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: February 19, 2020
Court File No.: Toronto; CFO 18 21237
Between:
Children's Aid Society of Toronto
Applicant,
— AND —
R.B.
Respondent
Before: Justice E. B. Murray
Heard on: January 28, 29, 30, and 31, 2020
Reasons for Judgment released on: February 19, 2020
Counsel:
Ms. Karen Freed — counsel for the applicant society
Ms. Marlo Shaw — counsel for the respondent
Decision
MURRAY, E. B. J.:
Introduction
[1] This is my decision on the trial of a status review application concerning "Colleen" B. born […], 2018.
[2] R.B. is Colleen's mother. Colleen has been in temporary or interim Society care since she was released from hospital on August 10, 2018. She has been in the continuous care of foster mother, B.H. Ms. B.H. would like to adopt Colleen.
[3] The Society asks in its application for an order of extended Society care, with access by Colleen to Mother once a month for 3 hours. Mother asks for an order placing Colleen in her care pursuant to Society supervision. In the course of the trial, Mother advanced a request for alternative relief, an order extending interim Society care for three months. If an order for extended Society care is made, Mother asks for access continuing the current pattern of temporary access, five hours each week.
[4] Mother lives in Hamilton and Ms. B.H. lives on Wolfe Island near Kingston. Although the Children's Aid of Toronto (CAST) has carriage of the case, workers from the Kingston agency (Family and Children's Services of Frontenac, Lennox and Addington or FACSFLA) have supervised Colleen's placement with Ms. B.H. and have supervised access between Colleen and Mother.
[5] At trial I heard evidence from CAST workers Kasia Kaczmarek, the Family Services worker, as well Karri Madl; from seven FACSFLA workers, including Patti Reed, Colleen's Children Services worker; and from Ms. B.H. I heard evidence from Mother and from two supports for Mother, B.M. and his daughter C.M.
[6] No male person is identified as Colleen's father. From time to time orders have been made dispensing with service on the unknown father. An order was made on September 24, 2019 finding that there was no person other than Mother who should be served with the Status Review application.
[7] The issues which must be decided are:
Does Colleen remain in need of protection, and if she does, is a court order necessary to provide that protection?
What disposition is in Colleen's best interests? Should she be returned to Mother's care? Colleen has already been in Society care for a period that exceeds the statutory limits. Is this an exceptional case in which she should remain for a further period in Society interim care? Should an order for extended Society wardship be made?
If an order for extended Society wardship is made, what access should be ordered between Mother and Colleen?
Statutory Framework
Disposition
[8] Section 113 of the Child, Youth and Family Services Act provides that a society having interim care of a child may apply to the court for a review of the child's status. Section 114 of the Act sets out the court's powers under a status review application:
114 Where an application for review of a child's status is made under section 113, the court may, in the child's best interests,
(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;
(b) order that the original order terminate on a specified future date;
(c) make a further order or orders under section 101; or
(d) make an order under section 102.
[9] Section 102 of the Act refers to the making of custody orders that are deemed to be order under the Children's Law Reform Act. That subsection has no application in this case.
[10] Section 101(1) provides as follows:
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:
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.
That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
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.
Time Limits
[11] Section 122 of the Act set out below is statutory recognition of the importance of permanency planning for children. Subsection 122(1) limits the period of time that a child Colleen's age can be in temporary or interim Society care to 12 months.
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.
[12] Subsection 122(5) below permits the court to extend time limits by a period of up to six months if it is in the child's best interests. There is disagreement in the caselaw as to whether there may be multiple extensions of the time limit which may total more than 6 months. That disagreement is discussed further below.
122(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.
Best Interests
[13] Subsection 74(3) of the Act set out a non-exclusive list of factors a court is to consider in determining a child's best interests.
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 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.
Other Considerations on Disposition
[14] Section 101 sets out factors in addition to best interests to be considered by a court before an order is made.
Assistance Given to Parent
101 (2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.
[15] Mother's counsel submits that there were marked deficiencies in the assistance provided by the Society to Mother. This issue is discussed further below.
Less Disruptive Alternatives Preferred
101(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.
Community Placement to be Considered
101(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.
[16] No family or community members who could offer a plan for Colleen were identified.
[17] The history of the court proceeding is set out below:
August 13, 2018. CAST commences application seeking a protection finding and a six-month order placing Colleen in interim Society care.
August 13, 2018. A temporary order is made placing the child in temporary Society care and providing that access to Mother is at the Society's discretion.
December 5, 2018. No Answer is filed by Mother. On an uncontested basis, court makes statutory findings and a protection finding pursuant to s. 74(2)(b)(I) of the Act (risk of physical harm).
March 21, 2019. Based on an agreed Statement of Facts, an order is made providing that Colleen be in interim Society care for four months, with access to continue at the Society's discretion.
May 7, 2019. Ms. Kaczmarek makes a referral to George Hull Centre for a Family Group Conference. Referral lost. Ms. Kaczmarek puts in further request for a conference on December 10, 2019. George Hull is unable to schedule a conference until January 22, 2020.
June 17, 2018. CAST issues a Status Review Application asking for an order of extended Society care with access to Mother at the Society's discretion.
July 15, 2019. Mother files an Answer and Plan of Care asking that Colleen be placed in her care.
September 24, 2019. Case management judge schedules Mother's motion requesting increased access for October 16, 2019.
October 16, 2019. The Society consents to a temporary order lengthening Mother's access from three to five hours weekly. The first two hours of each visit are to be unsupervised.
January 22, 2020. Family Group Conference held.
January 27, 2020. Trial commences.
The Facts
Background
[18] There is little dispute about relevant facts. Those facts are set out below.
[19] Mother is 38 years of age. Prior to Colleen's birth, she had seven children. The first child died soon after birth. None of the other six children are in her care.
[20] Mother has a history of involvement with the Department of Child and Family Services (DCF) in Boston Massachusetts commencing in 2000 with respect to her four next-born children. The protection concerns noted involve chronic neglect and Mother's use of opiates (oxycondone).
[21] Mother's next-born children, Ra., born […], 2008 and At., born […], 2009, came to the attention of the Catholic Children's Aid Society of Toronto (CCAS) after At.'s birth in a Toronto hospital. At. was experiencing withdrawal from oxycondone. CCAS received information about Boston DCF's continued concern about child neglect. Mother placed At. with CCAS on a temporary care agreement.
[22] Over the next 18 months Mother and the children's father moved back and forth between Ontario and Boston. Their four older children and Ra. also moved back and forth.
