WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87(8) Prohibition re identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

87(9) Prohibition re identifying person charged.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: October 8, 2019

Court File No.: C21226/18

Between:

Children's Aid Society of Toronto Applicant

— AND —

H.S. (Mother) M.L. (Father)

Before: Justice Paulseth

Heard on: September 13, 14, 15, 16, 2019

Reasons for Judgment released on: October 8, 2019

Counsel

S. Smolkin — counsel for the applicant society

P. Cooper and O. Oprea — counsel for the respondent/Mother

M.L. — acting in person

Overview

[1] This proceeding is a Status Review Application under the Child Youth and Family Services Act, 2017 (the Act), concerning the children: Ay born […], 2017 and Ab, born […], 2018 (sometimes referred to as the girls), their mother HS., and their father ML.

[2] The children were brought to a place of safety by the Children's Aid Society of Toronto (the society) on August 3, 2018, from the care of HS.

[3] On December 13, 2018, the court made statutory findings that the children were not First Nations, Inuit, nor Metis, pursuant to the definitions in the Act. The court also found both children to be in need of protection pursuant to the physical harm and risk of harm clauses of the Act; specifically, 74 (2)(a) and (b).

[4] The agreed upon facts that supported the above findings included:

(1) In her final trimester of pregnancy, mother tested positive for cocaine;

(2) Concerns about the physical safety of the home were expressed by paramedics who attended at the home to assist mother with the birth of Ab;

(3) Mother's lifestyle presents a risk to her children;

(4) Father and mother have relationship issues;

(5) Father threatened to harm mother; and

(6) Both parents have an extensive child welfare history, including previous children who are now permanent wards of the society

[5] On February 19, 2019, the court made a disposition order of 5 months interim society care with access to the girls by both parents.

[6] The agreed upon facts which supported this disposition included:

(1) Both children continued to do well in the care of the society;

(2) Ay was lagging in speech development and being followed by a neonatal clinic at the local hospital;

(3) Mother consistently attended two visits a week for two hours each until she was incarcerated in November of 2018. Visits resumed until she failed to attend two visits in January of 2019. She did not attend the plan of care meeting in February of 2019.

(4) Mother attended an intake appointment with an addiction program offered through the Centre for Addiction and Mental Health (CAMH) but missed her follow up. Mother continued to struggle with her addictions.

(5) The society referred mother for priority housing. Mother lost the paperwork. Further information was given to mother about a housing help centre and a specialized housing worker but mother did not follow up.

(6) Mother did not have stable housing and moved between the homes of various friends and extended family members.

(7) In August of 2018, father was arrested for threatening to kill mother. He was released on bail but re-arrested in November of 2018 and remained in custody until the end of August, 2019.

(8) The plan was for the society to identify and assess any alternate kith or kin plans for the children.

[7] This proceeding is a Status Review Application, first brought on July 10, 2019, but amended on August 7, 2019 to a request for extended society care, with access to the mother at the discretion of the society, for a minimum of once per month and no access to the father.

[8] Mother has continued to struggle with stable housing and addictions.

[9] Father has a lengthy criminal history dating back to 1989, including convictions for violence and weapons. Currently he has 13 outstanding charges, including one for threatening mother, and also dangerous driving, weapons, assaulting police, and failure to comply. Mother has incurred a charge of assaulting a peace officer relating to the last incident between police and father.

[10] Mother is not putting forward her own plan for the children but proposes that the girls be placed through a supervision order with the former foster parents who cared for them between August and the end of November of 2018.

[11] Father was served and is in default. Father attended for two of the four days of this hearing. He advised the court that he was supporting the mother's position. The court invited him to give oral evidence about his position but he chose to participate by cross-examining the witnesses and making one closing submission – he wants access.

Issues for this Hearing

[12] Are the children still in need of protection and, if so, is a further order necessary to protect them?

[13] If yes, then what disposition is in the best interests of the children?

[14] In particular, should the children be placed with the former foster parents pursuant to a society supervision order? If so, then what access to the parents is in the children's best interests?

[15] If not, then the children would have to be placed with the society under extended society care, as no other plan is forthcoming. The court would still have to ensure that the statutory criteria are met.

[16] If an extended society care order is made, then what access to the parents is in the best interests of the children? Who should be the access holder or holders?

Events Since the Last Order

[17] The evidence of the society workers, largely undisputed by the mother, is that she has not been able to stabilize her housing nor been able to address her addiction issues. These issues continue to pose a serious risk to the children.

