.'s father while having the security of a permanent placement.

[366] In reaching that balance, the court has considered:

a) The quality of M.M.'s access and relationship with the mother and M.M.'s father described above.

b) The risk factors posed by the mother and M.M.'s father extensively described above.

c) The importance of M.M. having a secure placement.

d) The importance of M.M.'s routine with her permanent family not being disrupted by their obligations to the mother and M.M.'s father - particularly since they will also need to facilitate sibling access.

e) The risk of the mother and M.M.'s father impairing the child's future opportunities for adoption.

[367] The court will order that the mother and M.M.'s father will have a minimum of four supervised access visits each year, for a minimum of one hour. It will further order that photos of the child be provided to the mother and M.M.'s father at least four times each year and that the mother and M.M.'s father be given M.M.'s report cards, redacted for identifying information, once each year, once she starts kindergarten.

16.5 Sibling Access

[368] The society's position is that M.M. and N.B. should have access a minimum of four times each year.

[369] N.B.'s counsel asks for an order that sibling access take place a minimum of twelve times each year.

[370] The society and N.B.'s counsel jointly submitted that the children should both be access holders and access recipients.

[371] It is agreed that M.M. and N.B. have a close bond and that access is beneficial and meaningful for both of them.

[372] The adoption worker testified that the society won't consider adoptive parents who are unsupportive of sibling access.

[373] The court must be careful not to impair M.M.'s future opportunities for adoption by creating an access schedule that will unduly reduce the adoption pool – particularly since there will also be access obligations for the mother and M.M.'s father.

[374] Balancing these considerations, the court orders that sibling access take place a minimum of eight times each year. Hopefully, the society will find an adoptive family that can establish a positive relationship with the kin caregivers (similar to their current relationship with M.M.'s foster parents) and they will directly arrange for more access between the siblings.

Part Seventeen – Costs

17.1 Positions

[375] The mother is seeking nominal (unspecified) costs against the society. In the alternative, she seeks judicial direction about the process the society should follow when seeking the consent or agreement of a person to relinquish any of his or her custodial rights.

[376] The society opposes any claim for costs and submits that judicial direction as sought by the mother is preferable.

17.2 Legal Considerations

[377] Subrule 24 (2) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) sets out that in a child protection case there is no presumption that the successful party is entitled to a costs order.

[378] The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection. It should not be dissuaded from the pursuit of its statutory mandate by costs considerations. See: Children's Aid Society of Ottawa - Carleton v. S..

[379] Justice Deborah Chappel conducted a thorough review of the case law concerning costs claims against child protection agencies in Children's Aid Society of Hamilton v. K.L., 2014 ONSC 3679 and set out the following principles:

a) Child protection agencies do not enjoy immunity from a costs award.

b) The starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.

c) The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.

d) The high threshold of "bad faith" is not the standard by which to determine a claim for costs against a child protection agency.

e) Costs will generally only be awarded against a Children's Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.

f) A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.

g) Important factors to consider in deciding whether costs against a Society are appropriate include the following:

(i) Has the Society conducted a thorough investigation of the issues in question?

(ii) Has the Society remained open minded about possible versions of relevant events?

(iii) Has the Society reassessed its position as more information became available?

(iv) Has the Society been respectful of the rights and dignity of the children and parents involved in the case?

(v) In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society's efforts to diligently carry out its statutory mandate of protecting children.

[380] A child protection agency should neither be rewarded nor punished by an order for costs, but rather it should be held accountable. See: Children's Aid Society of Brant v. D.M.C. and J.C..

[381] The lens through which the society's conduct is viewed is that of the properly informed, reasonable person, considering the society's conduct and the prejudice caused to the child or parent by that conduct. See: Catholic Children's Aid Society of Toronto v. S.V., 2000 O.J. No. 5866 (OCJ).

[382] One of the objectives of costs is to discourage and sanction inappropriate behaviour by litigants. See: Serra v. Serra, 2009 ONCA 395; Mattina v. Mattina, 2018 ONCA 867.

[383] Subrule 2 (2) adds an additional purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711; Children's Aid Society of Halton v. J.S., 2014 O.J. No. 522 (OCJ).

