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: December 1, 2023 COURT FILE No.: CFO-16-16103
BETWEEN:
Catholic Children’s Aid Society of Toronto Applicant
— and —
MC Respondent
-and-
PL Respondent
-and-
EB-C Respondent
Before Justice W. Kapurura
Heard on September 11, 12, 13 and November 24, 2023 Reasons for Judgment released on December 1, 2023
Rachel Buhler............................................................................ counsel for the applicant society Kenneth E. Snider.................................................................. counsel for the respondent, MGC David P. Miller........................................................................... counsel for the respondent, PL Emma Byrnes.......................................................................... counsel for the respondent, EB-C
JUSTICE W. KAPURURA:
Part One – Introduction
[1] This trial was about whether the child EL (“the child”) should be found to be in need of protection, and if so, the dispositional orders that would be in her best interests. She is two years old.
[2] The child was brought to a place of safety on July 27, 2021, when she was a month old. She remains in care.
[3] The family consists of the following members:
a. MC is the child’s mother (“the mother”).
b. PL is the mother’s former partner. He is not the child’s biological father but claims to treat her as his child [1]. PL will be referred to as “the stepfather” in this decision. He has participated in this proceeding and has been in the child’s life since birth. [ The term ‘parents’ in this decision refers to the mother and the stepfather (PL).]
c. EB-C is PL’s (the stepfather’s) mother. She will be referred to as the “grandmother” in this decision.
[4] The main protection issues arise out of concerns around the mother’s ability to parent the child on a full-time basis due to her cognitive limitations, and the impact these challenges might have on the child. There are also concerns about her ability to comply with conditions and restrictions regarding the stepfather’s access to the child. The stepfather has a significant history of sexual assault and offences against adults and a child.
[5] The Catholic Children’s Aid Society of Toronto (“the society”) seeks a finding under subclauses 74(2)(b)(i) and 74(2)(b)(ii) of the Child, Youth and Family Services Act, SO 2017, c14, Sch 1, (‘the Act’). It also seeks an order that the child be placed in its extended care, with no access.
[6] The mother, the stepfather, and the grandmother are opposing the society’s request with respect to disposition. They are not opposing a finding in need of protection. The mother seeks to have the child returned to her care and custody, subject to supervision by the society. She plans to reside temporarily with the grandmother until she secures her place of residence. The stepfather and the grandmother support the mother’s plan. They are only seeking orders for access with the child.
[7] All parties agree to statutory findings being made under subsection 90(2) of the Act.
[8] All parties had legal representation at trial.
[9] The order of Justice M. Pawagi dated June 29, 2023, provides directions for trial. The society filed five trial affidavits from its social workers for their examination-in-chief. The social workers were cross-examined at trial. The parents and the grandmother provided oral testimony and were cross-examined.
[10] The issues for the court to determine are as follows:
i. Whether the child is in need of protection?
ii. If so, is intervention through a court order necessary to protect the child in the future?
iii. What dispositional orders are in the child’s best interests?
iv. If an order is made placing the child in extended society care, what access orders are in the child’s best interests, including who should be made an access holder and who should be made an access recipient, if access is granted?
v. If an order is made placing the child in the mother’s care, what terms of access and supervision are in the child’s best interests?
Part Two – Background facts
2.1 – Procedural history
[11] The society filed its protection application on August 3, 2021, seeking an order to place the child in its interim care for a period of 6 months.
[12] On August 3rd, 2021, Justice M. N. Sirivar placed the child in the temporary care and custody of the society.
[13] The stepfather filed an Answer and Plan of Care dated December 17, 2021. In his Answer and Plan of Care, he sought the return of the child to the care and custody of the parents and/or the grandmother.
[14] The grandmother filed an Answer and Plan of Care dated July 28, 2022, seeking to have the child placed in her care pursuant to section 102 of the Act. In the alternative, she sought a 6-month supervision order in her favour.
[15] On May 17th, 2023, the society amended its protection application to seek an order for extended society care, with access to the parents and the grandmother.
[16] On June 9th, 2023, the mother filed an Answer and Plan of Care seeking to have the child placed in her care, with terms of supervision.
[17] The society further amended its protection application on June 22nd, 2023. The newly amended protection application seeks an order for extended society care, with no access.
2.2 – The stepfather
[18] The stepfather has a long history of involvement with child protection agencies with respect to his other children. He has four other children with three partners, aged 10, 8, 7 and a 4-month-old baby. The 8-year-old and the 7-year-old are in kin homes (with maternal families). The 7-year-old was placed for adoption. The 4-month-old baby was recently brought to a place of safety on July 14, 2023, and a court order was made placing him in the temporary care and custody of the society.
[19] In the year 2000, the stepfather was charged with sexually assaulting a woman in Orillia. He was convicted of this offence on August 27th, 2001.
[20] In July 2001, the stepfather was charged with sexual assault against a 10-year-old child (a friend of his sister) at the grandmother’s (his mother’s) home. He was convicted of this offence on September 26, 2001.
[21] On September 15, 2006, the stepfather was convicted of two counts of failure to comply with the sex offender registry. It was not clear when he was placed in the sex offender registry as the society did not have his criminal record at trial. The sex offender registry entry expired in 2021.
[22] In 2005, the stepfather completed a phallometric test at the Centre for Addiction and Mental Health (CAMH). A report was provided. At trial, the society decided not to rely on the CAMH report.
[23] The stepfather was charged with and convicted of sexual assault against his partner (not the mother in this case), in 2016. He was also convicted of choking her.
[24] Currently, the stepfather is unhoused.
2.3 – The child’s biological father
[25] For almost two years, the mother did not disclose the identity of the child’s biological father to the society. She insisted that the stepfather was the only ‘male parent’ she knew.
[26] On July 19, 2023, the mother informed the society’s child protection worker, Mr. Yogesh Patel, of the following:
a. The child’s biological father is AM. She met AM through one of her friends. She believes he does not have a phone number.
b. She believes that AM has two children both of whom are in the care of a child welfare agency.
c. AM had called her from Facebook Messenger around June 15, 2023, and asked her how she was doing. She informed him that he had a daughter.
d. AM asked for pictures and the mother sent him some pictures.
e. AM did not call or have contact with her after this encounter.
f. She showed Mr. Patel AM’s Facebook profile which had AM’s email address, date of birth, hometown (Foam Lake), and Province (Saskatchewan). The profile also showed the first name of one of AM’s other children.
[27] The society conducted an online search and sent a request to the Ministry of Transportation Ontario. There were no matches.
[28] The society conducted further searches in the Province of Saskatchewan and could not locate him.
[29] AM has not been involved in the child’s life since birth. He has not participated in this proceeding.
[30] As per the evidence provided, AM does not meet any of the criteria of an individual described in one of paragraphs 1 to 5 of subsection 7(2) of the of the Children’s Law Reform Act RSO 1990 cC.12, which provides as follows:
7 (1) The person whose sperm resulted in the conception of a child conceived through sexual intercourse is, and shall be recognized in law to be, a parent of the child.
