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

Date: 2021 11 30 Court File No.: Toronto CFO 18 15941

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO Applicant,

— AND —

A.T.T. and T.M. Respondents

Before: Justice E. B. Murray

Summary Judgment Motion Heard on October 7 and October 8, 2021 Reasons for Judgment released on November 30, 2021

Counsel: Kenneth Atkinson and Chithika Withanage............ counsel for the applicant society David Miller.................................................................. counsel for the respondent mother No appearance by or on behalf of Mr. T.M., although served with notice. Avi Baratz......................................................................................................... counsel for G.T.

MURRAY, E. B. J.:

1 Introduction

[1] Adam [1] T. was born […], 2018. His parents are A.T. and T.M. Because of protection concerns about A.T.’s use of substances and her mental health, the Society took Adam to a place of safety, placing him with his maternal grandmother G.T. when he was able to be released from hospital. A temporary without prejudice order was made on October 26, 2018, confirming the placement under Society supervision and pursuant to conditions in the order. One of those conditions was that the child have no unsupervised access to either parent.

[2] The Society’s original protection application asked that Adam be placed in G.T.’s care pursuant to Society supervision. On May 23, 2019 Adam was the sole passenger in a car involved in a head-on collision; the Society ’s evidence is that the driver was A.T. The Society discovered that G.T. had been allowing both A.T. and T.M. to care for the child on their own, without her supervision. The Society took Adam to a place of safety. A without prejudice order made on May 28, 2019 provided that he is in the Society’s temporary care. Since that time, he has been cared for by the same foster parent, S.P.

[3] The Society’s application was amended October 14, 2020 to seek an order of extended Society care. A further amendment on July 28, 2021 seeks an order for access to G.T. a minimum of once each month. No order for access by either parent is sought by the Society.

[4] A.T. filed an Answer and Plan of Care on August 13, 2019 seeking an order dismissing the protection application or alternatively placing Adam in her care pursuant to Society supervision.

[5] T.M. filed an Answer and Plan of Care on November 19, 2020, seeking an order that Adam be placed in the care of himself and his partner C.M., with or without Society supervision.

[6] G.T. filed an Answer and Plan of Care on December 31, 2020, seeking an order that Adam be placed with her pursuant to Society supervision.

[7] The Society now brings a summary judgment motion seeking the following relief:

1. An order pursuant to s.90(2) of the Child, Youth and Family Services Act (the Act) finding that the subject child’s name is Adam T.; that he was born on […], 2018; that he is not a First Nations, Inuk or Metis child; and that he was brought to a place of safety in Toronto.
2. An order pursuant to s. 74(2)(b)(i) of the Act finding that he is a child in need of protection.
3. An order pursuant to s. 101 of the Act placing him in extended Society care.
4. An order pursuant to s. 104 and 105 of the Act providing for in-person access to Adam by G.T. a minimum of once each month.

[8] T.M., although served with the Society’s motion well in advance of the return date of September 13, 2021, filed no responding material and did not attend. The Society has not heard from him since April 2021.

[9] G.T. signed an agreed Statement of Facts that supports the Society’s position. She attended for the motion, but did not file material.

[10] The hearing of the motion was conducted on ZOOM.

Adjournment request

[11] This case was scheduled to go to trial on May 10, 2021 and adjourned at A.T.’s request because of illness.

[12] The Society then advised in an appearance before the case management judge on July 6, 2021 that it would bring a summary judgment motion. Timelines were set. The Society was to serve its materials by July 31, 3021, and A.T. was to serve any responding material by August 20, 2021. The Society served its material within the requisite time; A.T. did not.

[13] The summary judgment motion was scheduled to be heard on September 13, 2021. On that day A.T.’s lawyer made an oral motion requesting an adjournment to allow him to meet with his client and prepare materials. He stated that his client advised that she had suffered serious facial injuries in an attack by two men on August 20, 2021, and as a result, she had been unable to meet with counsel. There was no supporting material – such as a medical or hospital report or a police report – filed. The court did not have the benefit of viewing A.T., as she attended the hearing by phone, without using video.

[14] The Society opposed the request, pointing to the lengthy delay which has already occurred in this case, and advising that the family service worker Ms. Bogdanis had seen A.T. a week before and did not observe facial injuries of a severity consistent with A.T.’s claims. She observed a slight scar on the forehead and two small abrasions.

[15] The court granted the adjournment to October 7, 2021. At the suggestion of A.T.’s counsel, the date was peremptory to A.T. A.T. was ordered to file material by September 27, 2021, a date which her lawyer indicated he could comply with.

[16] No responding material was served and filed by September 27, 2021. No motion requesting an extension of time was made.

[17] On October 7, 2021 A.T., again attending by phone only, requested a further adjournment, referring again to the injuries she suffered on August 20, 2021. Again, there was no material from doctors, hospitals or police to corroborate her claims.

[18] The Society opposed the adjournment. I heard argument on the adjournment request and did not allow a further adjournment.

[19] After consulting with counsel, I provided that A.T. be permitted to give sworn viva voce evidence in lieu of an affidavit on October 8, 2021. Her time was not limited.

[20] I provided brief oral reasons for this ruling, with fuller reasons to follow later. These are my reasons.

• A.T. presented no reason why she had not met with her lawyer to prepare responding material by the first deadline provided (August 20, 2021), which was before the assault. Counsel advised that A.T. had not even read the Society’s motion material by the time she requested the further adjournment on October 7, 2021.
• Even if A.T.’s claims with respect to the extent of the injuries suffered in the assault are accepted, there was no reason presented why she did not meet with counsel to prepare material after the first adjournment was granted on September 13, 2021.
• The Act and the Rules underline the importance of a child in a protection case having his future decided in a timely basis. Adam’s case is already far beyond those timelines. Some courts would hold that s.122(5) of the Act would not allow any further adjournment.
• I do not accept the argument of A.T.’s lawyer that delay is a less serious factor in Adam’s case as opposed to the cases of other children because his special needs mean that it will be hard to find an adoptive home ( if an order for extended the Society care makes him available for adoption). If anything, the difficulty which Adam’s special needs pose in the Society finding the appropriate adoptive home weighs against further delay.
• I accept that it is in Adam’s best interests that A.T.’s views are before the court, and that she is permitted to give evidence, even though she has not complied with reasonable timelines. The provision allowing A.T. to give viva voce evidence accomplishes this. Counsel conducted a comprehensive examination on October 8, 2021 covering all the issues which would be addressed in an affidavit. The court heard from A.T. for two and a half hours.

[21] On October 7, 2021, on consent the court made an order for the statutory findings as requested in paragraph 1 of the Notice of Motion.

Conduct of motion

[22] On the hearing of the summary judgment motion the court considered material filed by the Society:

• Nine affidavits from the Society workers involved in the case, including family service workers, a children’s service worker, child protection workers and family support workers who observed access visits, a kinship assessment worker, and an adoption worker.
• Affidavit from S.P., Adam’s foster mother;
• Statement of Agreed Facts signed by G.T. and worker Nerissa Bogdanis for the Society;
• Pleadings, including the Protection Application and two amended applications, Answers and Plans of Care from the Society (including an amended plans of care), and from A.T., T.M., and G.T.
• Temporary orders made by case management judge;
• Toronto Police Service records concerning A.T.;
• Records from Breaking the Cycle and True North concerning A.T.;
• Records from Scarborough Health Network, Humber River Hospital, and St. Michael’s Hospital concerning A.T.;
• Records from Michael Garron Hospital concerning A.T. and Adam.
• Reports from Dr. Carolyn Hunt, a developmental pediatrician.

[23] The court also considered A.T.’s viva voce evidence as well as brief viva voce reply evidence from Nerissa Bogdanis.

[24] A.T.’s evidence dealt with her relationship with and separation from T.M. ; her circumstances during pregnancy and at the time of Adam’s birth; the involvement she had in caring for the child when he was placed with G.T.; her current living circumstances and current partner; her history of addiction; the effects of addiction on her and her efforts to obtain treatment; her plan with respect to accommodation, care of Adam, and treatment for herself if the child is returned to her; her answer to various allegations of drug use or mental health breakdowns since Adam’s birth; her places of residence while she was pregnant and since Adam’s birth; her attendance and experience of visits with Adam, in-person and virtual; assaults she has suffered since Adam’s birth.

