Children's Aid Society of Simcoe County v. T.W., 2012 ONSC 3635

COURT FILE NO.: FC 10-696

DATE: 20120620

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CHILDREN’S AID SOCIETY OF SIMCOE COUNTY

Applicant

– and –

T.W.

Respondent

D. Friend and J. Wallace, for the Applicant

M. Prost, for the Respondent

HEARD: May 28, 29, 30, 31, June 1, 4, 5, 6 and 7, 2012

HEALEY J.

WARNING

This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8)

76(11)

85(3)

PROHIBITION: IDENTIFYING CHILDREN – 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.

PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

OFFENCES – A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.

[1] This proceeding involves two applications brought pursuant to section 37 of the Child and Family Services Act, R.S.O., c. C.11 (the “Act”) with respect to two siblings:

(1) A.W., born [...], 2010, and;

(2) L.L.-W., born [...], 2011.

[2] The Children’s Aid Society of Simcoe County (the “Society”) seeks an order for Crown wardship with no access to the biological parents for the purpose of adoption.

[3] T.W. (hereafter “the Respondent”), now 34 years of age, is their mother.

[4] The claim made by the Society in both applications is that there is a risk, pursuant to sub-clauses 37(2)(b)(i) and 37(2)(b)(ii) of the Act, that A.W. and L.L.-W. are likely to suffer physical harm inflicted by the Respondent as a result of her failure to care for, provide for, supervise or protect the children adequately, or a pattern of neglect in doing so.

[5] The main concern of the Society is the Respondent’s history of drug abuse. She admits a dependency on crack cocaine. Secondary concerns are the Respondent’s transiency, and domestic violence.

[6] The children have different fathers. Neither father has filed a Plan of Care for his child or otherwise responded to the Society’s applications. Neither participated in this trial.

[7] The Respondent has another child, R.D. born [...], 1996, who was apprehended by the Children’s Aid Society of Toronto four years ago, at age 11. The Respondent has never re-gained custody of R.D., although he has been residing with her on a regular basis for the past few months.

Statutory Findings Pursuant to s. 47(2) of the Act

[8] A.W. is now 2 years old and L.L.-W. is approximately 8 ½ months old.

[9] Each child was apprehended from the Respondent at birth at Georgian Bay General Hospital. Prior to this intervention, the Respondent resided in the Town of Penetanguishene in the County of Simcoe.

[10] The biological father of A.W. is the Respondent P.B., although his name does not appear on the Statement of Live Birth. P.B. has had limited contact with A.W., but his contact continues up to the present.

[11] The biological father of L.L.-W. is the Respondent P.L. Jr. He has never met L.L.-W.

[12] The children’s religion is not Catholic, and the Respondent advised the Society that she did not wish to have the children raised in the Catholic faith.

[13] The Respondent is registered as a person with Metis heritage.

Temporary Care Order

[14] A temporary care and custody hearing was held on June 15, 2010, following the apprehension of A.W.. On that date an order was made by Wood J. granting temporary care and custody to the Society and providing the Respondent with five hours of access to A.W. per week.

[15] The order went on to provide that if the Respondent produced clean regular and random drug screens for two months, access was to be increased to eight hours per week, in blocks of three or four hours, at the Respondent's home. The Respondent was granted leave to vary that order after a period of three months had passed.

[16] Following L.L.-W.’s birth , access was increased to 6 hours per week.

[17] The potential access outlined by Wood J.’s order has never occurred, as the Respondent has never met the pre-conditions.

The Respondent’s Plan of Care

[18] The Respondent’s Answers and Plans of Care for the two children, both signed on January 24, 2012, set out her intentions as follows:

1. That she will continue to reside at a three bedroom home in Midland, Ontario, rented through subsidized housing;

2. That the home will be occupied only by her and her three children, with R.D. living there every second week pursuant to an arrangement with his father;

3. That she will supplement her present funding from Ontario Works by employment income, which she plans to look for on a part-time basis after being satisfied that the children are settled in her home;

4. That she will continue to have regular contact with and support from her extended family in the Midland area, which includes her mother and her mother’s partner, an aunt and uncle, and several cousins of various ages;

5. That she will continue to maintain regular communication with her two addiction counsellors through the Elizabeth Fry Society and the Umbrella Program, offered by the Canadian Mental Health Association; and

6. That she will continue to co-operate with the Society in ongoing supervision of her care of the children, including both random and scheduled visits and drug testing.

[19] It is worth noting that the Respondent filed an earlier Plan of Care dated June 7, 2010, two weeks after A.W.’s apprehension, containing similar intentions. At that time she stated that she would continue to live in rental accommodation in Penetanguishene, that she would begin looking for employment to support herself within the next year, and that her mother would become her babysitter when she did so. She also noted that she had recently completed an eight week drug rehabilitation program through the Elizabeth Fry Society of Simcoe County.