[23] In early 2010 the family moved to Hamilton, and the file was transferred to Hamilton Children's Aid Society. At. was returned to Mother's care under Society supervision.
[24] Mother's doctor in Hamilton, Dr. Rana, reported worries about what appeared to be opiate (oxycontin) abuse by Mother.
[25] Ra. and At. were apprehended by the Hamilton Society on December 3, 2010 after Mother was hours late picking the children up from a sitter. The sitter believed that Mother was high and called police who contacted the Hamilton Society.
[26] Mother returned to Boston the day after Ra. and At. were apprehended. Eventually the Hamilton Society requested an order of Crown wardship for Ra. and At. Mother said she wanted to care for Ra. and At. in the future; she promised to stay in Canada and attend treatment for substance abuse. She did not follow through with those plans.
[27] An order of Crown wardship for Ra. and At. was made on January 23, 2012.
[28] Ra. and At. were adopted by Ms. B.H., who had acted as their foster mother. Mother does not have access to those children. Maternal grandmother L.S., who lives in Toronto, does.
[29] Mother's four older children are in the care of their father and live in the U.S.
Colleen's Birth
[30] Mother did not discover that she was pregnant with Colleen until she was six months advanced. She was drinking heavily, and worried that this drinking had affected the fetus. Mother believed that it would be harmful to attempt to stop all alcohol consumption immediately. She cut back to two beers daily, then one, and then none.
[31] Mother went for an ultrasound but did not follow up on the urgent referral made for her to the maternity centre. Dr. Rana contacted the Hamilton Society with concerns stemming from her history of abusing narcotic pain medication and other drugs and her failure to follow through with prenatal care. Dr. Rana's office was later contacted by a pharmacy about an attempt by Mother to fill an allegedly lost prescription for gabapentin, a medication that the doctor said was dangerous during pregnancy. Birth alerts were sent to hospitals in Toronto and Hamilton.
[32] CAST worker Ms. Madl attempted to locate Mother. She was able to speak with her by phone, but Mother would not disclose an address and would not meet with her.
[33] On August 8, 2018, Gabriella Carafa, a social worker North York General Hospital, contacted Ms. Madl to advise that Mother had given birth to a healthy baby girl. A doctor advised that he had completed drug tests on Mother within the past 6 weeks that were negative. Mother told hospital staff that she had been "clean" for the past 6 weeks.
[34] Ms. Madl met with Mother at the hospital on August 10, 2019. Mother told her that she was not able to care for Colleen at that time. She said that she had no appropriate place to live and that there was too much "stress and drama" in her life. At trial Mother said she had been living with an abusive boyfriend whom she had left shortly after Colleen's birth.
[35] When Mother found out that she was pregnant she contacted Ms. B.H., asking if she would care for the baby after birth. Based on maternal grandmother's information, Mother believed that Ms. B.H. was providing good care to Ra. and At. and that she would provide good care for the new baby. Ms. B.H. accompanied Mother to her ultrasound appointment.
[36] Ms. B.H. did not know that a children's aid society had concerns about Mother's pregnancy. When Mother first contacted Ms. B.H. with her request, Ms. B.H. retained a family lawyer who prepared a written agreement that purported to deal with the unborn child's future custody and with Mother's contact with the child.
[37] The agreement provided that Ms. B.H. would have "sole care, control and guardianship" of the child. Mother was to have "generous and liberal access on reasonable notice". Mother understood from Ms. B.H. that she would be able to start having contact with Ra. and At. after the baby's birth.
[38] The agreement was not executed until August 8, 2019, five days after Colleen's birth. At the time of execution, Mother made an addition: "If I secure a place and are able to take care of my child, I will be able to get guardianship". Both parties signed.
[39] At the meeting on August 10, Mother told Ms. Madl that she hoped that Colleen could be placed in Ms. B.H.'s care. Ms. Madl testified that Mother was "indecisive" as to whether the placement should be temporary or permanent. At trial Mother's evidence was that she consistently said that she wanted to have care of Colleen in the future.
Colleen Goes Into Society Care
[40] Colleen was placed in Ms. B.H.'s care as a place of safety on August 10, 2018, pending the Society's assessment of Ms. B.H. On August 13, 2018 a temporary order was made placing Colleen in Society care. Colleen has continued to live with Ms. B.H.
[41] At the August 10th meeting Mother advised Ms. Madl that she would be going to the U.S. for some time. Ms. Madl reviewed with her the importance of the statutory timeline of one year for an infant like Colleen for permanency planning. Mother told Ms. Madl that she understood, that the timeline meant that "I have to get my shit together or that's it". At trial, Mother said that she did not understand until she met with Ms. Kaczmarek on January 8, 2019 (after she returned to Canada), that the timeline was 12 months.
[42] Ms. Madl arranged a visit for Mother with Colleen in Kingston for August 22, 2018 and sent her train tickets for the trip. Mother delayed her departure to the States for the visit, but unfortunately missed the train and the visit.
[43] Mother had no contact with CAST after leaving Canada, despite numerous attempts to contact her by phone, email, and social media and through relatives. It was not until December 6, 2018 (the day after the court made a finding of protection) that Ms. Kaczmarek was able to speak with Mother by telephone.
[44] Mother was in Texas. She said that she did not want Colleen to be adopted by Ms. B.H. She said she wanted visits with Colleen. She said that her father had a house in New York where she and Colleen would live. She planned to return to Ontario and stay until court proceedings were finished.
[45] Mother met with Ms. Kaczmarek on January 8, 2019 and requested visits with Colleen. She said that she planned to look for an apartment in the Toronto area, and that money was "not a problem" as she had a plumber's license and could get work.
[46] The Society did not arrange a visit for Mother until March 11, 2019.
Mother's Addiction History and Current Sobriety
[47] Mother had a lengthy history of abuse of prescription drugs in 2012 at the time Ra. and At. were made Crown wards. She told Ms. Kaczmarek in their meeting on January 8th, 2019 that she had stopped abusing opiates after she lost Ra. and At. Mother said that she began abusing alcohol — primarily beer.
[48] At the time Colleen was born Mother said she had been "clean" for six weeks.
[49] Mother's statement to Ms. Kaczmarek when they met in January of 2019 and her evidence at trial is that she has been abstinent from alcohol since November 2018.
[50] The Society accepts that Mother has been largely successful in abstaining from alcohol consumption.
[51] I say "largely" because CAST alleges that Mother relapsed once, in March of 2019. At that time Ms. Reed was attempting to schedule Mother's first visit with Colleen. Ms. Reed made arrangements for a visit on March 1, 2019 in Kingston and sent the information to CAST and Mother. She received no confirmation, and the visit did not occur.