[25] The court also reviewed written submissions made by counsel for the Society and A.T.

[26] The issues for the court to determine on the summary judgment motion are as follows. (1) Is there a genuine issue requiring a trial as to whether a protection finding should be made? (2) If a protection finding is made, is there a genuine issue requiring a trial for a disposition other than an order for extended Society care? (3) If an order for extended Society care is made, is there a genuine issue requiring a trial as to what order, if any, should be made with respect to access between Adam and A.T.?

2. Summary Judgement: legal considerations

[27] The Society brings its motion pursuant to Rule 16 of the Family Law Rules. The relevant portions of the Rule are set out below.

16(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2) ,

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).

[28] Prior to 2010, courts interpreted summary judgment rules in a restrictive fashion. Caselaw related to all civil actions, including family cases, provided that the court hearing the motion could not weigh evidence, evaluate a deponent’s credibility, or draw inferences from the evidence. On January 1, 2010, amendments were made to the Rules of Civil Procedure changing the test for summary judgment from “no genuine issue for trial” to “no genuine issue requiring a trial”. Rule 20 was changed to allow the court “expanded powers” on hearing a summary judgment motion: to weigh evidence, evaluate a deponent’s credibility, or draw inferences from the evidence and to hold a mini-trial in the appropriate case.

[29] The same amendments were made to Rule 16 of the Family Law Rules as of May 2, 2015.

[30] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada set out a two-step process to be followed in the use of these expanded powers

• The court should first determine based only on the record before it if there is a genuine issue requiring a trial.
• If there appears to be such an issue, the judge should consider whether use of the expanded powers in R.16(6.1) can avoid a trial, if that is not contrary to the interests of justice.

[31] The Supreme Court found that a court can reach a fair and just determination on a summary judgment motion if the process allows the court to find the necessary facts and apply the law to these facts and is a proportionate, timelier and less expensive means to achieve a just result. A process that does not give a judge confidence in conclusions to be drawn from the evidence can never be a proportionate way to resolve a dispute.

[32] In Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 the Ontario Court of Appeal dealt with the special considerations applicable in the use of summary judgment motions in child protection cases. The Court set aside a decision of the Divisional Court, finding that that court “erred by misapplying key principles regarding the use of summary judgment, as articulated in Hryniak, to the specific circumstances of child protection proceedings.” The Court of Appeal referred to the “decades of jurisprudence” which “emphasized that fairness in a child protection summary judgment motion necessitates caution and the need for the court to take into account special considerations.” The Court noted that the Charter rights of both parents and children are engaged in protection proceedings, and cautioned that a court hearing a summary judgment motion must be vigilant in protecting those rights. The Court also noted that poor and marginalized individuals may be disproportionately affected by protection proceedings.

[33] The Court of Appeal gave the following guidance as to the conduct of a summary judgment motion in child protection cases.

• Exceptional caution should be exercised and the objectives of the Child Youth and Family Services Act, including the child’s best interests, should be applied.
• The onus on a summary judgment motion never shifts to the respondent. It remains with the moving party. Even if the responding party files no evidence, the court must still be satisfied on the evidence that there is no issue requiring a trial.
• Only trial-worthy evidence should be admitted.
• Judicial assistance should be provided for self-represented litigants.
• In motions involving indigenous children, special considerations should be applied.

[34] There is ample pre- Kawartha jurisprudence offering guidance as to the conduct of a summary judgment motion in child protection cases.

• Courts have offered different descriptions of the case in which there is “no genuine issue requiring a trial”: “no chance of success”; when the outcome is a foregone conclusion”; plain and obvious that the action cannot succeed”; “when there is no realistic possibility of an outcome other than that sought by the Applicant”. [2]
• Rule 16(6) is mandatory. If the court concludes that there is no genuine issue requiring a trial, then it must order accordingly [3] .
• The responding party must set out specific facts showing that there is a genuine issue of material fact requiring a trial. He must put his “best foot forward”. Mere denials or vague promises that cross-examination at trial will reveal “untruths” are insufficient [4] .
• A judge is entitled to assume that the responding party has put forward all the evidence they would adduce at trial. [5]
• “A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to buy a parent time to develop an ability to parent…..There must be an arguable notion discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the Society’s removal of the child from her care and has developed some new ability as a parent.” [6]

[35] A.T.’s lawyer argues that all the principles governing the conduct of summary judgment motions which pre-date Kawartha are of “questionable application”. Similar questions have been raised in other courts, asking whether Kawartha implicitly suggests that a summary judgment motion can never ensure a fair and just determination in a prompt and proportionate manner.

[36] In L. M. v. Children’s Aid Society of the Region of Peel, 2019 ONCA 641, the Ontario Court of Appeal held that these arguments misinterpreted Kawartha:, stating: “the cautious approach enunciated in Kawartha neither precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context”. [7] Other than as specifically modified by Kawartha (e.G.T., as to the use of hearsay evidence), I am guided by the jurisprudence set out above.

3. The evidence

[37] A.T. is 35 years of age. She has supported herself on Ontario Disability Support Payments (ODSP) for the past four years; prior she received payments from Ontario Works.

[38] A.T. testified that she was raised in a strict Greek/Canadian household, and did not have the freedoms many other children had growing up. In her view this background led to her “going wild” when at age 19 she left home, hung out with friends, and “did drugs”. She had little contact with her family after leaving home.

[39] A.T. began living on and off with T.M. when she was in her early 20’s. T.M. sold and used drugs. So did A.T. She testified that selling drugs was to her preferable to turning to prostitution, the path followed by most women addicted to drugs.

[40] In 2008 A.T. was convicted of trafficking in a Schedule I controlled substance and received a conditional sentence and probation after pre-sentence custody was taken into account. In 2018 she was charged with attempting to sell fentanyl to an undercover officer; her brother V.T. was her co-accused. The resolution of this charge is not in evidence.

Evidence about the results of urine drug screens

[41] A.T.’s use of non-medically prescribed drugs is an important issue in this case. I set out the evidence on this issue below and deal now with objections made by A.T.’s lawyer as to the uses of evidence of urine drugs screens (UDS).

[42] The Society introduced business records from True North Medical clinic and from hospitals which contained the results of urine drug screens of A.T. The Society’s written submissions did not deal with the basis for admission, except to assert that Rule 16(5) permits hearsay evidence.

[43] A.T.’s lawyer acknowledges that these documents are admissible as narrative to explain the Society’s actions during the case, but says that they as hearsay they should be given no weight when relied upon for the truth of their contents. He underlines the direction given by the Ontario Court of Appeal in Kawartha, that in a summary judgment motion in a child protection case only trial-worthy evidence should be considered. He argues that the provisions of Rule 16(5) contemplating that hearsay evidence might be used on a summary judgment motion must be read in the light of that caution.

[44] In reply the Society clarified that it did not seek to have the records admitted to prove the truth of their contents, but only to explain the protection concerns of the Society.

[45] I will give results of these urine drug screens no weight in determining whether A.T. has used non-medically prescribed drugs. This ruling does not mean that I will not give weight to the numerous statements by A.T. to doctors who discussed the results of these tests with her, statements in which she acknowledges consumption of various drugs. These statements are admissions against interest.

Adam’s birth

[46] When A.T. was 21 she had a painful late-term abortion. She believed that she was unable to have other children. Her evidence is that she did not realize she was pregnant for the first 4 ½ - 5 months of her pregnancy with Adam. When she found that she was carrying a child, she was delighted. A.T. did not have prenatal care until a few days before the child’s birth, when she went to the emergency department at Michael Garron Hospital for pain.

[47] Adam is A.T.’s only child. He was born at Michael Garron Hospital on […], 2018. Doctors there reported that A.T. appeared “high” and was abusive and disruptive, screaming at staff and locking herself in the bathroom. A.T. refused to cooperate with drug testing.

[48] Adam’s urine and meconium tests at birth showed positive results for cocaine, opiates, fentanyl, methadone and THC. The baby required treatment on the highest possible dosage of morphine to manage his withdrawal symptoms.