[384] Once liability for costs is established in a child protection proceeding, the court must determine the appropriate amount of costs, having reference to the provisions of Rule 24. See: Children's Aid Society of Halton v. J.S., supra; Children's Aid Society of Hamilton v. K.L., supra.

17.3 The Consent to N.B.'s Placements

[385] The mother submits that the society breached subsection 21 (2) of the Act when it placed N.B. with Y.B. on August 2, 2017 and later when it placed N.B. with the kin caregivers on October 30, 2017. The mother submits that:

a) She was not reasonably informed as to the nature and consequences of the consent or agreement, and of the alternatives to it; and

b) She did not have a reasonable opportunity to obtain independent legal advice before providing her consent.

[386] Subsection 21 (2) of the Act reads as follows:

Elements of Valid Consent or Agreement, etc.

21 (2) A person's consent or withdrawal of a consent or participation in or termination of an agreement under this Act is valid if, at the time the consent is given or withdrawn or the agreement is made or terminated, the person,

(a) has capacity;

(b) is reasonably informed as to the nature and consequences of the consent or agreement, and of alternatives to it;

(c) gives or withdraws the consent or executes the agreement or notice of termination voluntarily, without coercion or undue influence; and

(d) has had a reasonable opportunity to obtain independent advice.

[387] The difficulty with this submission, as it relates to a costs claim, is that the Act did not come into force until April 30, 2018. The two placements complained about by the mother took place in 2017. The former Child and Family Services Act did not contain provisions comparable to subsection 21(2) of the Act.

[388] However, the discussion does not end there.

[389] In Children's Aid Society of Brant v. C.H., 2017 ONCJ 276, Justice Kathleen Baker criticized the society in a case where the parents had joint custody and the society told the parties that if the father gave the mother access to the child, the child would be apprehended. Justice Baker wrote the following at paragraphs 18 to 26:

18 It is clear that as of the date the Society made the decision that the mother's custodial time, not her access time as described by the Society, would be suspended, it did not have the consent of the mother. Without consent it seems to me that the proper course for the Society would have been to seek court approval for the implementation of its decision. It did not do so and carried on unilaterally.

19 The Society's position seems to be that the mother subsequently consented to the arrangement and that this justifies, forgives, or absolves the Society in its initial dictate.

20 I will address first the evidence as to whether the mother did or did not consent.

21 At the outset I would say that I am troubled by the Society's minimization of the significance of the right it was asking the mother to forego. The Society characterized that right as "access". It seems to me that imposing a supervised access regime on a parent who shares custody on an equal timesharing goes far beyond giving up an access right. This was a significant state intrusion into parental autonomy and independence by way of state action. It is, by now, trite law that the parental right to be free from state intervention triggers the right to fundamental justice pursuant to the Canadian Charter of Rights and Freedoms. To put it in plain language, state intervention by a child protection agency is a big deal. If an individual takes a watch to a pawnbroker, thus suspending his or her right to deal with the property for a period of time, that person leaves with a written document signed by the person clearly setting out the terms of the agreement. It is utterly baffling that a state agency and its agent would think that anything less than clear written documentation would do when dealing with an infinitely more precious item: a child.

22 In its materials, the Society seems to take the view that the mother agreed because we say she agreed. One would expect that even if the Society was so heedless as to decline to reduce such an agreement to writing, at the minimum, the worker would recite the precise words used by a parent to suspend his or her rights, together with a description of what was said by the worker to induce such an outcome. There is nothing of that here. The Society has not so much as produced a case note of a discussion wherein it says mother forfeited her ongoing custodial rights. The Society simply asks the court to accept Ms. Kehoe's blanket statement that the mother agreed. I do not accept this proposition.

