WARNING

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

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

87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

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

(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.

CITATION: Children’s Aid Society of Toronto v. L.B. 2024 ONCJ 667

DATE: October 8, 2024

COURT FILE NO. C41221/21

ONTARIO COURT OF JUSTICE

B E T W E E N:

Children’s Aid Society of Toronto APPLICANT

• and –

L.B. RESPONDENT MOTHER

• and –

N.C. RESPONDENT FATHER

• and –

L.F. RESPONDENT MATERNAL GREAT AUNT

COUNSEL: Sherri Smolkin, for the APPLICANT Maryam Haddad, for the RESPONDENT MOTHER Thora Espinet, for the RESPONDENT FATHER ACTING IN PERSON, RESPONDENT MATERNAL GREAT AUNT

HEARD: September 9, 10, and 11, 2024

JUSTICE J. HARRIS

REASONS FOR DECISION

A. INTRODUCTION

Brief Background

[1] This is a trial decision following a three-day trial of the Children's Aid Society of Toronto’s (the “Society’s”) amended second status review application, issued on January 29, 2024.

[2] The Child is K.B., born [...], 2020, currently, four years old.

[3] On December 9, 2021, under the final order of Justice Paulseth, based on a Statement of Agreed Facts (an “SAF”), dated December 9, 2021, the Child was found to be in need of protection under clause 74(2)(h) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) and the Child was placed in the interim care of the Society for four months and three weeks.

[4] On April 5, 2022, a status review application was issued seeking that the Child be placed in extended society care. At that point, the Child remained settled in his foster home with the prospect of adoption.

[5] On January 18, 2023, under the final order of Justice Szandtner, based on an SAF, dated January 18, 2023, the Child was placed with his Father on a 6-month supervision order.

[6] On May 19, 2023, the Society issued an early status review application seeking an order placing the Child in the care of his Maternal Great Aunt, which application was subsequently amended on January 29, 2024, seeking an order for extended society care with access to the parents at the Society’s discretion with a minimum of two times per month for the Father and one visit per month for the Mother, and that both parents be access holders.

[7] On April 10, 2024, the Father filed an Answer and Plan of Care, dated April 4, 2024, seeking a six-month supervision order placing the Child with the paternal grandmother and the paternal grandmother’s granddaughter (the Father’s niece/the Child’s adult cousin) and liberal unsupervised access to the Father.

[8] At the trial the Mother relied on her Answer and Plan of Care, dated August 12, 2024, which sought a six-month supervision order placing the Child with the paternal grandmother and the paternal grandmother’s granddaughter and an order for access for the Mother at the Society’s discretion with a minimum of two visits per month for a period of two hours per visit.

[9] On June 3, 2024, the Great Maternal Aunt was noted in default, and she did not participate in the trial.

[10] The Society sought the same relief as set out in its Amended Status Review; however, at the conclusion of the trial, the Society also sought an access order for the Child and the paternal grandmother on the same terms as the Father and with paternal grandmother as the access holder and the Child as the access recipient.

[11] At trial, given that the paternal grandmother’s granddaughter was no longer supporting the Paternal Grandmother’s plan, the parents sought to have the Child placed in the paternal grandmother’s sole care under a supervision order.

[12] The Child has been in care for 26 months from May 5, 2021, to September 28, 2022 (16 months), and from November 6, 2023, to present (10 months), which is greater than twice the permitted time limit pursuant to clause 122(1)(a) of the CYFSA for a child under six.

Issues

[13] The issues for the court to determine are:

a) Is a protection order necessary to protect the Child in the future?

b) If so, what disposition order is in the Child’s best interests?

c) What access orders are in the Child’s best interests?

d) And, if the Child is placed in extended society care, who should be the access holders and who should be the access recipients?

Evidence and Procedure

[14] The following affidavit evidence was filed for the trial:

a. Affidavit of Annette Ballentine, Family Services Worker, sworn August 16, 2024 (the “Ongoing Worker”);

b. Affidavit of Geraldine Kulazikulabe, Family Services Worker, sworn August 15, 2024 (the “Family Services Worker” who investigated the incident on or about April 21, 2023);

c. Affidavit of Michelle McQuillan, Family Services Worker, sworn August 15, 2024 (the “New Worker”);

d. Affidavit of Brittany Hunter, Family Support/Access Worker, sworn August 16, 2024 (the “Access Worker”);

e. Affidavit of Judy Alexander, Children’s Services Worker, sworn August 20, 2024, (the “Children’s Services Worker”)

f. Affidavit of Helynn Lee, Kinship Worker, dated August 21, 2024, the “Kinship Worker”);

g. Affidavit of the Father, sworn August 27, 2024; and

h. Affidavit of the Mother, sworn August 29, 2024.

[15] All of these witnesses also testified and were each briefly cross-examined.

[16] Additionally, the foster mother and the paternal grandmother testified and were cross-examined.

[17] The court also admitted the following documentary evidence, on consent of all parties:

a. Toronto Police Service, Occurrence Report, dated April 22, 2023;

b. Toronto Police Service, Occurrence Report, dated May 16, 2023;

c. Probation Order re: Father, dated September 23, 2023;

d. Probation Order re: Mother, dated July 22, 2024; and

e. Caring Dads Program, re: Father, dated February 12, 2024.

Reports of Practitioners

[18] The Society tendered a report of Dr. Jessica Lynch, dated April 26, 2024, as well as her curriculum vitae, and sought to rely on her report as an expert without calling Dr. Lynch, which all parties consented to.

[19] Dr. Lynch’s diagnosis of the Child’s autism spectrum disorder, as well as his presentation of features consistent with trauma exposure and significant attachment problems, coupled with Dr. Lynch’s recommendations for the Child, as contained in her report, are relevant.

[20] The court admitted Dr. Lynch’s report, dated April 26, 2024, pursuant to section 52 of the Evidence Act, RSO 1990, c E.23, (“Evidence Act”) on consent.

[21] The Mother tendered a letter from her treating psychiatrist, Dr. Laura Pacione, dated August 29, 2024, which the parties agreed that the court could receive, with the exception of one sentence, which the parties agreed would not be tendered for the court’s consideration.

[22] Dr. Pacione’s letter outlines the Mother’s numerous struggles and efforts to address those struggles.

[23] The letter also outlines Dr. Pacione’s qualifications and her experience, as well as the length of time she provided psychiatric care to the Mother. Dr. Pacione’s letter is relevant.

[24] The court admitted Dr. Pacione’s letter, dated August 29, 2024, with the exception of the one sentence, also pursuant to section 52 of the Evidence Act, on consent.

Statements of Agreed Facts

[25] There were also two SAFs, the first, was filed December 1, 2021, which supported the protection finding (s. 74(2)(h) – risk of emotional harm) and interim Society care order, and the second, was filed on January 18, 2023, which supported a supervision order with the Father.

B. HISTORY OF THE CASE

[26] Currently the Mother is 23 years old and the Father is 41 years old.

[27] The parties’ relationship began when the Mother just turned 18, and the Father was 36.

[28] The Child was born on [...], 2020, when the Mother was 19 years old.

Initial Involvement

[29] The Society became involved when the Mother was pregnant due to concerns related to the Mother’s mental health, specifically Major Depressive Disorder, substance (marijuana and alcohol) misuse, and intimate partner violence.

[30] Initially the Mother and the Child resided with the Father and the paternal grandmother, but there was conflict between the Mother and paternal grandmother and the Mother was asked to leave. The Child and the Mother resided at Humewood Home for the next two months and then with the Maternal Great Aunt for three months. The Mother and Child left the Maternal Great Aunt’s home due to conflict and were then residing in a shelter.

[31] During the first six months of the Child’s life, both parents were involved with intimate partner violence, and both incurred criminal charges of assault and were subject to criminal conditions prohibiting contact with each other.

[32] Despite the no-contact orders, the Mother allowed the Father to take the Child for a Visit on Valentine's Day 2021 with the understanding he would return the Child the next day. However, the Father chose not to return the Child citing concerns with the Mother’s stability and ability to care for the Child. The Mother called the police who allowed the Father to keep the Child.

[33] Throughout its involvement the Society identified protection concerns relating to the parents exposing the Child to conflict, the Father’s behaviour to the Mother, both parents’ use of alcohol and marijuana while in a caregiving role, the Mother’s mental health and her ability to emotionally regulate and care for the Child on her own.

Child Protection Application

[34] On February 26, 2021, the Society filed the Protection Application. At that time, the Society had protection concerns with both parents but believed the presence of the paternal grandmother on a supervision order was a mitigating factor.

Placement with Father and Paternal Grandmother

[35] On February 26, 2021, a temporary supervision order was obtained placing the Child with the Father and the paternal grandmother.

[36] On April 9, 2021, the Father left the paternal grandmother’s residence with the Child and went to a shelter citing ongoing conflict in the home between the paternal grandmother and the paternal grandmother’s adult granddaughter who also resided in the home with her two year old son.

[37] On the evening of April 23, 2021, shelter staff found the Child (8 months old) crying under the bed and the Father unresponsive on the bed. After the Father woke up, the Father made a bottle for the Child and then left the shelter for approximately two hours leaving shelter staff to call the paramedics to take the Child to Sick Kids Hospital as they were concerned for his well-being after falling from the bed.

[38] In the middle of the night on April 23-24, 2021, the paternal grandmother attended Sick Kids Hospital to pick up the Child and said she was prepared to have the Child placed in her care alone.

[39] The paternal grandmother visited the Child at SickKids Hospital in the middle of the night on April 23-24, 2021, after the Child fall off the bed in his Father’s unsupervised care at the shelter.

Placement with Paternal Grandmother Alone

[40] On April 30, 2021, the Society brought the matter back to court on an urgent basis and asked the court to make an order placing the Child in the temporary care and custody of the paternal grandmother alone. The Mother opposed this order and invited the court to make an order placing the Child in the temporary care of the Society. Justice Zisman made a temporary without prejudice order placing the Child in the care of the paternal grandmother, subject to Society supervision with terms and conditions, and with the Father’s access to be supervised by a Society worker.