[49] When A.T. went to the hospital to visit Adam after his birth, she was disruptive and caused another patient to fear for her baby’s safety. A.T. was asked to leave the unit.

[50] A.T. testified that the drugs in Adam’s urine and meconium must have resulted from street drugs she bought and ingested when she did not get methadone from the pharmacy. She said, “maybe there was a mix-up in the bags…it’s not a pharmacy, so I guess you’re taking your chance”.

[51] Dr. Cram, the attending physician at Adam’s birth, advised the Society that the baby would not be safe in A.T.’s care. The Society brought Adam to G.T. as a place of safety. Neither A.T. nor T.M. contested the motion resulting in the temporary order placing the child in G.T.’s care under supervision.

[52] Adam had to stay in hospital for 10 days until the process of carefully withdrawing him from opiates was concluded. The child was then placed in G.T.’s care under the Society supervision, where he stayed until May 23, 2019, when the collision occurred.

[53] For some months G.T. assured the Society that Adam was doing well, and that she was able to care for him. The work, however, became increasingly stressful for her. At the end of April 2019, G.T. told the Society that she could not continue; the Society began assessing other caregivers.

[54] A.T.’s evidence is that she was providing much of the care during the time that Adam was placed with G.T., or that they were caring for the child together. She estimated that she lived with G.T. about 80 % of the time when Adam was in her care.

Adam comes into Society care

[55] On May 23, 2019 police contacted the Society to advise that A.T. was in a head-on collision; Adam was the lone passenger in the car. PC Ana Preuthun reported that the collision occurred at 11:30 p.m.; the car was going east on Bloor Street. EMS personnel who attended advised that Adam was not properly strapped into his car seat, that the seat was not properly installed, and that A.T. refused to follow the advice of EMS that the child be taken to the hospital to be examined.

[56] A.T.’s evidence on October 8, 2021 was that she was not the driver of the car that night. She testified further as follows

• She was nowhere near the car, but “hanging out” with friends.
• The car was driven by her friend A.C.. A.T. had paid A.C. to take the baby to a “playdate” on that date. She had paid A.C. to care for Adam on prior occasions.
• A.C. used A.T.’s name because she was afraid of being charged with kidnapping.
• After the accident, A.C. called G.T. to come to the scene.
• A.C. disappeared immediately after the accident and “we haven’t seen her or heard from her since”. Later in her evidence, A.T. said that A.C. told her that she was moving out of province.
• There were no charges resulting from the accident: “no tickets given to me, no court dates… anything like that.” Later in her evidence about the accident A.T. said that “I have tickets which I fought in court and they have thrown them out”.
• Adam was correctly strapped into his car seat and that the seat was properly installed.
• EMS personnel said that it was not necessary to take Adam to the hospital. When A.T. saw the child an hour and a half after the accident, he looked fine.
• Although A.T. understood that she was not to be alone with Adam, Society worker Haviva Levstein had advised her that it was okay if her mother was “in the vicinity”.

[57] After the collision G.T. admitted to the Society that she had allowed A.T. to care for Adam that day without supervision.

[58] She soon admitted that she had allowed both A.T. and T.M. to care for the child without supervision for days at a time.

[59] Adam was removed from G.T.’s care after the collision and taken to a place of safety. A.T. did not contest the motion made by the Society on May 28, 2019 requesting that Adam be placed in temporary Society care.

Use of non-medically prescribed drugs

[60] A.T. has admitted to Society workers on several occasions that she had a long history of substance abuse. She admitted to the intake worker after Adam’s birth that she had used Percocet and powdered morphine while pregnant.

[61] A.T. has participated on and off in a methadone program for seven years at True North Clinic. On her 2015 intake form for True North she reported the daily use of heroin dating back to 2001 and the daily use of oxycontin. The program is meant to assist in reducing and perhaps eventually eliminating the use of non-medically prescribed drugs.

[62] In August 2018 shortly before Adam’s birth A.T. started working with the True North program again. True North records contain reports of regular meetings that A.T. had with her doctors there from August 2018 to November 2019. The record of each meeting features A.T.’s self-reports of drug consumption, advice given to her, and the results of that day’s urine drug screen (UDS). A.T.’s self-reports are sometimes set out with reference to specific drugs, and other times state that her self-report is consistent with the result of the urine drug screen.

[63] A.T.’s self-reports from this period frequently state that she is using various opioids, including heroin and morphine, as well as fentanyl, oxycodone, benzodiazepine and cocaine.

[64] The records indicate that the doctor at each meeting found that A.T. continued to meet the criteria for Opioid Use Disorder. A.T. was periodically counselled about the risks of her drug use, and warned about “sedation, overdose and death risk with benzodiazepenes, ETOH, street opioid use (incl. high risk fentanyl) and other CNS depressants.”

[65] In November 2019 A.T. revoked her consent for the Society to receive further records from True North. It was not established in evidence how much longer A.T. continued to work with True North.

A.T. asserts she is “completely clean”

[66] A.T. maintained in her testimony (and in her statements to Society workers) that she was always compliant with the rules of the methadone program and did not consume drugs other than methadone [8], except for a few weeks when Adam was taken into the Society care in May 2019, when she bought and consumed Oxycontin because she was depressed. A.T.’s claims have an important caveat, however. She testified that when she failed to get her methadone dose from the pharmacy, she consumed opiates purchased on the street, usually morphine in pill or powder form. She claimed that doctors had advised her to take this course.

[67] A.T. occasionally acknowledged a relapse. In November 2020 she told Ms. Selvaratnam that prior to July 2020 she would be clean for a while and then relapse, but that she had been entirely successful in avoiding drug use from July to November 2020.

[68] A.T. testified that she has now been completely “clean”, and has not consumed any non-medically prescribed drug and has not even consumed methadone or suboxone for at least the past six months, since approximately April 2021, shortly after she says she completed a detox program at Humber River Hospital. A.T. testified that negative urine screens corroborating her statements could be produced.

Hospitalizations

[69] The Society introduced medical records to support its allegations of continued substance abuse by A.T. and the risky lifestyle entailed in her drug use. Set out below is the Society’s evidence about incidents resulting from A.T.’s drug use and A.T.’s response (in italics) to this evidence.