[52] Ms. Reed's evidence is that when the first visit actually took place on March 11, 2019, Mother told her that she "got drunk", upset at missing the visit that had been arranged for March 1st, a few days earlier. Mother testified that Ms. Reed misunderstood her; she had admitted getting drunk when distressed about a missed visit, but was referring to the visit she missed on April 22, 2018, right after Colleen went into care.
[53] I think it unlikely that Mother was referring to a miscommunication over a missed visit 8 months ago rather than one a few days prior. Ms. Reed kept contemporaneous notes of her interaction with Mother. She has no reason to misrepresent what she heard from Mother that day. I accept Ms. Reed's evidence on this issue.
[54] Despite this one relapse, CAST has not asked Mother to participate in testing or screening of any type that might monitor alcohol or drug use.
Colleen
[55] Colleen's "thriving" in Ms. B.H.'s care.
[56] There was worry that the child might suffer from fetal alcohol syndrome (since Mother consumed alcohol during pregnancy), but that does not seem to be the case. Colleen's meeting her developmental milestones, except for some slowness in gross motor development. The child will be assessed shortly to determine if any treatment is needed in this regard.
[57] Colleen has a close and loving relationship with Ra., 11, and At., 10, as well as a good relationship with two other children who have been adopted by Ms. B.H.; Al. 6, and Br., 5.
Ms. B.H.
[58] Ms. B.H. worked as a foster parent for a private agency, providing a therapeutic foster home for several years. She stopped fostering two years ago.
[59] Ms. B.H. has adopted four children, all of whom have special needs.
Ra. is dyslexic and is described by Ms. B.H. as being "on the edge" of the autism spectrum. She is in a small class and has the part time help of an educational assistant.
At. is in the process of being assessed and is described by Ms. B.H. as having a profile similar to Ra.'s.
Ad. has a diagnosis similar to Downs syndrome and functions at the level of a 3-year-old. He has a full-time educational assistant at school.
Br. has a club foot and resulting problems with mobility.
[60] Ms. B.H. has some assistance from her 65-year-old mother in caring for the children.
[61] Ms. B.H. has allowed maternal grandmother Ms. L.S. to have visits with Ra. and At. at Ms. B.H.'s home. Visits decreased in frequency when Ms. B.H. moved from Niagara to Wolfe Island, and now occur mainly at holiday times.
[62] When Mother contacted Ms. B.H. to ask if she would care for her baby, there was cordial conversation between them. When Colleen first came in to Ms. B.H.'s care, Ms. B.H. sent Mother pictures and information about the baby's development. After it became clear that Mother wanted Colleen returned to her, her relationship with Ms. B.H. soured. Ms. B.H. was reluctant to communicate with her.
[63] When Mother asked if she could visit Colleen when Ms. L.S. visited Ra. and At., Ms. B.H. refused. She wishes to avoid the possibility of Mother having contact with Ra. and At.
[64] Ms. B.H. has regularly driven Colleen in to Kingston for a weekly visit. She has opposed extension of those visits. Ms. B.H. testified that if the court granted Society's request for extended wardship and ordered continued access between Colleen and Mother that she will cooperate in facilitating any access order.
Mother's Plan
[65] The protection concerns identified in the finding relate to Mother's history of substance abuse, her difficulties in maintaining a stable residence, her neglect of her other children, and her ability to safely parent Colleen now. Mother has struggled to develop and implement a plan that would allow Colleen to be returned to her care.
[66] Mother has done well in regularly attending the visits scheduled with Colleen and in caring for the child during those visits. The child has settled into and enjoys the visits. (More is said below about progress made in these areas.)
[67] However, other aspects of Mother's plan have been slow to develop and have changed frequently.
[68] As noted above, in January 2019 Mother's initial plan was to live in New York state in a home provided by her father.
[69] Later Mother said that her plan was to rent an apartment in the Toronto area.
[70] In the past year Mother has lived with her sister Sh. Toronto, with her Mother in Toronto, with B.M in Hamilton, with C.M. in Hamilton, and then again with B.M. These have all been temporary arrangements. Mother says that she has looked for an apartment in the Toronto area and then in Hamilton. She has not found any accommodation acceptable to her that is within her budget.
[71] Mother was initially confident that she could obtain well-paid employment as a plumber. She then decided to attend school for a nursing assistant's program. She left that program when she could not manage it while attending visits. She worked in a meat packing plant. She has worked as a cashier at Walmart for the past three months.
[72] In August 2019, Mother advised the Society that she had asked her father, Ro. B., to help her by planning for Colleen. Mr. Ro. B. lives in Florida with his wife and teenage child. Mother envisioned that if Colleen was placed with maternal grandfather that she would move to Florida to be close to Colleen. Mr. Ro.B. contacted Society and said that he wished to plan. He withdrew that plan in November 2019.
[73] In early January of 2020, immediately before trial, Mother advised the Society that her plan was to live with Colleen in a basement apartment in her brother Ro.'s home in Hamilton. The Society would not support this plan, as Ro. has a history of alcohol abuse.
[74] At trial, Mother testified that she would live with Colleen in a basement apartment in her brother Ro.'s home in Hamilton. The Society would not support this plan, as Ro. has a history of alcohol abuse.
[75] When B.M. gave evidence, he did not support Mother's plan for her and Colleen to live with him. When C.M. testified, she offered Mother temporary accommodation "for as long as necessary".
[76] Mother's evidence at trial was that she did not expect that it would take long for her to find an apartment because her income at Walmart would allow her to pay a reasonable rent and because she had saved $2000 for first and last month's.
[77] As regards issues concerning Mother's history of substance abuse, the Society accepts that she has done well in maintaining sobriety — with one slip — since November 2018. The Society wishes Mother to participate in a professional addiction aftercare program that will help her avoid abusing substances — alcohol or drugs — again.
[78] In February 2019, the Society referred Mother to Breaking the Cycle, a well-regarded program for mothers with addiction issues. Mother liked the program and participated well for three months. Then, on May 30, 2019, the Society decided to request extended Society wardship for Colleen in its status review application. Breaking the Cycle requires that there be Society support for a plan for reunification if a participant is to remain eligible to participate in their program. The Society's decision meant that Mother was ejected from the program.
[79] Mother has not found and participated in any other program that offers professional guidance for recovering addicts. A Hamilton program, Good Shepherd's Second Steps, was attractive to her but has the same eligibility requirements as Breaking the Cycle, so she could not participate.