Presumption
(2) Unless the contrary is proven on a balance of probabilities, there is a presumption in respect of a child conceived through sexual intercourse that a person is, and shall be recognized in law to be, the parent referred to in subsection (1) if any of the following circumstances applies:
The person was the birth parent’s spouse at the time of the child’s birth.
The person was married to the child’s birth parent by a marriage that was terminated by death or judgment of nullity within 300 days before the child’s birth or by divorce where the judgment of divorce was granted within 300 days before the child’s birth.
The person was living in a conjugal relationship with the child’s birth parent before the child’s birth and the child is born within 300 days after they cease to live in a conjugal relationship.
The person has certified the child’s birth, as a parent of the child, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
The person has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child. 2016, c. 23, s. 1 (1) .
[31] AM did not reside with the mother in a conjugal relationship before the child’s birth.
[32] The court finds that AM does not fit the definition of a parent under subsection 74(1) of the Act.
[33] The court will make an order that there is no male parent for the child as defined in the Act.
Part Three – Parties’ positions and the evidence at trial
3.1 – General
[34] The society became involved after it received an anonymous call on July 12, 2021, reporting concerns about the parents’ ability to care for the child, who was only a few days old. They were residing in the grandmother’s home but were planning to move.
[35] Ms. Seenarine, a society worker, attended the grandmother’s home on July 15, 2021, and met with the grandmother, the stepfather, and the mother. The meeting was also attended by Mr. Joshua Kolic, the mother’s adult protective services worker from Developmental Services Ontario (DSO). The following was discussed:
i. Mr. Kolic was helping the mother to move into a supportive housing building on Yonge Street where there would be support staff, as well as extra parenting support. The mother was also on a waitlist for the Parenting Enhancement Program through Surrey Place.
ii. The child was reported to be doing well, with the parents doing the ‘night shift’, and the grandmother doing the ‘day shift’. The grandmother had no concerns about the parents’ care of the child.
iii. The mother shared that she was surprised to learn that she was pregnant as she had been previously told by a doctor that she would not have children. She was born with spina bifida, and since a young age, has a shunt from her brain to her stomach.
iv. The stepfather stated that he had no other children and had no previous child welfare involvement.
[36] As Ms. Seenarine was updating the CPIN system after she returned to her office, she learned that the stepfather had significant previous child welfare involvement and had a criminal record. He had not made this disclosure to her.
[37] On July 26, 2021, Ms. Seenarine met with the family and the stepfather disclosed that:
i. He was in jail in 2020 because his ex-girlfriend accused him of sexual assault.
ii. He was on probation until December 2021, for physically assaulting his ex-wife. He had been in jail for 8 months and had been released in December 2020.
iii. He did not change the baby’s diapers or give her a bath because he did not want anyone to make accusations against him.
[38] On July 26, 2021, the stepfather agreed to leave the home after the society advised him of its concerns about him being around the child, unsupervised.
[39] On July 27, 2021, the mother and the stepfather advised Ms. Seenarine, that they were giving up their custody rights to the grandmother. After reviewing the family’s file, Ms. Seenarine learned that the Children’s Aid Society of Toronto (CAST), had previously placed another granddaughter into her care in 2010, and the child had been removed from her care in 2012. The grandmother had also not been approved as a kin caregiver for the stepfather’s other children.
[40] Given the above concerns, the society took the child to a place of safety on July 27, 2021, when she was one month old.
[41] On October 6, 2021, the mother’s adult protective services worker, Mr. Kolic, informed Ms. Chelekkat-Saji, a society child protection worker, that he had offered the mother trauma counseling, developmental services, and parenting services, and the mother had declined the services.
[42] The society’s position is that even though the mother was not formally diagnosed with any developmental or cognitive issues, she does show limited intellectual capacity, does not have insight into her limitations in being a primary caregiver, and has never demonstrated any interest or willingness to follow up with outside support.
[43] The mother is 39 years old. She is currently residing in the home of the grandmother. She stated that this is only a temporary arrangement as she is trying to find her own place. She testified that she started receiving Ontario Disability Support Program (ODSP) funding when she was young due to her diagnosis of spina bifida.
[44] The mother testified that:
i. She believes that the society took the child to a place of safety due to the stepfather’s criminal record and for no other reason. She testified that she was not aware of the stepfather’s criminal record at the time of the society’s intervention. She disagrees with the society’s position that she cannot parent the child as she states that she has attended every access visit and has never been late.
ii. She has not taken a formal parenting course, and the society has not suggested one to her. She stated that she did not see the need for trauma counseling.
iii. She described her daughter as a very happy child who is always happy to see her mother.
iv. In May 2023 she requested separate visits with the stepfather as she found that he was trying to control her during the visits. She stated that she did not want to argue in front of the child.
[45] The stepfather testified that:
i. The mother was unhoused at the time he met her.
ii. He has always been in the child’s life since birth and would not hurt her.
iii. He is committed to being the child’s father.
iv. Following birth, he and the mother took the child to the grandmother’s home, and the society was not involved when they took the baby home.
v. He was involved in meeting the child’s instrumental needs such as feeding, burping, and playing with her.
vi. The child is not at risk of sexual harm in his care because he would not touch his own child and has been clean for a long time.
vii. He wants liberal access with the child and does not want any supervised visits.
viii. He complained that the mother was having two visits per week, and he was only getting one visit, describing it as “bullshit.”
[46] The grandmother testified that:
i. She resides in a one-bedroom apartment.
ii. After the child came to her home from the hospital following birth, she helped the parents with caring for the child.
iii. The stepfather was not allowed to change the child’s diapers as she was concerned about potential allegations given his previous convictions.
iv. She had heard about the stepfather’s sexual assault convictions.
v. The mother is currently residing in her home. They help each other with household chores.
vi. She accused the society of “looking for anything” to remove the child from the parents’ care around the time the child was taken to a place of safety.
vii. She supports the child being placed in the mother’s care, with both mother and child residing in her home. She thinks that, with support, the mother can parent the child.
viii. She is committed to helping the mother with her search for housing.
ix. She described the child as a happy child who calls her ‘grandma’.
x. She wants to maintain a relationship with the child.
Part Four – Risk of physical harm
4.1 – Legal considerations
4.1.1 – General
[47] The Society has the onus to prove on a balance of probabilities that the child is in need of protection. See Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251 para. 19.
[48] If the court finds that the child is not in need of protection, then that is the end of the society’s protection application. See Catholic Children's Aid Society of Toronto v. N.N., 2019 ONCJ 8 para 116.
[49] Clause 74(2)(b) of the Act provides as follows:
74(2) A child is in need of protection where,
(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;
[50] The risk of harm under clause 74 (2) (b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273, (Ont. Fam. Ct.).