[18] Mother has been unsuccessful in engaging with services that could improve her functioning.

[19] Despite the very serious criminal record of the father, mother has not been able to separate from him, unless he is incarcerated. When he was last arrested, one of the charges related to an alleged breach by the father having contact with the mother contrary to a criminal court "no contact" order. Mother was so supportive of the father at that time, that she was also charged for stepping into the dispute and allegedly assaulting a police officer. This relationship continues to be a risk to the children.

[20] In February 2019, mother advised the family service worker that she was engaging with the Elizabeth Fry society and named a particular worker. When the family service worker contacted that society, no such worker was employed there.

[21] In early June, 2019, mother advised the family service worker that she had not been using drugs and continued to be off methadone. She attributed this positive state of affairs to a man named Mike who got her going to the gym and kept her away from bad people. Mother said she had only used 4 times in the last 4 months.

[22] The family service worker made another referral to Jean Tweed, because it is a full service centre with both residential and day programs as well as counselling and ongoing care. Two intake meeting dates were established and the worker planned to pick the mother up for each appointment.

[23] Mother missed both appointments, later telling the worker that she was in hospital with a blood infection. Mother now says she is on a waitlist for Elizabeth Fry.

[24] Mother has made some gains but cannot maintain a drug free lifestyle.

[25] Mother has been unable to build a sustainable and viable plan for the girls.

[26] Since the date of the last order, mother stayed with her sister and put her sister forward as a plan for the children. Within one week, mother rejected that plan, saying that her sister's place was very small.

[27] Mother then moved to the maternal grandmother's, but she said that they argued frequently so she left there. The family service worker again suggested that the mother return to the housing help centre.

[28] During late June and early July, 2019, mother was hospitalized and since then has been staying with friends. She has advised that these places are not suitable for the children. Mother admitted to the family service worker in June of 2019 that she had used opioids and xanax 4 times in the last four months. She bought them off the street.

[29] Father has not seen the children but did send the family service worker some material which she has attached to her affidavit:

(1) He writes a letter dated June 4, 2019, estimating his release from custody to be in August, 2019;

(2) Father says all his charges are being withdrawn; he has been clean for two years but after the society took his kids he got high on weed; he plans to obtain a lawyer and meet with the worker to discuss a plan for the girls;

(3) Father writes his own plan for the children which includes: getting stable housing, going back to college, finding daycare for the girls, cooperating with the society.

(4) Father participated in programs through Centennial College being delivered at Toronto East Detention Centre, beginning with a 12 week communications course. He has already completed several day long courses in March and April of 2019 in Anger Management, Effective Parenting, Life Skills, Healthy Relationships, Communication Skills, and Anti-Criminal Thinking;

(5) Father writes a letter to the worker dated July 22, 2019, with a similar plan;

(6) Father attaches more recent certificates indicating his completion of further programs in June and July of 2019 were included: Manga Messiah Notebook, Stress Management, and a second workshop on Anti-Criminal Thinking.

[30] Father was released from custody on August 29, 2019. He and mother together attended at the worker's office on September 4, 2019 at the same time that mother's visit was to begin. He said hello to the girls and then left, returning at the proper time for his meeting. He advised the society that he would probably be planning with the mother.

Access Visits

[31] Mother has missed visits from time to time due to illness, incarceration, and hospitalization. When she missed a number of visits consecutively, without advance notice, the society asked her to confirm before the society would bring the children to the office.

[32] On February 12, 2019, mother again missed a visit without notice and the society asked her to attend an hour early so the children would not be brought to the office unnecessarily.

[33] Mother was invited to neo-natal followup appointments for both children in April, 2019. Mother did not make either appointment, despite reminders and an offer of transit tokens.

[34] In June, 2019, mother missed two visits in one week and the worker emailed her. Mother then missed the next two visits. She later said she had been in the hospital due to a blood infection.

[35] When mother attends the visits, they are generally positive. She attends to the children's needs and follows their cues. She is affectionate and the children appear to enjoy the visits.

[36] Father had not seen the children since their admission to care in August, 2018. He did, however, come to the society office with the mother on September 4, 2019. He was dropping off some forms and happened to come when the mother was about to have a visit with the children.