• August 9, 2019. Records from St. Michael’s Hospital report that A.T. was hospitalized while in distress during withdrawal from opiates. A.T. reported to hospital staff that she used fentanyl and morphine regularly and had last used two days prior.
  • A.T. admits the use of morphine and fentanyl on this occasion but denies that the use was regular.
• August 27, 2019. Records from Michael Garron Hospital state that A.T. was brought to hospital by ambulance while intoxicated; she admitted to snorting fentanyl.
  • A.T.’s evidence is that she was at a party and “drinking heavily”. A.T. said that she would not snort fentanyl, but had taken the drug orally.
• August 29, 2019. Scarborough Hospital records state that A.T. was taken to hospital by ambulance where she reported to staff consuming fentanyl and oxycodone. She ran from the emergency ward into a Goodlife gym and lay down on the floor. When returned to the hospital, she threatened staff.
  • A.T. denied admitting the use of any drug except methadone. She did not deny the behaviour alleged, but attributed it to malnutrition and depression.
• September 4, 2019. Records from St. Michael’s Hospital state that Society staff found A.T. engaging in “bizarre behaviour”, crawling on the washroom floor in the Society office, saying that she was “looking for medication”. A.T. was taken by ambulance to hospital, where she was diagnosed with “altered level of consciousness” and released.
  • Society records from this day indicate that A.T. became upset after her visit with Adam, saying that she had lost a baggie of drugs, and thought the baggie might have fallen into the child’s bag for the visit. (Ms. S.P. checked; the baggie was not there, but most of the child’s belongings were gone.)
  • Not denied. A.T. says she fainted in the washroom at Society offices, and remembers nothing until she awoke in the ambulance.
• September 24, 2020. Records from St. Michael’s Hospital from indicate that A.T. was admitted for investigation and treatment of a tube-ovarian abscess. She was in hospital for six days. The records note:
  • “Her course in hospital was complicated by patient leaving the hospital on a daily basis for several hours at a time against medical advice. Multiple times both members of the nursing and gynaecology team have seen this patient at Yonge/Dundas square when she should have remained inpatient. When she returns nurses noted that she is often high. On September 29, 2020 she returned with a black eye to her right eye after an altercation. .”
  • The record notes further that on the day of discharge A.T. and her brother refused to leave the room and security was called. Needles and illicit drugs were found in the bathroom.
  • Not denied. It was not clear that A.T. remembered this incident. When questioned by her lawyer about an unspecified incident in which hospital staff had noted a black eye and bruising, A.T. testified that she received these injuries when there was a brawl at a house party. Police were called; she was knocked to the floor; she was hit in the face by an officer’s boot, and taken to hospital.
• October 7, 2020. Records from St. Michael’s Hospital for indicate A.T. was seen with respect to swelling in her right ankle and discharged. The record notes A.T.’s slurred speech, and observes that she was seen October 3 rd with the same complaint and with a bruise and swelling to the right eye.
  • Not denied. A.T. recalled in her evidence being seen at hospital for a leg injury at about this time. She did not comment further.
• October 10, 2020. Records from St. Michael’s Hospital indicate that A.T. returned to hospital because of the tubo-ovarian abscess. The record notes that her admissions “have been complicated by concerns for IV drug misuse and repeated leaving of the hospital.” A report to A.T.’s family doctor states:
  • “ Unfortunately, today again she returns reporting pain suprapubically. The patient has been noncompliant with her medications. She states that her medications were once again stolen. This patient is without fixed address. She is concerned that she is at risk of being assaulted. Her primary objective for today’s is in fact is to seek safe housing”
  • A.T. denies IV drug misuse. She stated that on this occasion the hospital wanted to treat her with medication administered with an IV, and that she refused because she does not like needles.
• March 17 to April 7, 2021. Records from Humber River Hospital indicate that A.T. was admitted on March 17, 2021 and discharged on April 7, 2020. She was held pursuant to a Form 1.
  • A.T. was an emergency admission from a shelter, where staff were concerned that she was sleeping for 2 days, not eating, and not communicating. She reported to hospital staff that the last thing she remembered was “being in a federal penitentiary for armed robbery”. In the ER she was “agitated and bizarre” and “required restraints”. The consulting psychiatrist said that she was presenting with psychosis, likely from substance misuse, possibly going into withdrawal.
  • When interviewed by hospital staff A.T. admitted to a history of fentanyl and heroin use and said she had last used one month ago.
  • She refused to let the hospital social worker contact the Society.
  • On April 8, 2021 (the day after A.T.’s discharge), she attended the hospital’s Rapid Access Addiction Medicine (RAAM) clinic to inquire about opiate agonist therapy and to obtain methadone. The record noted that A.T. was currently homeless, staying at the Plaza shelter. The attending doctor found that A.T. met the criteria for Opioid Use Disorder, and that she had struggled with this since at least 2016.
  • A.T. testified that she decided to go voluntarily to the detox unit at the hospital to “deal with my addiction issues”. She adamantly denied that she was formed, saying that she was allowed to leave the hospital at any time. A.T. testified that she enrolled in an inpatient substance misuse program for a month and was “clean” the whole time. She asked an addiction specialist, Felicia, to call the Society and let them know that she was “doing great”.
  • When asked if she was in the psychiatric unit at Humber, A.T. was non-responsive. A.T. acknowledged that restraints were used, but denied that they were justified.

Recent injuries to A.T.

[70] A.T. testified that she has been attacked three times in recent months, twice resulting in serious injuries. The Society had little or no contact with A.T. during this period. The circumstances of these attacks are not clear. A.T. is living under an alias. She has said that she is afraid of being targeted, but cannot or will not name the person(s) behind these attacks. A.T. filed no medical, hospital or police reports with respect to these incidents.

[71] Injuries to A.T.’s hand. A.T. sustained serious injuries to her hand in July 2021. She has given three different accounts of how she received these injuries.

• On July 20, 2021 A.T. told Ms. Bogdanis that she slipped down the stairs in a Toronto Community Housing building and touched something sharp.
• In her viva voce evidence before me, A.T. testified that she was cleaning her hotel room at the Toronto Plaza, which is a ’high transit room”’, and her hand came into contact with a broken candle left by a previous occupant.
• In viva voce evidence in reply on this issue, Ms. Bogdanis testified that in a September 2, 2021 phone conversation A.T. told her that the injuries to her fingers actually occurred when she was assaulted and tried to grab a knife away from her attacker.

On September 9, 2021 Ms. Bogdanis visited and viewed the stiches to her fingers. A.T. again stated that she was injured when trying to grab a knife from her attacker. Ms. Bogdanis testified that she had never before today heard the explanation of injuries to A.T.’s hand as coming from touching a broken candle.

[72] Injuries to A.T.’s face. A.T. testified that on August 20,2021 she was assaulted in an attack at Bathurst and Lakeshore in Toronto. At first she thought there were three attackers, but now she understands it was one man, a man unknown to her. A.T. “didn’t wish to get any names or press charges” but said she filed a police report of the attack. A.T. suffered fractured facial bones and a fractured nasal cavity requiring plastic surgery.

[73] A.T. testified that about a week after this attack she moved from the Toronto Plaza Hotel to the Edwards Village Hotel, a place that would give her “privacy to heal.” A.T. said that the hotel is government run and serves meals; she does not know the particulars. She testified that the hotel was suggested by her “critical care worker” from St. Michael’s Hospital whom she had met after the assault by a police officer in September 2020.

[74] A.T. thrown to the ground. A.T. testified that she was robbed of her purse sometime in September 2021 when she was leaving the hotel. The attacker, whom she said she did not know, threw her to the ground. A.T. did not report this incident to police.

[75] On September 2, 2021 A.T. told Ms. Bogdanis that she was hiding under an alias at the hotel; she felt that she was being targeted. A.T. said that she didn’t have a name for this person, but that the police knew who he was.

Past efforts to stop drug use

[76] A.T. has made efforts in the past to stop using non-medically prescribed drugs without success. She participated on and off in the methadone program at True North clinic since 2015. Since this case began, she has twice enrolled in Breaking the Cycle but has been terminated for non-attendance.

[77] A.T. is not currently enrolled in any maintenance program to help to prevent a relapse. She testified that she is on a waiting list for an outpatient 21 day program at Jean Tweed, but provided no confirmation of that or information as to when she might be admitted. She testified that Ms. Bogdanis and she had called Breaking the Cycle to re-enroll her in the program. Ms. Bogdanis testified that she had not made such a call and that A.T. is ineligible for the program. A.T. testified that she had previously received some counselling on addiction issues from the Substance Use Program at Women’s College Hospital. She understood that she was ineligible for that program, but had called her former counsellor, Ms. Keith to see if alternatives could be offered.

Housing difficulties

[78] A.T. has had difficulty securing stable housing since she separated from T.M., when Adam was about two months old. A.T. said the following about her residential history and current plans for accommodation.

• Before the separation A.T. shared a 2 bedroom downtown condo with T.M..
• After the separation in early 2019 she lived with her father Geo. in the Toronto condo he rented. A.T. also testified that during this period she lived about 80% of the time at her mother’s, where Adam was living.
• After Adam was taken into care in May 2019 A.T. lived with her father.
• In November 2020 Geo. moved to Parry Sound. A.T. did not want to relocate. She was “homeless” for three weeks in December 2020, couch surfing and spending time at her mother’s, father’s or brother’s.
• Sometime early in 2020 she moved to the Toronto Plaza Hotel, which is operated by the city as a shelter.
• She contracted COVID, and was moved to the Four Points Islington Hotel, another city run shelter, to self-isolate for 16 weeks, returning to the Toronto Plaza after completing the quarantine.
• She then was admitted to Humber River Regional Hospital for one month. (A.T. was unclear on the dates. Hospital records indicate she was in the hospital on a Form 1 from March 17-April 7, 2021).
• She then returned to Toronto Plaza Hotel.
• On approximately August 27, 2021 A.T. moved to a room in the Edwards Village Hotel, where she currently resides. A.T. says that she is able to stay there until the end of October or perhaps the end of November. A.T. testified that she will move from the hotel when she feels that she has healed, emotionally as well as physically—which may take a month or two, although she could leave earlier if Adam is released to her.

