WARNING
The court hearing this matter directs that the following notice should 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.
(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.
(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.
ONTARIO COURT OF JUSTICE
CITATION: Children’s Aid Society of Toronto v. S.C.M.K., 2021 ONCJ 347
DATE: 2021 06 18
COURT FILE No.: Toronto C31582/19
BETWEEN:
CHILDREN’S AID SOCIETY OF TORONTO
Applicant
— AND —
S.C.M.K. (mother)
Respondent
Before Justice Robert J. Spence
Heard by Zoom on June 7, 8, 9, 10 and 11, 2021
Reasons for Judgment released on June 18, 2021
Ms. Mira Pilch.................................................................. counsel for the applicant society
Ms. Jean Hyndman........................................................... Office of the Children’s Lawyer, counsel for the respondent mother
R.J. SPENCE J.:
1: INTRODUCTION
[1] This is a twice-amended status review application (application) brought by the Children’s Aid Society of Toronto (society), seeking an order that the child, T.K., born […] 2019 (T.K. or child) be placed in the extended care of the society.
[2] Prior to the commencement of trial, I heard a motion brought by mother, requesting that the trial be adjourned to allow time for a newly-advanced family plan to be assessed by the society.
[3] In the alternative, the mother seeks the following order:
(1) In the event the court dismisses the mother’s request for an adjournment, she seeks an order that the child be placed with the maternal grandmother (grandmother), subject to society supervision for six months.
(2) In the further alternative, the mother seeks an order that the child be placed in the society’s interim care for a further period of six months, during which time the grandmother’s plan can be assessed. During this period of supervision, the mother seeks an order for specified access.
(3) In the further alternative, should the court grant the society’s request and make an order for extended society care, the mother seeks an order for specified access.[^1]
[4] I turn to the mother’s request to adjourn the trial. The society opposed the requested adjournment. I heard full argument on this motion and, following a brief recess, I returned and advised the parties that the motion for adjournment was dismissed, with more comprehensive reasons later. These are my reasons.
[5] The child was brought into the society’s care on December 6, 2019, when he was about two weeks old. He has remained in care continuously to the present date.
[6] Subsections 122(1) and 122(5) of the Child, Youth and Family Services Act (Act) reads [my emphasis]:
Time limit
122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding,
(a) 12 months, if the child is younger than 6 on the day the court makes the order; or
(b) 24 months, if the child is 6 or older on the day the court makes the order.
Six-month extension
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.
[7] Mother submits that the court should invoke subsection 122(5) of the Act and adjourn this matter to allow the grandmother’s plan to be assessed. She argues that it is in the child’s best interests to be placed with family rather than to be potentially placed with a stranger. If the court were to allow the trial to proceed and make an extended care order, this would result in the child being placed for adoption, likely with a stranger.
[8] In deciding what is in the child’s best interests, the court must have regard to subsection 74(3) of the Act, and the various factors set out in that subsection.
[9] Clauses 74(3)(c)(v) and 74(3)(c)(vi) both direct a court to look at the importance of family ties and promoting a positive relationship with a child’s family. These two considerations are primarily what the mother relies upon in seeking to extend the child’s time in care.
[10] However, as against those considerations, the court must also consider all the other factors in paragraph 74(3)(c) of the Act, including the need to take into account the effects on the child of delay in the disposition of the case.
[11] 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, 2016 ONCA 146 (OCJ); CAS of Ottawa v. F. (L.), 2016 ONSC 4044, 2016 ONSC 4044 (Divisional Ct).
[12] The factors in subsection 74(3) of the Act are subject to the paramount duty in section 1 of the Act, to protect the best interests of a child who is in the society’s care. In other words, family and parental relationships are to be recognized only to the extent that they are “consistent with the best interest, protection and well-being of the children”: See: Syl Apps Secure Treatment Centre v. D.(B.), 2007 SCC 38, [2007] S.C.J. No. 38 (S.C.C.). A plan proposed for a family placement is to be given similar weight as all other factors in subsection 74(3) of the Act to be balanced by the court to determine the child’s best interests: see Children’s Aid Society of Northumberland v. D.P. [2008] O.J. No. 2047 (Ont. Sup. Ct.) at paragraph 126.
[13] In Children's Aid Society of Toronto v LU, 2008 CanLII 26661 (ON SC), [2008] OJ No 2170 (Ont. S.C.J.) Justice Janet Wilson had the following to say about whether and when a court should invoke the provisions of subsection 122(5) of the Act, at paragraph 18 [my emphasis]:
The trial judge considered the issue of delay in making her order. In my view Justice Murray's approach is consistent with the existing caselaw requiring unusual, exceptional, or equitable considerations to trigger an extension. Clearly the power to grant extensions should not be routinely used. The extension must be in the best interests of the child, understanding the importance of promoting stability in the life of a child.
[14] The court has concluded that it is not in T.K.’s best interests to delay a determination of his disposition, primarily for the following reasons:
(1) The grandmother came forward with her plan only three days prior to the start of trial. As the court will discuss later in these reasons, the grandmother had been aware that the only other family member who had previously been planning, had dropped out of consideration at least two months prior to the start of trial.[^2] No other kin plan had come forward.
(2) The mother’s argument for an adjournment essentially focused on the assertion that it is better for a child to be placed with a family member than with a stranger. However, relationship with a family member is only one factor for the court to look at in considering what is in the best interests of a child. It does not take priority over any of the other enumerated considerations in paragraph 74(3)(c) of the Act, as noted above. If it were otherwise, then any close family member could simply put herself forward on the eve of trial and argue, in effect, I am a grandmother and therefore the trial should not proceed because my plan needs to be assessed. That is not the law.
(3) T.K. has been in the society’s care for 18 months, which is already 6 months beyond the statutory time limit provided for in paragraph 122(1)(a) of the Act.
(4) The court is mindful that the passage of time and its impact on the life of a toddler must be considered from the perspective of the toddler himself, rather than from the perspective of the adult who may be planning for that child.
(5) This child has been in litigation limbo for about one and one-half years. It would be contrary to T.K.’s best interest to add another six months to the uncertainty which he has been facing for the past 18 months.