[51] Harm caused by neglect or error in judgment comes within the finding. See: Children’s Aid Society of the Niagara Region v. T.P., [2003] O.J. No. 412 (Ont. Fam. Ct.).
[52] A child may be at risk even if the conduct is not directed specifically towards that child. See: Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.); Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251.
[53] Subsection 93(1) of the Act provides as follows:
93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
4.1.2 – Cognitive ability and mental health
[54] In Children’s Aid Society of Kingston v. F.R. (1975), 23 R.F.L. 391 (Ont. Prov. Ct. – F.D.). Thomson J. reviewed the development of legal principles pertaining to “low parental intelligence” within the framework of child protection and, at paragraph 8, stated that:
8 It is my opinion that the court should take the following approach when faced with cases such as the one now before me. First of all, the fact of low parental intelligence should not be taken as determinative in itself of the child’s need for protection. Rather, the question should be one of deciding whether, in light of their individual capabilities, these parents are able to meet their parental responsibilities. If the answer to this question is no, then the judge should decide whether, given the proper assistance and intervention, the parents can be provided with the tools necessary to care adequately for their child. This issue should not be resolved by simply noting the difficulties involved in securing the needed help when the child remains within the home. The actions of the persons involved in this case show that, with a co-ordinated effort, extensive assistance can be given to parents such as the R. Only if it is felt that the risk to the child is too great, even with outside help, should the court remove the child from the home. If such removal is necessary, it would seem to me that in most cases this would require an order of Crown wardship, at least if the child is young, highly adoptable and not too closely attached to his or her natural family. I think that it should also be noted that the risk to the child need not be physical; it would seem to be understandable that if a child lives in an environment which is grossly deficient in stimulation and emotional involvement, he or she may be damaged or at least may fail to develop to the extent to which he or she is capable. It is difficult to apply this known fact to individual cases but clearly the court’s perspective should be broader than a simple examination of the child’s physical health. It may be that the child’s intelligence and capabilities, if known, would be relevant information when deciding whether the parents are able to care adequately for the child. If, even with outside help, it appears to the judge that they are not able to perform the task, an order removing the child would be indicated.
[55] In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, the court stated the following:
[113] It does not automatically follow that a child will be in need of protection just because a parent has mental health challenges. Many parents with mental health issues parent their children well – others can’t. There is a wide range of mental illnesses that affect parents differently and, by extension, affect their children differently.
[114] The court needs to assess several factors to determine if a parent’s mental illness places a child at risk of harm and if so, whether a child can still be placed in the parent’s care. These factors include:
a) The type of mental illness the parent has.
b) The severity of the mental illness.
c) The frequency of the parent’s mental illness symptoms – whether they are situational or chronic.
d) The impact of the mental illness on the parent’s functioning.
e) The impact of the mental illness on the parent’s parenting.
f) Other risk factors impacting on the mental illness, including substance abuse, difficulties with interpersonal relationships, domestic violence and other stressors such as unstable housing and financial problems.
g) The impact of the mental illness on the children.
h) The insight of the parent into their mental illness.
i) The ability of the parent to meaningfully engage with supports to address the mental health issues.
j) Whether the parent is compliant with treatment recommendations.
k) The strength of the parent’s support system, the insight of those support persons into the parent’s mental health issues and the ability of those persons to prioritize a child’s needs to those of the parent’s and to protect the child.
l) Whether the children have any needs that make them more vulnerable to compromised parenting.
4.2 – Analysis
[56] The mother was not diagnosed with any cognitive limitations. However, the evidence supports the society’s position that the mother has developmental challenges or cognitive limitations and that the challenges impact her ability to parent the child independently, for the following reasons:
i. She has had the assistance of an adult protective services worker, Mr. Kolic, who works through Community Living Toronto. He testified that his role is to assist individuals with intellectual or developmental delays who live independently in the community. Clients are referred to their program through Developmental Services Ontario. The mother was connected with Mr. Kolic through the assessment referral coordinator at Community Living Toronto. She met the criteria for referral. He worked with her for about three years.
ii. She has been in receipt of ODSP benefits since she was young due to her diagnosis of spina bifida.
iii. In her interactions with the society, she mistook the word “pedophilia” (in reference to the stepfather), to mean “gay”. She became angry at the society for alleging that the stepfather was “gay”.
iv. Ms. Silvia Intelisano, a child, youth and family access and support worker with the society, supervised 89 access visits. She stated that the mother is not able to implement instructions consistently and requires constant reminders to meet the child’s emotional and physical needs effectively. She provided examples pertaining to feeding, diaper changes, interacting with the child, understanding the child’s cues, and adult supervision of the child during visits. Even though the mother complies with the worker’s suggestions, she requires constant reminders.
v. She is unable to independently follow directions provided to her in previous visits. She has to be reminded again.
vi. At trial, the grandmother testified that she has observed the mother to have ‘developmental delays’, and that she requires constant reminders. On May 17, 2022, the grandmother told Ms. Chelekkat-Saji (child protection worker), that the mother is ‘slow in doing things.’ The mother agreed with the grandmother’s observation.
vii. The child was taken to a place of safety when she was only a month old. She is now two years old and remains in care. For two years, her visits have remained in a supervised setting.
viii. She does not appear to fully understand the reasons for the society’s intervention. She maintained that the society only became involved due to the stepfather’s criminal record. She has not grasped the society’s position with respect to the other protection concerns, particularly, her own ability to independently parent the child, and her ability to protect the child.
ix. She is unable to articulate the child’s developmental needs.
[57] Ms. Intelisano’s evidence was credible and reliable. The mother did not dispute the several challenges identified by Ms. Intelisano. However, to her credit, the mother remains receptive to suggestions and guidance.
[58] The evidence supports the society’s position that the mother cannot meet the child’s needs without support.
[59] One of the main protection concerns relates to the stepfather. He has several sexual assault convictions, one of which relates to a 10-year-old child who was a friend of his sister. He was once on the sex offender registry and was convicted of two counts of breaching the sex offender registry.
[60] None of the stepfather’s four other children are in his care.
[61] The courts have held that sexual abuse constitutes physical harm. In R. v. Friesen, 2020 SCC 9 [para. 82], the court stated that any manner of physical sexual contact between an adult and a child is inherently violent and has the potential to cause harm.
[62] During his testimony, the stepfather stated that he continues to have an on-and-off relationship with the mother. He stated that he continues to see her almost daily unless she has an appointment with her lawyer. This is very concerning given that the mother admitted that the stepfather is controlling towards her.
[63] The court finds the society has, on a balance of probabilities, established the risk of physical harm to the child if she were to be placed in the care and custody of the mother.
Part Five – Risk of sexual harm
[64] The society did not seek a finding in need of protection based on risk of sexual harm.
[65] However, given the evidence provided at this trial, the court finds that it is in the child’s best interests that risk of sexual harm be considered as well.