[79] As far as more permanent housing is concerned, A.T. told Ms Bogdanis in July 2021 that she had rented a one bedroom basement apartment. In August 2021 she advised that she had rented a two bedroom basement apartment. Ms. Bogdanis went to view the apartment at the address A.T. provided (34 [street name removed] Crescent) on September 9, 2021; it is a bungalow. A.T. showed Ms. Bogdanis what she said was her bedroom on the first floor. She later took her to the basement, where a man was sleeping. A.T. advised that her unit would be in the basement, and that she would live there alone with Adam.

[80] The home was not in good repair. A.T. advised that the former tenant’s belongings still needed to be removed and that renovation work was planned.

[81] A.T. testified that she had since mid-August paid rent of $1200 monthly on the apartment. She says that the rent is a strain on her budget; her ODSP payment is $2200 monthly. When questioned by Ms. Bogdanis as to why she was not occupying the apartment, A.T. advised that she preferred the privacy of the hotel.

[82] A.T. is confident that if Ms. Bogdanis writes a letter to Toronto Community Housing supporting her that she will be able to obtain a free or low rent 2 bedroom apartment. Ms. Bogdanis testified that A.T.’s belief is mistaken, and that in her experience letters from the Society are not effective in securing housing.

Society ’s efforts to assist A.T.

[83] Family Service worker Ms. Bogdanis testified that during this case there have been ongoing difficulties in communicating with A.T. The Society made continual efforts to keep in touch with A.T., through frequent phone calls. Ms. Bogdanis and prior Family Service workers have been unsuccessful in connecting her for weeks at a time. Messages were left and not returned. For much of the case Society workers did not know where A.T. was living.

[84] The Society tried to work with A.T. to put herself in a position to have Adam returned to her. The Society did not amend its application to seek extended Society care until October 14, 2020. It wrote a letter to A.T. setting out the Society ’s expectations of her to gain its support of a return. It offered to connect A.T. with an addictions counsellor, an offer she declined. It referred A.T. to Breaking the Cycle and CMHA Healthy Families . It provided A.T. with a cell phone and tablet to assist her in communicating with supports and for virtual access with Adam. It offered to meet with A.T. to help her use the tablet, an offer which she did not pursue.

[85] Ms. Bogdanis ‘s evidence was that no addiction counsellors or critical care workers or social workers contacted her with respect to A.T., and that A.T. never gave her the names of such individuals to contact. Humber River Hospital records note that A.T. refused to let the hospital social worker contact the Society’s. Ms. Bogdanis testified that A.T. never sent the drug screens she says demonstrate her abstention from the use of non-medically prescribed drugs for the last 6 months.

Adam’s needs

[86] Adam is a child with exceptionally high needs. He requires a caregiver who is vigilant in monitoring his situation and in following recommendations of his doctors, and who is able to communicate with and attend meetings with the many medical personnel involved in treating him.

[87] Developmental paediatrician Dr. Carolyn Hunt of Grandview Children’s Centre assessed Adam in March and April 2020 and September of 2021. She found that Adam suffers from Fetal Alcohol Syndrome (FASD) and Autism Spectrum Disorder (ASD). He has developmental delays, including significant delays in language, and will require speech therapy as well as occupational therapy. There is a “strong possibility” that Adam suffers from ADHD.

[88] Adam has difficulty regulating his emotions and is subject to frequent mood swings. His behaviour cannot be managed using techniques one would employ with non-FASD children.

[89] He needs an environment with schedules and routines that are predictable. Adam has further health problems.

• He was diagnosed this year as suffering from Neurogenic Bladder Disorder; his bladder is unable to empty on its own and is growing too large, crowding other organs. He requires daily medication and must be cathertized 4 times daily.
• Adam’s kidneys are fused together on one side of his body. This creates a problem with his ureter and a concern for serious blockage.
• Adam has trouble being interested enough in food to get the calories needed to keep him healthy. He had a feeding and swallowing assessment at Grandview Children’s Centre. His interest in food changes quickly and his diet must be carefully monitored.

[90] A.T. does not accept the FASD or ASD diagnoses. She testified that Adam is doing well, and meeting his developmental milestones.

Alternate plans for Adam

[91] The Society worked to explore alternate plans for Adam, but there were no such plans available at the time of this hearing.

[92] Adam’s father T.M. has a serious drug related criminal history. He was last incarcerated 2014-2016 and says he “came clean” while incarcerated. After Adam was born T.M. had little contact with the child; he says that he wished to avoid interaction with A.T. However, in December 2020 T.M. came forward with a plan for Adam. The initial visits which he and his girlfriend had with the child showed promise. He has not pursued this plan since the meeting in which Adam’s substantial medical needs were spelled out. The Society has not had contact with T.M. since April 9, 2021.

[93] A number of family members or friends have contacted the Society indicating a wish to plan for the Adam. They have been given access to the child, and the Society has assessed their plans.

[94] No one who initially came forward is now offering a plan.

• G.T. was initially approved as a kin plan. She reluctantly withdrew her plan, overwhelmed by the level of care it is clear the child needs.
• Plans for Adam’s care were advanced by T.M.’s aunt L.D. and his former partner D.D.. They both withdrew their plans.
• Geo., the maternal grandfather, indicated in 2019 that he wished to plan. His plan was not approved by the Society. Geo. lives in Parry Sound and maintains a loft apartment in Toronto. He travels frequently for his work as a carpenter. His plan as to who would actually care for the child was unclear. Geo. showed a lack of understanding of Adam’s needs

A.T.’s access to Adam

[95] During the time that Adam was in G.T.’s care (October 26,2018-May 24, 2019) A.T. apparently had extensive contact with Adam, sometimes unsupervised by G.T.

[96] The order of May 28, 2019, placing Adam in the Society ’s temporary care provided that access to A.T. be at the Society ’s discretion as to duration, location and level of supervision.

[97] The Society initially scheduled 1 hour visits twice weekly for A.T. After a short period of time when A.T. was inconsistent about attending visits, the Society required her to call to confirm the morning of the visit, to insure that the child was not needlessly brought from the foster home.

[98] The court was not provided with a record of how many visits A.T. attended over the period in which there were in- person visits at the Society’s offices (June-2019 to March 2020). A.T. was adamant that she missed no visits, and said she was often early.

[99] That claim is not borne out by other evidence. Foster mother Ms. S.P. testified that the visits were “sporadic”. Evidence from Society staff indicated that there were frequent occasions on which A.T. did not call as required to confirm a visit but arrived at the office, expecting a visit that could not take place. Other times A.T. did not call to confirm and did not attend at the scheduled time, so no visit took place. When A.T. did attend for a visit, she was often late, by up to an hour.

[100] Visits by A.T. were always supervised and, except for certain rare occasions, such as Adam’s first birthday, were always in the Society offices.

[101] Observations from Society staff indicate that during the first months of supervised visits A.T. was unable to read Adam’s cues; the child was uncomfortable with her. As time progressed, A.T. periodically showed, for at least part of a visit that she was “calm and focused” and able to engage Adam, as well as meet his instrumental needs. Ms. Briskin arranged for A.T. to use a communication book with Ms. S.P., and facilitated an email connection between them. Ms. S.P. was able to tell A.T. about the child’s routines, likes and dislikes.

[102] A.T.’s progress in learning to interact with Adam was fitful. For example, in August 2019 A.T. engaged well with Adam for the first hour of a planned 3 hour visit. She then unexpectedly vanished for most of the time remaining for the visit.

[103] Since COVID emerged in March 2020, A.T.’s contact with Adam has been limited to virtual visits of 30 minutes or less. In May 2020 the Society considered whether to allow some in person visits to resume and decided to continue virtual visits. The Society ’s medical staff assessed A.T. as high risk with respect to COVID exposure because of her lack of compliance with safe practices (e.g., not wearing a mask in a public place) and chaotic lifestyle. It was noted that there were vulnerable high-needs children in addition to Adam in the foster home that would be affected if COVID made its way into the home.

[104] The transition to virtual access has been disastrous.

[105] Connectivity problems emerged early and were never solved. A.T. had problems calling in. She lost her phone.

[106] The Society provided her with a tablet which she had difficulties using. Society workers offered to instruct her on the use of the tablet if she would come in to the office. She did not do so.