(6) One of the purposes of the Act, as reflected in both subsection 1(2), as well as subsection 122(1), is to ensure that a child has permanency and is not simply left in litigation limbo. It is not in the best interests of T.K. to delay any further.
[15] For all these reasons, the court concluded that the request to adjourn the trial should be dismissed and that the trial should proceed.
[16] The following are the court’s reasons for judgment following the completion of the trial.
2: BACKGROUND
[17] On December 6, 2019, the Society brought the child to a place of safety, approximately two weeks following his birth. The society’s protection application was issued on December 10, 2019.
[18] The child was placed in a foster home where he has remained to date.
[19] The mother, who was a minor at the time of the child’s birth – and who was a minor at the start of this trial,[^3] retained counsel provided by the Office of the Children’s Lawyer (OCL).
[20] On August 24, 2020, Justice Roselyn Zisman made an order that the unknown biological father is not a “parent” of the child.
[21] On August 25, 2020, the society and OCL counsel on behalf of mother signed a statement of agreed facts (SAF). In the SAF, the parties agreed that the child had been removed from the mother’s care due to a number of protection concerns. The facts underlying those concerns included the following:
(1) Mother had previously been in the care of the Hamilton Children’s Aid Society (Hamilton CAS). Hamilton CAS reported that mother had significant cognitive limitations (mild intellectual disability and attention deficit hyperactive disorder) and was suspected to have fetal alcohol spectrum disorder (FASD).
(2) During her time in care, mother displayed a number of challenging behaviours, including frequent absences without leave (AWOLS), substance misuse, meeting strangers in the community, problematic social media use and oppositional and derogatory behaviour towards others. Mother acknowledged that she suffers from significant cognitive limitations which lead her to be extremely impulsive, display poor judgment and engage in risky behaviours.
(3) Mother acknowledged occasional marijuana use during the initial 4-5 months of her pregnancy. She previously used crystal methamphetamine but stopped when she learned she was pregnant.
(4) Mother had inconsistent prenatal care. While attending some prenatal care appointments, she missed several appointments due to her AWOL behaviour. She did not follow through with all directions from doctors.
(5) In October 2019, mother moved to Rosalie Hall residential program in an effort to support her desire to become a mother. The society provided an Infant High Risk Nurse to monitor mother’s care of the child. The society was initially prepared to allow her to parent the child under the direct supervision of Rosalie Hall.
(6) In November 2019, Rosalie Hall staff reported that the child was feeding well and mother was managing to change his diapers without difficulty. A plan was established for the staff at Rosalie Hall to work with mother in devising strategies to manage the child’s needs when mother was feeling overwhelmed or stressed. Mother signed a Voluntary Working Agreement with the society, without obtaining legal advice.
(7) On November 28, 2019, when T.K. was only a few days old, the Rosalie Hall case manager reported that mother had left Rosalie Hall and returned 30 minutes later. Mother was aware of the expectation that new mothers remain on-site to rest and focus on baby’s needs. Mother was encouraged to comply with the house rules.
(8) On December 6, 2019, Ms. Rodriguez (society’s infant nurse specialist) reported significant concerns with respect to the child’s weight gain, mother’s feeding, supervision, handling and other care of the child, as well as conditions of mother’s room and mother’s inability to follow staff direction.
(9) Mother brought the child to the Scarborough Hospital where he was examined in the emergency department because mother had noted a small soft mass on his skull. The doctor examined the child and indicated the child was healthy.
(10) The Society remained overall concerned regarding mother’s ability to care safely for the child, even with society supports and Rosalie Hall supports.
(11) On December 12, 2019, the newly assigned Family Service Worker, Ms. Mina, met with mother and reviewed society expectations with her, while she was living at Rosalie Hall. For example, mother was expected to participate in programs and focus on learning to parent with the goal of having T.K. in her care. Ms. Mina also advised mother that her access with T.K. would initially occur at the society’s offices twice weekly, for two hours per visit, and that the visits would be supported by the society.
(12) On December 16, 2019, mother decided to leave Rosalie Hall. Hamilton CAS offered her a placement. However, mother instead moved to St. Thomas, Ontario to live with her boyfriend (Jo.).
(13) On December 17, 2019, mother contacted Ms. Mina to advise that Jo. had cut her cellphone service. She said she could no longer attend the previously-scheduled twice-weekly visits on Tuesdays and Thursdays as she could not travel to Toronto during the week. She asked instead if the visits could be changed to Fridays. She told Ms. Mina that she planned to remain in St. Thomas, living with Jo..
(14) On December 19, 2019, Ms. Patenaude – mother’s Hamilton CAS worker – wrote to Ms. Mina to advise that mother’s current living arrangement was not approved by the Hamilton CAS, and that mother was continuing to decline placements which Hamilton CAS was offering to her. Ms. Patenaude suggested that perhaps a Family Group Conference should be scheduled.
(15) On December 23, 2019, Halton police were contacted due to a verbal altercation between mother and her ex-boyfriend (C.).
(16) At a court appearance on January 21, 2020, mother advised Ms. Mina that she had moved to St. Catharines, Ontario and she was staying at a youth shelter. She had broken up with Jo. and did not plan to reconcile with him.
(17) Subsequent DNA tests revealed that Jo. was not T.K.’s father. When Ms. Mina reported this to mother on January 22, 2020, she responded that she would provide the names of possible fathers to Ms. Mina at her next access visit.
(18) On January 24, 2020, Ms. Mina met with mother and Ms. Patenaude. At that meeting, Ms. Mina provided mother with a letter setting out a list of society concerns and expectations, including:
(a) Secure and remain in a safe and stable living environment approved by Hamilton CAS;
(b) Maintain a clean living environment;
(c) Continue to consistently attend access visits on time and be prepared to enhance her parenting skills by following through with teaching from the Access Worker;
(d) Connect with a doctor regarding her mental health issues and follow through with any recommended plans;
(e) Demonstrate an understanding of and ability to meet T.K.’s emotional needs;
(f) Participate in parenting programs to increase her knowledge of babies’ milestones and development; and
(g) Work with the society to develop a safety plan that could include involving her support network. This could be done by participating in a Family Group Conference.
(19) Ms. Mina explained the timelines to mother regarding the need for permanency planning.
(20) Ms. Mina explained to mother that before it would transfer the file closer to her, and move T.K. closer to her, the society would want to see mother remain in one place for at least three months.