23 It seems to me that the onus is on the Society to demonstrate consent, not on the mother to prove she did not consent. There is no credible and trustworthy evidence on which I could conclude that the mother consented to this significant intrusion upon her Charter protected rights. Even if I am wrong on that point, however, and the mother made some kind of utterance, potentially indicating assent, I would not accept that this constituted actual consent. The most basic tenet of consent, particularly when given to a person in authority, is that it must be free and voluntary. There is absolutely no evidence whatsoever upon which to premise that conclusion. In fact, the evidence is to the contrary. First, the decision was undertaken unilaterally by the Society on December 15th, 2016, two days before it was even communicated to the mother. There is no evidence that Mother was encouraged or given an opportunity to obtain legal advice before being asked to make such a momentous decision. Mother was then told in a letter dated December 19th, 2016, that should she not "cooperate" with the Society's orders the matter would be remitted to court.

24 The phrasing employed in this letter is, incidentally, quite different than what was represented by Ms. Kehoe. In her affidavit, Ms. Kehoe invites the court to infer that the letter confirmed the mother's consent to the suspension of her access/custodial rights. The plain language of that letter does no such thing. It reiterates that the Society has made the decision. It then informs the mother in a most authoritarian fashion that if she does not "cooperate" with that decision she will be on the receiving end of court action.

25 The agency should know that this is no small threat. Brant Children's Aid Society operating as Brant Family and Children's Services is a government funded actor with four in-house lawyers. Mother is a self-funded individual who was required to find a way to defend herself from this juggernaut.

26 Capitulating is not the same thing as consenting. The Society would do well to consider that proposition in its future dealings with parents.

[390] There are comparisons between this case and C.H. The society workers admitted that the mother was really given little choice about N.B.'s placements. Either she agreed to the placements or N.B. would come into society care. In the case of the second placement with the kin caregivers, the mother was given about a half hour to come up with an alternative placement. Other alternatives were not discussed with the mother. She was not told about the possibility of obtaining independent legal advice before providing her oral consent to the placements.

[391] The court agrees with Justice Baker. Capitulation is not consent. This was capitulation. The mother should either have had the opportunity to obtain independent legal advice or the matter should have been brought before the court within five days so that there would have been court oversight of the matter.

[392] The harm that can be caused to a child by failing to follow this process was demonstrated in this case, particularly with N.B.'s first placement with Y.B.

[393] The society's intake worker clearly wanted to take the least intrusive step and placed N.B. with Y.B. after the incident on August 2, 2017 when the mother passed out on the TTC bus. However, in doing so, she failed to carefully consider and investigate Y.B.'s extensive addiction history, his history of domestic violence and his history of deceit with other child protection agencies. The placement quickly fell apart due to Y.B.'s addiction issues. N.B. should never have been placed there.

[394] If the mother had had a reasonable opportunity to obtain independent legal advice, she might have reviewed Y.B.'s history with her counsel and the outcome might have been different for N.B. Either counsel could have sounded the alarm to the society about Y.B. and a different placement could have been explored, or counsel could have required the society to bring the matter to court and there would have been court oversight over the case.

[395] The court notes the comments recently made in Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, about the realities of the child protection litigant where the court wrote:

Reality of the Child Protection Litigant

68 The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. As Justice L'Heureux-Dubé noted in her concurring reasons in G. (J.), at para. 113, "women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings". She continued at para. 114:

• As well as affecting women in particular, issues of fairness in child protection hearings also have particular importance for the interests of women and men who are members of other disadvantaged and vulnerable groups, particularly visible minorities, Aboriginal people, and the disabled. As noted by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745 (1982), at p. 763:

• Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups ... such proceedings are often vulnerable to judgments based on cultural or class bias.

• Similarly, Professors Cossman and Rogerson note that "The parents in child protection cases are typically the most disadvantaged and vulnerable within the family law system . . . .": "Case Study in the Provision of Legal Aid: Family Law", in Report of the Ontario Legal Aid Review: A Blueprint of Publicly Funded Legal Services (1997), 773, at p. 787.

69 Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms. The miscarriages of justice outlined in the Report of the Motherisk Commission (2018: Ontario Ministry of the Attorney General) speak, by way of example, to the significant imbalance between parents and Children's Aid Societies, noting that parents, even when represented by counsel, were "simply overpowered" (at p. 121). Fairness in the child protection context demands recognition of these dynamics.