[37] The former foster mother (Ms W.) attended a visit with mother in January and one in May of 2019. On July 4, 2019, foster mother attended a visit alone as mother was in the hospital and she video'd the visit for mother. Ms W. attended four visits in July and 3 visits in August of 2019. As the visits for mother were scheduled for twice a week, Ms W has attended less than half of the visits.

Criminal Records

[38] Since 2006, mother has had a number of criminal charges, relating to theft, break and enter, and failure to comply. Many of these have been withdrawn.

[39] In September of 2007, mother was convicted of obstructing a police officer and sentenced to 3 days (time served) and 12 months probation. In March of 2008, she was convicted of failure to comply with that probation order and given an absolute discharge.

[40] In September of 2014, mother was again convicted of failure to comply with a probation order and sentenced to 9 days pre-sentence custody.

[41] On October 31, 2018, the occurrence report for the charges of assaulting peace officers indicates that mother was a passenger in a car that ran into two unmarked police cars. An ambulance was called by the police because they were concerned about mother and she stated that she was pregnant. Mother was described as uncooperative and hostile. She head butted one officer and spat on him. At the hospital, she bit another officer's hand.

[42] The father has a lengthy criminal record. Since 1989, his convictions include weapons, armed robbery, counterfeiting, and uttering threats. In August of 2018, he was charged with threatening to kill mother when she was in the hospital giving birth to their second daughter. He then had conditions restricting his contact with mother but those were allegedly breached when they were arrested together in October 2018.

[43] The criminal records of the father indicate an unstable and chaotic lifestyle that is too risky to accommodate children.

The Former Foster Parents' Plan

[44] Ms W and Mr M were foster parents with the Milestone Foster Homes, an outside resource purchased by the society. They met the licencing standards set by government and entered a three year contract with Milestone in 2016 to have up to three children at a time. The foster parents specifically requested not to have older children. The children in this court proceeding were placed with them from August 4, 2018 until the end of November, 2018, when the home was closed by Milestone.

[45] The children's service worker met with Ms W on several occasions and expressed the following concerns:

(1) On August 28, 2018, this worker advised Ms W to pay more attention to activities that would strengthen Ay's fine motor skills and gave her examples. It was unclear to this worker whether Ms W ever followed up on this suggestion.

(2) On August 17, 2018, a jar of baby food provided by Ms W for the visit had to be thrown out, as it had gone sour.

(3) Ms W did not advise this worker of her planned trip to a cottage in October of 2018. A plan of care meeting had to be cancelled on short notice. Ms W told this worker that the cottage visit had been an "emergency". Ms W denied saying this in her evidence.

(4) On October 24, 2018, this worker reviewed the September 28, 2018 medical note for Ab with Ms W, including the need for follow up regarding her eyesight. This worker advised the foster mother that Ab was taking a full bottle when she stayed at the relief foster home. This was more than Ms W reported the child taking in her home. Ms W said that a child and youth worker was going to come to her home so that they could take the girls to an Early Years Centre for additional stimulation.

(5) On October 25, 2018, this worker again advised foster mother to work on fine motor skills with Ab.

(6) On November 16, 2018, this worker reminded Ms W to put Ab on her tummy regularly. There was also an issue regarding Ay trying to sit on Ab. Ms W pointed to some baby gates in the foster home, suggesting that she could use them to separate the girls and the worker agreed.

(7) This worker learned from the medical clinic that the scheduled medical appointment for November 2, 2018 had not been kept and had not been re-scheduled.

(8) On July 4, 2019, this worker supervised a visit with the children and Ms W. Ay looked confused and appeared to be looking for her mother. Ms W said that the mother calls her from time to time.

(9) On July 29, 2019 during a visit with both mother and Ms W, both children went more to mother than to Ms W.

(10) Through out this time, this worker never met the foster father, Mr M.

(11) This worker has observed the children to adjust well to their third foster placement, which occurred on June 19, 2019. The children are relaxed and playful. The current foster home is not a potential adoptive home.

(12) This worker observed the children to be receiving much more stimulation in the relief and other foster homes than with Ms W. In fact, she observed Ab's flat head developing during her last visit in Ms W's home in November of 2018.