[80] Ms. Kaczmarek testified that, other than a suggestion that Mother might consider AA, she could offer no recommendation about what program might meet the Society's concerns. Mother tried an AA meeting, and found the experience unsatisfactory—someone came drunk to the meeting. Mother did not want to associate with drinkers, so did not go back. Ms. Kaczmarek's view was that Mother is "very resourceful" and did not need her help finding resources.
[81] At trial Mother testified that she hoped to receive counseling from the wife of the pastor of her friend C.M.'s church. This woman had training as an addiction counselor, although she had not worked in the field. Mother had not met with this woman.
[82] Mother says that she is strengthened in her pursuit of sobriety by her religious faith. She also feels supported by individuals in a parents' group which she has joined; that group does not focus on addiction issues. Mother also finds support for her sobriety in her relationship with C.M. and B.M. and their family.
[83] Mother testified that if Colleen was placed in her care that she would enroll and participate in any maintenance program required by the Society.
Visits
[84] Mother's early efforts with Society focused on getting visits.
[85] There was inordinate delay in a visiting schedule being established. No visits were arranged until March 11, 2019, and even then, no regular schedule was put in place until late April. At that point there had been only three visits. Ms. Kaczmarek explained that the delay in setting up a visiting schedule occurred because of difficulties in coordinating arrangements with FACSFLA.
[86] The schedule initially allowed for weekly visits of 2 hours, supervised by FACSFLA. CAST pays for Mother's transportation to Kingston by bus. Visits were increased to three hours weekly to better accommodate the bus schedule from Toronto to Kingston.
[87] In the summer of 2019, Mother asked for visits twice a week. CAST advised it would not pay for transportation for a second visit, although it might allow another if Mother would pay for the travel costs involved. Mother was unable to do this.
[88] In the fall of 2019 Mother asked for unsupervised visits of 7 hours weekly in Kingston. CAST opposed this request. After the case management judge opined that a few hours of access did not need supervision, Mother scheduled a motion requesting an access expansion. CAST and Mother consented to a new order before the motion was heard. The order of October 16, 2019 provided that Colleen have access to Mother for 5 hours weekly. The first 2 hours were unsupervised, to take place in the community.
[89] Ms. Kaczmarek testified that CAST never seriously considered trying an overnight visit, because it would be "too difficult", given the distance involved, and because it would be "too intrusive" for Colleen who was "securely settled" in the foster home.
[90] Mother testified that she never asked for overnight access (which she might have enjoyed at C.M.'s home) because she did not believe that the Society would agree to the request.
Positive Visits Between Colleen and Mother
[91] When Colleen had her first visit with Mother, she was 7 months old.
[92] Colleen cried much of the time on that first visit. Ms. Reed agreed that this was not unexpected. She invited Ms. B.H. to attend on the next visit, to increase Colleen's comfort level.
[93] Mother accepted that she was a stranger to Colleen. She accepted that it was for Colleen's benefit that Ms. B.H. attend until the child became more comfortable.
[94] After a few weeks, Colleen did begin to settle down and enjoy visits. FACSFLA workers who supervise the visits have generally noted positive behaviours by Mother and positive responses from Colleen. The workers note as follows:
Mother is on time for visits.
Mother brings appropriate toys and food.
Mother is always affectionate with Colleen.
Colleen laughs and smiles throughout her visits.
Mother engages Colleen in different activities.
Mother follows the worker's suggestions — e.g., about how to support the Colleen in starting to walk.
Mother is able to read Colleen's cues.
Mother is safety conscious.
Mother models appropriate behaviour for Colleen.
[95] When Mother was allowed some unsupervised access in October 2019, she took Colleen to "Early On". The program, at a community centre from 9:30-11:30 a.m. each Thursday, is structured for mothers and young children. Mother found the program herself. She testified that Colleen "loves" the program.
[96] Mother has a lengthy journey each week to visit Colleen. Thursday morning Mother leaves the house in Hamilton at 4:20 a.m. to walk 4 blocks to a bus; the bus takes her to the GO station; the GO takes her to Toronto; she takes the subway to the bus station on Dundas Street; the bus takes her to Kingston in time for her to attend the Early On program with Colleen at 9:30 a.m. Mother then faces another 5 hour journey home.
[97] Mother has attended visits regularly.
Mother's Supports
[98] Mother's most important supports are B.M. and his wife and their daughter C.M. All live in Hamilton. C.M. lives about an hour away from her parents.
[99] The M.'s were friendly with the B. family (R.B.'s parents) when they all lived in Hamilton, about 35 years ago. R.B. grew up with the M. children. Both families attended the church where B.M. was a spiritual leader. B.M. lost touch with R.B. and reconnected about five years ago.
[100] B.M. lives in a home with his wife and daughter, P. P. has special needs. B.M. worked at an industrial job when he was in the workforce. He is now retired. He has volunteered extensively. His volunteer activities have included counseling addicts at the Salvation Army. He has had no formal training as an addiction counselor.
[101] B.M. described his relationship with Mother as "like a dad, an uncle". He is proud that Mother has been clean for more than a year.
[102] B.M. testified that Mother has been "couch surfing" at his home since last summer. He said there was no plan to have Mother and Colleen occupy the extra bedroom in their home. He is fixing up that bedroom for his daughter and grandchildren to use when they visit.
[103] B.M. testified that he was "disappointed" that Mother had not been diligent in looking for accommodation until about 6 weeks ago and that "everything was last minute".
[104] B.M. testified that "in an emergency" he could let Mother and Colleen use the room upstairs, for "a month at the most: ... I'm retired…I like quiet... I have grandchildren". Later B.M. said that if Mother didn't find accommodation within a month, that perhaps he could "tolerate" their staying for two months. When asked if Mother still couldn't find a place what he would do, he replied: "Well, I can't throw anyone out on the street".
[105] Ms. Kaczmarek met with B.M. and his wife in December 2019 to discuss what support they could offer to Mother and Colleen. There was no discussion at that time about Mother living in their home with Colleen. Ms. Kaczmarek's impression is that "Mrs. and Mr. M. would always be there for Ms. R. B. if she needed help."
[106] C.M. is a single parent with two children, a son, 9, and a daughter, 11. Her son suffers from autism. C.M. testified that she has known Mother "all my life" and that Mother is like a big sister to her.
[107] C.M. has a diploma in social work from Mohawk College. At the present time she is not in the paid work force and is focused on working with her son and volunteering with other special needs children. She hopes to become an educational assistant in the future.