(21) Ms. Patenaude advised that she had arranged for a volunteer driver to bring mother to her access visits. However, mother did not utilize the driver, instead choosing to come to the visits by GO train and TTC.
(22) A Family Group Conference was scheduled to occur but prior to the scheduled date, the pandemic arrived, resulting in a Provincial-wide lockdown.
(23) Prior to the lockdown, mother attended her access visits at the society’s office every Friday from 12:00 p.m. to 2:00 p.m. for fully supervised visits.
(24) She attended regularly and on time. During those visits she was loving toward T.K.. She was able to manage (with redirection and hands on support) the instrumental tasks of preparing bottles, feeding T.K. and changing his diaper. She did appear to have some difficulty reading T.K.’s cues and she often required prompts to understand and meet T.K.’s needs. At times, mother required reminders to be gentle when handling her child and to support his head. At times, mother had difficulty putting her phone away during visits.
(25) During the supervised access visits, the society provided an Access Worker to support the visits and to assist mother in developing childcare skills. Mother was receptive to feedback from the Access Workers.
[22] The parties agreed in the SAF that T.K. was a child in need of protection pursuant to clause 74(2)(n) of the Act, in that the mother was unable to care for the child.
[23] The parties further agreed in that SAF that T.K. would be placed in the interim care of the society for a period of four months. Mother’s access to the child was to be in the discretion of the society, as to the nature of the access, as well as the frequency, duration and level of supervision. The society agreed to make best efforts to ensure that there was a minimum of one visit per week.
[24] On August 26, 2020, Justice Zisman made the statutory findings, the finding in need of protection and the disposition order, all as set out in the SAF.
[25] On November 18, 2020, the society issued its status review application, seeking an order that the child be placed in the care of the maternal great grandmother (Ju.), subject to society supervision for six months.
[26] By December 2020, the society, no longer believed that the proposed supervision order with Ju. was in the child’s best interests. Accordingly, on December 14, 2020, the society amended its status review application, seeking an order placing the child in the extended care of the society, with access to mother in the society’s discretion.
[27] On January 27, 2021, Ju. sent an email to Mr. Hughes, the society’s family service worker for the family, to advise that her husband (E.) was dealing with serious medical issues and that she would not be able to care for T.K. Mr. Hughes wrote back to Ju., asking if she was aware of any other persons who could present a plan for T.K. and, if so, they could contact him directly.
[28] In her Answer and Plan of Care dated February 23, 2021, the mother opposed the society’s request for an extended society care order and, instead, she asked the court to make a supervision order with Ju. and E. for a period of six months. She also requested an order that she have in-person access with T.K., as agreed between herself and the two caregivers, in consultation with the society.
[29] As late as February 26, 2021, there was still some suggestion that perhaps Ju. had not formally withdrawn her plan. However, when Mr. Hughes contacted Ju. again on April 8, 2021, Ju. advised that E. had passed away and she could not continue to plan for T.K.
[30] On April 30, 2021, the society issued an amended amended status review application, in which it continued to seek an order for extended society care, but which amended its access request from access in the discretion of the society, to specified access provisions for mother.[^4]
[31] In her Answer filed May 26, 2021, the mother sought an order that T.K. be placed in her care, subject to society supervision for 12 months.
[32] On or about June 4, 2021, the grandmother came forward with a plan to care for T.K. The mother then changed her position, so that at trial her primary request – as noted in the Introduction – is to place T.K. in the care and custody of the grandmother subject to society supervision for six months.
3: ADDITIONAL MATERIAL FACTS[^5]
[33] One of the features of this trial is that most of the material facts were not strenuously contested. The court turns first to the SAF. There is no dispute that when the mother instructed her counsel to sign the SAF on August 25, 2020, she was aware of, and agreed with all the facts contained in that document. The court set out earlier in these reasons those relevant facts. The court accepts as accurate all those facts.
[34] In addition to the facts contained in the SAF, the evidence adduced at trial has provided the court with a more complete understanding of the mother, her interactions with T.K., the grandmother and the family dynamics.
[35] The mother suffered a stroke when she was about 2-1/2 years old. According to the grandmother, this resulted in impairments to the mother’s speech and language skills as well as impairments requiring occupational therapy. The stroke is also the likely cause of the mother’s limited cognitive abilities.
[36] The mother came into the care of the Hamilton CAS in January 2016, when she was about 13 years old. The initial concerns centred on physical discipline by the grandmother. When she came into care there was bruising on mother’s arms. The mother disclosed that she had been hit with a belt by the grandmother.
[37] The grandmother testified at trial. She denied inflicting physical abuse on the mother. Instead, she said she walked into a room where she discovered her daughter having sex with a boy. This caused her to become upset with her daughter. She testified that, in turn, the mother became very upset with her, and she then made false allegations that the grandmother had hit her.
[38] The grandmother testified that when the mother turned 12 or 13 years old, she became “rebellious” and did not want to be around the grandmother. As a result, the grandmother turned to calling the police, as well as contacting the Hamilton CAS for help.
[39] Whether or not the grandmother inflicted physical abuse on the mother, one thing was apparent to the court, namely, the serious mother-daughter conflict in the home, conflict which the grandmother was unable to effectively deal with.
[40] Except for a brief return home, followed by another return to society care, the mother remained in the care of the Hamilton CAS continuously until April 2018, when she was placed in the extended care of the Hamilton CAS.
[41] The conflict between the grandmother and the mother seems to be continuing to the present. The mother and the grandmother are at odds over whether, and how, mother would be involved with the care and upbringing of T.K., if T.K. were to be placed in the grandmother’s care.
[42] The mother does acknowledge that she has limited parenting skills. She acknowledges that she is not currently capable of caring for T.K. on her own. And because of this, she is advancing the plan to place T.K. with the grandmother.
[43] The mother’s evidence is that once that placement occurs, she expects to move in with the grandmother to assist her in caring for T.K. However, the grandmother testified that she would not allow the mother to live with her. Moreover, the grandmother’s view is that any visits between the mother and T.K. would have to be supervised.
[44] What was clear to the court after hearing these two very different positions, is that the mother and the grandmother did not have any discussions about this issue prior to the start of trial. If they did communicate, it is apparent that they have conflicting views about what each of them perceives to be in T.K.’s best interests.