[46] The evidence of the Milestone manager and the direct support resource person was that:

(1) Timely and accurate communication with the former foster mother was an ongoing issue;

(2) Ms W. disclosed confidential information to third parties about another child in her care;

(3) Ms W failed to disclose in a timely way that her husband had a stroke and was off work and on medication. There is some discrepancy as to whether it was a stroke or more minor heart event, but Ms W testified that it was a TMI event (also known as a TIA or transient ischemic attack or mini-stroke);

(4) Ms W failed to disclose in a timely way that she suffered from anxiety and depression and was being treated through medication and therapy;

(5) A 9 year old girl was also placed in this home just before these two little girls. This older child was in the home initially on weekends to ensure a good fit. Foster mother encouraged Milestone to place the child there. The 9 year old suffered from Foetal Alcohol Syndrome Disorder and later became very difficult to handle. Additional supports were provided, including visits from the clinical manager. Foster mother phoned the after-hours Milestone "hotline" for advice on how to deal with this older girl on more than one occasion.

(6) Ms W failed to disclose that she and her husband were experiencing some discord. She testified that he sleeps in the basement from Sunday until Thursday night due to his work schedule.

(7) Ms W misinformed Milestone that she had permission from the society to take the children to a cottage in the fall of 2018. This was categorically denied by the society and then admitted by Ms W to be a falsehood.

(8) After a meeting with the manager and resource worker on November 19, 2018, more supports were provided to the foster home.

(9) The baby required regular tummy time to build neck and upper body strength and development. The children service worker told the foster mother to encourage the child to enjoy the tummy time. The child was always observed to be in a car seat or swing. Ms W told the worker and Milestone that the child didn't like tummy time so she "didn't push it". As a result, the baby had a flatness on the back of her head.

(10) Both girls developed diaper rashes. Ms W used a cream but did not seek medical advice. Ms W cancelled a doctor's visit scheduled for November 2 of 2018 and failed to re-schedule it. This was discovered by Milestone when the regular monthly medical report had not arrived. The baby was only three months old but had not been to the society doctor or any doctor for almost two months, despite suffering from this ongoing rash. Concerns had been expressed by the doctor during the September visit about the child's eyesight which required follow up at the subsequent appointment.

[47] Upon closing the home, Milestone made a referral to the local Peel society with the alleged neglect and safety concerns.

[48] Peel CAS interviewed the former foster mother and her husband and saw the children in their replacement foster home. The investigating worker testified. She did not verify a risk of physical harm. It appeared to the next foster mother and the Peel society worker that the girls had very sensitive skin. The former foster mother also advised this worker that she religiously gave the baby "tummy time".

[49] Former foster father, Mr M, told the Peel society worker in December of 2018 that he had been living in the basement for two years. Milestone was told by Ms W that he was there briefly so as not to be disturbed by nighttime feedings of the infant.

[50] When mother asked for these former foster parents to be assessed as a kith placement, the family service worker made a referral to the kin department. Due to holiday coverage two different workers conducted the assessment. Both kin workers testified.

[51] The kin department rejected the foster parents as a kith plan and noted the following:

(1) In the early stages of this investigation, the former foster parents were very slow to respond to phone calls and messages.

(2) The former foster parents did not agree with the concerns of Milestone.

(3) Ms W. said that she only missed one medical appointment on November 2 and that she attended the following week. Ms W later admitted that this was not true.

(4) Ms W told one kin worker that she "religiously" gave Ab tummy time; she told the other kin worker that because the child didn't like tummy time she "didn't push it."

(5) Ms W's health issues arose after a motorcycle accident in 2014. She saw a psychiatrist for a year and has been on medication since then. She has high blood pressure and low thyroid hormone issues, for which she takes medication. On occasion, she takes pain relief for a degenerative lower back condition. Mr M had a mini stroke in July, 2018 and stayed off work for 6 weeks. He is on cholesterol medication and aspirin since then.

(6) Ms W's medical clinic responded to the consent to release of information by indicating that she was not currently a patient and hadn't been to the clinic since 2017. Her other health care provider, a nurse practitioner, had last seen her in October of 2018 and had left that clinic in March of 2019.

(7) Mr M gave mixed messages about his commitment to the plan, which is consistent with his non-appearance at this hearing.

[52] Ms W continued to see the children, albeit inconsistently, after they were moved from her home. There were 8 or 9 visits, usually with the mother, commencing in July of 2019. Most recently on September 16, 2019, foster mother cancelled the visit because her husband had taken the car and she had no means to get to the office.

[53] Ms W gave evidence about the past concerns. She admitted that:

(1) She lied about re-scheduling the medical appointment for the baby;

(2) She lied about having permission from the society to take the children to a cottage.