Relevant Statutory Provisions

[20] The Act provides at subsection 1(1) that its paramount purpose is to promote the best interests, protection and well-being of children.

[21] The additional purposes of the Act, so long as they are consistent with the best interests, protection and well-being of children are outlined at subsection 1(2) as follows:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children’s services should be provided in a manner that,

i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1.

[22] Once a court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, it must be guided by the provisions of section 57 of the Act, which set out the available options for the court. Such orders, which are made at the disposition stage of the proceeding, are to be made in the child’s best interests. The options outlined in section 57(1) are:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1); 2006, c. 5, s. 13 (1-3).

[23] Undoubtedly in recognition of the purposes of the Act, subsection 57(3) directs that the court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention, unless the court is satisfied that alternatives that are less disruptive to the child would be inadequate to protect the child.

[24] In determining the most suitable order to be made under section 57, the court is directed to subsection 37(3) of the Act, which sets out an exhaustive list of factors that may be relevant in the circumstances of the case, and the court is required to consider those factors in making a determination in a child's best interest.

[25] It is also permissible, pursuant to section 50, to consider a person’s past conduct toward any child within the context of a protection proceeding.

[26] Relevant to this case in particular are subsections 70(1) and (2) of the Act, which provide:

Time limit

70.(1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

Note: For the purposes of subsection (1), as re-enacted by the Statutes of Ontario, 1999, chapter 2, subsection 21 (1), no period that a child was in a society’s care and custody before March 31, 2000 shall be counted. See: 1999, c. 2, s. 37 (3).

Note: Despite the proclamation of the Statutes of Ontario, 1999, chapter 2, subsection 21 (1), subsection (1) of this section, as it read before March 31, 2000, shall continue to apply with respect to a child who is in the care and custody of a society on March 31, 2000 so long as that child continues to be in the care and custody of a society. See: 1999, c. 2, ss. 37 (4), 38.

Same

(2) In calculating the period referred to in subsection (1), time during which a child has been in a society’s care and custody under,

(a) an agreement made under subsection 29 (1) or 30 (1) (temporary care or special needs agreement); or

(b) a temporary order made under clause 51 (2) (d),

shall be counted.

Note: For the purposes of subsection (2), as re-enacted by the Statutes of Ontario, 1999, chapter 2, subsection 21 (1), no period that a child was in a society’s care and custody before March 31, 2000 shall be counted. See: 1999, c. 2, s. 37 (3).

Note: Despite the proclamation of the Statutes of Ontario, 1999, chapter 2, subsection 21 (1), subsection (2) of this section, as it read before March 31, 2000, shall continue to apply with respect to a child who is in the care and custody of a society on March 31, 2000 so long as that child continues to be in the care and custody of a society. See: 1999, c. 2, ss. 37 (4), 38.

[27] Although subsection 70(4) permits an extension for a further six months, subject to the limitations set out in subsection 57(1), it cannot be resorted to in this case. A.W. has now been in the care of the Society for over 24 months. L.L.-W.’s Society wardship is capable of being extended if it would be in her best interests.

[28] As the Respondent’s counsel fairly characterized it, the decision in this case is between Crown wardship or returning the children to the Respondent under a supervision order.

Evidence of Substance Abuse[^1]

(i) Pre-Pregnancy

[29] The Respondent testified that her introduction to drugs began in August or September of 2007, when she began to date a man who she came to learn was a drug trafficker. The Respondent described this as a time of experimentation with drugs. She estimated that she would use cocaine, always smoking it within a marijuana cigarette, approximately every week or two. During the period leading up to February 2008, the Children’s Aid Society of Toronto came to her home on three different occasions to investigate reports that were non-drug related, according to her evidence. However, on the fourth occasion the Respondent admitted that she was experimenting with drugs and told the child welfare worker that she wanted help with rehabilitation. R.D. was not apprehended on that occasion, but on a subsequent date, February 27, 2008, when a friend drove R.D. to the Toronto Society’s office, acting under what the Respondent states was an erroneous assumption that she had relapsed.

[30] After R.D.’s apprehension, the Respondent quickly spiralled downward and “fell hard into the crack world”; she cited the apprehension as the primary cause. On the night of her son’s apprehension she sought out crack cocaine and smoked it through a pipe for the first time. As she gained knowledge of more drugs and met more dealers, her drug use expanded to include oxycontin, both orally and injected, and injection of cocaine through needles. She continued with her use of marijuana. She described that her drug use was at a point where she was unable to get out of bed unless she was under the influence of a drug. As a result, she did not participate in the court proceeding that ultimately resulted in a finding that R.D. was in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(b)(ii) of the Act. Pursuant to the same order, dated February 11, 2009, R.D. was placed in the care and custody of his stepmother under a supervision order for a period of six months.