[45] It is important to understand what happened after the Province-wide lockdown at the outset of the pandemic. Until then, mother had been attending access visits – most latterly – on Fridays of each week – for two-hour fully supervised visits. As noted earlier, those visits generally went reasonably well.
[46] However, once in-person visits were terminated due to the pandemic, the society moved the visits to virtual. It was then that difficulties began to arise. Mother did connect for a number of virtual visits, but she failed to connect for other visits. She testified that some of the connection difficulties were due to technology or to a lack of data on her phone plan.
[47] However, some of the problems arose because mother had difficulty engaging with T.K. According to Mr. Hughes, she was often easily distracted. That said, Mr. Hughes acknowledged that it can be difficult to engage a toddler through video visits alone.
[48] Mother became frustrated with the inadequacy of the virtual visits. When the Province began to re-open for the first time in May 2020, she asked Mr. Hughes to reinstate in-person visits. Mr. Hughes testified that her frequent moves to different residences with different people, lack of social distancing and therefore, increased risk of contracting COVID-19, made it not possible to safely arrange in-person visits.
[49] In September 2020, mother again asked Mr. Hughes to reinstate in-person visits. When he asked her where she was living, she said she was at a youth shelter in St. Catharines. She stated her willingness to do a COVID test if required. At the same time, she asked Mr. Hughes to change her morning virtual visits to afternoons because she had difficulty getting up in the morning. When Mr. Hughes suggested that the shelter staff could wake her up, mother then stated she was not at the shelter but, instead, she was living with her boyfriend.
[50] The court views this evidence as significant for two reasons. First, it reveals that mother was continuing with her transiency and her interaction with different persons, contrary to public health protocols for protection against COVID-19. Second, while mother was understandably frustrated with the inadequacy of virtual visits, she was not able or willing to put into action what needed to be done to satisfy the prerequisites for resuming in-person visits.
[51] A Family Group Conference was held on October 23, 2020. In addition to various Hamilton and Toronto society workers, the mother was present, together with Ju. and her partner – both of whom had by then been identified as kin planners for T.K.
[52] Importantly, the grandmother chose not to be present at that Conference.[^6]
[53] On November 13, 2020, the assigned kinship worker for the Kawartha-Haliburton CAS – the region where Ju. and E. were living – advised the society that the state of Ju.’s home was such that it could not commence an in-home assessment.
[54] On December 1, 2020, Ju. advised the society that E. was currently in hospital.
[55] On December 4, 2020, the society convened a Branch Planning Conference which recommended that the society seek an order for extended society care. At the same time, the society would continue to explore possible kinship placement opportunities.
[56] The society discussed this with mother, at the same time reminding her of the need for permanency planning, given that T.K. had been in care for about one year. On January 15, 2021, Mr. Hughes spoke with mother and encouraged her to look for any possible placement options for T.K. By this time mother was in the process of moving from Niagara Falls to London Ontario.
[57] As the court noted earlier, Ju. wrote to Mr. Hughes on January 27, 2021 and said she could no longer plan for T.K. because of E.’s medical problems.
[58] On February 26, 2021, Mr. Hughes was advised by Ms. Spivak (Toronto Family Group Conference Coordinator) that Ju. still wanted to plan but she wanted the kinship assessment to be completed by a different agency.
[59] By early April 2021, E. had passed away and Ju. once again withdrew her kinship plan.
[60] Between April 2020 and April 8, 2021, mother was having periodic virtual access visits with T.K. However, she was not always able to connect, or she missed her appointments. While the quality of those visits was inconsistent, they often went reasonably well. However, mother kept requesting in-person visits. The society continued to reiterate the need for mother to address her transience to avoid the risk of transmitting the virus which was higher if mother continued to move from place to place.
[61] On April 19, 2021, mother advised Mr. Hughes that she no longer wanted to have virtual access visits with T.K. because she felt he wasn’t able to engage with her.
[62] Mother also expressed her wish to have in-person visits and, in her voicemail message to Mr. Hughes, she stated:
I can’t even have face to face visits. I think it is straight out of bullshit. I want to have face to face visits but you want me to have a COVID test. I am willing to get a COVID test if you will give me face to face visits. But honestly, if I can’t, there is no point in me having contact with my son in general.
[63] On April 20, 2021, Mr. Hughes telephoned mother. He reiterated the COVID concerns for keeping T.K. safe. He reiterated the importance that mother obtain and maintain a stable accommodation. When mother told Mr. Hughes that she had travelled to Niagara Falls the day before, she stated that she had gone to visit a friend and then returned home afterwards. Mr. Hughes explained to mother that these trips create a high degree of risk for transmission of the virus.
[64] Mr. Hughes asked mother if she was taking a parenting program. Mother responded that she thought Ms. Patenaude of the Hamilton CAS was looking into this for her.
[65] Ms. Patenaude testified that she tried to find programming for mother. She put mother into a semi-independent living accommodation in Brantford, but mother was kicked out after 1-1/2 months because she would not comply with rules restricting residents from spending overnights elsewhere.
[66] Ms. Patenaude testified that mother has moved around from place to place, with friends or in a shelter, never remaining in a shelter for more than a month.
[67] At the time of her testimony in this trial, mother said she was living in Niagara Falls with a few friends, but she is “barely talking to anyone”.
[68] She has yet to take a COVID test.
[69] She has yet to maintain a stable residence and avoid travelling from place to place.
[70] She has yet to take a parenting program.
[71] To mother’s credit, she recognizes that she is not in a position to parent T.K. on her own.
4: THE LEGAL FRAMEWORK
[72] The society’s application is brought pursuant to section 113 of the Act.
[73] The society filed, and the court considered, the society's plan of care pursuant to section 100 of the Act. That plan is consistent with the position it took in this case.
[74] Section 114 of the Act provides that where a status review application is made under section 113, the court may, in the child's best interests, vary or terminate the original order made under subsection 101(1), make a further order under subsection 101(1) or make an order under section 102 of the Act.
[75] Subsection 101(1) of the Act provides that where a court finds that a child is in need of protection, it must first satisfy itself that intervention through a court order is necessary to protect the child in the future. The importance of taking this step in a status review application was set out by the Ontario Court of Appeal in Children's Aid Society of Oxford v. W.T.C., 2013 ONCA 491.