[41] On May 5, 2021, (one week later), a family services worker, Nancy Perkovic, attended the paternal grandmother’s home to pick the Child up to take him to an access visit with his Mother and found the Father at the paternal grandmother’s home. Ms. Perkovic then learned that the Father had also been at the home on May 4, 2021, and that the paternal grandmother had left the Child alone with him while she went to her volunteer work, contrary to the April 30, 2021, supervision order.

[42] Due to this incident, on May 5, 2021, the Child was brought to a place of safety.

Child Brought into Society Care

[43] As a result, on May 10, 2021, the Child was placed in the temporary care and custody of the Society, with terms of access.

[44] On June 8, 2021, the Society held a Family Planning Meeting with workers and both maternal and paternal family members. The Child’s paternal aunt proposed a plan but on June 22, 2021, withdrew that proposal.

[45] On July 12, 2021, the Mother started the Mom and Kids Two (MK2) program virtually at the Jean Tweed Centre and completed it on August 12, 2021.

[46] The Mother disclosed that she consumed a moderate amount of alcohol regularly, however, she articulated understanding she cannot be under the influence while parenting. The Mother does not use any illicit substances.

[47] The Mother reported early on that she was connected to several supports with respect to housing and therapy. The Mother was a full-time college student, exercising three hours of access per week.

[48] In July 2021, the Father was offered a space in the Society’s Saturday CAP program but he said he was not able to start his and asked to be put on the waitlist.

[49] On October 4, 2021, the Mother obtained transitional housing through Covenant House for one year.

[50] The Father was registered in the Partner Assault Response (“PAR”) program through the John Howard Society, and, on October 13, 2021, he also started the Society’s Caring Dads program.

[51] On October 22, 2021, the Mother advised the Society’s Access Worker that she would be going to her transitional housing with the Child during her access visit. As Society’s Ongoing Worker had not yet been to the apartment, it was not yet approved for access, therefore, the Access Worker attended the apartment to ensure that there were no safety concerns. Upon her arrival, the Access Worker observed the Father leaving the building and before she left the building, she observed the Father re-enter the building.

[52] On October 25, 2021, the Society received a report from police, that on October 23, 2021, the Father had allegedly assaulted the Mother and was arrested. The Father was alleged to have punched the Mother multiple times.

[53] On October 26, 2021, the Ongoing Worker spoke with the Mother about her contact with the Father. The Mother reported that the Father had been staying at her apartment all week, and she thought he had changed. She stated that he attends the PAR program and she thought he had learned how to manage his anger and triggers. The Ongoing Worker asked her how the physical altercation began and the Mother said she that she could not remember. She said she remembered sleeping and waking up to the Father punching her saying that, she sleeps too much, and that she will be unable to care for the Child. She said that the Father took a penknife from her and trashed her apartment. The Ongoing Worker spoke to her about obtaining a restraining order against the Father as well as working with victim services to develop a safety plan.

[54] On October 28, 2021, the Ongoing Worker received a report from police that on October, 27, 2021, the Mother was at the Young Street Mission, Evergreen Centre for Street Involved Youth, when she observed the Father approaching her and calling out her name. The Mother proceeded to walk away from the Father and the Father began to follow her and asked about getting his clothing back, the Mother asked the Father to leave her alone and continued to walk away from him. The Mother, fearing for her safety, called police as the Father continued to follow her. The Mother was located by police and the Father fled in an unknown direction but was later arrested.

[55] The Father was homeless and residing in a park and has not yet demonstrated his plan to obtain stable housing for himself and the Child.

[56] Each parent had access visits separately with the Child three times per week and overall the visits had gone well. However, in May 2021, the Father attended the Society’s office under the influence of alcohol and his visit was cancelled and in August and September 2021, he did not show up for two access visits with no explanation as to why. The Mother struggled during her visits on October 25, 2021 and cancelled her visits on October 29 and November 1, 2021.

Protection Finding and Interim Society Care Order Made

[57] On December 9, 2021, the Child was found to be in need of protection under section 74(2)(h) of the CYFSA, and a final order was made placing the Child in the interim care of the Society for four months and three weeks.

[58] From December 10, 2021, to September 28, 2022, the Father consistently attended access with the Child and all visits went very well. The Father was observed to be child centered and focused on ensuring that the Child’s needs were met and on supporting the Child’s development through reading, singing, playing and making positive and encouraging comments to the Child. The paternal grandmother also attended some access visits.

[59] In December 2021, the Mother was discharged from her transitional housing through Covenant House and moved back with the Maternal Great Aunt.

[60] On December 15, 2021, the Mother struggled to attend her access visit on time and struggled with managing her emotions. The Father was late for his access and his visit was cancelled. The Mother was offered additional time as a result but she was unable to accept it as she was too emotional. The Mother indicated that she was taking a step back and offered the Father a portion of her visit on December 17, 2021. The Mother was struggling with dealing with the Father in a co-parenting role, wanting to be a normal 21 year old and being depressed. She did not have family support and felt her own mother was unsupportive.

[61] On December 22 and 24, 2021 the Mother attended her access visits and reported that she was living with her great aunt and working with Covenant House to obtain another apartment. On December 22, 2021, the Mother smelled of marijuana and when she was asked if she had smoked, the Mother admitted she had and stated that she was celebrating the end of her exams and deserved to smoke.

[62] The Mother cancelled all her other December visits but re-attended on January 7 and 10, 2022 and these visits went well.

[63] In January 2022, the Mother advised she was going away for two weeks and cancelled her visits until January 21, 2022. Her access resumed on January 24 but the Mother cancelled all of her Friday visits until April 8, 2022 due to her school obligations. The Mother attended her Monday and Wednesday visits in February. There were times when the Mother cancelled access visits on the morning of the first visit due to an exam or other school obligations.

[64] On February 10, 2022, the Father initiated contact with Ujima House where he received counselling support. A few weeks later, on March 28, 2022, the Father provided a certificate from Ujima House confirming he completed their Strong Fathers group. The Father reported he was on probation for two years and has conditions that prohibit him from having contact with the Mother, which conditions will expire in December 2023.

[65] The Father identified the paternal grandmother as his support and agreed to participate in services with the paternal grandmother.

[66] The Father had been residing in the shelter system and accessing housing supports to obtain stable housing for himself.

[67] On March 1, 2022, the Ongoing Worker met with the Mother and the Maternal Great Aunt. The Mother was doing well at that time. She was on medication (Sertraline HCL 100 mg, daily), she had a virtual appointment with her psychiatrist, Dr. Laura Pacione. The Mother wanted the Child to be placed with her and that her great aunt would be a support. The Maternal Great Aunt indicated that she has hearing and mobility issues. The Ongoing Worker, the Mother and the Maternal Great Aunt agreed that a referral could be made for Family Group Conferencing to work on a reunification plan, while concurrently and separately planning with the Father. The Mother advised that she felt the Child had a stronger bond with the Father as she was like a stranger to him.

[68] On March 22, 2022, Dr. Laura Pacione reported to the Ongoing Worker that she was pleased with the Mother’s progress and that they meet every two to four weeks either virtually or in-person. The Mother was diagnosed with Major Depressive Disorder and is still in partial remission. The Mother is working on a well-being plan. The Mother’s medication has changed to Fluozetine 20 mg every other day.

Status Review Commenced

[69] On April 5, 2022, the Society filed the Status Review Application seeking extended society care.

[70] On August 15, 2022, the Father notified the Society that he had secured a placement at a family shelter and had moved in the previous day while the Child was with him on an access visit. The same day, the Ongoing Worker, attended the shelter and met with the Father and the Child. The Child was observed to be well cared for and playing with his toy cars. The Father reported that the weekend went well and that he was transported to the shelter last night as he had been calling Central Intake advocating for a bed for himself. He stated the room had roaches and was filthy and he had to clean up the room. The floors were observed by the Ongoing Worker to be clean, the room was neat and tidy. The Father had applied for subsidized housing and has the support of shelter staff and his probation worker.

[71] The Mother cancelled her access visits on Mondays, Wednesdays and Fridays.

[72] On September 3, 2022, the Mother missed her visit due to being sick and did not notify the Society in advance. The Child had attended and when the Mother did not show up the Society contacted her and she stated she was not well and would not be attending. When the Society contacted the Father he stated he was out shopping and refused to have the Child returned to him early as he was not at the shelter.

[73] The Child resided with the foster mother and her husband who is Guyanese, which was a partial cultural match for over 14 months, from May 5, 2021 to September 28, 2022.

Placement with the Father

[74] On September 28, 2022, the Child was placed with the Father.

[75] The Society’s Ongoing Worker and a family support worker met with the Father and Child and had at least once a week telephone check-ins. The Father was observed to be very child centred and accessed supports through the shelter to ensure that the Child’s needs are met.

[76] In late September 2022 to October 2022 the Mother was ill and her access could not resume until October 15, 2022. On October 19, 2022, the Mother was late for access, very stressed out and complained that travelling from Etobicoke was too far.

[77] In October 2022, the Father obtained subsidized daycare for the Child. The Child attended daycare until he became sick with the flu and the Child began attending the daycare at the shelter. The Child got the flu and was unwell for several weeks. The Father was able to speak with his shelter worker so that he and the Child could temporarily reside with the paternal grandmother as the Father needed help taking care of the Child when both the Father and the Child were sick. The Father had been accessing support from the paternal grandmother as needed.

[78] From October 19, 2022, for three consecutive weeks the Child’s access with the Mother was cancelled as the Child was very sick.

[79] On October 25, 2022, a meeting was scheduled to discuss extending the Mother’s access but the Mother did not attend and advised that she had fallen asleep.

[80] The meeting was rescheduled for November 3, 2022. On November 9, 2023, the Child’s access with the Mother resumed.

[81] On January 18, 2023, a final order was made placing the Child in the care and custody of the Father for six months with terms and conditions.