[107] The Society workers facilitating a call say there were many occasions when A.T. did not call in at the scheduled time. A.T. says that she would call in and languish in a waiting room, without being connected.

[108] Many – Ms. S.P. estimates about 50% of the virtual visits between April 2020 to November 2020 – did not happen.

[109] Since November 2020 there have been virtually no visits – only 8 virtual contacts in the months between December 2020 to March 2021.

[110] The last virtual visit was March 1, 2021. A.T. has had no contact with Adam since that time.

[111] A.T.’s virtual visits were at first supervised by Ms. S.P. Ms. S.P.’s evidence about these visits is set out below.

• On the August 2, 2020 visit A.T. was talking “very loud and very fast and her face seemed droopy”. She had an unidentified man with her, whom she started kissing. On another call in September 2020 A.T. appeared to be in hospital and was “not really coherent”.
• On November 5, 2020 A.T. called from a mall. A security guard was arguing with her, telling her to put a face mask on. Adam was looking away. A.T. demanded that Ms. S.P. make Adam look at her; this is denied by A.T. Throughout the call, Adam was arching in his seat and trying to hide. After the call ended, he refused to eat.
• After this incident, Society staff began supervising the virtual visits.
• On the next visit, A.T. took the opportunity to yell at the worker and Ms. S.P. that “this is all bullshit”. Adam got upset.
• On the visit on February 18, 2021, A.T. yelled at the worker about her case, ignoring pleas to concentrate on Adam. Adam refused to look at the IPAD and twisted in his seat to hide. After this visit he slept for 4 hours.
• On the March 1, 2021 visit, A.T. was in a hotel room, in bed with a male. A.T. prompted the man to talk with Adam. Adam would not acknowledge her, and became agitated, throwing his toys around.

[112] Ms. Bogdanis testified that when she became the family service worker in April 2021, she wanted to meet with A.T. to discuss, among other issues, restarting visits. Ms. Bogdanis was unable to connect with A.T. for more than two months. A.T. said she wanted to see Adam, but after the assault on August 20, 2021 she withdrew that request. She advised that she did not want Adam to see her while her face was injured. A.T. testified that she is still not ready to see the child on a visit.

A.T.’s plan

[113] A.T.’s Answer and Plan of Care contains little detail. It says that she will be living alone and is looking for housing. It says that she will not be working or going to school, and that Adam will be in day care. It says that she has the support of her family but gives no information about what that support will consist of. It alleges that she is compliant with the methadone program of the True North clinic.

[114] A.T. has been asked many times to meet with the family services worker to discuss her plan and provide details. She has agreed to do so, but never followed through.

[115] In A.T.’s viva voce evidence, she said that she would be prepared to assume care of Adam when she was ready to leave the Edwards Village Hotel—in perhaps a month, but sooner if necessary. A.T. testified that she has a partner whom she met in detox and has known for about six months. She did not identify him. A.T. plans to live alone at 34 [street name removed] Crescent with Adam. The cost of rent would be a strain on her income of $2200 monthly, but she was confident that she would obtain subsidized housing soon with the support of a letter from Ms. Bogdanis.

[116] A.T. plans to enrol Adam in daycare and testified that she had a daycare subsidy. Ms. Bogdanis’s evidence is that, based on her experience of assisting other clients, a day care subsidy is not available to a person such as A.T. who does not have the child in her care.

[117] A.T. testified that she plans to re-enroll in the Breaking the Cycle program, and is on the waiting list for an outpatient 21 day program at Jean Tweed. She was unable to provide documentary confirmation of this.

4. Statutory Framework

[118] Section 74(2) (b) of the Act provides that a child is in need of protection where it is established that

74(2) ( b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

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

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[119] Section 101 of the Act sets out options for disposition if the court finds that a child is 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:

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123 .
4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

[120] The court has certain obligations to meet before making a disposition.

• S. 101(2) provides that the court must inquire as to what efforts to assist the child have been made by Society or other entity.
• S. 101(3) provides that before making an order that would remove a child from the care of a person who had charge of him before Society intervention, the court must be satisfied that less intrusive (including non-residential) alternatives are inadequate to protect the child.
• S. 101(4) provides that before making an order that would remove a child from the care of a person who had charge of him before Society intervention, the court must consider whether it is possible to place the child with a relative or community member.

[121] Section 74(3) of the Act sets out a non-comprehensive list of factors to be considered by the court 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 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.

[122] Sections 104 and 105 of the Act deal with decisions about access.

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

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

(2) Where a child is in a society’s care and custody or supervision, the following may apply to the court at any time for an order under subsection (1):

1. The child.
2. Any other person, including a sibling of the child and, in the case of a First Nations, Inuk or Métis child, a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.
3. The society.

(3) An applicant referred to in paragraph 2 of subsection (2) shall give notice of the application to the society.

(4) A society making or receiving an application under subsection (2) shall give notice of the application to,

(a) the child, subject to subsections 79 (4) and (5) (notice to child);

(b) the child’s parent;

(c) the person caring for the child at the time of the application; and

(d) in the case of a First Nations, Inuk or Métis child, the persons described in clauses (a), (b) and (c) and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

(5) No order respecting access to a person 16 or older shall be made under subsection (1) without the person’s consent.

(6) No application shall be made under subsection (2) by a person other than a society within six months of,

(a) the making of an order under section 101;

(b) the disposition of a previous application by the same person under subsection 2);

(c) the disposition of an application under section 113 or 115; or

(d) the final disposition or abandonment of an appeal from an order referred to in clause (a), (b) or (c),

whichever is later.

(7) No person or society shall make an application under subsection (2) where the child,

(a) is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c);

(b) has been placed in a person’s home by the society or by a Director for the purpose of adoption under Part VIII (Adoption and Adoption Licensing); and

(c) still resides in that person’s home.

105 (1) Where an order is made under paragraph 1 or 2 of subsection 101 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child’s best interests.

(2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests.

(3) If an order is made for supervision under clause 116 (1) (a) or for custody under clause 116 (1) (b), the court shall make an order for access by every person who had access before the application for the order was made under section 115 , unless the court is satisfied that continued contact will not be in the child’s best interests.

(4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), any order for access made under this Part with respect to the child is terminated.

(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.

(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.

(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.

(8) The court shall terminate an access order 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) if the order is no longer in the best interests of the child as determined under subsection (6).

(9) If a society believes that contact or communication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) is in the best interests of the child and no openness order under Part VIII (Adoption and Adoption Licensing) or access order is in effect with respect to the person and the child, the society may permit contact or communication between the person and the child.

5. Analysis

5.1 Analysis: protection finding

[123] A protection finding may be made based on facts at the outset of a case, or at any subsequent time up to trial . [9] A Society seeking a finding under s. 74(2)(b) must establish that there is a real possibility that a child is more likely than not to suffer harm if returned to his parent. [10]

[124] There is a substantial body of jurisprudence that stands for the proposition that where a parent is abusing drugs or alcohol, the child is at risk. [11]

[125] Based on the record before me and without resort to the expanded powers set out in Rule 16 (6.1), I find that there is no genuine issue requiring a trial as to whether Adam was in need of protection at the time of his birth if returned to the care of his mother A.T.

[126] I make this finding based upon certain admitted or uncontested facts and upon presuming (not finding) that A.T.’s own evidence as to her consumption of non-medically prescribed drugs is accurate. In other words, this finding is based upon the facts most favourable to A.T.’s position. These facts are set out below.

• Before she was pregnant with Adam, A.T. had a lengthy history of use of non-medically prescribed drugs, opioids such as Oxycontin, heroin, and fentanyl.
• A.T. was diagnosed with Opioid Use Disorder as far back as 2016.
• A.T. had been a patient in the True North methadone program since 2015.
• A.T. was counselled by doctors at True North about the risks of sedation, overdose and death with street opioid use, including the high risk of fentanyl use.
• After A.T. learned that she was pregnant with Adam she believed that she was following doctor’s advice by buying and ingesting street drugs when she missed her methadone dose. She tried to buy from a “trusted” dealer and take only incremental doses until she felt better. She acknowledges, however, that one cannot be sure of what one is buying in such a transaction, and that dangerous substances could be mixed in what she bought.
• A.T. unsuccessfully attempted to eliminate the use of non-medically prescribed drugs for at least five years prior to her claim at this hearing that she has been “clean” since April 2021.