[76] Subsection 101(8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act. In this case, that is the mother.
[77] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.
[78] In determining if a protection order is necessary to protect the child in the future, the importance of emotional ties between a child and the child's caregiver are an important consideration. In Catholic Children's Aid Society of Metropolitan Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, the Supreme Court expressed, at paragraph 37, that the Child and Family Services Act "seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail". Because of this goal, the best interests of the child is "an important and, in the final analysis, a determining element of the decision as to the need of protection". The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.
[79] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the Act, as set out in subsection 1(1), which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purpose, other purposes of the Act as set out in subsection 1(2) are also designed to support the autonomy and integrity of the family unit and to utilize the least disruptive course of action available. See: Children's Aid Society of Toronto v. H.F., 2020 ONCJ 526, per Justice Roselyn Zisman.
[80] Subsections 101(1), (2), (3) and (4) of the Act reads as follows:
Order where child in need of protection
101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:
Supervision order
- That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
Interim society care
- That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care
- That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
Consecutive orders of interim society care and supervision
- 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.
Court to inquire
(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.
Less disruptive alternatives preferred
(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
(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.
[81] Subsection 102(1) of the Act reads:
102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
[82] Subsection 101(2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the child before intervention under Part V of the Act.
[83] 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.
[84] Subsection 101(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.
[85] In determining the appropriate disposition, the court must decide what order is in the child's best interests. The court must consider the criteria set out in subsection 74(3) of the Act in making this determination. That subsection reads as follows:
Best interests of child
74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection. 2017, c. 14, Sched. 1, s. 74 (3).
5: ANALYSIS
5.1: Step 1 – Does T.K. continue to be a child in need of protection?
[86] As noted above in the W.T.C. case, the Court of Appeal set out the two-step process for the test to be applied in a status review application.
[87] The first question which this court must answer is whether T.K. continues to be in need of protection.
[88] There is no dispute between the parties that T.K. continues to be in need of protection.
[89] As the court previously noted, on August 26, 2020, Justice Zisman found T.K. to be in need of protection pursuant to paragraph 74(2)(n) of the Act. Justice Zisman made this order following a signed SAF in which mother agreed that she was unable to care for T.K.
[90] The court has previously discussed the important facts underlying both that SAF, as well as the facts which unfolded in the trial. Mother’s position at trial is that T.K. should not be returned to her but, instead, should be placed in the grandmother’s care, subject to a supervision order.
[91] In her Amended Answer and Plan of Care filed May 25, 2021, mother confirmed that she does not yet have stable housing. She stated: “I am presently looking for housing”.
[92] The mother has not demonstrated that she has any supports in the community. While her Amended Answer states that Ju. “will be there for me if I need help”, there was no evidence of this presented at trial.
[93] The mother also stated in her Amended Answer that her friend Ca. would be able to help her, but there was no evidence of this presented at trial.
[94] Finally, as the court noted earlier, the grandmother would not be prepared to act as a support for the mother as she does not believe the mother should have unsupervised access to T.K.
[95] To summarize, the mother has no stable housing where she and T.K. would be able to live; and she has not provided any evidence of community supports if T.K. were to live with her. All that, combined with her intellectual limitations and the other protection concerns set out in the SAF, reveals to the court that her situation has not changed since she signed the SAF on August 26, 2020.
[96] The court concludes that mother remains unable to care for T.K. and, accordingly, T.K. continues to be in need of protection.
5.2: Step 2 – What disposition is in T.K.’s best interests?
(a) Placement with Grandmother on a supervision order
[97] The mother’s primary request is that T.K. be placed with the grandmother pursuant to a society supervision order.
[98] Mother’s counsel submits that the court should make this order for the immediate placement of T.K. with the grandmother.
[99] There are a number of positive elements to the grandmother’s proposal:
(1) She has lived in the same city – Hamilton – all her life;
(2) She lives in a shelter with her other daughter, who is 13 years old, and she testified the shelter has advised that T.K. could live there as well. The society argued that living in a shelter was a negative aspect of the grandmother’s plan, because she had only recently moved there, applying for “second stage” housing. However, the court views this as a positive because she and her daughter are both in a place where they can apparently remain for the time being while awaiting second stage housing;
(3) She is on a waitlist for second stage housing;
(4) She has been going to the same health care centre (albeit with different doctors) for the past 25-30 years; and
(5) She would remain home to be a fulltime caregiver to T.K.
[100] Unfortunately, the negative elements of her proposal far outweigh the positive ones. I discuss those negative elements below:
(1) The grandmother waited until almost the last minute prior to the start of trial before coming forward with her plan.
(2) The grandmother was aware – or should have been aware – that there was no other kin plan for T.K. after Ju. withdrew her plan on January 27, 2021 (or, at the latest, by April 8, 2021). Had the grandmother stepped forward after Ju. first withdrew her plan on January 27, 2021 or, for the second time on April 8, 2021, the society would have had somewhere between two and four months to conduct a proper kinship assessment and either approve the grandmother or, if not, at least be in a position to present meaningful evidence to the court at trial respecting the merits of the grandmother’s plan.
(3) The grandmother was asked, now that she wants to plan, whether she had called Mr. Hughes to set up some visits with T.K. She responded that she hadn’t because “I was busy and I was going to do it after the court case”.
(4) The grandmother had been aware of the scheduled Family Group Conference in October 2020. However, despite this, she chose not to attend. She said that her attendance at that Conference would have interfered with her ability to earn money so that she could purchase Christmas presents. She chose to earn money over becoming directly involved in the planning for her grandson. Despite her assertion that she wanted to earn money to buy Christmas presents, she acknowledges never having sent any Christmas gifts to her grandson.
(5) She failed to make any direct inquiries of the society to find out about virtual visits, relying instead solely on information conveyed to her by the mother.
(6) In Mr. Hughes’ case note dated September 24, 2020, he notes: “In July 2020 [the grandmother] withdrew her plan. She and Laura (Family Group Conference Co-ordinator) agreed to reconnect in the Fall . . . [grandmother] has repeatedly changed her mind/position with regards to planning”.