C. DOES THE CHILD REMAIN IN NEED OF PROTECTION?

Legal Considerations

[82] The court’s decision on a Status Review Application must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection, and well-being of the child. This paramount purpose takes precedence over all other considerations.

[83] Section 114 of the CYFSA provides that where an application is made for review of a child’s status under section 113, the court may, in the child’s best interests:

a. vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;

b. order that the original order terminate on a specified future date;

c. make a further order or orders under section 101; or

d. make an order under section 102.

[84] The test on a Status Review Application is as follows:

a. the original order is presumed to be correct. This is not a rehearing of the previous order that was made;

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

c. the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and

d. secondly, the court must consider the best interests of the child. This analysis must be conducted from the child’s perspective.

See Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371, 2018 CarswellOnt 11906 at paragraph 43; Catholic Children’s Aid Society of Hamilton v. S. (B.L.), 2014 CarswellOnt 12921 at paragraph 83; and Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC).

Events Following the Final Order January 18, 2023

[85] In this case the underlying facts were not disputed to a significant degree by the parents.

[86] By March 2023, the Mother had cancelled six access visits as she had criminal court pending or an exam.

[87] On March 28, 2023, the Mother informed the Ongoing Worker that two days before, she had reached out to the Father to see the Child. The Mother reported that the Father followed her to her friend’s apartment and caused a scene. The Father was knocking on the door with the Child in his arms. The Mother reported that she felt the Father was stalking her. The Ongoing Worker indicated that the parents were both breaching no contact orders as well as the supervision order. The worker indicated she would speak to the Father.

[88] On April 1, 2023, the Father moved into a two-bedroom apartment close to the paternal grandmother.

[89] On April 14, 2023, the Society’s Ongoing Worker attended the Father’s home and advised the Father that he was not to have any contact with the Mother and not to attend her home.

[90] On April 22, 2023, the Society received an Emergency After Hours report from the Toronto Police Service who reported:

a. On April 21, 2023 at approximately 10:30 p.m. the Mother attended the Father’s new home to pick up her belongings. The Father permitted the Mother to tuck the Child into bed. The Mother became upset that the Father had the Child in his care. The Mother hit the Father with a knife. The Father was able to take the knife away from the Mother, but then the Mother began choking the Father. The Father pushed the Mother into the hallway where the fight continued. Neighbours called the Toronto Community Housing Corporation which in turn called the police.

b. The Child sustained cuts to his foot from broken glass.

[91] During his cross-examination, the Father denied the Child was injured during this incident, however, the Toronto Police General Occurrence Report dated April 22, 2023 at 12:17 a.m. states: “the Father advised that his son was also injured by [the Mother]. Officers photographed the small cut to the Child’s left wrist.”

[92] The court found the Father’s testimony to be avoidant and evasive. He admitted that he has limitations with respect to his memory, and specifically, that he doesn’t remember people for example, the Family Service Worker who investigated this incident of violence on or about April 21, 2023. He also admitted that he didn’t remember dates of certain events.

[93] His evidence was contradicted by other witnesses and documents made contemporaneously with the events at issue. When those contradictions were presented to the Father he would often admit the facts he previously denied.

[94] Where the Father’s evidence conflicted with the evidence of the Society’s workers or other documents, the court accepted the evidence presented by the Society.

[95] On April 24, 2023, the Society’s Family Service Worker for this investigation, met with the Father, who was observed to have a bruise on his right eyelid and a bruise on his left eye, and the Child, who was observed to have a bruise on his left wrist, and with scratches on his back, tummy and legs. The Father reported:

a. The Mother found out where he was living through a neighbour and then came to his building and appeared under the influence of something and that the Mother started shouting. The Father did not want the Mother causing a commotion so he invited her into his home to get her belongings.

b. The Mother was jealous of his apartment and started yelling and hitting the Father.

c. The Father admitted to slapping the Mother in return.

d. Both parents smashed each other’s phones. The Father yelled in the hallway for someone to call the police.

e. The Child witnessed the events.

f. The Father denied he was injured. He stated the scratches on the Child could have come from anywhere, such as the park, or could even be because of eczema.

[96] On May 1, 2023, the Mother texted the Ongoing Worker and apologized. She indicated that her phone was broken.

[97] On May 15, 2023, the Mother reported to the Ongoing Worker that she continued to attend at the Father’s home because she missed the Child. The Mother shared that she was assaulted by the Father on April 21, 2023, and that the Father punched her in the face on May 8, 2023. The Child was with the Mother at this time, but the Mother did not share this relevant information with the Ongoing Worker.

[98] On May 16, 2023, the Father was charged with domestic assault against the Mother, and was incarcerated. The Child was not in the Father’s care, as the temporary court order required, instead the Child was with the Mother at the Maternal Great Aunt’s home.

[99] On May 16, 2023, the Ongoing Worker attended the home of the Maternal Great Aunt and met her, the Mother and the Child. The Mother indicated she continued to attend the Father’s home because she wanted to see the Child. The Mother wanted them to be a family. The Mother also stated that the Father was a dangerous and violent man. The Mother stated that the Child was sleeping during on May 8, 2023, when the Father violently assaulted her. The Mother provided photos of the serious injuries to her face that she sustained, which included dried blood on the side of the kitchen wall and blood stains on the bedding in the Father’s bedroom.

[100] The Ongoing Worker observed that the Mother had an injury in the corner of her eye at that time. The Mother shared that she attended at the Father’s home on May 14, 2023 for Mother’s Day and that she had bought matching outfits for herself, the Father, and the Child.

[101] The Ongoing Worker and the Maternal Great Aunt agreed to a plan for the Mother to assist with the instrumental care of the Child, but that the Mother would not be allowed to go out in the community with the Child or be at home with him unsupervised.

[102] By May 17, 2023, the Mother expressed to the Ongoing Worker that she was feeling remorseful because she got the Father charged with assault. The Mother explained that she didn’t know what she was doing because she was a victim of domestic violence, trauma, depression, and PTSD.

Placement with the Maternal Great Aunt

[103] On May 23, 2023, four months into the six-month supervision order, the Society brought an early status review application, and a temporary order was made placing the Child in the care and custody of the Maternal Great Aunt with terms and conditions.

[104] The Child was placed with the Maternal Great Aunt as a result of the parents engaging in intimate partner violence and criminal charges being made against Father for which the Father was incarcerated for four and a half months from May 2023 to September 2023.

Father is Currently on Probation

[105] On September 26, 2023, an 18-month probation order was made by Justice C. Mocha as part of the Father’s sentencing for the following offences:

a. March 1, 2023 – Assault – section 266

b. March 8, 2023 – Assault – section 266

c. May 13, 2023 – Failure to Comply with a Probation Order – s. 733.1(1)

d. May 13, 2023 – Possession of Weapon Dangerous – s. 88(1)

e. May 13, 2023 – Threaten Bodily Harm – s. 264.1(1)(a)

[106] The probation order sets out that the Father is not to have any contact with the Mother.

[107] Further terms of the Father’s probation order require him to participate in all assessments, counselling or rehabilitation programs for substance abuse, specifically alcohol and PAR and/or Anger Management.

[108] The court was not provided with his previous convictions or previous probation order which the Father was subsequently convicted of breaching.

The Father’s Release

[109] On September 27, 2023, the Father contacted the Ongoing Worker and advised that he had been released the day before and was on probation. He wanted to resume access with the Child to have him back in his care. Access was arranged to start in the Society’s office. The Father was referred again to the Society’s Caring Dads Program scheduled to begin in October 2023.

[110] On October 20, 2023, the Father asked if it was necessary for him to participate in the Caring Dads program. The Ongoing Worker advised him that it is important that he attend the program because of the history of domestic violence and to learn about the type of father he wants to be to the Child.

[111] In response to this request from the Society, the Father replied that the Ongoing Worker could cancel all of the Father’s visits with the Child.

Continued Contact Between the Parents with the Child

[112] On October 30, 2023, the Father called the Ongoing Worker and stated that five nights before calling, the Mother had attended his home with the Child. He stated the Mother was smoking crack from a pipe and asked to leave the Child with him. He accepted the Child from the Mother, and the Child was now with the paternal grandmother.

[113] On October 31, 2023, the Ongoing Worker met with the Maternal Great Aunt who explained that she had been sick, and she was not aware that the child had been taken to the Father or that the Child was with the paternal family. The Maternal Great Aunt did not understand the safety plan or the concerns the Ongoing Worker was sharing.

[114] Since that time, the Maternal Great Aunt’s phone was no longer in service, and she had not called or attended any visits or indicated an interest in continuing to plan for the Child.

[115] On November 2, 2023, the Mother sent text messages to the Ongoing Worker indicating the she had been stressed because the Maternal Great Aunt was sick. The Mother asked that the Society not to take her Child away while making concerning statements about harming/killing herself, if she did not get the Child back. Later on, November 2, 2023, the Mother sent more text messages indicating “I’m gonna sign over my rights if the Child doesn’t come back home I’m too depressed right now”, “if I don’t get him back I’m dropping out of college and offing myself”, “I’d rather shoot myself than go through this whole process again.”

Court Ordered the Child Back Into Society Care

[116] By at least October 25, 2023, and within one month of the Father’s release, the Mother and the Father were breaching the temporary supervision terms once again. The Mother removed the Child from the Maternal Great Aunt’s home and left the Child in the Father’s care.

[117] On November 6, 2023, six months after his placement with the Maternal Great Aunt, the Child was removed from the Maternal Great Aunt’s care and placed in the Society’s temporary care on the court’s own motion. This was as a result of breaches to the terms of the supervision order that resulted in the Child being brought to the Father’s home and then to the home of the paternal grandmother.

[118] The Child has remained in foster care since November 6, 2023.

[119] The Child was placed back with the same foster family, and he transitioned well.

[120] However, the Child returned to foster care further impacted after almost 14 months of inconsistent parenting, exposure to intimate partner violence and chaos, changes to his daycare and routine, and disrupted placements.

Mother’s Mental Health Struggles and Continued Contact with Father

[121] On November 7, 2023, the Mother contacted the Ongoing Worker and denied that she had been smoking crack but admitted to smoking marijuana. She also shared that she was depressed and not coping well.