[31] In December 2009 the Respondent weaned herself from the use of oxycontin but continued with crack cocaine.

[32] As is often the case, the Respondent resorted to theft to support her habit. On March 1, 2010, she was found guilty of theft and received an 18-month term of probation. A condition of her probation was that she attend for such assessment and counselling for substance abuse as her probation officer directed.

[33] In the meantime, in December 2009, the Respondent discovered that she was pregnant with A.W.. She described this as a "gift from God," and a sign for her to straighten out her life. During her testimony she described that she felt that she would finally have a chance to "get her act together.” Accordingly, she sent out a plea for help to her mother, who resides in the Midland area, who assisted her to obtain and move into an apartment in Penetanguishene in early March 2010. She testified that she wanted to be around her family, to get away from her friends and the drug scene in Toronto, and that this was her way of finding her way back into R.D.'s life.

(ii) During Pregnancy

[34] When the Respondent first had contact with the Society in Midland, she spoke with Anthony Sara, the child and family protection worker with primary carriage of this case. At that time she admitted that she had been addicted to drugs. However, she then said that she was now clean and had stopped using illegal drugs in January, 2010. At that time she would have been into her second trimester of pregnancy with A.W.. She told him that she had been addicted to crack and cocaine.

[35] Prior to the birth of A.W. the Respondent voluntarily submitted to drug analysis done at the request of her obstetrician/gynaecologist, Dr. Patrick O’Halloran. Dr. O’Halloran testified that when he first interviewed the Respondent on March 29, 2010, she advised him that she was using alcohol and street drugs, drinking beer two times per week, and that she was associated with the Society. These tests were conducted on urine samples collected on March 30, 2010, and April 23, 2010, and specifically tested for drugs of abuse. Both samples were negative.

[36] Two witnesses gave expert evidence in this proceeding with respect to the interpretation of hair, meconium and urine testing. The first was Dr. Craig Karpilow, who is currently the Medical Director for the Occupational Medicine Division of Workplace Medical Corp., a clinic which produces various aspects of occupational medicine, including drug testing. As the Medical Director, it is part of Dr. Karpilow’s expertise to act as the medical review officer to check the quantitative levels measured by a testing laboratory, and the laboratory’s confirmed cut-off level of a drug, in order to confirm positivity or negativity of the sample tested. Workplace Medical Corp. was responsible for producing reports for five different hair samples as outlined below.

[37] Dr. Karpilow testified that cocaine is generally only detectable in urine up to 24 to 48 hours from the time of ingestion, but that this period of detectability varies with the amount of cocaine ingested. It was his evidence that urine testing is not routinely done to determine cocaine usage because of how quickly it leaves the blood stream.

[38] The other witness who was qualified to give expert evidence was Mr. Joey Gareri, who gave testimony with respect to drug analysis from samples of urine, meconium, hair strands and breastmilk. Mr. Gareri is the laboratory manager of the Motherisk Program, run by the Division of Clinical Pharmacology and Toxicology at the Hospital for Sick Children. Mr. Gareri has earned a Masters Degree in Clinical Pharmacology & Biomedical Toxicology from the University of Toronto and is presently working on his Doctorate in Pharmaceutical Science. His evidence complemented that of Dr. Karpilow’s with respect to urine testing, as he stated that the range of elimination of cocaine varies in people from a short range of 1 to 2 days to a longer range of up to 6 days, with the normal window of detectability being 3 to 4 days.

[39] Accordingly, as Mr. Gareri confirmed, the only conclusion that can be drawn from the urine tests is that no cocaine was used by the Respondent between March 25 to 30, 2010, or between April 18 to 23, 2010.

[40] A hair sample from the Respondent was taken on June 10, 2010, following A.W.’s birth. It returned with a positive reading for cocaine, benzoylecgonine, and marijuana metabolites. Dr. Karpilow testified that benzoylecgonine is a by-product of cocaine as it degrades in the body, and its presence is an indicator of significant amounts of cocaine in the human body. The specific readings were: cocaine (2363 pg/mg), benzoylecgonine (818 pg/mg), and marijuana metabolites (0.6 pg/mg)[^2]. Mr. Gareri was asked to comment on this result, which was not collected or tested at the Motherisk Clinic, and therefore he had no information as to the chain of custody of the sample or the length of hair tested, which would affect the time period for which the testing was being done. He testified that typically the test is conducted for a 90 day period, on a length of hair associated with typical growth for the same period. Mr. Gareri was able to say that the test establishes the use of cocaine and marijuana in the time preceding June 10, 2010. The physician whose signature appears on the test report was not called as a witness at this trial, however, the authenticity of the document was admitted by the Respondent, and more importantly, she admitted to use in or around the beginning of June 2010.