(7) On November 27, 2020, more than 6 months prior to trial, Mr. Hughes telephoned the grandmother and left a message for her to call him. She never returned his call.
(8) Grandmother had requested visits with T.K. in the summer of 2020. She preferred in-person visits. However, because of the lockdown, she was offered virtual visits. She had two visits in total, the second visit occurring in August 2020. She acknowledges that the society offered her more visits. However, because she believed that in-person visits were better than virtual visits, she decided to not schedule any visits at all.[^7] In other words, the grandmother concluded that no visits at all was a better course of action to take, rather than continuing with virtual visits.
(9) Because she has failed to connect with the society in any meaningful way for about the past 9 months, she knows almost nothing about T.K., apart from what mother may have told her. Does T.K. have allergies? What foods does he like to eat? What size diapers does he wear? Does he have any special needs?[^8] The grandmother’s failure to maintain open lines of communication with the society prevents her from knowing the answers to any of these questions.
(10) Grandmother believes that despite having had almost no contact with her 18-month-old grandson for half his life, she would not be a stranger to him. Why? Because she used to sing “Twinkle Twinkle Little Star” to him when he was a very young baby and, because of this, he would recognize her voice right away and they would bond almost immediately.
(11) Grandmother has not resolved the conflict issues with the mother. She believes that the mother has “a lot of mental health issues” and because of that, not only would she not permit the mother to live with her but, additionally, she would insist that mother’s visits with T.K. be supervised only. As discussed earlier, this is very different from mother’s perception of the dynamic which exists between the grandmother and the mother.
[101] In the court’s view, the grandmother’s actions reveal her to be a person with little insight. She has made certain choices in her life which prioritize other things over her grandson. Her actions are those of someone who, while she might like the idea of caring for her grandson, fails to understand how critically important it is to prioritize his best interests over all else. Her last-minute decision to put her hand up, demonstrates to the court a serious lack of commitment.
[102] The court concludes that, at its highest, the grandmother’s proposal, is little more than a plan to make a plan. It is not, by any realistic measure, a meaningful plan, and certainly not a plan which would be in T.K.’s best interests.
(b) Placement with society on further interim care order
[103] The alternative order requested by the mother is to place T.K. in the interim care of the society for six months. This would allow the society to investigate and assess the grandmother’s plan with a view to a permanent placement with the grandmother.
[104] T.K. has been in the society’s care for 18 months. This is six months longer than the statutory time limit.
[105] This proposal would require the court to make an order pursuant to subsection 122(5) of the Act, extending the statutory time limits provided for in paragraph 122(1)(a) of the Act.
[106] This proposal is very similar to the mother’s motion at the outset of trial in which she requested an adjournment of the trial.
[107] Except for the following, I do not intend to repeat the court’s reasons for dismissing that motion. Those reasons apply with equal force to the mother’s alternate argument in this trial.
[108] I reiterate the comments of Justice Wilson in the LU case, supra, that such an order, extending the timelines should be reserved for “unusual, exceptional, or equitable” circumstances.
[109] Without deciding the issue, this court can envision circumstances which, arguably, might have persuaded the court to make such an order. For example:
- If the grandmother had demonstrated a focused commitment to T.K. and prioritized T.K. over other choices in her life;
- if she had connected with T.K. virtually on a regular basis;
- if she had communicated regularly with the society to understand T.K.’s needs and his milestones progression;
- if she had attended all available meetings with society personnel, including attendance at Family Group Conferences;
- if she had sorted out her conflict with the mother;
- if she had come forward with a firm plan at least two or three months before trial so that the society would have been able to commence a full kinship assessment; and
- if the society had advised the court at the start of trial on June 7, 2021 that the assessment of the grandmother was almost complete, that the assessment was looking very positive and that no more than another few weeks would be needed to finalize its assessment;
[110] If all these elements were in place at the outset of trial, the court might have concluded that the circumstances were sufficiently “unusual, exceptional, or equitable”, such that either an adjournment of the trial or an order under paragraph 101(1) 4. of the Act[^9] would be appropriate.[^10]
[111] However, because none of these circumstances were present at the time of this trial, the court cannot conclude that the circumstances are unusual, exceptional, or equitable.
[112] For all these reasons, the court concludes that an order placing the child in the society’s further interim care would not be in T.K.’s best interests.
(c) Extended care with specified access to the mother
[113] Returning to section 101 of the Act, the court must decide which of the available orders is in T.K.’s best interests.
[114] For reasons discussed, the court is dismissing the mother’s requests for a supervision order and interim society care.[^11]
[115] As noted earlier, the court must satisfy the requirements of subsections 101(2), (3) and (4) of the Act.
[116] With respect to subsection 101(2), the court is satisfied on the evidence discussed earlier that the society made reasonable efforts to assist the mother – and that it continued to make those reasonable efforts – before intervening in the mother and child’s life.
[117] With respect to subsection 101(3), the evidence discussed earlier satisfies the court that the society considered less disruptive alternatives. It considered these less disruptive alternatives not only prior to its initial intervention but also subsequently, and during the course of the interim care order.
[118] With respect to subsection 101(4), the evidence discussed earlier reveals that Mr. Hughes, as the society’s family service worker, made all reasonable efforts to inquire about potential out-of-care placements right up until just prior to trial.
[119] Having considered the merits of a supervision order, the merits of an interim society care order, and having rejected both of those options, the court is now left with extended society care as the only possible order.
[120] The starting point for the consideration of access following an order for extended society care is the statutory framework contained in subsections 105(5), 105(6) and 105(7) of the Act, which reads [my emphasis]:
When court may order access to child in extended society care
(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.
Additional considerations for best interests test
(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),
(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and
(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.
Court to specify access holders and access recipients
(7) Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the court shall specify,
(a) every person who has been granted a right of access; and
(b) every person with respect to whom access has been granted.
[121] In Children's Aid Society of Toronto v. J.G., 2020 ONCA 415, Justice Benotto set out the statutory test for access to a child who is placed in extended society care, and then stated the following at paragraph 37 [my emphasis]:
[37] Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access and making the child’s “best interests” predominant in determining access. As stated by this court in Kawartha[^12] and repeated in Peel[^13], the change was not “just semantics” but represented “a significant shift in the approach to access for children in extended care.” Some of the changes to the test for access include:
- The burden is no longer on the person requesting access to demonstrate that their relationship to the child is beneficial and meaningful and in no way will impair the child’s future adoption opportunities.