[108] C.M. now supports Mother's plan for Colleen whole-heartedly, but there have been bumps in their relationship. In the summer of 2019, she asked her parents to let Mother stay with them. After a couple of weeks, she invited Mother to stay with her, and tried to assist her in finding housing and addiction support. She became exasperated that Mother was not more motivated and asked her to leave; Mother returned to B.M.'s house.
[109] By the fall of 2019, C.M. began working again to support Mother. She told Mother about a weekly parent support group which she enjoyed. Mother began attending the group with her. She told Mother about another support group, the "C Group", which Mother plans to attend with her in the future. C.M. described this group as a "sisterhood" which offers its members support with any problem.
[110] C.M. testified that she would support Mother if Colleen was with her by babysitting when necessary and by attending support groups with her.
[111] C.M. testified that if Mother did not find an apartment and had to leave B.M.'s home that Mother and Colleen could live with her for "as long as necessary" while she looks for an apartment.
[112] Mother understands the importance of having a safety plan for Colleen if the child is placed with her. The Society has discussed the necessity for such a plan with B.M. and C.M. Both the M.'s are confident that they would pick up signs if Mother was drinking —e.g., slurred speech, sloppy gait. B.M. says of Mother, "I can read her like a book". If they saw such signs, they would act to protect Colleen — taking charge of the child and notifying the Society.
[113] Mother told Ms. Kaczmarek that her mother, step-father, and father all support her plan. However, I heard no evidence from any of them or from Mother's sister or brothers. Mother has at other times advised that there have been difficulties in her relationship with her mother and her siblings.
Society's Expectations of Mother
[114] Ms. Kaczmarek met with Mother and summarized the Society's expectations of her on March 5, 2019:
R.B. will attend Breaking the Cycle programs such as relapse prevention, individual/group therapy and parenting
R.B. will have regular contact with Colleen
R.B. will secure housing
We will have FCC (family centered conference) to work on details of the safety plan
We will do mapping with R.B. to include her perspective, strengths/needs and solutions
R.B. will demonstrate that she can be sober and stable for six months
R.B. will demonstrate that she can meet Colleen's needs
R.B. will be available for appointments and will maintain regular contact with me.
[115] Ms. Kaczmarek testified that the Society was prepared to support reunification if Mother could meet these expectations.
[116] On May 30, 2019, at a branch planning conference, the Society decided, despite Mother's gains, to request extended Society warship for the purpose of adoption by Ms. B.H. Ms. Kaczmarek testified that: "The recommendation was based on Ms. Baxter's history of past parenting and her inability to provide consistent care to any of her 6 living children as a result of substance abuse. Colleen had also been in care for nine months at this time and was thriving in the care of Ms. B.H. where she lived with her half-siblings."
[117] On December 10, 2019 a further branch planning conference was held. The team agreed that it would maintain the request for extended Society wardship because "despite her progress, Ms. R.B. still does not have a concrete plan for Colleen".
[118] In cross-examination at trial, Ms. Kaczmarek initially appeared to agree that Mother had met the Society's expectations except the expectation that she obtain housing. However, Ms. Kaczmarek backtracked as her evidence progressed.
[119] Ms. Kaczmarek agreed that Mother had been sober for more than six months but was not persuaded that Mother was "stable". Ms. Kaczmarek said stability entailed not only housing, but enrollment and participation in appropriate programs.
[120] Ms. Kaczmarek agreed that Mother had attended Breaking the Cycle when eligible but was concerned that she had found nothing to replace that program.
[121] Ms. Kaczmarek agreed that Mother had met Colleen's needs on visits but said that this did not establish that Mother could meet the child's needs if returned to her care.
Argument
Society
[122] The Society submits that there are two options for the court in deciding what is in Colleen's best interest: extended Society wardship or placement with Mother. Counsel submits that Colleen cannot enjoy long-term stability in a placement with Mother, pointing to:
Mother's consumption of alcohol while pregnant;
Mother's long-term substance abuse prior to Colleen's birth;
The absence of an addiction aftercare program for Mother;
The fact that Mother has no stable residence;
The lack of a concrete plan for her care of the child.
[123] Counsel argues forcefully that the Society has failed in its statutory duty to assist Mother in her efforts to have Colleen returned to her. Counsel points to the following:
The Society failed to arrange access for more than two months after Mother returned to Canada.
The Society failed to provide Mother with effective assistance in obtaining addiction aftercare counseling, counseling which it maintained was needed. The only assistance provided was a referral to Breaking the Cycle, However, the Society by its own action (in deciding to request extended Society wardship before the expiration of the time limit) triggered Mother's expulsion from that program before it could be completed.
The Society made no other recommendation for counseling, other than a passing reference to attendance at AA.
The Society failed to provide Mother with any assistance in obtaining housing for herself and Colleen. No referrals to other agencies were made. There was no suggestion that a support letter from the Society could be drafted.
No offer was made to assist in providing or loaning Mother money to pay first and last month's rent.
The Society refused to provide bus fare for a second weekly visit, even though it acknowledged that access was going well.
The Society did not accommodate Mother in changing the day scheduled for access to allow her to participate in a parenting program which took place the same day.
[124] The Society notes that Mother has moved at least four times since returning to Canada last January, and notes further that her supports, B.M. and C.M., both testified that she did not consistently look for housing. Mother's haphazard approach to this issue is demonstrated by the fact that at trial her plan was to live at B.M.'s house "as long as needed", when B.M. himself said that he couldn't agree to this plan.
[125] With respect to management of the risk posed by Mother's past alcohol and drug abuse, the Society says that she did not complete any program and that she minimizes the possibility of relapse. This is illustrated by her aborted plan just a week before trial to live with her alcoholic brother Ro.
[126] With respect to the possibility of an extension of interim Society care pursuant to s. 122 of the Act, Society counsel says that even if such an extension might be in the child's best interests, it is legally unavailable. Colleen has been in Society care (either on a temporary basis or under an order for interim care) for more than 18 months. Counsel relies upon the decision in Children's Aid Society of London and Middlesex v. M.O., 2014 ONSC 2435, which holds that any extension orders made under s. 122 (4) can add no more than a total of six months to the time a child is in interim or temporary Society care.
[127] Society counsel submits that it is only extended Society care, which will facilitate adoption of Colleen by Ms. B.H., that offers the child a solid permanent plan. Colleen is well-integrated into Ms. B.H.'s home. In that home she will continue to enjoy the love of her sisters Ra. and At. She will continue to have some access to Mother.
[128] If an order for extended Society wardship is made, the Society submits that it is in Colleen's best interests to have access to Mother. The Society says that an appropriate order would be for visits once a month for three hours, supervised at the discretion of the Society. The Society says that Colleen only should be an access holder.