[122] On November 20, 2023, the Mother was observed to be falling asleep at times during her access visit with the Child.

[123] On November 27, 2023, the Father attended access during the Mother’s access time because he know the Mother was not going to attend as she had shown up at his home the night before, to get some of her belongings, and was arrested.

Initial Kinship Proposal with Paternal Grandmother and her Granddaughter

[124] On November 28, 2023, the Father told the Ongoing Worker that he wants the Child to reside with the paternal grandmother while he gets his life in order. A kinship assessment was initiated. At that time, the proposed plan included the paternal grandmother’s daughter who, along with her young son, resided with the paternal grandmother.

[125] On November 30, 2023, the paternal grandmother’s granddaughter revoked her consent to records checks.

[126] As of January 5, 2024, the Mother had not attended her last four access visits with the Child. Many times, the Child was already at the Society’s office waiting for her when she decided not to show up. The Society was unaware of the Mother’s address. On several occasions, the Child attended the Society’s office for access visits with the Mother and she did not show up. The Child would ask “where is my mommy?”, “is my mommy coming soon?” “where is Mommy?” When the Child was informed that the Mother could not make it to the visit, the Child would often respond in tears and would have difficulty transitioning back to the volunteer driver who arrived to take him back to the foster home.

[127] On January 17, 2024, the paternal grandmother’s granddaughter shared with the Ongoing Worker and Kinship Worker that she was going through a bad period in her life and was not willing to go ahead with the kinship plan.

[128] On February 7, 2024, the Kinship Worker was advised that the paternal grandmother no longer wanted the Kinship Worker in her home to continue the initial kinship assessment, as a result the kinship assessment file was closed.

Amended Status Review Application

[129] On January 26, 2024, the Society amended the early Status Review Application to seek extended society care with access.

[130] On January 31, 2024, the Father was observed to be emotionally distant from the Child and was not affectionate, encouraging, or making efforts to engage the Child in play or conversation. The Father expressed his worry about potentially being deported. He indicated he could not continue the visit and the visit ended early that day.

[131] On February 7, 2024, the Father completed the Caring Dads Program for the second time attending 15 of the 17 sessions. The Caring Dads Facilitator suggested the Father would benefit from individual counselling to gain further insight and strategies to maintain healthy boundaries.

[132] On February 12, 2024, when the Mother was not on time for an access visit and was reminded about the negative impact that has on the Child, she exclaimed “you guys clearly don’t want me to see my son! Fuck all of you! Fuck [the Access Worker] and fuck [the Ongoing Worker].”

Continued Volatile Contact Between the Parents

[133] On February 21, 2024, the Father shared that the Mother had trashed his home. The Father admitted to letting her in after she said she had nowhere to live/no place to go and that she had beer and crack. The Father said he was talking to community housing about a transfer and the Ongoing Worker indicated he was going to have to do more to create safety for the Child. The Father became frustrated and stated that he was reaching out for help, and no one was helping him.

[134] On February 26, 2024, the Mother attended the Society’s office for her access visits. The Mother was late, and the visit was cancelled. The Mother flipped over a coffee table at reception and broke a picture frame, and threatened to kill herself.

[135] The Mother had her last visit with the Child on April 22, 2024.

Kinship Plan Re-Referral, Access Visit and Plan with Paternal Family

[136] On April 11, 2024, a second referral was made to assess the paternal grandmother’s plan to be the Child’s primary caregiver with the support of her granddaughter.

[137] On March 13, May 15 and June 21, 2024, the Father, the paternal grandmother and the paternal grandmother’s granddaughter attended access with the Child at the Society’s office. These visits were positive, and no concerns were noted.

[138] On May 13, 2024, there was a meeting among the Ongoing Worker, the Kinship Worker, the paternal grandmother, and her granddaughter where the Society advised that the kinship assessment would be starting over and that they needed to be committed to the process. The paternal grandmother would be assessed as the primary caregiver and her granddaughter as a support.

[139] On May 24, 2024, the Ongoing Worker and the Kinship Worker attended the paternal grandmother’s home with her granddaughter to obtain consents for their criminal and child welfare records checks. Both the paternal grandmother and her granddaughter had expired identification, for which they needed to reapply in order to receive vulnerable sector screens from Toronto Police Service.

Parents Continued Volatile Contact

[140] On May 22, 2024, the Father advised that the Mother attended his address on May 13, 2024 and was arrested. The Father stated she was drunk and high and was shouting, and she indicated that she was going to put them both in jail. A neighbour called the police. The Ongoing Worker confirmed with the Vanier Centre for Women that the Mother was incarcerated.

Sharing the Child’s Autism Diagnosis with the Paternal grandmother

[141] On June 27, 2024, the Ongoing Worker and the Kinship Worker reviewed the report of Dr. Lynch and the Child’s autism diagnosis with the paternal grandmother and her granddaughter. The follow-up and services that they would need to follow through with if the Child were placed with them was also discussed. A copy of the report was left with the paternal grandmother.

[142] On July 17, 2024, the Father advised the Ongoing Worker that the Mother was released, and that he had changed his phone number because he wanted nothing to do with her.

Mother’s Currently on Probation

[143] On July 22, 2024, the Mother entered into a 12 month probation order made by Justice G. Sparrow as part of her sentencing for the following offences:

a. January 10, 2023 – Assault with a weapon – s. 267 (a)

b. November 26, 2023 – Assault peace officer – s. 270(1)(a)

c. May 13, 2024 – Failure to comply with release order – s. 145(5)(a)

d. June 24, 2024 – Failure to comply with release order – s. 145(5)(a)

[144] The Mother is not to have any contact with the Father.

Ongoing Efforts for Kinship Planning with the Paternal Family

[145] On July 22, 2024, the Society began developing an access plan for the Child with his paternal grandmother to include longer visits, home visits, and overnight visits.

[146] Yet at the same time, the Society learned that not only was the paternal grandmother’s granddaughter unwilling to plan with the paternal grandmother she was also unwilling to provide any support to the paternal grandmother because she needed to focus on her own son, her prenatal care and herself at this time. The paternal grandmother indicated to the New Worker and the Kinship Worker that she had many friends in the building who could support her.

[147] Over the last few weeks, the Society has supported the Child’s access with the paternal grandmother. The visits have been fully supervised and there continue to be many instances, during each visit, where the Access Worker is required to intervene. The Child was described as primarily engaging in independent play with toys in the living room. During home visits, the home was observed to be neat and tidy, and the paternal grandmother was present and ready to receive the Child.

[148] On August 2, 2024, the paternal grandmother was 30 minutes late to the access visit due to transit issues.

[149] On August 7, 2024, the paternal grandmother’s visit was in her home and the Father also attended.

[150] On August 9, 2024, the paternal grandmother had an access visit at her home without the Father.

Access – August 14, 2024

[151] On August 14, 2024, the Child became extremely emotionally dysregulated during the visit when it was time to leave. The Access Worker tried to support the Child and the paternal grandmother, and the Father, who was also present at the visit that day. The Child’s energy was high and the Child’s emotional state was described as “already heightened.” The Access Worker tried to move the family through the process of separating and ending the visits.

[152] Despite the Access Workers engagement and support, the paternal grandmother was unable to absorb the techniques and suggestions in any concrete way that would assist the Child.

[153] Instead, the Child was bribed by the paternal grandmother and Father with the idea that he would be going downstair to go to the park, rather than being told honestly that he was going downstairs to join the volunteer driver.

[154] When the Child realized that he was not going to the park, the Child became completely dysregulated and was crying, kicking and screaming. The Father tried to interject but the Child was not receptive to that at all.

[155] The Access Worker interjected.

[156] The volunteer driver withdrew services after this incident because the Child was so emotionally distressed that it was a risk to the Child during the car ride.

Access – August 20, 2024

[157] The Child’s next visit was moved to Tuesday, August 20, 2024, because of his pre-school graduation the next day on Wednesday and the need to limit the Child’s transitions. The visit was designed to be primarily with the paternal grandmother and with the Father for the last three hours.

[158] The paternal grandmother’s great grandson was not present during this visit. The visit was going well. The Child gravitated to the Access Worker and would seek her out instead of the paternal grandmother. The Access Worker tried to bring the paternal grandmother into his play rather than seeking out the Access Worker.

[159] There was a lot of discussion between the Access Worker and the paternal grandmother to assist the paternal grandmother to understand the Child’s needs. For example, the Child requested two crackers and the paternal grandmother gave him three crackers instead. The paternal grandmother had difficulty understanding why this was an issue for the Child. The paternal grandmother was also encouraged to look at the time and share with the Child when it was time to put on his shoes. The paternal grandmother was not grasping why this was important and she wasn’t able to demonstrate the ability to do so.

[160] The Access Worker indicated that there is still a lot of teaching needed for the paternal grandmother.

[161] The Access Worker continues to work with the paternal grandmother on why planned transitions are so important to the Child without the use of bribes or false promises and instead giving the Child realistic and appropriate choices.

[162] The Father still had not arrived for the visit. The paternal grandmother called him to ask whether he was coming. The phone was not on speaker phone, yet the Access Worker could overhear the Father was quite upset and expressed profanity over the phone. The Access Worker could hear it clearly and the Child was also in the same room. The Father stated over the phone that he was not going to attend the visit.

[163] However, after some time, the Father did arrive. The Father was exhibiting stress and upset when he arrived to the Child’s visit. He mentioned the court process and being overwhelmed about losing his son.

[164] The Father had difficulty focusing on the Child.

[165] The paternal grandmother re-directed the Father to focus on the Child. After that support, the Father was able to calm himself and focus on the Child.

[166] The Father’s engagement with the Child at the end of the supervised visit was helpful in transitioning the Child at the end of the visit.

Access Generally with the Paternal grandmother

[167] The paternal grandmother was observed to be affectionate towards the Child and at times engage in play and learning with him during visits. She was able to meet some of his basic needs for example eating cherries and washing his hands after using the bathroom, within the context of a fully supervised visit with the support of the Access Worker.