[127] Based on these facts, the risks to a child in A.T.’s care at birth are clear.

[128] If A.T. consumes street drugs more potent than expected, she could be sedated or overdose. An infant in her care would not be safe unless there was an alternate, capable caregiver. T.M. did not fill that role.

[129] There would also be dangers for a young child in A.T.’s care if she suffered from withdrawal symptoms. A.T. testified that if deprived of the drugs on which she was dependent she couldn’t do “any normal activities as a normal human being, down to bathing, washing clothes, cleaning my house cooking, anything like that”.

[130] If a trial was held, there is no realistic possibility that a protection finding would not be made for Adam. A trial could not lead to any other outcome. I make a protection finding for Adam pursuant to s. 74(2)(b)(i) of the Act.

[131] No one disputes that if a protection finding is made that a further order is not required to protect Adam in the future.

5.2 Analysis: Disposition

[132] What is the appropriate disposition for Adam? Should he be returned to his mother’s care, with or without Society supervision? Should an order be made placing him in extended Society care? Depending on the interpretation of s. 122(5) of the Act, some might argue that there is a third possible option, an order for further interim Society care. Such an option might be considered if an extension of up to six months was in Adam’s best interests and the circumstances were exceptional. A.T.’s counsel did not make this argument, and in my view, it would not be in the child’s best interests to go further in considering that path. There is no basis to find the circumstances in this case are exceptional.

[133] There is conflicting evidence before the court on significant issues, genuine issues which could require a trial. Has A.T. been successful in abstaining from the use of any non-medically prescribed drugs for the past six months? Are there sufficient safeguards against relapse in the future? How might A.T.’s addiction issues affect parenting? What reliable supports does A.T. have if Adam is returned to her care? Does A.T. understand Adam’s needs, and can she be relied upon to take the steps necessary to meet them? Can the court be confident that A.T. will comply with a supervision order and any conditions imposed? What is the nature and quality of the relationship between Adam and A.T.?

[134] In order to deal with these questions, I will utilize the expanded powers in s. 16(6.1) of the Rules, which allow me to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence.

[135] Credibility is an important issue in this case. I find that A.T. was not a reliable witness on the issues which the court has to determine.

[136] I reach this conclusion for the following reasons.

1. There are numerous instances in which A.T.’s evidence conflicts with that of professionals involved—e.g.. nurses, doctors, EMS staff, or police. A.T. did not keep any written record of events, events during which she often appeared to be in an agitated state. A.T. had a motive to relate a version of an event favourable to herself. Society workers keep detailed contemporaneous or close to contemporaneous recordings. Hospital doctors or nurses do the same. There is no suggestion that any of the professionals involved had a motive to misrepresent any fact. The similarity of observations made by hospital doctors and nurses about A.T.’s presentation at hospital adds weight to the accuracy of their observations. I prefer the evidence from these professional witnesses.

   Below are examples of instances in which A.T.’s evidence conflicts with the evidence of other witnesses, in which her evidence must be rejected.

   • A.T.’s attempts to explain away the multiple times she has been taken to hospital in circumstances in which she was found by hospital staff to be impaired by drugs or reported to admit use of such drugs do not hold water. She does not deny several reports. Her other responses amount to bald denials, evasive non- responses, and in one case, an entirely unbelievable claim [12] .
   • Evidence from the Society workers who supervised visits and from foster mother Ms. S.P. establish that A.T.’s claim that she was never late and in fact often early for each in-person visit with Adam are incorrect.

2. A.T. testified on significant issues in a self-serving and evasive manner. A case in point is A.T.’s evidence that she entered Humber River hospital in March 2021 because she decided that she wanted to participate in a detox program, and that she participated in that program for one month. Records from the hospital tell a different story. A.T. was brought to hospital in an incoherent state by ambulance and kept in the psychiatric ward for one month.

3. A.T. contradicted herself in her evidence before me on many occasions. For example, when relating the story of the head-on collision involving Adam, A.T. said as follows: a. She was not there, and that A.C. had disappeared immediately, and they hadn’t heard from her since/ A.C. told her after the accident that she was leaving the province. b. There were no charges or tickets resulting/ she fought tickets in court and they were thrown out.

4. Where is there evidence corroborating A.T.’s claims? A.T.’s failure to produce documentary evidence to support her assertions on significant points weighs against her credibility. A.T. testified that she was unable to provide documentary confirmation about any issues in her evidence because her purse had been stolen on August 20, 2021. She said that without identification documents, she was unable to obtain any of the necessary documents—that hospitals or the methadone clinic would refuse to accept who she was. This explanation ignores all the time before August 20, 2021, when documents could have been obtained. In any event, if the theft of A.T.’s purse was in fact a problem in obtaining documents, it was open to her to get help from her family service worker or her lawyer, who surely would assist her on such an important issue.

[137] Where A.T.’s evidence conflicts with evidence from the Society witnesses, including evidence in hospital, clinic and police records, I prefer the evidence from Society witnesses.

[138] I also draw reasonable inferences as follows from the evidence taking into consideration my rejection of A.T. ’s evidence where it conflicts with other evidence.

• I do not accept A.T.’s claim that she did not intentionally ingest opiates such as fentanyl or oxycodone after she was pregnant, and that UDS results with respect to her and Adam are only the result of her dealer accidentally mixing these substances in the drugs she bought. The reports from True North clearly set out that A.T. herself was reporting the consumption of these drugs independent of any UDS results.
• I do not accept A.T.’s claim that she was not the driver of the car in which Adam was travelling on the night of the head-on collision. I have already noted some holes in that story, which claimed that A.T.’s friend was returning the infant from a play date at 11:30 p.m. P.C. Preuthun investigated the accident and contacted the Society to report that the driver was A.T. It is unbelievable that an officer would accept that “A.C.” was A.T. without any identification. A.T. stresses that it is important that she was not the driver. If there is truth to her story, why did A.T. not challenge the Society’s motion to take Adam into care at the motion? Why keep quiet about it until now?
• Similarly, I have no confidence in A.T.’s claim that she has been “clean” since April 2021. I make no finding that urine tests are a valid test of drug consumption, but it is clear from what A.T. has said to the Society over the past three years, that she sees them as such. If A.T. has been, “clean” since April, where are the clean UDS screens that she has more than once promised to provide? Where is other corroborative evidence? It is not sufficient for A.T. to say that if there is a trial, that such evidence can be produced.

[139] I make the following findings of fact with respect to A.T.’s use of non-medically prescribed drugs.

• A.T. had suffered from Opioid Use Disorder since 2016.
• A.T. used non-medically prescribed drugs including oxycodone and fentanyl before and after she was pregnant with Adam and continued to do so after his birth.
• There is no evidence to support A.T.’s claim that she has abstained from the use of non-medically prescribed drugs for the past 6 months.

[140] There is no evidence, even if A.T. has in fact not used non-medically prescribed drugs for that period, that she has an adequate maintenance program in place to guard against relapse on her part.

[141] In addition, I find that A.T. has not been candid with the Society or the court about the recent incidents in which she was attacked. She speaks of not wanting to “name names” and being targeted. She lives under an alias. There is no explanation of the reason behind these attacks, whether they are connected to the use or sale of drugs or to A.T.’s associates or to something else. A child in A.T.’s care now would be at risk, regardless of whatever or whoever is behind the attacks.

[142] I turn to a consideration of the plans before the court for Adam in light of the best Interest factors which the court must consider.

[143] If an order for extended Society care is made, Adam’s physical, mental and emotional needs will be met. The Society will seek an appropriate adoptive home for Adam. He will remain in a specialized treatment foster home with Ms. S.P. until adoption takes place. He will have regular monthly contact with G.T., his maternal grandmother.

[144] Evidence from adoption worker Lynsey Dale was that the Society would, if Adam is free for adoption, look for a family which is at least a partial racial/cultural match (Adam is bi-racial); which is able to meet his special medical needs; and which is accepting of his familial history of mental health concerns and substance misuse. Ms. Dale testified that the Society has been successful in the past at finding adoptive families for children with profiles similar to Adam’s profile.