[41] Hair and meconium tests were performed by Motherisk on samples taken from A.W. on the date of his birth. Mr. Gareri was able to identify and speak to the reliability of these tests. The meconium test revealed a very high amount of cannabinoids from marijuana use, which Mr. Gareri stated was an amount found only in the top 5% of mothers tested who were known to have exposed their fetuses to cannabis in utero. A positive result was also received for cocaine and benzoylecgonine. The readings in respect of these two substances reveal that the Respondent had likely ingested cocaine in her last trimester of pregnancy, and probably within the last two weeks before delivery. Mr. Gareri was able to say this due to the fact that, typically, the level of benzoylecgonine found in meconium is higher than cocaine, because cocaine quickly crosses the placenta and metabolizes into its by-products. However, in the Respondent’s case the readings were higher for cocaine than benzoylecgonine. He described the cocaine reading as being in the upper mid-range in terms of quantity, right below the 75th percentile of all meconium tests performed in his lab.

[42] A.W.’s hair strand screen showed that the analytes of cocaine, benzoylecgonine and cannabinoids were all below the level of detection. Mr. Gareri explained that it is not an unusual result for cannabis to be a false negative, because cannabis incorporates poorly into hair. With respect to cocaine, he testified that the hair strand being negative suggests that use of that drug was not likely to be very high, could signal a single-use episode, and was probably isolated to the two weeks prior to delivery. The Respondent denied that that could be the case, as she was only able to admit to use during the period of March 4 to 8. There is some significance to these dates, as the Respondent had been released from jail on or about March 4, 2010, in relation to a charge of failing to appear at a court attendance connected to her theft charge referred to earlier, and she remained in Toronto until she was moved up to Penetanguishene by her mother on March 8, 2010.

[43] The evidence of the Respondent suggests that she was drug free from November 2010, as she advised Mr. Sara, until a relapse on the weekend of April 16/17, 2011. This is improbable for at least two reasons. First, she became involved with P.L. Jr. during this period, about whom more will be said later. Second, she had not yet entered a detoxification or rehabilitation program throughout the majority of this period; these interventions occurred after she had been accepted by the program in January or February 2011.

[44] L.L.-W. was a full-term pregnancy and therefore her conception date would have been sometime in January or February 2011. At the request of the Society, the Respondent submitted to hair strand screens from samples collected on June 30, July 28 and September 27, 2011 (collectively the “2011 samples”). All of the 2011 samples returned a positive reading for cocaine with results of 1279 pg/mg, 781 pg/mg and 1023 pg/mg, respectively. None of the 2011 samples produced a positive reading for benzoylecgonine.

[45] It was Mr. Gareri’s evidence that a positive benzoylecgonine reading is robust evidence of cocaine ingestion. In the absence of benzoylecgonine, it cannot be said that cocaine use is conclusively proven. Also, cocaine is always present in higher amounts in hair than is benzoylecgonine. If benzoylecgonine is not detected, as in the case of the three hair strand results of the Respondent from the 2011 samples, then the cocaine readings could indicate passive exposure, such as contact with cocaine residues or smoke. Alternatively, there have been numerous cases where there is no benzoylecgonine detected but the subject reports actual ingestion. It was his evidence that the level of readings obtained from the Respondent could indicate either passive exposure or actual use. The range of results was indicative of similar cocaine exposure in the period of mid-March to September 27, 2011.

[46] Similarly, Dr. Karpilow testified that when the cocaine level is not high, the metabolites such as benzoylecgonine are often not detectable. Once cocaine readings reach the higher numbers, the tests performed are better able to pick up benzoylecgonine. This indeed appears to be the case with the samples collected June 30 and September 27, 2011, as the Respondent admits to having smoked crack on April 16/17, over a period of about 10 hours, and then again in late August or early September, 2011.

[47] The sample taken on September 27, 2011, was the only one of the 2011 samples to be positive for marijuana. Mr. Gareri testified that this result indicates that the Respondent used marijuana in the time period between mid-June and mid-September 2011. He explained that marijuana does not easily permeate or incorporate into the hair follicle, and so any detection usually means frequent marijuana use, and that this poor incorporation could explain the negative cannaboid reading in samples taken in June and July.

[48] Dr. Karpilow also testified with respect to his interpretation of the 2011 samples, for which he was the medical review officer who signed the reports. For the sample collected on June 30, 2011, with a reading of 1279 pg/mg, it was his evidence that this result meant that the Respondent had a significantly elevated amount of cocaine in her system, and she had it for the three months prior to the date of the sample. He characterized the reading of 1279 pg/mg as a high level of cocaine, from which one can conclude that she took in large quantities of cocaine.