(3) She was diagnosed with anxiety and depression in 2014, after she was licensed as a foster home. She has suffered from post traumatic stress syndrome since the age of 3 or 4 after she was raped. She is on medication for all of these issues.

(4) She understood that she was to disclose all medical issues to Milestone.

(5) She has not had a family doctor since 2017 when her doctor retired. She obtains her prescriptions from a Nurse Practitioner Clinic. She did not attend her last two clinic appointments in July and August of 2019.

(6) She told the Peel society worker that her husband believes she is having an affair and this has been an issue for 25 years. They bicker in front of the children and the nine year old girl who was placed there did not like it.

(7) She did not tell Milestone nor the society that her husband had a stroke in July of 2018 and took a month off work. She testified that in fact he had a TMI and not a stroke and that they have adjusted his diet to manage this.

(8) She gave inconsistent information to various workers about the challenges of dealing with the 9 year old girl.

[54] Ms W has given the mother her address and told her that she could see the children in her home, perhaps for birthdays. She is not sure if her husband would be comfortable with this plan.

[55] On one of the visits that Ms W attended with the mother, she thought the mother was on drugs but did not mention this to the supervising worker. She does appreciate that if the children are placed with her then she would have a duty to advise the society of any concerns like this.

[56] When the children were with her, Ms W testified that she did not observe any developmental delays, other than the tummy time and eyesight issues for the baby.

[57] Ms W presented as pleasant and likeable. Three previous foster placements with Ms W went relatively well and those children appeared happy and comfortable most times.

The Children

[58] Ay is a very attractive and active two year old.

[59] Various screening tools and neo-natal assessments, conducted in August of 2018 and recently on April 11, 2019, indicate that she is behind in her motor development. Ay receives services for occupational therapy in her foster home and through the local neo-natal clinic. She has also been referred by the society paediatrician for speech and language assessment and therapy.

[60] Ab is a very cute one year old. She was a very small baby, assessed as being in the 3rd percentile for weight and height at birth. Mother said she did not realize she was pregnant until 6 weeks before the birth. The child has been referred for speech and language assessment. She has also been assessed as lagging in her gross and fine motor skills and has several specialist appointments for hearing and eyesight concerns.

[61] The current foster mother gave evidence about the girls. She described them:

(1) Ay is sweet and bubbly with some tantrums and difficulty transitioning.

(2) Ab is more laid back and sweet and friendly; she likes dancing and going for walks.

(3) Their development is coming along. An occupational therapist comes regularly to the home. Both have some developmental delays and both are on a waiting list for speech therapy.

(4) Ay can be too aggressive with the younger child so they have to be watched very closely.

(5) At times the visits are cancelled a lot, so she now drives the children to the visit herself once it is confirmed. Ay knows when the phone rings if the visit is cancelled and will be a little down.

[62] The children service worker said that this foster mother keeps a log about dietary intake and the occurrence of diaper and other rashes as the girls have very sensitive skin. She also testified that this foster mother is always reviewing this with the doctor and trying different creams, such as aloe.

The Legal Framework

Status Review Proceedings

[63] The society brought a review of the child's status before the expiry of the last order, pursuant to section 113 of the Act. The society has filed a written plan for the child as directed by section 100 of the Act. The plan is consistent with the position outlined at the commencement of this proceeding.

[64] Section 101 sets out a two step process, as confirmed by the Ontario Court of Appeal in Children's Aid Society of Oxford v. W.T.C., 2013 ONCA 491:

a. First, determine whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection;

b. If it has been determined that the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the child.

[65] Once it has been decided that the child is still in need of protection, the court must consider the least restrictive alternative consistent with the child's best interests. CAS Peel v. W., 1995 14 RFL (4th) 196 (OCJ).

[66] In determining what order is required to meet the child's best interests, the court must consider the degree to which the risk concerns that prompted the original order still exist. This must be examined from the child's perspective. Catholic Children's Aid Society of Toronto v. M. (C.), 2 S.C.R. 165 (S.C.C.).

[67] If a court order is necessary to protect the 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.

[68] The Act sets out certain time limitations for children in the care of the society. Section 122 stipulates that children under the age of 6 cannot be in the temporary custody of the society for more than 12 months. This is consistent with the paramount purposes of the Act to promote the best interests, protection and well-being of children and to make plans that secure permanency and enduring relationships for them. M. (C.) v. CAS of Waterloo, 2015 ONCA 612; CAS of Ottawa v. B.H., 2017 ONSC 4799.