[145] A.T.’s plan has positive aspects.

• If Adam was placed with A.T., he would be raised by a mother who loves him very much. A.T. has persisted in trying to have the child returned to her care in the face of tremendous obstacles—poverty, impairment by drug addiction, lack of stable housing, and absence of a supportive co-parent.
• If Adam was placed with A.T., he would be raised in a home which would reflect his maternal family’s Greek/Canadian heritage.

[146] There are however many factors which weigh heavily against a placement of Adam with A.T.

• The degree of risk which triggered Adam being taken into the Society care was high. That risk continues.
• Even if A.T. is not currently using non-medically prescribed drugs there is no real plan in place to prevent a relapse. A.T. is not registered with Breaking the Cycle. There is no reliable evidence that she is even on a waiting list for a similar service.
• A.T.’s plan is to live alone with Adam. There would be no other responsible caregiver to protect Adam when A.T. was unable to do so.
• A.T. has no daycare program in place that would provide extra eyes on any placement. There is no reliable evidence that she would be eligible for a daycare subsidy.
• A.T. does not have adequate housing in place. She recognizes that the Edwards Village Hotel is not suitable. Even if A.T. decided to leave immediately to live at 34 [street name removed] Crescent, both she and Ms. Bogdanis testified that this home is not fit for the child.
• There is no evidence of a positive parent/child relationship between A.T. and Adam. Although A.T. made some progress in beginning to develop such a relationship during in-person access, that progress did not continue when virtual access became necessary. A.T. has had no contact with Adam since March 2021, eight months ago.
• A.T. does not accept or understand Adam’s significant special needs. Despite unchallenged evidence from Dr. Hunt, a developmental paediatrician, A.T. maintains that Adam is meeting his developmental milestones.
• Parenting Adam will require a high degree of organization and commitment to monitor his symptoms, communicate with doctors and other professionals, and implement their recommendations. Based on A.T.’s past lifestyle and her fractious relationship with Society workers and the foster mother, the court is not confident that A.T. could do this work.

[147] There are no less disruptive alternatives to an order for extended the Society care that would be adequate to protect Adam. An order placing Adam with A.T. under the Society supervision with conditions would not be adequate to insure the child’s protection. A.T. ignored a prior temporary order which provided that she was to have no unsupervised contact with the child. A.T. has not maintained contact with the Society for weeks at a time. Furthermore, certain of the significant concerns about a placement with A.T.—such as her failure to understand and accept Adam’s special needs—could not be dealt with by a supervision order.

Conclusion

[148] The court is able to fairly deal with the decision about disposition without a trial, relying on affidavit and documentary evidence filed and the viva voce evidence of A.T. and Nerissa Bogdanis. A.T.’s viva voce evidence allowed the court to assess her insight, judgment, and attitude in a way that an affidavit alone would not permit.

[149] It is abundantly clear that it is in Adam’s best interests for an order of extended the Society care to issue, and I so order. There is no other less intrusive option that would protect the child and meet his best interests. No other disposition is realistically possible. A.T.’s request that Adam be placed with her under Society supervision has no chance of success at a trial.

Access

[150] 105(4) of the Act provides that when an order for extended the Society care is made any outstanding access order be terminated. S. 105(5) provides that the court shall not make a further access order unless it is satisfied that such an order is in the child’s best interests. Additional best interest factors are set out for consideration:

• Whether the relationship between the person and the child is “beneficial and meaningful to the child”;
• If relevant, whether the ordered access will impair the child’s future opportunities for adoption”.

[151] These additional factors have no automatic priority in a decision about access; they are simply part of a best interests analysis, and only where relevant. [13]

[152] A trial is not necessary to deal with A.T.’s access claims fairly. There is ample evidence to allow the court to adjudicate her claim, based on her own evidence as well as the evidence of Society workers and the foster parent.

[153] Although in her Answer and Plan of Care A.T. requested access as alternate relief, in her viva voce evidence on this motion, when asked what access she would like if Adam was not returned to her care, she replied: “I don’t think I would want that. If I can’t have my son and they decide to adopt him out for absolutely no reason when there is no reason then I’m going to leave the rest up to myself and let the foster parents do what they need to do. Something I’m capable of doing and so is my family”.

[154] In written argument on the motion A.T.’s lawyer advised that she now took no position on the issue of access.

[155] Despite A.T.’s evidence that she “doesn’t think” that she wants access, if access is made available, I cannot rule out that she will make some use of that right. A.T.’s evidence gives me great concern that if access exists that she will do what she can to disrupt his current foster placement and to obstruct any adoptive placement. A.T. refuses to accept that she is unable to care for Adam. She has spent time during access visits berating Society workers for not supporting her case.

[156] I find that an access order to A.T. would impair Adam’s opportunities for adoption, by slowing down if not derailing the process. That is an important consideration for this child. Given his high special needs, he would benefit greatly from having a family committed to permanently undertaking his care.

[157] Evidence does not support a conclusion that Adam has a positive relationship with A.T. During supervised in-person access, A.T. was just beginning to be able to read the child’s cues and develop some ability to concentrate on him. Since virtual access began, Adam has developed an aversion to contact with A.T. The COVID related factors outside A.T.’s control led to a deterioration of access, but A.T. did not work with the Society to improve access (e.g., by working to make in-person access safe, by learning how to use the tablet).

[158] The reality for Adam is that the only relationship he has with A.T. at present is a negative one. It cannot be said that Adam’s relationship with A.T. is beneficial and meaningful to him, from his perspective.

[159] Although access by A.T. to Adam would preserve the child’s link to his biological family and Greek heritage, those goals can be accomplished by an access order to his maternal grandmother G.T.

[160] The court makes no order of access by the A.T. to Adam.

[161] The Society and G.T. have agreed that an order for access by her a minimum of once a month should issue. She and Adam will both be the holders and recipients of access. That order is not opposed by the other parties. G.T. has been a constant mostly positive presence in the child’s life. The order requested shall issue.

[162] Although T.M. made an alternative request for, “extensive unsupervised and overnight access" he has not pursued this claim. The court makes no order for access by T.M.

6. Order

[163] This court orders as follows:

1. Adam is a child in need of protection pursuant to s. 74(2)(b) (i) of the Act
2. Adam is placed in the extended care of the Society pursuant to s. 101(1) of the Act
3. G.T. shall have in-person access to Adam and Adam shall have in-person access to G.T. a minimum of once a month. Any virtual or in-person access on special holidays and occasions shall be as agreed by the Society and G.T. G.T. shall be permitted to bring Tina T. to her access visits. G.T. and Adam are both holders of this right of access.
4. T.M.’s claim to have Adam placed in his care pursuant to Society supervision and alternative claim for access is dismissed for want of evidence .

Released: November 30, 2021 Signed: Justice E. B. Murray

[1] Adam is a pseudonym for the subject child. [2] Catholic Children’s Aid Society of Hamilton v. V. C., 2017 ONSC 5557 [3] Children’s Aid Society of Toronto v. G.T. (A.T.), 2015 ONSC 6388 [4] Children’s Aid Society of the Regional Municipality of Waterloo v. L. (V.), 2006 O.J. 3785 (S.C.J.) [5] Children’s Aid Society of Toronto v. K. T., (2000) O.J. 4736 OC [6] Children’s Aid Society of Toronto v. M.B., 2017 ONCJ 120 [7] L.M. v Children’s Aid Society of the region of Peel, 2019 ONCA 641 [8] For example, Society worker Ms. Selvaratnam testified that in November 2019 A.T. told her that she was compliant with the methadone program and not using drugs other than methadone. [9] Children’s Aid Society of Toronto v. R.M., 2017 ONSC 796 [10] Children’s Aid Society of Toronto v. A.T.R., (2003) O.J. 423 [11] Children’s Aid Society of Simcoe County v. T.W., 2012 ONSC 2866 . 33 lists the cases [12] This is A.T.’s response to the concern reported by St. Michael’s hospital of IV drug use by her. A.T. suggests that this is a mix-up which occurred because the hospital wanted to administer medication to her in an IV and she refused. [13] Kawartha-Haliburton Children’s Aid Society v. W. (M.), 2019 ONCA 316