[49] The Respondent also admits to consuming one beer during each of the first and second trimesters of her pregnancy with L.L.-W., and an occasion on which she consumed two bottles of beer during the last trimester. She admits that she was arrested for public intoxication that day, August 11, 2011, and was taken into the jail, but denies that she was actually intoxicated and explained that the arresting officer engaged in overly intrusive conduct in coming into her home without a search warrant, and when she protested he took the first opportunity to charge her. On one occasion on October 4, 2011, a Society supervisor reported that she detected alcohol on the Respondent’s breath.

(iii) After the birth of L.L.-W.

[50] There are two further drug tests of significance, both provided by Workplace Medical Corp. under Dr. Karpilow’s signature. Both tested hair samples from the Respondent, the first collected on March 28, 2012, and the second on May 14, 2012 (collectively the “2012 samples”). The second test was undertaken by the Respondent at her own initiative, as she strongly disputes the results from the first test.

[51] The sample collected on March 28, 2012 was the highest to date, returning a reading for cocaine of 8600 pg/mg and for benzoylecgonine of 3489 pg/mg. The test was also positive for marijuana. Dr. Karpilow testified that the results were at very high levels for cocaine, benzoylecgonine, and marijuana, and proved that the Respondent had used these substances in significant amounts in the three months prior to the sample being taken.

[52] Mr. Gareri testified that the results of this sample provide clear evidence of cocaine use in the period spanning from mid-December 2011 to mid-March 2012, and the levels are consistent with frequent cocaine use over several months. He stated that this result was unlikely to be obtained from 1 or 2 “binges,” acknowledging that the word “binge” is a subjective term. He agreed that it was possible that this result could be from two episodes only, depending on the severity of use. The Respondent testified that she smoked 3 pieces or “rocks” of cocaine prior to Christmas 2011, and had another period of use on February 27, 2012. It was Mr. Gareri’s view that the episode in February would have to involve a “pretty heavy use” if only 3 rocks were used in the December episode. Accordingly, the test result would only substantiate the Respondent’s version of events if the second episode was severe.

[53] While the marijuana level was positive, Mr. Gareri was unable to say if this was a result of passive exposure, since the lab did not test for marijuana metabolites.

[54] A urine sample collected April 2, 2012, tested positive for cannabinoids, cocaine metabolite and opiates. This result is consistent with reported use, as the Respondent admitted to smoking crack cocaine on March 28, 2012. The opiate finding is an aberration from all previous tests, and I accept the evidence of the Respondent and P.L. Sr. that this result arose from his providing her with a single morphine pill to alleviate menstrual pain.

[55] The sample collected on May 14, 2012, gave a positive reading for both cocaine and benzoylecgonine, giving clear evidence of cocaine use within the period spanning from the beginning of February 2012 to the beginning of May 2012, as had been reported by the Respondent.

[56] Both Dr. Karpilow and Mr. Gareri testified that the results of these 2012 samples are confirmatory of active cocaine use.

Summary of expert’s conclusions regarding drug use

[57] Taking the results of the 2011 samples and the 2012 samples collectively, Dr. Karpilow stated that one could conclude that the Respondent is a chronic user of cocaine in medium to high levels and a user of marijuana in low to high levels. A chronic user is one who utilizes the drug several times per week or even daily, as cocaine does not stay in the system for long periods of time. The high reading of 8600 pg/mg could be indicative of increased frequency or an increased quantity being used, but in comparison to the 2011 samples, it suggests that the Respondent utilized a significantly greater amount of cocaine in the three month period prior to March 28, 2012.

[58] While both experts are extremely knowledgeable and accomplished in their fields, on the whole I preferred Mr. Gareri’s evidence to that of Dr. Karpilow’s where they conflict, as Dr. Karpilow did not alert the court to the fact that the 2011 samples, in the absence of benzoylecgonine positivity, could mean that the Respondent was simply exposed to cocaine. This ultimately turns out to be quite moot given that the Respondent admits to two occasions of active use within the totality of the time covered by the 2011 samples. Further, while Dr. Karpilow characterized the Respondent’s use as chronic and therefore occurring at least several times per week if not daily, this does not accord with the evidence as a whole, as well as Mr. Gareri’s testimony that daily use is unlikely, or the results of the tests would be much higher. Overall, however, the evidence of both experts is consistent and supportive of the other.

[59] Mr. Gareri’s evidence on the tests as a whole was summarized by him as follows: there is clear evidence that the Respondent used cocaine in the latter stages of her pregnancy with A.W., whereas the 2011 samples show evidence of lifestyle exposure to cocaine during her pregnancy with L.L.-W., but not clear evidence of use, notwithstanding the reported use. There is a further confirmed cocaine use in the six months following L.L.-W.’s birth, around the turn of the year and toward the middle of 2012. This could be as a result of either more frequent use, or could be a result of the quality and amount ingested.