[168] The paternal grandmother was also observed to have many friends in her building.

[169] The paternal grandmother had never heard of autism. There was no evidence that the paternal grandmother has taken any steps to learn about autism or the parenting and care that children with a diagnosis of autism require.

[170] The paternal grandmother struggles to understand and apply techniques the Access Worker repeatedly shared with her to support the Child’s needs. The Access Worker encouraged the paternal grandmother to pay attention to the specifics of the Child’s needs and to give him options.

[171] The Access Worker felt it might be possible for the paternal grandmother to learn the Child’s needs but it will require time and the support of trained professionals to navigate the relationship, boundaries and limits and all that is needed for the Child.

[172] When the paternal grandmother’s great grandson (who she also lives with full time) was present during the access visits, the Child’s behaviour is significantly more rambunctious. The paternal grandmother’s great grandson was described as loud and with a lot of energy and the Child mirrors this behaviour. The Child copies the inappropriate words that the other Child in the home says.

[173] The Access Worker had to interject to re-direct both children when the re-direction was not coming from the paternal grandmother. The paternal grandmother had the option of taking the boys outside to play and work off energy, but she did not.

[174] The Child would seek out the Access Worker for comfort and not the paternal grandmother. The Child hit the paternal grandmother during access, which he quickly apologized for when the Access Worker interacted with him.

[175] The Access Worker stated that the Child and the paternal grandmother’s grandson would benefit from more support with emotional regulation, routine charts, sticker charts clearly labelled with expectations, which provide the children with something to reference. This would help the children to regulate their own behaviour. The cousin was free to do as he pleased in the home without a structured routine. The Access Worker felt the cousin could be put in a leadership role which might prevent the children from being let lose to play because their rambunctiousness can get out of hand.

[176] However, none of these strategies are in place and the access visits remain fully supervised and fully supported, and the Child still became severely emotionally dysregulated.

Mother Continues to Want to Reconcile with the Father

[177] On August 14, 2024, the New Worker spoke with the Mother who advised that, among other things, that she and the Father do not “really talk” because of the court order. The Mother also stated that she would reconcile with him if she could and feels that he would want to reconcile as well. The Mother also advised that the Father had told her that the Child had been diagnosed with autism.

Kinship Planning with the Paternal grandmother

[178] On August 19, 2024, the Kinship Worker attempted to obtain consent from the paternal grandmother to receive information from Dr. Hussan who had been her doctor for over 25 years and prescribed her thyroid medication.

[179] Instead, the paternal grandmother would sign a consent for only Dr. Krisanne Mendelssohn who the paternal grandmother has seen only since April 2024. The Society has yet to hear back from Dr. Mendelssohn. The paternal grandmother was asked again whether she would sign the consent for Dr. Hussan during cross-examination and she refused stated that Dr. Hussan is not her doctor anymore.

[180] The paternal grandmother and her granddaughter’s police records came back clear.

[181] The paternal grandmother did have a child protection history in relation to her involvement with the Child in 2021 when the Child was removed from her care.

[182] Additionally, the Paternal Grandmother had child protection history in May 2013 to July 2015 when she was caring for her granddaughter. Her granddaughter was threatening harm, self-harm and suicidal thoughts, coupled with the paternal grandmother’s inability to understand these issues and provide necessary support resulted in the protection involvement for over two years. During her visit with the Kinship Worker on July 24, 2024, initially the paternal grandmother did not remember this involvement, but later in the visit she stated that she did.

Summary of Circumstances since the Final Order, dated January 18, 2023

[183] Since the final order, dated January 18, 2023, was made, the parents have continued to engage in serious chronic physical intimate partner violence often in the presence of the Child.

[184] This violence resulted in visible injury to the Mother and physical injury to the Child.

[185] Both parents struggle with the basic tasks of caring for themselves, making healthy choices and becoming independent, functional members of society. Both parents have numerous ongoing involvements with the police for offences that included violence against other people, and most often, one another. Both parents have housing instability and difficulty engaging and working with the Society.

[186] The Father has consistently attended the Child’s access visits since his release from incarceration in September 2023.

[187] The Mother has not attended any access visits with the Child since April 22, 2024.

[188] The Mother was incarcerated some of the time since April 22, 2024. The Mother shared that she appreciated aspects of her incarceration because of the consistency it provided her as well she took the positive steps of engaging in courses to improve herself and her parenting, as well as exploring religious supports.

[189] The parents continued to breach both family and criminal no-contact orders.

[190] Each parent is currently subject to their own probation order.

[191] The parents have frequently been dishonest with the Society and failed to be transparent about their contact with one another and unauthorized contact with the Child.

[192] The Father repeatedly resorted to physical violence against the Mother. The Mother was also violent with the Father.

[193] The Father stabilized his housing, yet the Mother continues to be aware of his address, gain entry to his residence and also leave her belongings at his residence.

[194] The Father demonstrated no insight into the impact of his behaviour on the Child and entirely blamed the Mother.

[195] Despite completing the Caring Dads Program twice, and other anger management programs, the Father continues to struggle to control his anger. Only weeks before trial he yelled, over the phone, at the New Worker that she was a “bitch ass mother fucker”, “fucking dumb bitch” and “fucking dumb ignorant bitch” when he was disappointed about a denied request, made on short notice, to extend his access.

[196] The Father apologized to the worker after this incident, but the Father clearly is unable to regulate his emotions when he does not get what he wants, and to work civilly with the supports in his Child’s life.

[197] Additionally, the Father also became escalated and used profanity over the phone with the paternal grandmother during the Child’s visit, which was audible by the Child. Thereafter, the Father required redirection at the visit to focus on the Child.

[198] The Father is not engaged in individual counselling despite a recommendation that he do so, which suggests that he continues to lack insight into his conduct and its impact on others, particularly the Child, and the ability/willingness to address that negative impact.

[199] The Mother continues to have difficulty establishing housing.

[200] The Mother continues to struggle with her mental health and drug use.

[201] The Mother shows some, although limited, insight into the impact of the intimate partner violence on the Child.

[202] The Mother also struggles with her anger.

[203] The Mother continues to struggle to attend access and has been absent from the Child’s life entirely for the last several months, since April 22, 2024.

[204] The Mother has received psychiatric care from Dr. Laura Pacione since February 2020. Dr. Pacione indicated in her letter, dated August 29, 2024, that the Mother underwent an assessment in May 2023 and met the criteria for mental health disability and substance use disorder. The Mother has committed to regular psychiatric follow up.

[205] While incarcerated in 2024, the Mother also completed Healthy Relationships – Identity program, Skills for Better Living-Parenting program, and Skills for Better Living – Coping with the Impact of Trauma Program.

Continued Need of Protection

[206] For all of the reasons set out above, I find the Child continues to be in need of protection and continues to require a court order for his protection. The risks that formed the basis of the previous court order still exist.

D. DISPOSITION

[207] Section 114 of the CYFSA provides that where, as here, a status review application is made under section 113, a court may, in the child’s best interests:

a. vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;

b. order that the original order terminate on a specified future date;

c. make a further order or orders under section 101; or

d. make an order under section 102.

[208] Sections 101 and 102 of the CYFSA enumerate the orders available to the court where a finding in need of protection has been made and where the court is satisfied that intervention through a court order is necessary to protect the child in the future. Section 101(1) sets out the following options:

1. Supervision Order

That the child be placed in the care and custody of 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. Interim Society Care

That the child be placed in interim society care and custody for a specified period not exceeding twelve months.

3. 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.

4. 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 returned to a parent or another person under paragraph 1, for a period or periods not exceeding a period of 12 months.

5. Custody Order

That one or more persons be granted custody of the child, with the consent of the person or persons.

[209] Under sections 101(2), 101(3), and 101(4), the court must consider other factors, including whether there are any less disruptive alternatives or possibilities for extended family placement. The court must also enquire with respect to the efforts of the society to assist the child or children before the intervention. Those sections read as follows:

101(2) Court to inquire

In determining which order to make under subsection (1) of 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.

102(3) Less disruptive alternatives preferred

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.

101(4) Community Placement to be considered

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.

[210] In Children’s Aid Society of Toronto v. L.(T.), 2010 ONSC 1376 at paragraph 25, the court set out the statutory pathway to be followed when determining disposition. In light of the enactment of the CYFSA, that test was reformulated in Children’s Aid Society of Hamilton v. B.C. and D.C., 2019 ONSC 4229 at paragraph 154, as follows:

a. determine whether it is in the child’s best interests to return to a party, with or without supervision; if so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order; if not, determine whether the disposition that is in the child’s best interests is interim society care or extended society care;

b. if an interim society care would be in the child’s best interests, but the maximum time under section 122 of the Act has expired, determine whether an extension under section 122(5) is available and in the child’s best interests. If so, extend the time and make an order for interim society care. If not, make an order for extended society care;

c. if an extended society care order is to be made and a party has sought an access order, determine whether access is in the best interests of the child in view of the factors set out in section 74(3) and a consideration of whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. If the court deems appropriate, it may consider whether access would impair adoption. If access would not be in the best interests of the child, dismiss the claim for access; and

d. if access would be in the best interests of the child, make the access order containing appropriate terms and conditions.

[211] The governing factor when considering the placement of a child is the child’s best interests. Best interests are to be determined with reference to the following factors:

74(3) Best interests of the child

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.

[212] An order for extended society care is perhaps the most profound order that a court can make. The power to make this order must be exercised with great caution, on the basis only of compelling evidence, and after a thorough consideration of alternative remedies. Catholic Children’s Aid Society of Hamilton v. M.(M.A.), 2003 CarswellOnt 1122 at paragraph 12; Catholic Children’s Aid Society of Toronto v. R.H., 2018 CarswellOnt 20591 at paragraph 7.

[213] The court should give consideration as to whether the Society has given the parent an opportunity to parent. Children & Family Services for York Region v. W.(A.), [2003] O.J. No. 996 (S.C.J.); CCAS of Toronto v. R.H., cited above, at paragraph 7.