Mother
[129] Mother's counsel argues that the level of risk if Colleen is in Mother's care has been greatly diminished since the Society apprehended the child and that Colleen can safely be returned to Mother now. She says that Mother has shown impressive commitment in attending all the access that the Society allowed, despite the long journey involved. She points to the good quality of visits.
[130] Counsel submits that the two major protection concerns of the Society have been resolved.
Mother has been sober since November 2018; there is no evidence that her sobriety will not continue.
Mother has housing, with B.M. and, if needed, with C.M. She will have housing of her own shortly, as she is employed and now has the money to pay first and last month's rent.
[131] Counsel argues forcefully that the Society has failed in its statutory duty to assist Mother in her efforts to have Colleen returned to her. Counsel points to the following:
The Society failed to arrange access for more than two months after Mother returned to Canada.
The Society failed to provide Mother with effective assistance in obtaining addiction aftercare counseling, counseling which it maintained was needed. The only assistance provided was a referral to Breaking the Cycle, However, the Society by its own action (in deciding to request extended Society wardship before the expiration of the time limit) triggered Mother's expulsion from that program before it could be completed.
The Society made no other recommendation for counseling, other than a passing reference to attendance at AA.
The Society failed to provide Mother with any assistance in obtaining housing for herself and Colleen. No referrals to other agencies were made. There was no suggestion that a support letter from the Society could be drafted.
No offer was made to assist in providing or loaning Mother money to pay first and last month's rent.
The Society refused to provide bus fare for a second weekly visit, even though it acknowledged that access was going well.
The Society did not accommodate Mother in changing the day scheduled for access to allow her to participate in a parenting program which took place the same day.
[132] Mother's counsel submits that if the court does not accept that it is in Colleen's best interests to be returned to Mother now, that a further extension of interim Society care should be made under s. 122(4) of the Act. Counsel acknowledges that caselaw as to whether the court has jurisdiction to make such order is divided. She relies upon the decision in Catholic Children's Aid Society of Toronto v. S.S. and C.A.P., 2011 ONCJ 803, which holds that the statute does not foreclose extensions of the time limit to 6 months total in rare cases in which it is in the child's best interests, as seen from the child's point of view, to extend the time further, always keeping the importance of permanency planning in mind.
[133] Mother's counsel submits that a further extension of interim Society care in this case for three months will allow the Society to make what assessment it deems necessary for her temporary accommodation with B.M. or C.M. and will allow Mother to rent an apartment.
[134] If the court finds that an order for extended Society care is in Colleen's best interests, Colleen's counsel says that an order for 5 hours of unsupervised access each week should be made. She says that it is appropriate that Mother and Colleen both be access holders.
Analysis
Further Protective Order Required
[135] It was not seriously argued by Mother that there was no need for a continuing order of some type to protect the child. Despite Mother's apparent success in maintaining sobriety for over a year, her lengthy history of drug or alcohol abuse which rendered her unable to care for her six other living children persuades me that a further protective order for Colleen should be made.
Disposition
[136] As other courts have noted, an order of Crown wardship (now extended Society care) is probably the most profound order that a court can make. The order should only be made "with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies".
[137] A further caution is to be kept in mind: "When determining whether an order of Crown wardship is an appropriate disposition, the issue is not whether the children will be better off with parents other than the natural parents. The issue is whether the children will receive a level of parenting care that is below the minimum standard tolerated by our community."
[138] I turn to a comparison of the plans for Colleen before the court, assessed with reference to the best interests factors set out in s. 74 (3) of the Act most relevant to this case.
Society's Plan
[139] The Society plan for Colleen will lead to adoption—a permanent home in which her physical and emotional needs have been and will continue to be met. The Society's plan offers stability and continuity of care. Colleen has been in Ms. B.H.'s care for 5 days after her birth.
[140] The Society's plan will allow Colleen to be raised with her sisters Ra. and At. and to maintain regular contact with her maternal grandmother Ms. L.S.
[141] The Society's plan will also allow Colleen to have access to her mother.
Mother's Plan
[142] I agree with Mother's submission that the degree of risk which justified the protection finding has substantially diminished.
[143] At the time of the uncontested protection hearing, the evidence was that:
Mother was consuming alcohol regularly and excessively.
Mother acknowledged that she was unable to care for a child at that time.
Mother had neglected to follow up on an urgent medical referral for pre-natal care.
Mother had attempted to obtain a medication which was dangerous in her pregnancy.
Mother was living in a relationship with an abusive man.
Mother did not have a stable residence.
Mother chose to have no contact with Colleen for several months after her birth.
Mother had a lengthy history of involvement with other societies concerning her abuse of drugs and neglect of six children born before Colleen. None of those children were in her care.
[144] Mother's circumstances now are much improved.
With one exception, Mother has been sober and has not abused alcohol or drugs for over a year—since November 2018.
Mother attended Breaking the Cycle, the addiction program recommended by the Society and participated well during the 3-month period she was eligible to attend.
Mother has maintained regular contact with the Society and has cooperated in giving any information requested.
Mother has regularly made a long trip to attend visits with Colleen.
Mother has demonstrated that she is able to care for Colleen during visits. She has shown that she is able to learn, and has followed workers' suggestions about how to deal with the child.
Mother has shown insight into Colleen's needs.
Mother interacts well with Colleen, who enjoys the time they spend together.
Mother is not in an abusive relationship.
Mother has the support of B.M. and his wife and their daughter C.M. Between them, they can provide emergency housing for Mother and Colleen if needed.
Mother has been attending a parent support group weekly, which she finds beneficial.
Mother has obtained stable employment.
Mother has saved the monies needed to pay first and last month's rent.
[145] There are, however, serious concerns about Mother's plan.
[146] Addiction aftercare program. Mother does not have an addiction aftercare plan which would provide professional assistance in maintaining sobriety. Given Mother's significant history with addiction, such assistance is needed. Mother's recent plan to live in the home of an alcoholic brother shows that she needs help in identifying and avoiding circumstances that might lead to substance abuse again.
[147] Housing/stability. I do not agree with the submission of Mother's counsel that housing is not a protection issue. A prolonged inability to access available resources to provide a child with a stable environment can raise valid protection concerns. Justice Stanley Sherr discussed this issue in CAS Toronto v. S.B. and J.V., 2014 ONCJ 518:
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.