[69] 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.

[70] Section 101(4) also requires the court to consider alternative placement with a relative, neighbor, or other member of the child's community or extended family, with their consent, before considering society care and custody.

[71] The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance: Children's Aid Society of Winnipeg (City) v. R., 19 R.F.L. (2d) 232 (Man.C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. Children's Aid Society of Brockville, Leeds and Grenville v. C., [2001] 2001 CarswellOnt 1504.

[72] A comprehensive best interests analysis requires consideration of the strengths and weaknesses of every option.

[73] Delay in the litigation process in child protection matters must be measured from the child's perspective. The court must consider the impact of delay on the best interests of the child. CAS of Toronto v. T. (L.), 2016 ONCA 146; CAS of Ottawa v. F. (L.), 2016 ONSC 4044.

[74] Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's chance to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. Catholic Children's Aid Society of Hamilton v. V.C., 2017 ONSC 5557.

[75] An order for extended society care is probably the most profound order that a court can make. The judge must exercise this only with the highest degree of caution, based on compelling evidence and after a careful examination of possible alternative remedies. CAS Hamilton v. M., 2003 O.J. No. 1274 (UFC).

Analysis

[76] There is no dispute that the children remain at risk and cannot be returned to the mother. Mother agrees that she has not been able to successfully deal with her issues of addiction, transiency, and general lifestyle. Father's lengthy criminal record and lack of access to the girls contribute to his inability to form a realistic plan. The risks that existed at the time of the children's admission to the care of the society remain the same. See CAS Toronto v C.M., [1994] 2 S.C.R. 165.

[77] The court must carefully examine the community option proposed by the mother to place both girls with the former foster mother and foster father.

Role of Foster Parents

[78] The Act gives foster parents certain rights; such as:

(1) Notice if a child in extended society care has been continuously with a foster parent for 2 years is being moved; such notice then entitles the foster parent to seek a review with an administrative tribunal; see sub-section 109 (7) (the Act);

(2) Notice of a status review application before the court if the foster parent has been caring for the child continuously for six months immediately before the application. This foster parent may attend the hearing, be represented by a lawyer, and make submissions; and

(3) A foster parent who has continuously cared for a child for the two years immediately proceeding the application, may bring a status review application.

[79] Ms W and Mr M do not fall into any of these categories as their care of the children was only for four months and it occurred eight months before the Status Review Application. Ten months have now gone by since the children lived with them.

[80] The court must therefore treat the proposal of the former foster parents as a community plan.

[81] Although the mother is presently aligned with the former foster mother, this relationship is likely to fracture very soon. For example:

(1) Already the former foster father has failed to attend court to support the plan.

(2) Ms W is offering birthday visits for mother in her home, without having considered the views of the society or her husband; in fact, she testified that he would probably be opposed.

(3) Ms W does not know the father of the girls and he has already engineered a situation with the mother to permit him to see the girls at the society without the approval of the society. He is unlikely to follow any boundaries that the former foster family would likely want to place around their home.

(4) Mother's plan is to increase her access and thereby increase her chances of having her girls returned to her custody. Ms W's plan includes adoption of the children in the future. These plans are at odds.

[82] In a sense, mother's situation is desperate. The statutory time limit for temporary solutions has passed. She has had no one else from her own community or family to put forward.

Is the Supervision Order with Ms W in the Best Interests of the Children?

[83] A hard look at the plan with Ms W reveals the following:

(1) She suffers from "severe" (her word to the first kin worker) mental health issues, depression and anxiety, which were not disclosed in a timely manner to the society or her resource worker. They were discovered by accident when she mentioned going to therapy with the two children. Her third condition is PTSD, was only discovered during this trial, although she testified that it stemmed from being raped when she was 3 years of age. She is also on medication for an inactive thyroid and hypertrophic cardiomyopathy.

(2) The original screening process for foster parents, as described in the document attached to Ms W's affidavit, indicates that a "written medical report regarding general health and specific illnesses or disabilities of anyone in the home is required and whether or not these might interfere with the provision of foster care". (See subsection f under Screening of Foster Parent section page 57, as attached to Ms W's affidavit, my emphasis). Ms W did not see any reason to advise Milestone of her illnesses when they were diagnosed nor to advise of her husband's heart event, even though he was off work for more than a month. Ms W attended court and gave evidence with a small dog in her arms. She indicated it was an accommodation issue.