[60] Where the Respondent’s testimony conflicts with that of Mr. Gareri or Dr. Karpilow, I accept their evidence as being the more reliable due to its objectivity.

[61] While the Respondent attempted to attack the veracity and reliability of the test results, there was nothing in the evidence heard by the court to lead to the conclusion that, on a balance of probabilities, the results could be inaccurate. First, the Respondent admits to use during each of the periods that is covered by all of the tests. Second, with respect to the readings found in the sample from March 28, 2012, which were the highest of all, the court heard evidence from which I make a finding that those readings, on the balance of probabilities, are reliable. The court heard testimony from the technician who collected the hair samples for five of the tests reviewed by the court, including the sample taken March 28, 2012. She testified as to the chain of custody and procedures taken to ensure that the sample is not contaminated. Dr. Karpilow testified that after this report was provided, the Society contacted Workplace Medical Corp. to inquire as to whether there could have been an error. He testified that his assistant called the lab in the United States, where the testing is done, to ask whether there were any abnormalities or contaminants. That lab re-checked its results and again found the levels to be high. Finally, Mr. Gareri testified that an error is unlikely; based on the drug being tested, there is an expectation of variability in use over time.

(iv) Additional Evidence of Ongoing Drug Use

[62] Linda Amos has been a family resource worker with the Society for 24 years, and has supervised most of the visits between the Respondent and her children. In an affidavit filed in evidence at this trial, Ms. Amos provided her evidence as to why she concluded that the mother has a substance abuse problem. These observations were made in addition to the information provided to her by both Mr. Sara and the Respondent herself, that the Respondent was struggling with a drug addiction. Under cross-examination she admitted that she was not qualified to draw the conclusion that the Respondent was under the influence of a drug, but rather could only give her observations of appearance and behaviour.

[63] These observations included noting that the Respondent's eyes were sometimes glazed, her pupils tiny, and that during some visits she wore sunglasses and a hat with a long brim. She often avoided making eye contact and positioned herself so that her back was toward Ms. Amos. At times she was either lethargic, had difficulty moving around and talking, or alternatively was more talkative and giddy. On August 26, 2010, Ms. Amos and the branch service director met with the Respondent’s mother, who frequently accompanied her to access visits, regarding their concerns that the mother was using drugs again. Ms. Amos’ affidavit reports that W.W., who is the Respondent’s mother, told them that the Respondent had been staggering when they had gone to lunch after the previous visit. During that August 26th visit Ms. Amos observed that the mother was lethargic, had difficulty picking up on A.W.'s cues, and fell asleep while holding the child. These observations were all made during the period of time in which the Respondent subsequently admitted to Anthony Sara that she was not clean. However, Ms. Amos testified that these observations continue up to the present time.

[64] Mr. Sara also observed some of this behaviour. He testified that four or five months ago the Respondent was speaking rapidly, would avoid eye contact and would position herself away from him, and it was his feeling that she was trying to avoid having him see her face or eyes. This occurred on a couple of occasions.

[65] In terms of the testimony of Mr. Sara and Ms. Amos, I accept it without reservation. It was obvious that they were attempting to be as fair and even-handed as possible when giving their evidence, and that they had good recall and grasp of the events and observations to which they were testifying.

(v) Drug Cessation Attempts

[66] The Respondent's first attempt at rehabilitation occurred while she was still in Toronto; she testified that she was not ready for the program and did not complete it.

[67] Her move to Penetanguishene coincided with the commencement of her eighteen-month period of probation. Her probation officer enrolled her in an eight-week long substance abuse program provided through the Elizabeth Fry Society, which she attended between March 10, 2010, and April 28, 2010. Evidence from one of her probation officers was that the Respondent reported consistently, with the exception of a few missed appointments, and presented herself in a cooperative and respectful manner. She did not incur any new charges during the probation period, which ended on August 31, 2011. As set out above, however, she admits to illicit drug use on at least three occasions while on probation, but testified that she was honest with her probation officer and told her every time that she had a “mishap” or “slip.” As set out above, there were actually five positive drug test results while the Respondent was on probation.

[68] It is difficult to view the completion of an eight-week program as evidence of anything other than a court mandated requirement that the Respondent had to fulfill in order to avoid being charged with a breach of probation and its consequences.