- When the court undertakes a best interests analysis, it assesses whether the relationship is beneficial and meaningful to the child, and considers the potential impairment to future adoption opportunities, but only as part of this assessment and only where relevant;
- There is no longer a “presumption against access” and it is no longer the case that a parent who puts forward no evidence will not gain access. and
- While any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests.
[122] At paragraphs 64 and 65, Justice Benotto continued [my emphasis]:
[64] The CYFSA requires a new approach to determining access. I note too that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes.
[65] I adopt the words of Sager J. relied on by the trial judge, as set out in Jewish Family and Child Service of Greater Toronto v. K.B., 2018 ONCJ 650:
The introduction of the best interests test in the CYFSA brings a less rigid and more flexible approach to deciding whether to order access to a child placed in the extended care of the society, as a court is now permitted to give consideration to any factor it considers relevant, one can assume, on the well accepted principle in cases involving children that one size does not fit all.
[123] The mother requests the following access order:
(1) In person visits a minimum of once per month for up to two hours;
(2) Video calls a minimum of once per month and as otherwise agreed upon between the society, the mother and the foster mother; and
(3) The society or the foster mother shall continue to provide pictures of T.K. to mother a minimum of once per month and shall advise mother of any new milestones that T.K. achieves.
(4) The mother and T.K. should be joint access holders.
[124] The society seeks the following access order:
(1) Mother may send letters, cards, photographs and videos to T.K. via email to his guardian from a dedicated email address belonging to mother and these will be preserved for T.K. and given to T.K. as a package when he turns 16 years of age or at some other time in the sole discretion of the caregiver.
(2) T.K. will be at liberty to send letters, cards, photographs and videos to mother to a dedicated email address provided by mother, when he wishes to do so.
(3) At least every 6 months, T.K.’s caregiver will send mother a photograph or video of T.K. to a dedicated email address provided by mother.
(4) Mother and anyone on her behalf shall be prohibited from posting any of the communications/letters online or on any type of social media. Mother may send photos, communications or letters by email to her family members and will use her best efforts to ensure that these family members do not put them on social media.
[125] The Court of Appeal’s comments in J.G. about the need to consider the potential impairment to future adoption opportunities are relevant to this case. In Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489, Justice Stanley Sherr had the following to say, at paragraphs 311 to 315 [my emphasis]:
[311] The phrase “impair the child’s future opportunity for adoption” means more than just impairing a child’s opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717.
[312] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters, won’t, and will be ordered. See: Children’s Aid Society of Toronto v. C.J., 2014 ONCJ 221; Catholic Children’s Aid Society of Toronto v. S.B., 2013 ONSC 7087; Children’s Aid Society of Toronto v. J.G., supra.
[313] The challenge in making an access order for a child in extended society care is finding the fine balance between what will preserve a relationship in the best interests of the child and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the child in their new adoptive home. See: Children’s Aid Society of Ottawa v. J.B., 2017 ONSC 1194.
[314] The jurisprudence has established that there are qualitative differences in the amount of contact a party will have with the child before and after an extended society care order is made, and then again after a child is placed for adoption and an openness order is made. The granting of an extended society care order means the end of any effort to return the child to the parent’s care. Part of the reason for access prior to an extended society care disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After an extended society care disposition, the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. See: Native Child & Family Services of Toronto v. J.E.G., 2014 ONCJ 109; Children’s Aid Society of the Region of Peel v. A.R., [2013] O.J. No. 2969 (OCJ).
[315] Openness allows for a form of contact by the biological parent or member of the biological family post-adoption. After an adoption order is made, the parent-child relationship that previously existed between the child and her biological parents and which was terminated by the extended society care order becomes vested in the adoptive parents. Thus, it is not the parent-child aspect of the relationship that is being continued post-adoption by way of an openness order. See: See: Re S.M., 2009 ONCJ 317, [2009] O.J. No. 2907 (OCJ); Native Child & Family Services of Toronto v. J.E.G.; Catholic Children’s Aid Society of Toronto v. S.-K., 2016 ONCJ 242.
[126] What is important to glean from Y.M. is this: post-extended society care access is qualitatively different than pre-extended care access. The post-extended care access order is intended to preserve the form of the relationship which existed prior to the making of the extended care order.
[127] In the present case, what access would the court be preserving if it were to grant an in-person access order? As the court noted earlier, in-person access ceased shortly after T.K. was brought into care. The virtual access visits were inconsistent. When mother connected for the virtual visits, she likely did the best she could, given her limitations. The fact that virtual access was necessitated, created limitations for both T.K. as well as mother. Eventually mother became frustrated by the nature of these visits and when she was unable to have in-person visits, she stopped engaging entirely. Her last virtual visit was on April 8, 2021. She made a choice to cease having access for the two months leading up to this trial. And for months prior to April 8, 2021, mother connected with T.K. only sporadically, with no visit lasting more than one hour.
[128] Since the in-person visits ceased in March 2020, any meaningful relationship that may have begun to develop following the child’s birth, moved in the opposite direction. The evidence suggests to the court that any existing relationship between mother and T.K. prior to April 8, 2021, was thin, at best. And because mother made a choice to decline all visits after April 8, 2021, the court is forced to conclude that there is no meaningful relationship to preserve. As Justice Sherr stated, post-extended society care access is not intended to rehabilitate a parent-child relationship; it is not intended to enhance that relationship; rather, it is intended to preserve only what existed prior to the making of the extended society care order.
[129] As noted earlier, the case law informs the court that the determination of access must be flexible. The child has a right to know his story, where he came from, his cultural heritage and whether there are any medical issues pertaining to his immediate family that could impact on his own wellbeing.
[130] However, considerations of best interests require not only flexibility but also the need for permanency. The child is entitled to permanency. The theme of permanency inhabits a significant place in the Act and in the case law. The court placed considerable reliance on the need for permanency in dismissing mother’s motion to adjourn the trial and, as well, in rejecting mother’s alternative request that the court place the child in the society’s further interim care.