[66] The court has discretion to make a finding that a child is in need of protection pursuant to a clause of the Act not pleaded, if justified by the evidence, the parent had prior disclosure of the relevant evidence, is not caught by surprise and has had a full opportunity to test this evidence. See: Durham Children’s Aid Society v. R.S. and Children’s Aid Society of Hamilton-Wentworth v. K.R..
[67] This approach is consistent with the paramount purpose of the Act, that is, to promote the best interests, protection, and well-being of children.
5.1 – Legal considerations
[68] Clauses 74(2)(c) and 74(2)(d) of the Act provide as follows:
74( 2) A child is in need of protection where,
(c) the child has been sexually abused or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child;
(d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c);
[69] The conduct in question must be engaged in by the caregiver or, if the conduct is by another, the caregiver must have failed to protect, having known or ought to have known of the possibility.
[70] The term sexual abuse under clauses 74 (2) (c) and (d) of the Act has the same meaning as sexual molestation and exploitation under 37 (2) (c) and (d) of the Child and Family Services Act. See: Windsor-Essex Children's Aid Society v. Ju.C., 2018 ONCJ 436; Children’s Aid Society of Toronto v. R.M., 2018 ONCJ 690.
[71] In the case of Windsor-Essex Children’s Aid Society v. Ju.C., 2018 ONCJ 436, the court found a two-year-old male child to be in need of protection under the risk of sexual abuse or exploitation section, where the stepfather admitted to sexually abusing a 9-year-old girl he was babysitting more than ten years prior. In that case a forensic psychiatrist said the stepfather was a low risk to re-offend and a social worker found the mother to “have a strong sense of what it means to be protective”.
[72] In R. v. Friesen, 2020 SCC 9, the court summarized the harm caused to children by sexual violence as follows:
i. Sexual harm can interfere with children’s self-fulfilment and healthy and autonomous development to adulthood (para 58).
ii. The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know (para 61).
iii. Sexual violence can tear families or render them dysfunctional (para 60).
iv. The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents’ and caregivers’ trust in friends, family, and social institutions and leave them feeling powerless and guilty (para 63).
v. During childhood, in addition to the inherent wrong of interference with their bodily integrity, children can experience physical and psychological harm that persists throughout their childhood (para 80).
vi. Children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult.
5.2 – Analysis
[73] As stated above, the stepfather has several convictions of sexual assault, one of which involves a 10-year-old child.
[74] When the stepfather was asked about his relationship with the mother, he responded stating that “I f** her.” The language used by the stepfather is very concerning, particularly as it relates to women, and in the context of a mother who has developmental challenges.
[75] The stepfather has not completed any programs or therapy to address the challenges associated with his sexual assault convictions.
[76] The stepfather was once on the sex offender registry and was also convicted of breaching the terms of the sex offender registry.
[77] The evidence supports a finding that the stepfather poses an extreme risk of sexual harm to the child. The evidence with respect to the risk of sexual harm is overwhelming.
[78] The court will make a finding of the risk of sexual harm with respect to the child.
Part Six – Disposition
6.1 – Legal considerations
[79] 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.
[80] 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.
[81] 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.
[82] In determining if a protection order is necessary to protect the child in the future, the ties between a child and the child’s caregiver are an important consideration. In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, the Supreme Court expressed, at para. 37, that the Child and Family Services Act “seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the time recognizing that the best interests of the child must always prevail”. Because of this goal, the best interests of the child is “an important and, in the final analysis, a determining element of the decision as to the need of protection”. The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482.
[83] If a court order is determined to be necessary to protect a child in the future, the court shall make one of the orders set out in subsection 101 (1) or section 102 of the Act in the child’s best interests. These read as follows:
Order where child in need of protection
101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:
Supervision order
- 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.
First Nations, Inuk or Métis child
(5) Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible or, if it is not possible,
(a) in the case of a First Nations child, another First Nations family;
(b) in the case of an Inuk child, another Inuit family; or
(c) in the case of a Métis child, another Métis family.
[84] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part V of the Act.
[85] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.
[86] 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.
[87] In determining the appropriate disposition, the court must decide what is in the children’s best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. This subsection reads as follows:
Best interests of child
74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[88] An extended society care order is probably the most profound order that a court can make. The judge must exercise this only with the highest degree of caution, only on the basis of compelling evidence and only after a careful examination of possible alternative remedies. See: Children's Aid Society of Hamilton v. M. (J.), Catholic Children’s Aid Society of Hamilton v. V.C. et al., 2017 ONSC 5557.
[89] Consideration should be given as to whether the Society has given the parent an opportunity to parent. Where the Society frustrates contact with the parent and offers no services, this consideration must come into the equation. See: Children and Family Services for York Region v. W. (A.); Catholic Children's Aid Society of Metropolitan Toronto v. M. (P.A.), [1998] O.J. No. 3766 (OCJ) Children's Aid Society of the United Counties of Stormont, Dundas and Glengarry v. K. (C.); Children's Aid Society of Toronto v. H.Z., 2023 ONSC 2030.
6.2 – Analysis
[90] The court relies on its analysis above regarding findings in need of protection and finds that intervention through a protection order is required to protect the child in the future.
[91] The society is seeking an order for extended society care.
[92] The mother is seeking an order that the child be placed in her temporary care and custody, subject to terms of supervision by the society.
[93] The court must assess the mother’s plan of care for the child.
[94] Ms. Chrysoula Sakellaropoulos, the society’s children’s services worker, described the child as bright, engaging, and affectionate. The child continues to struggle with forming sentences. She has not yet been able to engage in consecutive words and language. However, she is slowly progressing well.
[95] The child was taken to a place of safety when she was only a month old. She is now two years old. For the past two years, the mother has only had fully supervised access visits. The visits have not progressed outside a fully supervised access environment.
[96] The mother continues to require prompts and guidance during access visits.
[97] The court has also considered that the mother is only having supervised access with the child. It would be irresponsible for a court to return the children to her until she could demonstrate that she could adequately parent the child without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place the child with her without first testing whether she could adequately parent the child, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This process would need to take place for several months for the court to effectively evaluate whether a return of a child was viable. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child without supports on an extended basis. The time to attempt extended access in this manner has long passed. See Children’s Aid Society of Toronto v. R.H., 2016 ONCJ 181, par. 140.
[98] The process of evaluating extended access never took place. The mother has only had supervised access. She never moved to the court to increase her access.
[99] The mother’s plan of care raises concerns for the reasons provided below.
[100] Mr. Kolic, the mother’s adult protective services worker, stated that some of his main priorities were to assist the mother with housing, and for her to receive counseling. He recommended a Parenting Enhancement Program through Surrey Place and trauma counseling to her. His evidence was that she was initially receptive, but the challenge was with following through. He was also able to assist her with securing a housing opportunity, something he described as “miraculous” given the short amount of time of her approval for the housing.
[101] When the stepfather’s convictions for sexual assault were disclosed by the society, the mother was informed that she could not move into the new housing with the stepfather due to his sexual assault convictions as the building had families with young children. Mr. Kolic testified that the mother declined the housing offer as she could not go without the stepfather. She disagreed with this position, stating that she only refused because she was concerned that there were individuals using non-prescribed drugs in the new building.