[396] There are many other difficulties that can arise when placements take place without informed parental consent or independent legal advice. Highly vulnerable child protection litigants may consent to a placement that becomes entrenched without any court oversight. Then, when the parent later attempts to change the situation, it could be too late as a status quo has been established. If the consent relates to a placement in society care, a statutory time limit might expire or be close to expiring before the parent seeks legal advice. Again, it might be too late at that point for a parent to have a child returned to their care. The parent will have been prejudiced by the lack of counsel and court oversight.

[397] The earlier a child protection lawyer is retained for parents involved with the child protection system, the better the outcome usually is for those parents and their children. The early stages of a parent's involvement with a Children's Aid Society are often its most important and sensitive and it is vital that the parent be directed to legal counsel at the earliest opportunity.

[398] A skilled child protection lawyer will provide many benefits to a parent at an early stage of society involvement, including:

a) They will require that the society provide clear expectations for their client and work with the society to ensure that the appropriate resources are provided to give their client the best opportunity to succeed. Without counsel, there is a much higher risk that the parent will not be provided with clarity of expectations and the situation will drift with no meaningful improvements made by the parent.

b) They will obtain full production of the society file and obtain necessary third- party records to properly assess the risk concerns and best advise the client of their options.

c) They can test the strength of the society case at an early stage. In some cases, this will change the direction the case would have taken without them.

d) They can explore family and community supports that will assist their client to safely parent the child, or offer an alternative placement so that the child stays out of society care.

e) They can utilize alternate dispute mechanisms for their client, improving their chance of a positive outcome.

f) They can ensure that access does not remain static for a parent.

g) They can negotiate on a more even footing than a parent with the society and help redress the imbalance of power referred to in the Kawartha case. The parent will not feel so alone and overpowered.

h) There is a much better chance that the proper result will be reached.

[399] Children's Aid Societies need to be aware of the importance of independent legal advice for the people they deal with and ensure that any consent or agreement is fully informed.

[400] Hopefully, the scenario that took place in this case will no longer take place with the implementation of subsection 21 (2) of the Act and education about the importance of compliance with it.

[401] To its credit, the society did not try to argue that the mother was given an informed choice in either of N.B.'s placements. Counsel for the society indicated that its workers are now receiving training on how to properly handle these situations given the decision of Justice Baker and the implementation of subsection 21 (2) of the Act.

[402] The court finds that such education is a proper response and costs will not be ordered.

[403] However, the court also has the expectation that subsection 21 (2) of the Act will be fully complied with in the future when the society is seeking a person's consent or agreement to relinquish any of his or her custodial rights.

[404] Although not contained in subsection 21 (2) of the Act, the court agrees with Justice Baker that it would be prudent when the society is asking the person to make such an important decision to ensure that the consent is in writing.

[405] The society should also advise the person relinquishing his or her custodial rights of the possibility of obtaining legal aid to get independent legal advice and refer the person to the local legal aid office. If required, the society should also provide an interpreter for the person before any consent is signed.

[406] If the situation is urgent and there is no time for the person to obtain independent legal advice or the person does not provide the required informed consent, then the matter should be brought before the court as required by the Act.

17.4 The Society's Failure to Obtain a Warrant to Bring M.M. Into Care

[407] The society did not obtain a warrant to bring M.M. into care. Instead, it brought M.M. to a place of safety (formerly called an apprehension) at the hospital […] days after her birth.

[408] The society did not put out a birth alert for apprehension for M.M.

[409] The society's supervisor on the case testified about this issue and acknowledged that there was not a substantial risk to the child's health or safety during the time necessary to bring the matter to court or to obtain a warrant. She was comfortable that M.M. was safe in the hospital with nursing staff present.

[410] The supervisor felt that she was following the society's best practices and procedures. She did not believe that a warrant was required because the society was working together with the hospital and there was a plan that the mother and M.M. would not leave the hospital.

[411] A warrant is meant to serve as a check on the power of the state. Warrantless apprehensions should not be routine for any children's aid society. See: Children's Aid Society of the Niagara Region v. C.B..