[214] The issue for the court is whether the level of parenting being received by the Child is below the minimum standard tolerated by the community, not whether the Child will be “better off” with parents other than their own: Family and Children’s Services of St. Thomas and Elgin v. C.(A.), 2013 ONCJ 453, 2013 CarswellOnt 11701 at paragraph 158.

[215] Courts must recognize that families living in poverty may face challenges. Parents are not to be judged by a “middle class yardstick… provided that the standard used is not contrary to the child’s best interests.” Children’s Aid Society of London and Middlesex v. J.D., 2018 CarswellOnt 19221 at paragraph 79; see also Catholic Children’s Aid Society v. I. (J.), 2006 CanLII 19432 (ON SC), 2006 CarswellOnt 3510.

[216] In determining best interests, the court must consider the merits and demerits of each option before the court. The court must consider the risk a child may suffer by being in a parent’s care or another person’s care; and, the court must consider the risk of emotional harm each child may suffer being separated from their parent or other significant person: Children’s Aid Society of Toronto v. S.(G.), 2012 ONCA 783 at paragraph 18; Catholic Children’s Aid Society of Toronto v. R.H., 2018 CarswellOnt 854 at paragraph 7.

The Child

[217] The Child is 4 years old and was born in Canada. The Child has a Black Haitian (Mother) and South-Asian Guyanese (Father) background.

[218] The Child was initially brought into foster care for 16 months from May 5, 2021, until September 28, 2022.

[219] Then the Child spent over 12 months in a variety of different family placements under temporary supervision orders.

[220] The Child was re-admitted into care on November 6, 2023, and has resided there since, for a further 10 months.

[221] The Child was able to be placed with the same foster family when he was re-admitted into foster care. As a result, the Child adjusted well to the family and had familiarity with them and even with some of the toys. After he was placed in foster care, he asked for the Father, and mentioned the Mother randomly.

[222] When the Child was re-admitted he was struggling significantly with self-regulation. He also was easily agitated and would lose control. He would clench both fists. He would throw things when he was mad. He kicked and punched his foster family members. The foster mother consistently worked with him to calm him through counting, deep breaths, and singing.

[223] When he was re-admitted into care, the Child was also not potty-trained despite being 3.5 years old.

[224] On May 24, 2024, the Child was diagnosed by Dr. Jessica Lynch with autism spectrum disorder, level 1-2 for social communication and level 2 for restricted and repetitive behaviours. He also presented with features consistent with trauma exposure and significant attachment problems.

[225] Dr. Lynch made the following recommendations for the Child:

i. The Child should be connected to the Ontario Autism Program and Caregivers should attend Foundational Family Services workshops including Triple P Parenting, No Fair! How to Teach Emotional Regulation and Dealing with Challenging Behaviour;

ii. Resources such as Geneva Centre for Autism, Autism Speaks, and Autism Ontario;

iii. A referral to the Holland Bloorview social work resource group was made to connect the Child with further resources and funding;

iv. Occupational therapy optional workshops and additional resources including Zones of Regulation and Self Reg (Stuart Shanker) were outlined;

v. The diagnosis of autism should be shared with the Child’s daycare;

vi. Informing the Child’s school about the autism diagnosis so that the Child has access to the Identification Placement and Review Committee. Access to an Individual Education Plan to highlight strengths and areas of support along with appropriate learning goals and strategies. The Toronto District School Board has an Autism Team that can provide support;

vii. A referral was made for a language assessment;

viii. Genetic Investigations were ordered;

ix. Trauma Supports/therapy. A referral was made to Women’s College Hospital Child and Family Psychiatry for trauma/attachment support. This is very important to the Child’s overall care going forward;

x. Social Skills Development;

xi. Constipation recommendations and constipation management;

xii. Paediatric Care. A referral to a pediatrician was made for constipation and eczema management; and

xiii. Follow up once more in six months to manage his progress.

[226] The Child was described as very smart, loving, caring and very intuitive about the feelings of others. He was also described as observant and charming. The Child would regularly ask the foster mother how she was feeling, especially after he had an emotionally challenging time.

[227] The Child knows his letters, numbers and colours and he can write all his letters, spell 20 words and spell his name. The Child is focused and driven. He also has a very good memory. Despite his autism diagnosis, he is very verbal. He imitates the foster mother’s speech.

[228] The Child thrives in a very structured routine. He is easily re-directed but requires constant re-direction. He has emotionally challenging times (tantrums) over 50 times per day, which can be triggered by any little thing. The Child will hit people and will knock things over.

[229] The Child engages relatively normally with the foster mother’s biological children.

[230] The Child benefits from knowing exactly how much time is required before a transition will occur and the Child is bright enough to understand the time. Foster mother gives the Child a lot of choices, for example, does he want his waffles in strips or in squares? Offering and honouring the Child’s choices seem to assist the Child in regulating his emotions.

[231] The Child needs a reason for what actions he is asked to take, the caregiver’s actions must be deliberate and honest. The Child cannot be tricked or manipulated into compliance with adult requests. You cannot say to the Child “you are getting into the bath now.” Rather, he benefits significantly with a countdown to comply.

[232] Various strategies are engaged to support the Child including visual reminders at school and a clock at home. The clock in the Child’s bedroom indicates the days of the week.

[233] The Child knows that Wednesday is his access day with his Father. The Child does not usually have a melt down when the Father misses his access, despite the Child’s frequency of melt downs the Child exhibits about other seemingly smaller disappointments.

[234] The Child also loves going to the store on Saturdays and Superstore is currently his favourite store.

[235] By January 12, 2024, there was improvement with the Child’s reactive anger as he understood expectations. He was hitting less often and using various strategies that the foster mother had tried, including a thinking chair. The Child requires a lot of choices, encouragement and support.

[236] The Child’s daycare was assisting him as he struggled with transitions by using visual cue cards and giving plenty of warning to help him move on to the next activity. The Child was no longer crying at drop offs but needed lots of reassurance when saying goodbye. The Child continued to wake three times per night and call out to his foster mother.

[237] The foster mother described her use of constant and various strategies to calm the Child, including reminding him to breathe, counting, hugging, singing, reading a book, and comforting him in her arms, which sometimes worked and sometimes did not.

[238] On August 7, 2024, the Child had his first appointment at Women’s College Hospital for his trauma and attachment supports.

[239] The Child started junior kindergarten in September 2024, and transitioned well to junior kindergarten with the supports, preparation, and careful planning of his foster mother. The Child was enrolled in a school readiness program that the foster mother researched and found.

[240] When the Child is dropped off at school he likes to be carried. He will say “carrry me mommy mommy carry me.” The Child is aware of who are his biological parents but calls his foster mother either mommy or by her first name.

[241] The Child doesn’t talk about his biological parents. When he talks about “mom” and “dad” with the foster mother, he is referring to his foster parents. The Child does express that he loves his biological father.

[242] The Child has difficulty separating. He likes the same goodbye routine before he can comfortably start his morning at school. His junior kindergarten class has over 30 students. The Child has just started engaging more with his peers and he has just started initiating “good morning” with his peers, but eye contact is not there yet. He has three friends in his class with whom he attended his school readiness program. He mostly engages in parallel play with his peers, but he has started playing with dolls and role playing with the youngest child in the foster home, which is a new development.

[243] The Child knows the school principal, because they met during the Child’s school readiness program. The Child enjoys visiting the turtle and fish in the principal’s office.

[244] Since the time the Child previously, in the foster mother’s care, the foster mother had another biological child, and is no longer in a position to adopt the Child, but will continue to care for the Child until he has a permanent placement, and will support the Child and caregiver, to a reasonable degree, in his new placement.

Paternal Grandmother

[245] The paternal grandmother is 68 years old and was born in Guyana, South America and arrived in Canada almost 30 years ago.

[246] The paternal grandmother testified that she has the equivalent of a Canadian grade three education. She can read but not “big words” and depends on others to assist her. Her adult granddaughter, or friends, read documents to her.

[247] The paternal grandmother has never worked outside the home. She volunteers within her community at the community food bank on Tuesdays and the community market on Fridays, which commitments are important to her. The paternal grandmother is a long-time resident in her community and is well known and liked within her community.

[248] The paternal grandmother resides in a two-bedroom apartment with her granddaughter, who is pregnant, due in January 2025, and her six-year-old great grandson. The paternal grandmother assists in caring for her great grandson and plans to assist with her new great grandchild daily.

[249] The paternal grandmother also cares for her own mother who is 82 and lives on her own. The paternal grandmother cooks food for her mother on a very regular basis because her mother is not well, and she cannot use the stove. The paternal grandmother stated, in cross-examination, that when she is “too tired” to take the food to her mother herself, the Father will come and deliver it to her mother.

[250] When the paternal grandmother is “not feeling well” she asks the Father to come another day. The paternal grandmother also visits her mother, sometimes sleeping over, and manages “to do things” for her mother.

[251] The paternal grandmother takes medication “for her thyroid.” Further information about the paternal grandmother’s health was unavailable.

[252] The Society was unable to obtain a signed consent from the paternal grandmother to obtain information from Dr. Hussan who had been her doctor for over 25 years. Instead, the paternal grandmother would only sign a consent in respect of Dr. Krisanne Mendelssohn, who is a new doctor the paternal grandmother has seen only since April 2024.

[253] The paternal grandmother had very limited insight into the demands of meeting the Child’s basic needs, or his significant special needs and what would be required from a sole primary caregiver. The paternal grandmother did not have a plan that could sufficiently, even minimally, meet those needs.

[254] The paternal grandmother had almost no insight into the needs of a child diagnosed with autism, or any prior knowledge about autism, and what little insight she had, suggested she would be almost completely unequipped to reasonably, or even minimally, meet the Child’s special needs.

[255] The paternal grandmother consistently blamed the Mother for all the problems between the parents.

[256] The paternal grandmother repeatedly insisted that she would not permit the Mother access to the Child and would call the police if the Mother attended and that members of her community would look out for the Mother attending her building, which suggested that she viewed this as the concern that she would need to address.