(3) Ms W and her husband have some serious (my word) marital issues; in that she says he has accused her of having an affair for all of their 25 years of marriage. He has been sleeping in the basement for varying periods of time and apparently, in her evidence, still does, even though there are no children in the home. She denies these are issues.

(4) Mr M did not attend the hearing.

(5) Ms W does not recall any developmental issues for the girls while they were in her care other than the diaper rash and tummy time. The society doctor had concerns about language and motor development.

(6) Ms W admits to lying about both the cottage permission and the re-scheduling of a doctor's appointment for an infant.

(7) Ms W and Mr M specifically indicated to Milestone they did not want older children.

(8) Ms W had a great deal of difficulty with the nine year old who was also recently placed with them before the children arrived. The 9 year old at first came on weekends and then Ms W said they were ready for full time. When school began in September of 2018, the child began to experience behavioural issues. The child suffers from foetal alcohol syndrome. Ms W called the after hours line on more than one occasion and on one such call spoke to her own resource worker for ideas to deal with the child. After a meeting with Milestone, additional clinical visits and support were provided. On at least one occasion – although foster mother was heard by one worker to say much more frequently – foster mother took these two small children into the bathroom and locked the nine year old out as a safety measure.

(9) Ms W advised one of the access workers on August 15, 2019 that she had just located some Early Years locations close to her place. For someone who has been fostering for several years, it is surprising that she has just done this now.

[84] I find that Ms W is not credible because:

(1) She minimized concerns about a very young infant and a one year old;

(2) She has been caught in lies about the foster care rules on more than one occasion; and

(3) She tries to cover up concerns about her and her husband's health that could pose challenges in caring for two very active children with many appointments.

Best Interests of the Children

[85] Needs of the children:

Both of the girls are very young and have some emerging special needs that will require constant attention and follow-up with various professionals. Ms W did not address these issues, minimized the concerns, and did not make the recommended follow up appointments. The court is not confident that Ms W will address these needs.

[86] The level of development of the girls:

Both of the girls have some current delays and will require constant monitoring and cooperation with many professionals. Ms W has many issues of her own and has had difficulty making and keeping medically necessary connections. The court is not confident that she can adequately meet these special needs.

[87] The children's ancestry and cultural heritage:

The children have no identified special ancestry or heritage.

[88] Secure member of a family:

Mother admits that she cannot care for the girls and hopes that the former foster placement will give her more time. The home of Ms W is not secure either, for the reasons outlined above. Mr M did not even attend the hearing. Ms W cannot offer the security and stability that the children require.

[89] Relationships and emotional ties:

In the society's plan, the children will maintain their relationship with their mother. Although the girls were with the former foster mother for almost four months, that was ten months ago and the court finds it unlikely that there is a secure emotional tie between the girls and Ms W. There is no evidence of any relationship whatsoever with the former foster father.

[90] The importance of continuity of care:

The children will have to be moved to an adoptive home. The plan of the former foster mother is to move the children back to her home and then perhaps back to mother and then perhaps to an adoptive home with her and the former foster father. The former foster mother does not explain how the process of adoption would work for them, given the society and the mother's views.

[91] Comparison of the plans:

The plan of the mother to place with the former foster mother has many, many concerns:

(1) Ms W is not trustworthy. She admits to casually lying about important things like medical appointments.

(2) Ms W has several serious health issues of her own that have just recently been revealed. She lacks insight into the need for transparency on such important issues.

(3) The former foster home has some instability of relationships between the foster parents themselves.

(4) Ms W minimizes the ongoing role of providing safe and secure access to the mother.

(5) Ms W minimizes the energy and organizational skills required for meeting special needs of children.

(6) Ms W's relationships with professionals to date tends to be very loose and inconsistent.

(7) Both children have special needs and Ms W failed to disclose the mother's drugged condition during a supervised visit. Ms W did not put the girls' interests first.

(8) The risks in this case are very high and the plan of the society is much better able to meet the needs of the children than the plan with the former foster parents.

Proof of Adoptability

[92] There is no dispute that the children in this case are adoptable.

[93] There is no obligation on the society to prove that the children are adoptable, let alone that there is a prospective adoptive family. See Children's Aid Society of Niagara Region v. J.C., S.B. and R.R., (Ont. Div. Ct). Babies with no special needs require little evidence of adoptability, while older children with special needs are on the other end of the spectrum and require more evidence of adoptability. With older children, the evidence should be able to be related to the children before the court. Also followed in CAS of Haldimand and Norfolk v. R.D., 2011 ONSC 4857, 2011 O.J. No. 4082, and Children's Aid Society of Toronto v. C.J., 2014 ONCJ 221.