[102] Mr. Kolic evidence was both credible and reliable. He appeared to have genuinely wanted to assist the mother during his involvement. He was candid in his description of the clients he works with and their challenges. The court does not accept the mother’s evidence regarding her failure to accept housing. It appears that her concern was never shared with Mr. Kolic at the time.
[103] The mother’s failure to accept housing shows a lack of judgment on her part. She did not have a place of her own at the time of society intervention. She had a very young child in her care. Mr. Kolic described the housing opportunity as ‘miraculous’ and that she was the ideal candidate for the housing.
[104] The mother put her own interests ahead of her child when she refused to accept the housing opportunity. Even more concerning is the fact that she prioritized her relationship with the stepfather, to her caregiving role as a new parent. As a parent with an infant, housing was critical.
[105] In her evidence, the mother stated that she did not see the need to take trauma counseling. She also failed to enroll in the parenting program that had been recommended by Mr. Kolic. At trial, she stated that she was now planning to take the same parenting program at Surrey Place.
[106] The mother has had two years to work on her plan of care for the child. She has not completed a parenting program and has not attended any counseling program in the last two years.
[107] The court finds that the mother is not able to independently provide care to the child on a full-time basis.
[108] The mother is susceptible to manipulation and control by the stepfather.
[109] The mother’s plan to reside in the grandmother’s home with the child is not viable. When she was asked whether the stepfather would also reside in the home, her response was that the stepfather would “... probably not live there, not sure if he will come live there”.
[110] In his own words, the stepfather stated that he would want the child to be placed with the mother, but at some point, he would also want to be in the home as well. He complained of being unhoused due to this child protection proceeding.
[111] The stepfather also stated that he still goes to the grandmother’s home, and sees the mother on a daily basis in the home.
[112] The stepfather’s evidence was that he was still in a sexual relationship with the mother.
[113] Early in 2023, the mother requested to have separate visits with the stepfather at the access centre. She testified that sometimes the stepfather would try to control her, and she did not want to argue in front of the child. She described some of his behaviour as “bossing” her.
[114] The theme of the stepfather being controlling towards the mother was consistent throughout this trial. Mr. Kolic described his concerns about her relationship with the stepfather. He stated that during his involvement, when he called her, sometimes the stepfather would talk over her, and not give her the chance to speak. As a result, he became concerned due to her vulnerability and history of being unhoused.
[115] The society’s child protection worker, Ms. Sibi Chelekkat-Saji, observed the stepfather interrupting and interfering during her conversations with the mother. The mother also admitted to the worker that he was controlling and “he listens to no one including the grandmother”. On May 26, 2022, she expressed that she did not think he would comply with any restrictions pertaining to entering the grandmother’s home because “he listens to no one”.
[116] Even if the child was returned to the care of the mother, it would have to be pursuant to strict terms of supervision. For the court to make a supervision order, it would need to be confident that the mother would comply with the order. See: Windsor-Essex Children's Aid Society v. L.H., 2004 ONCJ 196, [2004] O.J. No. 3889 (OCJ) and Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227.
[117] The court finds that the mother will not be able to protect the child from the stepfather and will not be in a position to comply with or enforce any restrictions around the stepfather’s contact with the child.
[118] The mother testified that her plan to reside with the grandmother is only temporary. She is looking for her own place.
[119] The court is concerned that once the mother is on her own, she will be more vulnerable to the stepfather’s controlling behaviour, which will seriously impact the child. This will increase the level of risk.
[120] The evidence shows that there were unsuccessful attempts to provide support to the mother as follows:
i. Through several meetings with the family, the society tried to educate the mother on its protection concerns as a foundation to seek services. However, she did not fully comprehend the protection concerns.
ii. The society was supportive of the mother connecting with an adult support worker (after Mr. Kolic moved to a new position). However, she did not take active steps to connect with a new adult support worker. At one point, her file with Developmental Services Ontario was closed as she had not contacted them but was later reopened.
iii. There were concerns around the mother’s own hygiene during visits. Ms. Sibi Chelekkat-Saji, the society’s child protection worker, offered support in procuring hygiene products for her but she refused.
iv. Trauma counselling, developmental services and parenting services were offered to the mother through Mr. Kolic. The society was in support of these services for her. She turned down the offers.
v. As per Mr. Patel’s evidence, there were reminders and encouragement to the mother by successive child protection workers to engage in services but she refused.
[121] For reasons provided in detail below, the grandmother would also not be able to protect the child from the father.
[122] The court is satisfied that the mother is unable to enforce any restrictions with respect to the stepfather’s contact with the child.
[123] The court finds that the mother’s plan of care is not in the child’s best interests. There is also no other plan or community plan being presented for the child.
[124] The court finds that an order for extended society care is in the child’s best interests for the following reasons:
i. The mother’s plan of care is not viable and is not in the child’s best interests.
ii. She has refused to engage in services offered to her.
iii. There is no other viable plan being presented by the mother or the child’s family for the care of the child.
iv. The child is doing well in care, with her developmental needs being met.
v. The society is planning to assign an adoption worker to achieve permanency for the child. If an adoption placement is available, the society will consider placing her on adoption probation. The current foster parents have expressed an interest in adopting her.
vi. An order for extended society care is consistent with the best interests factors listed under clause 74(3)(c) of the Act which requires the court to also consider (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, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[125] The court will grant the society’s request for an order for extended society care.
Part Seven – Access
[126] If the child cannot be returned to her care, the mother seeks an order for access. She asks that she and the child be made reciprocal access holders and access recipients.
[127] The stepfather seeks an order for access. His counsel told the court that he ‘anticipates some supervised access.’ He seeks that he and the child be made reciprocal access holders and access recipients.
[128] The grandmother seeks unsupervised access with the child, once per week. She asks that she and the child be made reciprocal access holders and access recipients.
[129] Between August 13, 2021, and July 5, 2023, Ms. Silvia Intelisano, a child, youth, and family access and support worker employed by the society, supported 89 access visits between the parents and the child.
[130] The parents had twice weekly visits for two hours each Tuesday and Thursday from July 2021 until May 2023. In May 2023, the mother asked for her visits to be separated from the stepfather’s visits. In the same month, the society changed the frequency of the visits from twice weekly to once a week, per parent. After parents’ counsel complained, the twice weekly visits resumed. [2]
[131] The stepfather’s attendance at the visits declined significantly in May 2023, and his visits were switched to bi-weekly in July 2023. He now has visits once a week, for one hour.
[132] Although there was no court-ordered access for the grandmother, she has been attending visits since October 22nd, 2021.
[133] The mother attended all scheduled visits in the last two years. The stepfather attended 70 visits. The grandmother was present at 33 visits that were supervised by Ms. Intelisano.