[257] The paternal grandmother offered few specifics about the plan for the child’s care and extensive needs, other than the Child could attend the local school with her great grandson, which is a five-minute walk, and the Child can become a patient of her current doctor.

[258] The paternal grandmother reiterated that she knows she will “have help from people that live in the same building”.

[259] The paternal grandmother was not even aware of what was available for the Child to do in her community. She suggested he could play basketball and “now” she will find out, and that the community has “many things”, and she will “try her best.” She shared that she really loves the Child and “likes the company” and will “keep him company.”

[260] In her examination in chief, the paternal grandmother admitted that she breached the previous supervision orders, and she stated this was because she did not understand the terms. She stated her own children were not involved with the children’s aid society and that this was her “first time involved with the CAS”, and in Guyana the children’s aid society did not exist.

[261] Yet, she admitted, in cross-examination, that she knew the Father wasn’t supposed to be in her home without the Society’s worker being present.

[262] Additionally, the kinship worker’s evidence was that the paternal grandmother was involved with the Society previously with respect to her care of her now adult granddaughter. In fact, she was involved with the Society previously for over two years in May 2013 to July 2015. This involvement was reviewed and discussed with the paternal grandmother as recently as July 24, 2024. This involvement with the Society predated that Society’s involvement with her in April and May 2021.

[263] Another example of the paternal grandmother’s evidence being self-serving and not credible occurred in cross-examination, when the paternal grandmother indicated that in May 2023 when the Father was arrested she did not know where the Child was so she called her worker and no one answered so she called the next worker. However, in late October 2023, when the Father brought the Child to her and she was asked why she did not contact the Society she first indicated that was because she did not know the Society’s telephone number, despite calling two previous workers only a few months before, and then that she never thought to call the Society.

[264] In cross-examination, the paternal grandmother denied leaving the Child in the Father’s care unsupervised on May 4, 2021 when she attended at the community food bank, and instead stated that she took the Child (aged 9 months) with her to the community food bank. The court did not find this credible, as it was inconsistent with the SAF, and practically speaking it would have been very difficult for a caregiver, especially an older caregiver, to provide the near constant level of care an eight-mouth old child requires, while attending to food bank responsibilities, even if she were permitted to bring such a young child to her volunteer work. The paternal grandmother appeared to be creating a version of events that were more favourable to the return of the Child to her care.

[265] The paternal grandmother admitted in cross-examination that she will care for the Child “until he is big” and that was age “12” and then he can decide that he will live with his Father. Until the Child makes that decision, she “will keep him.”

[266] The paternal grandmother admitted that Dr. Lynch’s report was brought to her, read to her and that she was provided a copy.

[267] The paternal grandmother stated that the Child does not have a bad temper with her and never screams at her, which is also contradicted by the evidence of the Access Worker.

[268] There was no evidence the paternal grandmother has taken any steps, outside of the support from the Society, to learn or understand the needs of a child diagnosed with autism.

[269] The paternal grandmother had no insight into the Child’s autism diagnosis or the incredible level of support the Child will require on a constant basis. The paternal grandmother indicated that she “will try her best to take care of him.”

Services Provided to the Family

[270] In determining what disposition order to make under subsection 101(1) or section 102(1) of the Act, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention subsection 101(2) of the Act.

[271] The Society has provided the family and the Child with substantial services and ongoing supports. The Society has assigned numerous workers to support the family and the Child, to make referrals for relevant services, to provide supportive access, and to assess kinship plans.

[272] The Society has again and again considered and assessed family placements, all of which failed to adequately protect the Child or support his well-being and permanency.

Best Interests Considerations and Assessment of Plans of Care

[273] The Society’s plan of care, dated January 26, 2024, indicates that an order for extended society care is sought. The Child will continue to receive services including an appropriate placement search. Permanency will be achieved through adoption. Finally, the Society will continue to support the Child’s access with the parents.

The Parents’ Plan

[274] The Parent’s plan to have the Child placed with the paternal grandmother has the following strengths:

a. It would permit the Child to remain with his biological family and to remain connected to his Guyanese cultural heritage.

b. The Child has very recently started having access visits with the Paternal Grandmother and those have been enjoyable for the Child with notable exceptions.

c. The paternal grandmother gave heartfelt testimony about wanting to care for the Child.

d. The paternal grandmother is very devoted to her son (the Father), to a lesser extent the Child, as well as her extended family.

e. The paternal grandmother has a good relationship with the society workers, as do each of the parents with notable exceptions.

f. The paternal grandmother is able to meet some of the Child’s basic needs during the Child’s visits.

g. The paternal grandmother stated that her doctor will be able to add the Child as a patient.

h. The paternal grandmother stated that he Child could be registered for school where her great grandson attends.

i. The paternal grandmother would adjust her volunteer hours to be available for pick up and drop off at school.

j. The paternal grandmother stated that she will be vigilant about keeping the Mother from having unapproved or unsupervised visits with the Child.

k. The paternal grandmother has a residence to accommodate the Child.

l. The paternal grandmother is willing to work with the Society.

Reasons for Disposition

[275] In determining the appropriate disposition in this case, having regard to the Child’s best interests, I make the following findings:

a. The Society made extensive efforts to place the Child with family, well after the time limits were fully exhausted. In hindsight these failed family plans were clearly detrimental to the Child and exposed him to serious ongoing intimate partner violence and caused him immeasurable emotional harm and even physical harm. It appeared that the Society at times lost sight of their primary mandate.

b. The Society’s plan of care, which provides for the Child being placed in extended society care, will best meet the Child’s physical, mental, and emotional needs, as well as his special needs as a result of his autism diagnosis and trauma and attachment struggles.

c. There is no other order that will adequately protect the Child and be in his best interests.

d. The parents have not meaningfully addressed the protection concerns. Periods of incarceration appear to be the only times they stay away from one another.

e. The court found the Mother’s testimony to be reflective at times and to demonstrate insight, albeit limited, about the impact of the protection issues on the Child. The Mother presented as a young person who has experienced significant struggles and trauma, but with the intention to work on herself and improve her circumstances. She readily admitted that she could not be certain her relationship with the Father was truly over, despite the lengthy history of serious physical intimate partner violence. The Mother minimized the nature of the violence. Yet, she expressed sincere sadness and regret about the Child’s situation.

f. The Father deflected almost all responsibility on to the Mother for the intimate partner violence, and minimized the impact of his conduct and his choices. He showed no insight into the impact on the Child.

g. The Father did not demonstrate any knowledge about Child’s actual significant needs, or the ability of the paternal grandmother or himself to meet the Child’s needs on a long-term sustained basis. His affidavit refers to the Child as being diagnosed with ADHD, when the Child has an autism diagnosis. He did not correct any portion of his affidavit when he was invited by his counsel to do so.

h. The paternal grandmother is the sole caregiver proposed by each of the parents, without any other support people in place to care for the Child. This is a completely deficient plan to meet the Child’s needs even under a supervision order.

i. The paternal grandmother has not been able to demonstrate that she has the parenting ability or capacity to care for this special needs Child on a day-to-day unsupervised basis in the short or long term.

ii. The Child’s contact with the paternal grandmother is nearly entirely supported and supervised. A transition to the paternal grandmother, even if it could be successful, about which the court has grave concerns, would take several months of support and teaching while the Child remained in care. This is time the court no longer has jurisdiction to order.

iii. The parents’ current “plan” is inadequate, falls below the basic minimum standards, and would almost certainly result in the Child suffering further harm and neglect of his basic and special needs, and is not in the Child’s best interests.

iv. The plan with the paternal grandmother would permit the Child to continue to be potentially exposed to ongoing intimate partner violence, as the paternal grandmother does not understand the risks of the Child being with the Father and the Father’s role in the chronically violent relationship between the parents.

v. The paternal grandmother is so aligned with and supportive of the Father that she fails to demonstrate any insight into the risks that he poses to the Child because of his actions.

vi. Currently, the paternal grandmother has semi/fully supervised access with the Child for only a few weeks and continues to require extensive support and intervention. Notwithstanding those supports and interventions the Child became so seriously emotionally dysregulated that he was at risk of harm during his volunteer drive back to the foster home.

vii. The paternal grandmother has not developed a plan to meet the Child’s special needs and she demonstrates no understanding of the Child’s special needs. The paternal grandmother has not even researched any activities for the Child within her community, or back up childcare when the paternal grandmother is not feeling well.

viii. The paternal grandmother is not a long-term permanency plan. At best, the paternal grandmother indicated that she would parent the Child until he was old enough (which she suggested would be 12 years old) to articulate that he wanted to live with his Father and then the Child would live with the Father.

ix. Good intentions are not enough. This cannot be an experiment with a child’s life. There needs to be some demonstrated basis for determining that the parents’ plan could be in the Child’s best interest.

x. Counsel for the Father submitted that the paternal grandmother did not understand the terms of the supervision orders that were in place in February 26, 2021 and April 30, 2021, and that is why she breached both orders. However, even if the paternal grandmother did not understand she was breaching the court orders, the paternal grandmother was aware that the Child was hospitalized at 8 months of age after the Child was left in the Father’s sole care and fell off the bed, as the paternal grandmother visited the Child at SickKids Hospital. Yet, understanding the supervision order terms or not, she still made decisions to leave the Child in the Father’s care only a few days later, which suggests she lacks understanding about the risks the Father poses to the Child and the ability to act protectively and in the Child’s best interests. The paternal grandmother showed no better understanding at trial. Even if the paternal grandmother were able to follow basic supervision terms, the paternal grandmother’s caregiving abilities still fall far below what this Child requires in the short and long term.

xi. Counsel for the Father submitted that an order for extended society care should not be made when a family plan with community supports is available for the Child. However, the paternal grandmother does not have a community of support behind her. In fact, what little support she does have in the home, namely her adult granddaughter, has declined to plan jointly for the Child with the paternal grandmother or to support the Child’s placement with the Paternal Grandmother in anyway.

xii. Other than the paternal grandmother, not a single member of the Child’s extended family or any community member attended the trial, or provided an affidavit, or even a letter setting out the support they would be providing. The court was not provided with any information about available community supports, not even such basic information as the names of potential support people or any information at all about what exactly any extended family or community members who provide in terms of concrete supports.

xiii. Placing a high needs autistic four-year-old Child in the paternal grandmother’s sole care is not in the Child’s best interests. There is a lack of capacity, ability, and support to make such a plan viable.

xiv. Whatever hope this Child has for a positive future, after years of exposure to intimate partner violence, inadequate parenting, and multiple placements, may be met through extended society care, and permanency with a stable and highly attentive adoptive family, but it certainly cannot be met through the parents’ plan.

i. There are no less disruptive alternatives that would adequately protect the Child.

j. As set out above, the evidence is replete with the failed attempts at supervision orders with the Father and the extended family. It is not in the Child’s best interests to make a further interim care order (nor is that an option for the Child given his age).

k. It is not in the Child’s best interests to experiment any longer and attempt a supervision order.

l. There are no assessed, approved, or viable family or community placements in this case for the court to consider.

m. The plan proposed by the society recognizes the importance of permanence and stability for the Child. The society’s plan will better allow for continuity of care for the Child, and a long-term, stable plan. The court anticipates the Child will remain with his foster mother until an adoptive home is found.

n. The Society’s plan better addresses the many risks that justified the finding that the child remains in need of protection.