Conclusion on Disposition

[94] For all of the above reasons, the court finds that the least disruptive alternative consistent with the best interests of the children is to remain with the society under an extended society care order.

Access for Extended Care Children

[95] The society proposes continuing access to mother on a monthly basis. Mother would like more frequent access.

[96] Subsection 105 (5) and (6) of the CYFSA set out a new legal test for children who have been placed in the extended care of the society. It is now a best interests tests and the court has to consider whether the relationship between the child and the person seeking access is beneficial and meaningful for the child and whether access would impair the child's opportunities to be adopted.

[97] In Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, the court wrote that the new access test is significantly different than the old test. It is no longer a presumption against access test, but rather a best interests' analysis. The test makes the child's best interests predominant in determining access and emphasizes the importance of preserving indigenous children's cultural identity and connection to community.

[98] I agree that access to the mother is meaningful and beneficial and continues to be in the best interests of the children. She greets the children warmly and they have a lovely routine for their visits. There is affection and playfulness. She can read the children's cues and has demonstrated some child development knowledge.

[99] Mother does not have a consistent pattern of exercising the access she has been given. Since April 1, 2019, there has been 40 scheduled visits, of which mother has attended 28. For 6 weeks in the summer of 2019, mother was very consistent but since August 15, 2019 she cancelled 2 out of the following 5 visits.

[100] For this reason, I agree with the society that the access should be set out as a minimum of once a month.

Mother as Access Holder

[101] Pursuant to subsection 105 (7) of the CYFSA, the court must specify who is an access holder and who is an access recipient in its decisions. The society agrees that the mother should be the access holder.

Father's Access

[102] In closing submissions, the society recommended that the order be silent as to father's access.

[103] In Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 930 (SCJ), the court found that the trial judge erred in making an order that was silent as to access. The court said that Part II of the Child and Family Services Act (now the Act) provided a legislative pathway through which the court had to proceed in determining child protection matters. There was no gap in the Act that permitted an order that was silent as to access as a means of circumventing the conditions in s. 59(2) (b). If a parent sought access, he or she had to rebut the presumption against access.

[104] Although the current legislation does not require the parents to rebut presumptions, per Kawartha, it is still applicable on the principle that an order that was silent as to access did not, effectively, dispose of the access issue where the court had, in reality, decided whether or not it would make an order granting a parent a right of access. This case was successfully appealed on other grounds. See: Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (OCA). This case was followed recently in Children's Aid Society of Toronto v. J.F., 2019 ONCJ 248.

[105] Father attended two of the four days of this hearing and was late on both occasions. He appeared to arrive with the mother. He was recently released from a correctional institution and, although served with the Amended Status Review Application on August 9, 2019, he did not file an Answer. The court found him in default.

[106] Father was also served and found in default on the original application with respect to the finding in need of protection and the disposition. He has been incarcerated from November of 2018 until August of this year. Prior to this period of incarceration, he had not seen the children since their admission to the care of the society.

[107] Although he arranged with the mother to come to the society office at the same time as one of her visits and was therefore able to see the children in passing, he has not requested or attended a real visit.

[108] This court offered father the opportunity to give evidence in this proceeding and to question the witnesses and to make submissions about the evidence before the court. Father declined to give evidence and stated his position was to support the plan put forward by mother with Ms W and Mr M. In closing, father requested access. No details were provided with this request.

[109] Father's access must also be subject to the best interests' criteria, including some evidence that such access would be meaningful and beneficial to the children. There is no evidence of any relationship whatsoever between father and the children. It is neither meaningful nor beneficial for the children to have any contact with the father. Further, father's criminal history is a clear indication that his conduct would likely impair any potential adoptive plan and act to dissuade any potential adoptive parents. Accordingly, I must make an order of no access to father.

Final Orders

1. The children, Ay born […], 2017 and Ab, born […], 2018 are placed with the society under extended society care.

2. There will be an order of access to the mother, to be at the discretion of the society, but at a minimum of once per month. Mother is the access holder. The children are the access recipients.

3. There is to be no access to the father.

Released: October 8, 2019

Signed: Justice D. Paulseth