[412] In Kunuwanimano Child and Family Services v. S.L., 2017 ONCJ 518, Justice John Kukurin talked about the importance of warrants in paragraphs 12 to 17 as follows:

[12] Section 40 CFSA begins with authorizations from a justice of the peace to apprehend a child [ss.2 and 3]. It then continues with court ordered authorizations to apprehend. [ss 4]. Subsection 6 provides to a child protection worker the authority to enter a place pursuant to the warrant or order to search for and remove a child. It is not until subsection 7 when the CFSA first provides for warrantless apprehensions. This is, in my view, an indication that apprehension pursuant to warrant or order is intended to be the general rule, and apprehension without warrant is intended to be the exception.

[14] The CFSA gives extraordinary powers to a society. Who else in our society can legally take a child away from its caregiver? However, it dictates how those powers are to be exercised. Also, and more importantly, it establishes judicial oversight on much of what the society does. One of the first ways in which it does so is to involve a Justice of the Peace who must first be satisfied, based on what the worker puts before him or her, that it is appropriate to issue a warrant to apprehend. What the Justice of the Peace needs is reasonable and probable grounds to believe that, firstly, the child is in need of protection, and, secondly, that a less restrictive course of action is not available or will not protect the child adequately.

[15] This is not what a child protection worker apprehending without warrant needs. This worker need much more. She needs reasonable and probable grounds to believe not only that a child is in need of protection, but also that

".... there would be a substantial risk to the child's health or safety during the time necessary to bring the matter on for a hearing under subsection 47 (1) or obtain a warrant under subsection (2) ....(my emphasis)"

[16] This second requirement is a temporal one. It forces the worker to ask

• How much time would it take to bring this matter to court?

• How much time would it take to obtain a warrant from a Justice of the Peace?

• Is there a risk to the child's health or safety within this time frame?

• What is the risk to the child's health or safety within this time frame?

• Is the risk to health or safety of the child a substantial one?

[17] Not to be minimized, or forgotten entirely, is the "reasonable and probable grounds" to believe all of this, and also to believe that the child is in need of protection. There is plenty of case law that deals with 'reasonable and probable grounds' (R&PG), particularly in the criminal law sphere. It has both a subjective and an objective component, both of which must be present. Moreover, the words "child in need of protection" has a specific meaning in the CFSA and, correspondingly, in apprehensions taking place under the CFSA. The apprehending worker must have R&PG to believe that the child is in need of protection under at least one of the grounds specified under the CFSA in its s.37(2).

[413] Justice Kukurin's case was decided under the Child and Family Services Act. The provisions for warrants have not changed, other than the terminology in the Act. Subsection 81 (7) of the Act sets out when the society can bring a child to a place of safety without a warrant. It reads as follows:

Bring Child to Place of Safety Without Warrant

81 (7) A child protection worker who believes on reasonable and probable grounds that,

(a) a child is in need of protection;

(b) the child is younger than 16; and

(c) there would be a substantial risk to the child's health or safety during the time necessary to bring the matter on for a hearing under subsection 90 (1) or obtain a warrant under subsection (2),

may without a warrant bring the child to a place of safety.

[414] The court finds that the supervisor acted in good faith, albeit in a misguided manner in not obtaining a warrant before bringing M.M. to a place of safety. She thought that she was following society protocol when a child is brought to a place of safety at a hospital after birth. Either she was wrong about the protocol or the protocol needs to be changed.

[415] The society should have obtained a warrant in this case. It must meet the conditions set out in subsection 81 (7) of the Act if it wants to bring a child to a place of safety without a warrant – in this case clause 81 (7) (c) being the important condition. There was no substantial risk to the child's health or safety during the time that would have been necessary for the society to obtain a warrant – M.M. being in the hospital did not excuse non-compliance with the condition.

[416] This is an issue that is best addressed at this point with judicial comment rather than with a costs order.

[417] However, if a similar situation arises in the future, the remedy could be different.

[418] There will be no order for costs.

Part Eighteen – Conclusion

[419] The court makes a final order on the following terms:

a) M.M. is found to be a child in need of protection pursuant to subclause 74 (2) (b) (i) of the Act.

b) M.M. shall be placed in extended society care.

c) M.M. shall have access to the mother and M.M.'s father on the following terms:

(i) There shall be four supervised visits each year, for a minimum of one hour each.