7.1 – General legal considerations
[134] Section 104 of the Act sets out the court’s powers in relation to access. It reads as follows:
Access order
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.
[135] Section 105 of the Act deals with access when a child has been removed from a person who had charge of the child.
[136] Subsection 105 (4) of the Act states that where the court makes an order that a child be in extended society care, any order for access is terminated.
[137] Subsection 105 (5) of the Act sets out that in considering the issue of access to a child in extended society care, the court must consider the child’s best interests. The court may not order access to such a child unless it is satisfied that the order would be in the child’s best interests.
[138] Subsection 105 (6) of the Act sets out additional factors to be considered in determining whether an access order would be in the best interests of a child in extended society care. These are:
(a) whether the relationship 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.
[139] The Act does not preclude the court from making an access order if these criteria are not met. They are only two of many criteria to be considered in the ultimate determination of best interests. Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371.
[140] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 the Court of Appeal wrote the following:
(a) The changes to the access test are significant (par. 47).
(b) The changes are not just semantics. They represent a significant shift in the approach to access for children in extended society care (par. 48).
(c) The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities (par. 49).
(d) Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant (par. 49).
(e) This means that it is no longer the case that a parent who puts forward no evidence will not gain access (par. 49).
(f) Similarly, 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 (par. 49).
(g) The court should reference the best interest considerations in subsection 74 (3) of the Act in making its decision (par.53).
(h) The “presumption against access” to “Crown Wards” test no longer exists (par. 53).
[141] In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, affirmed on appeal at 2020 ONSC 4993, the court summarized the benefits of access for a child in extended society care as follows:
[1] It is very important for children to know their story, their history and where they come from.
[2] Many children will want to search out their birth parents at adolescence if they have no contact. It can help them remove any fantasy about their birth parents and have a more realistic understanding of who they are.
[3] It can help build a child’s identity – to know who they are.
[4] It can help a child be more secure in where they have come from and where they are going. It might provide the child with a greater sense of security moving forward.
[5] It helps the child understand their roots, heritage, culture and religion – about foods and events that are important in their culture.
[6] It helps the child understand why decisions were made about them and why they live where they live. It can inform them that they were and are loved by the birth parent.
[7] It definitely promotes self-esteem and can help meet the emotional needs of the child.
[8] It can provide the child with readier access to medical information. This can be very important if genetic concerns develop. This is also important information for the adoptive family to have.
[9] It allows the adoptive family to reinforce the child’s ability to understand their story and their history.
7.2 – Beneficial and meaningful
7.2.1 – Legal considerations
[142] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the court wrote that the new access test makes the child’s best interests predominant in determining access and emphasizes the importance of preserving indigenous children’s cultural identity and connection to community. A mother who cannot adequately provide primary care may still have a meaningful and beneficial relationship with her children such that access is warranted.
[143] In Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415. The court set out the following:
b) In considering whether a relationship is beneficial and meaningful the court can consider any factor, whether past, present or future. This would include the prospect of an openness order.
c) The child’s best interests clearly are not static. This is confirmed by the wording of s. 74(3) which requires the court to consider: (i) any other circumstance of the case; (ii) the child’s development of a positive relationship; (iii) continuity in the child’s care and the possible effect on the child of disruption of that continuity; (iv) 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 [Emphasis added].
d) The underlined words all demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future.
e) The “beneficial and meaningful” test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child’s best interests.
f) The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.
g) A child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission, and the exercise is not assisted by determining what the onus is or where it lies.
The court concluded with these comments:
The Act 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.
[144] In J.G., the trial court gave the mother six supervised access visits a year to a 15-month-old child, based on the child’s best interests. The mother was a courteous and respectful person with parenting limitations. There was no evidence that access would impair the child’s opportunities for adoption.
[145] 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.
7.2.2 – Analysis (re beneficial and meaningful)
The mother’s access
[146] In her affidavit, Ms. Intelisano identified the following as the mother’s strengths:
i. She attends the visits in a timely and consistent manner.
ii. She is affectionate towards the child.
iii. Despite a few incidences, she has generally acted appropriately during visits.
iv. Even though she requires constant reminders, repetitions, and guidance, she is open to feedback and mostly follows instructions and suggestions during her access.
v. The society described the mother’s visits as positive.
vi. She is in a positive state of mind when she attends visits.
[147] Mr. Yogesh Patel, the current family services worker, testified that the mother has been cooperative with him. He stated that she is generally pleasant.
[148] During a most recent visit on September 7th, 2023, Ms. Intelisano observed the mother engaging the child with a book. The mother and the child did colouring, and the child enjoyed it. The mother’s literacy is limited. Ms. Intelisano stated that even though there was no reading, she was impressed by this engagement as it was her first time observing the two engaged with a book. Ms. Intelisano further stated that the most recent visit was positive because the mother did not require prompting and described it as an improvement.
[149] The mother testified that she has gone to every visit, has never been late, and has not overstayed. She described the child as an active, sociable, friendly and fun child who always smiles when she sees her mother. She testified that she would like to see her daughter and to be part of her daughter’s life.
[150] The mother was very emotional in court when she described her affection towards the child, stating that she is her only child.
[151] The mother described the child as a miracle baby. She had been told by doctors that she would not have children due to her diagnosis of spina bifida. There is no doubt that the child occupies a special place in the mother’s life.
[152] The mother’s request in May 2023 to separate her visits from the father’s visits shows that despite her other challenges, she wants her daughter to have meaningful and quality time with her during the visits.
[153] The court makes the following findings of fact:
i. The child’s visits with the mother have generally been positive for the child.
ii. The mother has been consistent with her visits.
iii. The mother has been receptive to feedback and guidance during visits.
iv. Continued access between the child and the mother would be meaningful and beneficial to the child.
[154] The court will make an order for access in favour of the mother.
The stepfather’s access
[155] In her affidavit, Ms. Intelisano provides the following strengths regarding the stepfather:
i. He is affectionate towards the child.
ii. He is able to meet the child’s instrumental needs such as feeding.
[156] The stepfather testified that the child is able to identify him, calling him “daddy”, and is happy to see him.