[69] The Respondent testified that she continued with one-on-one counselling with Tracy Wood, one of the addiction counsellors, after the eight-week program ended. She continued with this counselling until sometime after Ms. Wood had helped her to complete her application in September 2010 for an in-house rehabilitation program at Hope Place Centres in Milton (“Hope Place”). While the counselling with Tracy Wood is an encouraging step, there is ample evidence that the Respondent continued to use in the months after A.W.’s apprehension while this counselling was ongoing. Specifically, the evidence of Mr. Sara is that at the first court attendance in June 2010, the Respondent told the Society they would be wasting their money on a drug screen because she was not drug-free, as she had had some occasions in which she "partied it up." She advised Mr. Sara that she would notify the Society when she was drug-free and then a drug screen could be done to confirm. Mr. Sara's evidence is that the Respondent was asked on a few occasions about whether she was drug-free, and each time the Respondent reported that she was not. It was not until November 22, 2010, that the Respondent requested a drug screen, stating at that time she was now drug-free. When Mr. Sara asked her when she had actually quit, the Respondent’s answer was that she had been drug-free for just over one month, but still occasionally used some marijuana.

[70] It was during this time, the fall of 2010, that the Society was attempting to organize a family case conference. It is Mr. Sara's evidence that at this point the Respondent began to speak of rehabilitation and detox, and requested that accommodation be made for her to complete such programs. It was Mr. Sara’s view that the Respondent failed to carry out many of her stated plans until finally being accepted into Hope Place.

[71] The Respondent testified that she investigated the possibility of attending a program closer to this area, referred to as Georgian Woods, but one of the requirements for admittance was a certain frequency of attendance at Alcoholics Anonymous or Narcotics Anonymous meetings, which were not available in the Penetanguishene area. Hope Place also had certain pre-requisites for admittance; the Respondent fulfilled these by attending weekly group meetings through an agency called Wendat and continuing with her one-on-one counselling with Ms. Wood, as well as undergoing a five-day period of detoxification in Brampton.

[72] The Respondent attended Hope Place Women's Treatment Center from March 2, 2011, until March 25, 2011 and fulfilled the requirements of the program. She was tested for drug use during treatment and the results of her urine screen were negative for all substances. Upon completion of the program, it was recommended to her by the addictions counsellor that she maintain regular attendance at 12-step meetings and that she find a suitable sponsor within her community. In a letter sent to the Society by Hope Place, it was noted that the Respondent had also been in contact with the Umbrellas program for parenting and pregnant mothers and would be setting up an appointment to see them on a regular basis when she returned home.

[73] It was during this period of treatment at Hope Place that the Respondent realized that she was pregnant with L.L.-W..

[74] The Respondent testified that she was aware that further counselling was necessary for her to keep her sobriety, as the likelihood of relapse was high without having ongoing reminders of the knowledge and strategies that she had learned at Hope Place. On her own initiative, in April 2011 the Respondent made contact through the Umbrellas program to participate in counselling services at Mental Health and Addiction Services of Simcoe County, formerly known as Simcoe Outreach Services. The Umbrellas program is specifically designed to work with pregnant and newly parenting women who are struggling with misuse of alcohol and/or drugs or who engage in problem gambling. The Respondent testified that she continues to attend this one-on-one counselling in Midland to the present day.

[75] The Respondent had her first relapse only 22 days after completing the program at Hope Place, when she again smoked crack cocaine on April 16/17.

[76] The Respondent explained that she found that the tools that she had learned at Hope Place were difficult to apply out in the real world and in particular within the context of the home life that she returned to. She returned home to her partner, P.L. Jr., an individual who also has addictions to drugs and alcohol, as his father and the Respondent testified. His father testified that his son was a very heavy drinker both on weekends and during the week; the Respondent spoke of both his alcohol addiction and his drug use. The Respondent felt that his use of these substances had worsened while she was in rehabilitation, and tensions between them reached a breaking point when he assaulted her in April 2011. The court heard evidence that he is presently incarcerated; whether as a result of the assault charge, or other charges, was not made clear on the evidence.

[77] There is no evidence that the Respondent has attempted to attend any Narcotics Anonymous meetings since leaving Hope Place, or any other 12-step program, or that she has sought out a sponsor.

[78] As set out previously, the Respondent reports that she has had a total of five relapses since leaving Hope Place: April 2011, August or September 2011, December 2011, February 2012 and March 2012.

[79] The Respondent acknowledges her struggles, and that she is engaged in a very difficult process. Her evidence regarding these relapses is somewhat ambiguous; on one hand she expressed how gravely she felt about her use, and felt that others were too ready to excuse the behaviour as being a necessary part of rehabilitation, and on the other hand she testified that relapses are a beneficial learning experience, as they permit her to evaluate, in hindsight, why it is that she was unable to avoid the use. She stated “hopefully sooner or later I’ll get it.” This court has no doubt as to the sincerity of that statement; it was clear to this court that the Respondent’s wish is to be free from her substance use, at least where cocaine is concerned.