E. ACCESS

Legal Considerations

[276] Section 104 of the CYFSA sets out the test respecting access orders, and provides as follows:

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.

[277] Subsection 105(4) provides that where a court makes an order that a child be placed in extended society care, any order for access is terminated.

[278] Under subsection 105(5), a court shall not make or vary an access order under section 104 with respect to a child in extended society care unless the court is satisfied that the order or variation would be in the child’s best interests.

[279] Subsection 105(6) sets out additional considerations for the best interests test (set out in section 74(3), above) in respect of access as follows:

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.

(b) If the court considers it relevant, whether the access ordered will impair the child’s future opportunities for adoption.

[280] Pursuant to subsection 105 (6) of the CYFSA, the court must consider whether access would impair a child’s future opportunities for adoption: Children’s Aid Society of Toronto v. J.G., 2019 ONCJ 333 at paragraph 94, affirmed in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415.

[281] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the Court of Appeal for Ontario held that with the changes to the child protection legislation, the onus no longer falls on the person requesting access to demonstrate that the relationship is meaningful and beneficial to the child and will in no way impair adoption opportunities. Rather, the court stated at paragraph 49:

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 that assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. 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 adoption prospects if it is in her overall best interests. And, as shown in section 74(3) of the CYFSA, the best interests analysis is comprehensive.

[282] The Court of Appeal for Ontario set out, in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, the following regarding access orders following an order for extended society care:

a. Case law preceding the implementation of the CYFSA that provided a rigid definition of beneficial and meaningful is no longer applicable. This includes the requirement that access must be “significantly advantageous” for the child.

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 subsection 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.

d. There is simply nothing in the plain wording of the CYFSA to suggest that access should be decided without reference to the future.

e. The court can consider the future benefits to a child of having their medical and family history more readily available if an access order is made.

f. 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.

g. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.

h. 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.

[283] Supervised access is clearly indicated when parenting judgment is impaired, there is a history of violence and other harmful behaviour directed toward the primary caregiver and/or evidence of abuse or neglect of the child: C.A.S. v. C.F., 2020 ONSC 3755 at paragraph 34 as cited in Children’s Aid Society of Toronto v. R.R., 2024 ONCJ 233 at paragraph 198.

[284] In Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, the court set out the following attributes of persons who may impair a child’s future opportunities for adoption:

[166] The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

[167] The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child’s sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child’s life.

[168] The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

[169] The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child’s life and are likely to engage in openness litigation.

[285] A fifth attribute was added by Justice Zisman in Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631, being: a person with a mental health condition, substance abuse issues, transience or chaotic lifestyle. Persons with this background may be difficult to deal with and their personal issues may result in there being difficulty in making arrangements with them for contact and as a result dissuade adoptive parents.

[286] The phrase “impair the child’s future opportunity for adoption” means more than just impairing a child’s opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the CYFSA set out in subsection 1(1) – to promote the best interests, protection and well-being of children: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717; Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489; Children’s Aid Society of Toronto v. J.A.L., 2024 ONCJ 146, as cited in Children’s Aid Society of Toronto v. R.R., 2024 ONCJ 233 at paragraph 88.

[287] There is no gap in the CYFSA that permits a court to be silent as to access to a child who is placed in extended society care: Children’s Aid Society of Toronto v. J.F., 2019 ONCJ 248 and Children's Aid Society of Toronto v. D.P. [2005] O.J. No. 930 (SCJ).

[288] 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: Children’s Aid Society of Ottawa v. J.B., 2017 ONSC 1194.

[289] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters, or limited annual visits won’t, and will be ordered: Children’s Aid Society of Toronto v. C.J., 2014 ONCJ 221; Catholic Children’s Aid Society of Toronto v. S.B., 2013 ONSC 7087; Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489.

[290] Maintaining a connection and knowing your roots is significant in determining the best interests of a child: Catholic Children’s Aid Society v. M.M., [2012] O.J. No. 3240 (OCJ).

[291] The court’s challenge is to make an access order that preserves the positive factors of the Child’s relationship with the parents while not obstructing and delaying his opportunity to have a stable, secure and permanent home, or exposing him to chaotic visits or emotionally difficult transitions. The Child’s significant struggles with transitions, and to avoid any disappointment when his parents do not attend visits is a factor that the court must consider for this Child.

Access Analysis

Access by the Mother

[292] The court finds that limited access to the Mother, despite not having any visits with the Child since April 24, 2024, is in the Child’s best interests for the following reasons:

a. The Child has a connection with the Mother and knows who she is.

b. It is important to the Child to know that the Mother loves him and has not abandoned him.

c. The Mother is a connection to the Child’s maternal family. She is one-half of his identity.

d. The Mother is a connection to the Child’s Black Haitian cultural and heritage.

e. The Child may have access to relevant medical information and his family history if the Child maintains some contact with each parent.

[293] The access order sought by the Society is ordered, except that the minimum number of visits shall be set at two per year, and all visits shall be supervised at the Society’s office.

[294] Additionally, the Mother shall be provided with a photo of the Child and a short update about his well-being by email annually.

Access by the Father

[295] The court finds that some access to the Father is in the Child’s best interests for the following reasons:

a. The relationship with the Father is beneficial and meaningful for the Child.

b. The Child expresses wanting to see his Father.

c. The Child has a long and established relationship with the Father. The court considered these emotional ties and the potential emotional risk of harm to the Child of eliminating the Father from his life. It is important to the Child to know that the Father loves him and has not abandoned him.

d. The Father has consistently attended his visits, despite occasional periods when the Father has been unavailable due to his months of incarceration.

e. There are positive features of the Father’s access with the Child.

f. The Father is a connection to the Child’s paternal family. He is one-half of his identity.

g. The Father is a connection to the Child’s Guyanese cultural and linguistic heritage.

h. The Child will have better access to relevant medical information and his family history if the Child maintains some contact with each parent.

[296] The access order sought by the Society is ordered, except that the minimum number of visits shall be set at once per month, and all visits shall be supervised at the Society’s office.

[297] Additionally, the Father shall be provided with a photo of the Child and a short update about his well-being by email annually.

Access by the Paternal grandmother

[298] The Child does not have a lengthy constant relationship with the paternal grandmother, who only recently started access visits with him a month before trial.

[299] The paternal grandmother may visit the Child during the Father’s access visits.

[300] The court declines to make an order for access by the paternal grandmother to the Child.

Access Holder/Recipient

[301] Subsection 105 (7) of the CYFSA recognizes the importance of the distinction between who is an access holder and who is an access recipient, by requiring such identification when making an access order to a child who is placed in extended society care.

105 (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.105

[302] The distinction between an access holder and an access recipient is an important consideration because only an access holder has the right to bring an openness application, if served with a Notice of Intent to place a child for adoption. In contrast, an access recipient only has the right to be given notice of the children’s aid society’s Notice of Intent to place a child for adoption.

[303] The best interests consideration of impairment of the opportunity to be adopted takes on heightened importance when assessing whether a person should be made an access holder. The court might only order the person to be an access recipient if there is a concern that they might frustrate, delay or undermine the adoption process: Children’s Aid Society of Toronto v. J.A.L., 2024 ONCJ 146 at paragraph 123 citing, Children's Aid Society of Toronto v. E.U., 2014 ONCJ 299, [2014] O.J. No. 2939 (OCJ); Catholic Children’s Aid Society of Toronto v. M.C., 2023 ONCJ 527; Catholic Children’s Aid Society of Toronto v. K.G., 2021 ONCJ 621.

[304] The Child must be given the best possible chance of permanency and stability by way of adoption.

[305] I find that making the parents access holders may impair the Child’s chances at adoption because of their aggression, anger, lack of impulse control, their criminal histories, their violent physical crimes, and their inability to follow court orders. All of these factors may dissuade prospective adoptive families where they would need to continue a relationship with the parents that has shown to be volatile with one another and with Society workers, particularly when access time is denied.

F. CONCLUSIONS AND ORDERS

[306] A final order shall go on the following terms:

a. The Child shall be placed in extended society care pursuant to subsection 116(1)(c) of the CYFSA until the order is terminated under section 116 or expired under section 123.

b. The Child shall have access to the Father supervised at the Society’s office a minimum of once per month, with the time and duration of the visits at the Society’s discretion taking into consideration the Child’s needs and his best interests. The Paternal Grandmother may attend during these times.

c. The Child shall have access to the Mother supervised at the Society’s office a minimum of twice per year, with the time and duration of the visits at the Society’s discretion taking into consideration the Child’s needs and his best interests.

d. The Child shall be the access holder and the Father and Mother shall be the access recipients.

Released: October 8, 2024

Justice J. Harris