[148] Mother's current housing is not secure. The reliability of C.M.'s spur-of-the moment offer at trial that Mother and Colleen can stay with her indefinitely cannot be assessed. Mother was confident a year ago (in January 2019) that she could easily obtain work and get an apartment. How much reliance can the court have on her current assurance that she can do so?
[149] I am not persuaded that limited income is the entire explanation for Mother's situation. B.M. and C.M. indicated that she was not consistently looking for housing. Mother's evidence did not address the question about why did she not get an apartment at least a week or two before trial when she apparently had income and savings that would have allowed her to do so.
[150] Mother has demonstrated diligence and the ability to problem solve in getting herself to and from Kingston for weekly visits. She has yet to demonstrate that she can apply these skills to some other issues.
[151] Parenting. Mother has not been able to demonstrate that she has the ability care for a child day-in and day-out, full-time. The ability to care for a child during a 5 hour visit in a structured setting, a visit that is at least partly supervised, is much different than caring for a child for an extended time without supports. The court could not in good conscience order an immediate placement of Colleen with Mother without having evidence of how Mother performed in caring for the child over a lengthy period in which the child was in her care, fully unsupervised, for hours, then for full days, and then for overnights.
[152] Mother's counsel would say that Mother has not been given the opportunity to show that she can parent full time. Society counsel would reply that Mother would have had more opportunity to do so if she had not absented herself from the country for 5 months. In any event, even if the court agreed that Mother had been denied an opportunity to demonstrate that she can parent, the answer cannot be the immediate placement of Colleen in her care. It may be an extension of the time Colleen can stay in interim Society care. This is explored further below.
Colleen Cannot Be Safely Placed in Mother's Care Now
[153] These above concerns are sufficiently serious that the court cannot find that it is in Colleen's best interests to be placed with Mother now. No terms of supervision would be adequate to protect the child.
Society's Failure to Assist Mother
[154] As noted above, Mother's counsel submits that the Society has failed to provide adequate support to Mother in her efforts to have Colleen reunited with her.
[155] This is a significant issue. The Act directs me to consider this issue before making an order of disposition. Many courts have discussed the critical importance of Society providing assistance to parents. For example, in Children's Aid Society of Toronto v. L.C and P.S., 2016 ONCJ 432, Justice Roselyn Zisman observed:
The society's duty to provide services to a family is a fundamental issue in determining whether or not the risk to a child of being returned to a parent can be addressed. If every available service is not provided or not provided in a timely manner, then a parent is not given a reasonable opportunity to engage in those services and the ability of the parent to benefit from those services cannot be assessed by the court.
[156] I do not agree with all the criticisms leveled by Mother's counsel, but do find that in this case the Society has failed to provide Mother with adequate assistance. I make this finding based on the following:
The Society's failure to arrange access for more than two months was shocking.
When supervised access over short periods went well, the Society's failure to support increased access and attempt unsupervised access was unjustifiable.
Ms. Kaczmarek's testimony that overnight access had never been considered because it was "too intrusive" and would disturb Colleen's integration in the foster home was disturbing. The remark suggests that the Society team did not contemplate any changes in the access that might have given Mother a chance to show that she could parent Colleen for prolonged periods. Such access would have been difficult given the distance involved and Mother's temporary residential status, but given the good progress made on day-time visits, the option should have been explored.
After Mother could no longer continue in Breaking the Cycle, Ms. Kaczmarek failed to give her useful recommendations about effective addiction aftercare programs.
Ms. Kaczmarek failed to give Mother any assistance in finding housing.
It is not sufficient for Ms. Kaczmarek to say that Mother had past experience in the child protection system and that she was able to find necessary resources herself.
When Mother initially said she wished to delay holding a Family Group or Family Centered conference, Ms. Kaczmarek failed to explain properly the advantages of such a conference. Ms. Kaczmarek failed to follow up in a timely manner when George Hull lost her first referral for a conference. An early conference could have been valuable in strengthening Mother's support system and assisting in her housing search.
Does the Court Have Authority to Extend Interim Society Wardship?
[157] What are the consequences of a failure by the Society to properly assist a parent? The Act does not address this issue. In CAS Hamilton v. E.O., Justice D.J. Gordon found that the Society had failed seriously in its obligations to assist parents. He noted, however that the importance of timely permanency planning meant that this failure should not delay the disposition of a case: "Nevertheless, issues pertaining to services should not be left for trial. The Society and parents' counsel must review such matters early in the proceeding. Failing resolution, a motion would have been appropriate".
[158] Mother's counsel submits that in this case, the appropriate response to the Society failure is to grant a further extension of the time — of three months — that the child can be in interim Society care. This was the response of Justice Zisman in CAS Toronto v. L.C. and P.S., supra, when she found that the Society was grossly derelict in its duty to assist the mother.
[159] The issue arises whether the court has the authority to grant such an extension, if it finds that the extension would be in Colleen's best interests. Does s. 122(4) of the Act limit a court to extending the statutory time limit to 6 months in total? If so, the extension requested by Mother cannot be made.
[160] The Society supports the view that the six months is a "hard cap", a view expressed by in CAS of London and Middlesex v. M.O., R.B. AND T.B., supra. That view relies upon what is seen as the "plain wording" of the Act and the Act's emphasis on the importance of timely permanency planning.
[161] The more liberal interpretation of s. 122(4) would permit multiple extensions of time, for no more than 6 months at a time, in appropriate cases. The court in Catholic Children's Aid Society of Toronto v. S.S and C.A.P., SUPRA, endorsed this approach, holding that while the importance of permanency planning must be kept in mind, an inflexible approach to the extension of time limits should not be permitted to block a resolution that is a child's best interests.
[162] I prefer the more liberal approach to interpretation of the subsection. The paramount purpose of the Act is promotion of the best interests, protection and well-being of children. I do not accept that if, for example, an extension of two months was required to facilitate a return home which everyone agreed was in a child's best interests that the inflexible interpretation of 122(4) should prevent that result. If the Legislature had meant to so severely restrict the court's discretion in this manner, it could have used more explicit language, such as that used in s. 35(21) of the Family Responsibility and Support Arrears Enforcement Act, which limits the extension of a refraining order to one period of 3 or 6 months.
Should an Extension Order Be Made?
[163] Should an order be made extending interim Society wardship for Colleen for 3 months?
[164] The application of the predecessor of s. 122(4) (Previously S. 70(4) of the Child and Family Services Act), was discussed in Children's Aid Society of Carleton v. K.F., in which it was held that for an extension order to be made:
a) The decision to extend must be made in accordance with the children's best interests.
(b) The decision must be viewed from the children's perspective.
(c) The factors in subsection 37(3) of the Act must be considered.