[157] The evidence discloses several concerns and challenges with respect to the stepfather. The following are specific examples:
i. He misled the society worker, Ms. Seenarine, in his initial meeting with her when he stated that he did not have previous child welfare history, and did not disclose his criminal record. At trial, he tried to justify this by stating that he had not had the children in his care.
ii. On March 23, 2022, he appeared irritated during a visit and spoke to the mother in an abrupt tone. He was reminded by staff to use a respectful tone after he rudely demanded information about the number of visits he had missed.
iii. During a visit on March 30, 2022, he became upset when he was asked to wear his facemask per Public Health Covid 19 safety protocols at the time. He became argumentative and refused to wear a face mask. He told Ms. Intelisano to “f** off.” After he was reminded not to use profanities, he told Ms. Intelisano several times to “f** off” as her “attitude sucked.” He was asked to leave the society’s offices. After he left, the mother expressed her frustration with his behaviour, stating that she had reminded him to wear his face mask but he “never listens to her.”
iv. During a visit on August 11, 2022, he appeared agitated and angry during a visit. He appeared not to understand the reasons behind the supervision of his visits and raised his voice at the supervising society worker.
v. On March 22nd, 2023, Ms. Intelisano heard him yelling and using profanity towards another society worker who was assisting with the parents’ visit. When he was approached by Ms. Intelisano, he directed his anger towards her, screaming and getting very close, pointing a finger at her. He made threats to “go after people.” The child was present.
vi. Between May 17, 2023, and July 5, 2023, he missed 8 of the 10 scheduled visits. His visits were subsequently changed from one hour twice a week to two hours every alternate week, with a requirement that he contact the society prior to 9:30 a.m. on the day of the visit to confirm his attendance.
vii. Between July 5, 2023, and August 1, 2023, he missed two access visits. On July 20, 2023, he confirmed that he was going to attend, but he canceled after the child had already been picked up by a volunteer driver. The child was returned to the foster home.
viii. On August 3, 2023, the family service worker, Mr. Yogesh Patel, noted that he was continuously taking pictures and videos of the child during a visit. He asked him to stop. [3] The stepfather responded by using profanities repeatedly and swearing loudly. The child was present.
ix. Ms. Intelisano stated that he has a tendency to take the child from the mother during visits. He does it frequently and abruptly.
[158] Based on the above information, the court makes the following findings of fact regarding the stepfather:
i. He has behaved inappropriately towards staff during visits.
ii. He has difficulties regulating his emotions and presents himself as impulsive and temperamental.
iii. He is verbally aggressive and abusive when angry.
iv. He has made access supervisors get concerned about their own safety during his visits.
v. He is not open to feedback.
vi. He has negatively impacted the mother’s visits when he attended with her.
vii. He is disrespectful to the mother during visits.
viii. He has exposed the child to aggressive and abusive behaviour during visits.
ix. He has missed several access visits.
[159] Further, the stepfather cannot be trusted. When he initially met with Ms. Seenarine, society worker, he misled her by stating that he did not have other children and did not have previous child welfare history. The society then became aware that not only did he have previous child welfare involvement, but he also had extensive criminal involvement, including sexual assault convictions.
[160] In Children's Aid Society of Toronto v. J.G., 2020 ONCA 415, the court stated that the Act is remedial legislation enacted for the protection of society's most vulnerable children. It must be liberally construed to the benefit of the child [para 45].
[161] The court finds that the stepfather’s access with the child is neither meaningful nor beneficial to the child.
The grandmother’s access
[162] The society worker, Ms. Intelisano, has observed the grandmother to have the following strengths:
i. The child recognizes and is comfortable with her.
ii. She attends visits in a timely and consistent manner.
iii. She is affectionate and attentive towards the child and speaks to the child in a gentle manner. For example, on May 24, 2023, the child became tearful when she saw a gentleman in the reception area. The grandmother picked her up to comfort and reassure her.
iv. She can meet the child’s instrumental needs independently such as feeding and diaper changes.
v. She actively engages the child in play.
[163] Ms. Intelisano stated that she has no specific concerns with respect to the grandmother’s access visits. Another society worker, Mr. Patel, testified that the grandmother attends visits consistently. He has no concerns with respect to her visits. The child enjoys her visits with her.
[164] The court finds that the grandmother’s visits have been a positive experience for the child.
[165] The grandmother seeks unsupervised access with the child.
[166] The grandmother has a history of involvement with child protection agencies with respect to the stepfather when he was a child. She was also involved with child protection agencies with respect to her granddaughter, B, and her grandson, A. On February 17, 2010, Justice S.B. Sherr placed the child B with the grandmother on supervision terms following a trial. On July 24, 2012, the Children’s Aid Society of Toronto removed the child B (who was 5 years old at the time), from the grandmother’s care after she breached a condition of supervision that her spouse should not have any contact with B without prior approval of the society.
[167] In his ruling of January 7, 2013, Justice Sherr made the following findings against the grandmother:
a. The evidence showed that the grandmother had not complied with supervision terms ordered by the court, particularly the term that her spouse not have contact with the child without prior society approval. She had been warned several times by the society that her spouse was not to be there and not to be there without the society’s consent.
b. Her partner/spouse had physically disciplined the child, had slapped her, hurt her, and had put soap in her mouth, and flicked flames of a lighter at her.
c. The evidence supported a finding that the partner/spouse had been in the grandmother’s home since about January of 2012, that this was hidden at times from the society.
d. The child now had special needs and required a higher level of caregiving and the evidence indicated that the grandmother was not sensitive to the child’s needs and was not able to meet those needs.
e. The grandmother had exhibited poor judgment. There was no indication that this would change, despite her stated best intentions.
f. A further protection concern was that both the grandmother and her partner blamed the child, B, for the partner’s behaviour.
g. The grandmother showed little insight into the protection concerns with respect to B.
[168] In 2022, the grandmother’s daughter, LL, became involved with the society with respect to her son, A. The society decided to place A with the grandmother. Shortly after, the society brought a motion before Justice M. Pawagi seeking to remove the child from the grandmother’s care. In her ruling dated October 31, 2022, Justice Pawagi granted the society’s request and noted that a health specialist learned on October 4, 2022, that the grandmother was allowing her daughter, LL (who lived with her at the time), to look after the baby in the night and co-sleep with him on the couch. The grandmother had also declined the services of a public health nurse.
[169] The evidence in this case supports a finding that the grandmother lacks insight into the risk the stepfather poses to the child, and would not be able to protect the child from the stepfather as demonstrated by the following:
a. The society’s child protection worker, Ms. Chelekkat-Saji, stated that during her involvement with the family, she observed that the stepfather insisted on being part of any conversation she had with the mother and/or the grandmother. Neither the grandmother nor the mother challenged this and allowed it.
b. On October 28, 2021, the stepfather reported that he and the grandmother had an argument following which he and the mother decided to move out of the grandmother’s home. They were unsure where to move to and had not secured a place. Subsequently, the stepfather and the mother returned to the grandmother’s home after a few days.
c. On May 17th, 2022, Ms. Chelekkat-Saji asked the grandmother if she believed that the stepfather would pose a risk to children. The grandmother appeared to be defensive, describing events that happened when the stepfather was 18 years old. The grandmother went on to state that since then, the stepfather never had any issues, and “he was clean”. When she was asked for the second time whether she believed the stepfather posed a risk to children, the grandmother did not answer the question directly, stating that her son had not re-offended and that he had developed a positive relationship with the child. During the same interview, the grandmother told the worker that the stepfather could be aggressive, and she would be worried about her own safety. She also stated that she had asked him to leave her home as part of her plan of care for the child but he had refused to leave.