[131] Balancing these considerations, the court is mindful that mother has absented herself from T.K.’s life. Because of T.K.’s very young age and the time gap since he has had contact with his mother – and her irregular contact prior to that - his mother would either be a stranger to him or, certainly, not a significant figure in his life.
[132] This is not a case where, for example, there has been a long-standing, established relationship between a parent and a child. Mother’s infrequent in-person and virtual visits have not enabled any real bond or relationship to develop and to be maintained.
[133] The court concludes that, in the context of post extended society care access, in-person visits would be contrary to T.K.’s best interests.
[134] The court also concludes that it would not be in T.K.’s best interests to order video calls. Mother, by her own choice, ceased having video calls with T.K. in the months leading up to this trial. Post extended society care video calls would have the effect of imposing on T.K. the image and voice of a person with whom he has no meaningful relationship. In the court’s view, periodic video calls would serve more to confuse T.K., than to benefit him. The court cannot conclude that video calls, would be in this child’s best interests.
[135] The court does conclude that it is important for T.K. to have some understanding of his story, his immediate family relationships, his cultural and medical background. In the court’s opinion, all of that can be accomplished by the order which the society seeks.
[136] The court will make the order requested by the society, with minor changes.
[137] Finally, as noted earlier, pursuant to subsection 105(7) of the Act, the court must decide who will be the access holder and who will be the access recipient.
[138] The society requests that the access holder be T.K. alone and that mother be the access recipient.
[139] The mother requests that she and T.K. be joint access holders, with mother to be the access recipient.
[140] For reasons which follow, I have concluded that the access holder shall be T.K. alone and mother shall be the access recipient.
[141] Section 195 of the Act provides that when the society intends to place a child for adoption, it is required to give notice to both the access holder as well as the access recipient.
[142] Once that notice is given, subsection 196(1) of the Act permits the access holder to apply to the court for an openness order. Only the access holder, and not the access recipient, may apply to the court.
[143] If access holder rights were jointly held by the mother and T.K., the mother would be at liberty to apply for an openness order, thus potentially delaying the adoption.
[144] The court recognizes that the mother has never taken any actions designed to undermine the relationship between T.K. and the foster mother. That is to mother’s credit. Mother’s counsel argues that this is a factor which the court should consider in deciding whether to make mother a joint access holder.
[145] In the predecessor legislation[^14] to the present Act, the court was prevented from ordering access to a Crown Ward (now extended society care) where the evidence was that it would impair future possibilities of adoption.
[146] That test has changed under the existing Act. However, as discussed earlier, impairment of future opportunities for adoption remains a factor for the court to consider, in deciding what is in the child’s best interests. (ss. 105(5) and 105(6)).
[147] The court concludes that there is no benefit to the child if the mother were to acquire joint access holder status. While there is no evidence the mother would take steps to intentionally undermine the child’s adoption, the evidence in this trial reveals to the court that the mother lacks insight into her own circumstances. Whether that is due in part to her cognitive deficiencies, or a lack of maturity – or both – that lack of insight could result in the mother taking steps to apply for an openness order, thereby potentially delaying his adoption.
[148] T.K. does have a few special needs. The speech and occupational therapy assessments reveal that T.K. may be somewhat behind his age group. However, the overall tenor of the evidence suggests that his deficits are not substantial. It appears that his needs can likely be addressed and remediated through recommendations made to date, which mostly involve exercises facilitated by the foster mother. There was no evidence that T.K. would be less adoptable because of his needs.
[149] And because permanency through an adoption is the ultimate goal in a case such as this, the court should be wary of making any order that may result in any “undue delay in the child being adopted”.
6: CONCLUSION
[150] For the reasons discussed, the court makes the following order:
(1) T.K. shall be placed in the extended care of the society.
(2) Mother shall have the following access to T.K.:
(a) Mother may send letters, cards, photographs and videos to T.K. via email to his guardian from a dedicated email address belonging to mother and these will be preserved for T.K. and given to T.K. as a package when he turns 16 years of age or at some other time in the sole discretion of the caregiver.
(b) T.K. will be at liberty to send letters, cards, photographs and videos to mother to a dedicated email address provided by mother, when he wishes to do so.
(c) At least once every 4 months, T.K.’s caregiver will send mother a photograph or video of T.K. to a dedicated email address provided by mother.
(d) To facilitate the form of contact set out in subparagraphs 2(a), (b) and (c), it shall be mother’s sole responsibility to ensure that T.K. or his caregiver is at all times made aware of mother’s dedicated email address.
(e) Mother and anyone on her behalf shall be prohibited from posting any of the emails, cards, letters, photographs or videos online or on any type of social media.
(f) Mother may send photos, communications or letters by email to her family members only after each family member to whom she intends to send these, provides confirmation in writing – for example, by text or email – in advance, that the family member will refrain absolutely from posting any of these communications online or on any type of social media.
(g) The child T.K. shall be the access holder.
(h) The mother shall be the access recipient.
[151] The court thanks both counsel for their thorough preparation and able presentation in this trial, in the face technical difficulties. In particular, the court recognizes the additional challenges faced by mother’s counsel throughout this trial and the professional manner in which she dealt with those challenges.
Released: June 18, 2021
Justice Robert J. Spence
Signed electronically
[^1]: The details of this specified access request will be examined later in these reasons.
[^2]: Arguably that plan was withdrawn as long as more than four months prior to trial, as the court will discuss later in these reasons.
[^3]: The mother turned 18 years of age on June 10, 2021.
[^4]: The court will examine those proposed access provisions later.
[^5]: These additional material facts do not represent the entirety of the evidence upon which the court relies. There are further important facts which the court will discuss when assessing the plans which the mother advanced at trial.
[^6]: I will have more to say about this later in these reasons.
[^7]: The court understands and accepts that for all parents whose children are in care, in-person visits offer a qualitatively better experience, particularly for very young children.
[^8]: He does have a few, apparently not overly serious, special needs which the court will briefly refer to toward the conclusion of these reasons.
[^9]: Consecutive orders of interim society care and supervision
[^10]: The court sets out this hypothetical scenario for illustrative purposes only.
[^11]: And by extension, consecutive orders of interim society care and supervision (paragraph 101(4)4. of the Act)
[^12]: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497
[^13]: L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18
[^14]: Section 59(2.1) of the predecessor Act