(d) The court must be satisfied, balancing the factors in subsection 37 (3), that there are unusual or equitable principles in the circumstances that would justify granting an exception to the general rule, for the "child's sake."
[165] Justice Stanley Sherr, in considering a request to extend the timeline for a child to remain in Society wardship (now interim Society care), cautioned that the court must keep in mind the Act's focus on permanency planning for children. He gave examples of instances in which the section might be employed:
There will be cases where, for a variety of reasons, it is in the best interests of a child to return to a parent, but a delay is appropriate. In these limited cases, the court should make the extension order set out in subsection 70(4). See Kawartha-Haliburton Children's Aid Society v. K.M., (2001), 110 A.C.W.S. (3d) 491, [2001] O.J. No. 5047, 2001 CarswellOnt 4507 (Ont. Fam. Ct.). These would include cases with the following facts: where a parent needs a little more time to complete a program where participation was delayed due to waiting lists; where a parent or child is waiting for an important support service or imminent housing to become available or where a child needs additional time to make a positive and gradual transition from a foster placement to a home placement. It would be detrimental to a child in such cases to rush this process for the sake of strict compliance with a time limit.
[166] I would seriously consider granting the extension requested if the only work which needed to be done before Colleen could be safely placed with Mother was obtaining appropriate housing and the identification and commencement of an appropriate professional addiction aftercare program. I expect that the experience of this trial has sharpened Mother's attention to these issues. I expect that Mother would quickly secure rental accommodation in Hamilton area within her budget, with B.M.'s assistance. I expect that the Society would turn its mind to quickly assist Mother in identifying and gaining acceptance in appropriate aftercare programs.
[167] However, the last issue which I noted as a concern with Mother's plan is not something that I reasonably expect could be dealt with in 3 or even 6 months. With the small exception of the two hours each week that Colleen and Mother attend the Early On program, Colleen has never been in her Mother's care except in the highly structured time-limited setting of supervised access.
[168] Parenting involves much more than being able to handle a child for a few hours in a structured setting. It means managing when the child is sick, when the child is cranky, when the parent is sick or blue, when there is conflict with others, when there are problems with housing or finances.
[169] The court discussed the obstacles to jumping from supervised access to a return home in Children's Aid Society of Toronto v. R.H., 2016 ONCJ 181:
The mother has only had supervised access with the child since 2012. It would be irresponsible for a court to return the child to her care until she could demonstrate that she could adequately parent the child without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place the child with the mother without first testing whether she could adequately parent him, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This process would need to take place for at least 9 months to a year for the court to effectively evaluate whether a return of the child was viable. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child on an extended basis. The time to attempt extended access in this manner has long passed as the statutory timelines in the Act have been exceeded.
[170] In this case, Mother was not successful in the 20 years before Colleen was born in parenting any of her children. She is undertaking her role as parent alone, without a partner or co-parent. As I have said, before I could contemplate returning the child to Mother's care, I would want to see an extended and graduated period in which Colleen was with increasing frequency in Mother's care — first for whole days, then single overnights, then weekends and longer periods. This scheduling would be difficult to achieve, as Mother is in Hamilton and foster mother Ms. B.H. is in Kingston. It would require travel by Colleen and Mother to locations where such visits could take place, and likely financial support from the Society to facilitate these visits. I cannot contemplate that this process would take less than 9 to 12 months.
[171] This testing and gradual reunification might have been possible if Mother had been able to apply herself to what needed to be done right after Colleen's birth. Unfortunately, she was not able to do so.
[172] A further extension of interim Society wardship at this point would not be in Colleen's best interests.
[173] I order that Colleen be in extended Society wardship.
Access
[174] The parties agree that an order for access between Colleen and Mother is in her best interests as provided for in s. 105 of the Act. What remains to be decided is:
the frequency of that access, and
who should be an access holder?
[175] The purpose of access between a child and parent after an order for extended Society wardship is different than an order for access before such an order is made. As Justice Philip Clay said in Children's Aid Society of the Region of Peel v. A.R., 2013 O.J. 2969:
The granting of a Crown Ward order means the end of any effort to return the child to the mother's care. Part of the reason for access prior to a Crown Ward 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 a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child.
[176] I agree with Justice Clay. In my view, the order that is in Colleen's best interests is that she has access to Mother once a month for five hours.
[177] There is no evidence with respect to access over the past several months that suggests that this access should be supervised. I do not order supervision now but provide that the Society shall have discretion as to whether supervision is required if circumstances change. I do provide further that Mother advise the Society of her plan for access in advance of each visit and her contact information.
[178] Section 105(7) of the Act provides that when an access order is made with respect to a child who is the subject of an extended Society wardship order that the order specify who is an access holder (the person who has been granted access) and who is an access recipient (the person with respect to whom access has been granted). That distinction is important because under the Act only an access holder has the right to bring an openness application if served with a Notice of Intent to place the child for adoption. The access recipient only has the right to be given notice of the Society's Notice of Intent.
[179] Rights of access can be reciprocal; in other words, if there is access between a parent and a child, both the parent and the child can be access holders where appropriate.
[180] The parties agree that Colleen should be an access holder. What that would mean in practice is that the Office of the Children's Lawyer would receive the Notice of Intent to place for adoption, would represent Colleen in any openness application brought by another party and could bring any openness application it found to be in the child's best interests.
[181] The Society asks that Mother be an access recipient only. Mother asks that she be designated an access holder as well as an access recipient.
[182] In CAS Toronto v. Y.M., 2019 ONCJ 489, the court discussed factors to be considered in determining whether a parent should be an access holder:
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.
[183] In that case, the court found that it was not in the child's interest to designate the parents as holders of access for two reasons:
The parents had repeatedly delayed the Society's investigation and the trial, and the court feared that they would repeat this behaviour in an openness hearing.
The court also found that the prospect of openness litigation with those parents would damage the child's prospects of adoption.
[184] Neither concern applies in this case. Mother has been cooperative with the Society and with the foster mother. She has not attempted to undermine Colleen's placement. Although Ms. B.H. has not always been open to communicating with Mother about Colleen, Mother has been respectful in her attempts to communicate with her.
[185] My order with respect to access is as follows:
Mother shall have access to Colleen and Colleen shall have access to mother.
Both Mother and Colleen are access holders and access recipients.
The access shall take place monthly for 5 hours.
Access shall be unsupervised; the Society shall have discretion to supervise if circumstances change. Mother shall advise the Society in advance of each visit of her plan for the visit and her contact information.
Released: February 19, 2020
Signed: Justice E. B. Murray