[170] The court is also concerned about the grandmother’s appreciation of the risk posed to the child by the stepfather. She testified that after the child came into her home, she would not allow the stepfather to bathe the baby. She was asked by Ms. Buhler during cross-examination of the reasons for not allowing him to bathe the baby. The grandmother responded stating that she did not feel that it was appropriate, and because the child “is just a girl, any type of allegations might come out of this”. The stepfather was a registered sex offender at the time. The grandmother was aware of the stepfather’s previous sexual assault conviction, including a conviction involving a minor. It is surprising that in her response, she failed to make a connection between the sexual assault convictions, and the potential risk posed to the child.
[171] The evidence supports the society’s position that the grandmother will most likely not be able to comply with any restrictions pertaining to the stepfather’s contact with the child in an unsupervised setting.
[172] In her evidence, the grandmother testified that she would call the police if the stepfather attended at her home in breach of any court-ordered terms. Given her history of non-compliance with supervision terms, including her inability to manage the stepfather, the court is of the view that an order for unsupervised access in favour of the grandmother is not in the child’s best interests.
7.3 – Impairment of future possibility of adoption
7.3.1 – Legal considerations
[173] In Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631, Justice Zisman commented on the dearth of evidence about impairment to adoption being presented at trials, most of the evidence being anecdotal. For instance, what level of access is likely to deter adoptive parents from coming forward? She also commented that it is necessary for evidence to be led about how access would work after an access order is made and the society is no longer involved. Will a supervised access centre accommodate sporadic visits? Who will pay for the visits and how will they be arranged? Are complicated arrangements likely to deter adoptive parents from coming forward?
7.3.2 – Analysis
The mother and the grandmother
[174] The society’s position is that granting access to the mother and the grandmother would impair the child’s future opportunities for adoption given the concerns pertaining to the stepfather.
[175] The society’s concern can be addressed by reasonable terms of access that the court considers to be in the child’s best interests, including a term for the visits to remain supervised.
[176] The court makes the following findings:
i. The relationship between the mother and the child is beneficial and meaningful to the child.
ii. The relationship between the grandmother and the child is beneficial and meaningful to the child.
iii. An order granting access to the mother will not impair the child’s future opportunities for adoption.
iv. An order granting access to the grandmother will not impair the child’s future opportunities for adoption.
v. The child’s access with the mother is in the child’s best interests.
vi. The child’s access with the grandmother is in the child’s best interests.
The stepfather
[177] The court relies on its analysis under ‘risk of sexual harm’ and ‘risk of physical harm’ above, to support the court’s conclusion that the child’s access with the father would impair future opportunities for adoption. The court is also concerned about his volatile behaviour.
[178] The stepfather’s convictions of sexual assault remain a huge concern. He has not taken any counseling or therapy to address or mitigate the circumstances that may have led to his convictions. Even with the convictions, he has not taken responsibility as he told the court that he only pled guilty to avoid longer jail sentences.
[179] The child’s maternal grandmother, FM, once presented a kinship plan for the child on September 1, 2021. She later withdrew her plan on October 20, 2021. As part of her reasons for withdrawal, she cited the stepfather’s criminal history.
[180] The court finds that granting access to the stepfather is not in the child’s best interests.
[181] The court will make an order that the child shall not have access with the stepfather.
7.4 – Access holder
7.4.1 – Legal considerations
[182] In Children’s Aid Society of Toronto v. E.U., 2014 ONCJ 299, the court found that granting the parents a right of access to a 9-year-old child would impair the child’s opportunity to be adopted by the foster parent as the parents kept trying to undermine the placement. Granting an access order would lead inevitably to litigation over openness and the foster parents were becoming increasingly frustrated with the parents. However, the child was granted access rights to the parents as the foster parents respected the child’s desire to have contact with the parents and could negotiate with the child an openness arrangement without the likelihood of litigation.
[183] In Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489, the court found that the parents would likely delay any openness proceeding if made access holders, either through unreasonable litigation or through other methods, as they had delayed the protection case, often coming late for trial, or not at all. The court found that that would put a chill on adoptive applicants and impair the child’s opportunities for adoption. The court found it in the child’s best interests to make child and not parents access holders.
[184] In T.H. v. Huron-Perth Children’s Aid Society, 2021 ONCJ 457, the court noted that pursuant to subsection 105 (4) of the Act any existing order is terminated once an extended society care order is made. If the court wants a parent or siblings to have a right to bring an openness application in the future it has to make a new access order and make the sibling or the parent an access holder. In T.H., the two younger children were placed in extended society care and given access to their two older siblings – who were the access recipients. At a later trial, the two older siblings were placed in extended society care. This terminated the access order for the two younger siblings. The court made a new order granting reciprocal rights of access – the siblings were made both access holders and recipients and were entitled to bring openness proceedings.
7.4.2 – Analysis (access holder)
[185] Both the mother and the child will be made access holders and access recipients for the following reasons:
i. The mother’s access with the child has remained positive.
ii. The mother remains open to feedback during visits and follows guidance and directions.
iii. The mother has been forthcoming in her interactions with the society.
[186] The grandmother will be made an access recipient only, and the child will be made an access holder, for the following reasons:
i. The grandmother has been involved in several child protection court matters involving her own child (the stepfather), and several of her grandchildren.
ii. The grandmother made negative comments against the current placement (around feeding). These complaints were not verified by the society.
iii. The court does not wish to unnecessarily delay any openness proceeding.
Part Eight – Orders
[187] A final order shall go as follows:
[188] There is no male parent for the child as defined in the Act.
[189] Pursuant to subsection 90(2) of the Act, statutory findings are made as set out at the top of page 3 of the society’s amended amended protection application issued on June 23, 2023, except for the stated name of the male parent.
[190] The child EL [d.o.b….] is in need of protection pursuant to clauses 74(2)(b)(i), and 74(2)(d) of the Act.
[191] The child, EL [d.o.b…] is placed in the extended care of the Catholic Children’s Aid Society of Toronto.
[192] The mother shall have supervised access with the child at a minimum of once a month. The society shall have discretion with respect to the location, level of supervision and duration of the visit. The mother and the child shall be both access holders and access recipients.
[193] The grandmother shall have supervised access with the child four (4) times a year. The society shall have discretion with respect to the location, level of supervision, and duration of the visit. The grandmother shall be the access recipient and the child shall be the access holder.
[194] There shall be no access between the child and the stepfather.
[195] The court thanks all counsel for their professional presentation and detailed materials filed for this trial.
Released: December 1, 2023 Signed: Justice Wiriranai (Wiri) Kapurura
[1] PL was initially considered to be the child’s biological father. On August 20, 2022, DNA paternity testing established that he is not the child’s biological father.
[2] At trial, it became clear that the society acted unilaterally in reducing the visits, and the reduction was unjustified.
[3] At trial, Mr. Patel acknowledged that he was wrong to ask the father not to take pictures and videos during a visit. After consulting with his supervisors, the father was allowed to use his phone during visits. However, Mr. Patel noted that the father’s reaction and language was inappropriate.