(ii) Photos of the child shall be provided to the mother and M.M.'s father a minimum of four times each year.

(iii) The child's report cards shall be provided to the mother and M.M.'s father once each year, redacted for identifying information.

(iv) M.M. shall be the access holder and the mother and M.M.'s father shall be the access recipients.

d) N.B. is placed in the care and custody of the kin caregivers pursuant to section 102 of the Act.

e) The kin caregivers may travel with N.B. outside of Canada without the consent or written authorization of the mother, Y.B. or any other individual.

f) The kin caregivers may obtain or renew government documents, such as passports, health cards, SIN numbers, applications for name changes and birth certificates for N.B. without the consent or written authorization of the mother, Y.B. or any other individual.

g) The kin caregivers may consult with and obtain information, records and report cards directly from N.B.'s teachers, doctors and any other professionals involved with N.B., about her health, education and general welfare without the consent of the mother, Y.B. or any other individual.

h) N.B. shall have access with the mother and M.M.'s father on the following terms:

(i) Until the family is accepted at the Toronto Supervised Access Centre, access visits shall be supervised at the society offices. During July and August, the visits shall be twice each week for two hours. Starting in September, the visits shall be reduced to once each week for two hours.

(ii) One of the mother or M.M.'s father shall attend at the society offices at least 45 minutes before the scheduled visit. If this does not happen, the visit will be cancelled.

(iii) Once the family is accepted at the Toronto Supervised Access Centre, access shall take place twice each month for two hours each visit.

(iv) After six months of visits (a minimum of 12 visits) at the Toronto Supervised Access Centre, N.B. will have visits with the mother and M.M.'s father for four hours every other weekend with exchanges to take place at the Toronto Supervised Access Centre.

(v) The mother and M.M.'s father shall not consume any drugs, prescription or otherwise, within 24 hours of or during any access visit.

(vi) The kin caregivers, the mother and M.M.'s father shall contact the Toronto Supervised Access Centre immediately to begin the intake process.

(vii) The kin caregivers, the mother and M.M.'s father shall follow all rules of the Toronto Supervised Access Centre.

(viii) Visits can be cancelled by the kin caregivers if N.B. goes to camp, on a family vacation or has a special occasion. The kin caregivers should give reasonable notice of any cancellation to the Toronto Supervised Access Centre. Any missed visits should be made up at the earliest opportunity.

(ix) Visits will not be made up if the mother or M.M.'s father misses a visit.

i) In the event that the mother and M.M.'s father:

(i) Do not consistently attend access;

(ii) Breach the condition not to consume drugs, prescription or otherwise, within 24 hours before any access visit; or,

(iii) Attempt to undermine N.B.'s placement with the kin caregivers

the kin caregivers may bring a motion to change this court order.

j) Y.B.'s access to N.B. shall be in the full discretion of the kin caregivers.

k) M.M. and N.B. shall have access with each other a minimum of eight times each year. They shall both be access holders and access recipients.

l) If the mother, Y.B. or M.M.'s father bring a motion to change the parenting order regarding N.B. they are to serve their motion to change on the society.

m) The mother's claim for costs is dismissed.

n) Counsel for the society shall prepare and take out this order.

[420] The court recognizes that this decision will be very hard for the mother and M.M.'s father. It was clear to the court how much they love the children, how much they want to parent them and how much they want to be part of their lives.

[421] The mother and M.M.'s father now have perhaps their most important parental role to play for N.B. They need to let her know that they accept the decision and respect her wishes to remain with the kin caregivers. They need to let her know that they will always be there to support her. She is much more likely to reach her potential if they give her permission to move forward and support her placement. If they can meet this parental challenge, N.B. will likely flourish and they will lay the seeds for a wonderful relationship with her as she grows into an adult. The court wishes them both the very best.

[422] The court also wants to comment on the exceptional job done by counsel on this case. They conducted themselves with civility and professionalism throughout the case. They demonstrated considerable skill in ensuring that the evidence was fully presented and challenged. The court is deeply grateful for their contributions.

Released: July 5, 2019

_____________________ Justice S.B Sherr