[80] On each of these five occasions of relapse, the Respondent has never tried to reach out to call any of her supports to avoid use. As will be described later, since L.L.-W.’s birth she has had the support of L.L.-W.’s grandfather and his adult daughter, P.W., but called neither of these two individuals before succumbing to use on the last three occasions.

[81] The Respondent acknowledged in her evidence that it has occurred to her that she needs to attend another session of rehabilitation, perhaps on an outpatient basis.

[82] When the Respondent has relapsed, she has not sought out the drug. But yet she has been drawn into participating. On the first occasion in April 2011, she allowed someone who was known by her to be a user into her home and in what could not have been a surprise to her, he laid his drugs out on her table. For both the December 2011 and the March 2012 relapses, a different individual also known by the Respondent to be a user was permitted to come into her home - where the use occurred. In the intervening February incident, the Respondent had been out with friends to celebrate her birthday and encountered the drug in another person's home. She described that she entered the basement of the home, at which time she knew of the presence of cocaine, and took that opportunity to use once again. She described that these episodes occur when she is feeling weak, and that once she starts, she cannot stop at “just one.”

Findings Regarding Drug Use

[83] Based on all of the evidence heard during this trial, I make the following findings of fact with respect to the Respondent’s substance abuse:

1. The Respondent began using cocaine in the summer of 2007 and her use of that drug led to an addiction that interfered with her life and ability to care for R.D. by February 2008 at the latest;

2. Drug abuse was, in part or whole, the basis of the finding that R.D. was in need of protection;

3. The Respondent resorted to drugs on an increasing frequency after February 2008 and her use included smoking and injecting crack cocaine, injecting and ingesting oxycontin, and smoking marijuana;

4. The Respondent by her own efforts stopped her use of oxycontin and has never had a positive test for this drug in the last two years;

5. Upon moving from Toronto to Penetanguishene in March 2010, the Respondent again gravitated toward individuals who used or trafficked in drugs;

6. Between March 4 to 8, 2010, just prior to her last trimester of pregnancy with A.W., the Respondent smoked crack. She did so again sometime between May 10 to 24, 2010, in the two weeks preceding A.W.’s birth;

7. Approximately one and a half weeks after A.W.’s birth, she returned to Toronto and used crack again;

8. The Respondent continued to use crack cocaine on a regular basis until the fall of 2010, or later;

9. Despite his obvious drug and alcohol dependency, she entered into an intimate relationship with P.L. Jr. at least by January 2011, when she became pregnant with L.L.-W., despite the counselling that she had received from the Elizabeth Fry Society and despite being in the process of seeking out a rehabilitation facility;

10. Despite her knowledge of this pregnancy, the Respondent used crack cocaine 22 days after completing the Hope Place program, and again in late August or September 2011;

11. Since L.L.-W.’s apprehension, the Respondent has used cocaine on at least 3 occasions – in December 2011, February 2012, and March 2012, the last event occurring only 60 days before the commencement of this trial. The evidence could also support a finding that cocaine was used more frequently during this period;

12. A significantly greater amount of cocaine was ingested in the 90 day period tested between mid-December to mid-March 2012 than had been ingested in the 90 day period between mid-April to mid-July 2011 – all being periods when usage is confirmed by the Respondent. Therefore, the Respondent has increased her usage, either in frequency or quantity, between those time periods;

13. The Respondent’s average use decreased in the 90 day period tested between the beginning of February to the beginning of May 2012, as compared to the 90 day period tested between mid-December to mid-March, 2012;

14. Since her involvement with the Society, the Respondent’s use of cocaine and marijuana has been ongoing. The only periods of time over which there is no evidence of use is from approximately November 2010 until mid-April 2011, and mid-September to mid-December 2011, if the Respondent’s evidence is believed. I find, however, that it is more likely than not that the Respondent continued to use during the first of these periods, given that she had not yet been to rehabilitation and P.L. Jr. continued to be a presence in her life;

15. While the Respondent is genuine and fervent in her intentions to stop using, she has not been able, to date, to invoke the self-discipline necessary to prevent herself from using;

16. The Respondent has not followed through on the recommendations of Hope Place in that she has not attended a 12-step program aimed at drug cessation, nor has she sought out a sponsor, and despite her awareness that she may need further in-patient or out-patient rehab, she has not pursued that course of action;

17. The Respondent is a regular user of marijuana, and smoked this drug during both pregnancies. The Respondent also uses alcohol, and did so during her pregnancies; and

18. The Respondent has attended some access visits while under the influence of a drug, likely marijuana, but possibly also crack or cocaine.

Evidence of Transiency and Domestic Violence

[84] I find that the Society has not substantiated its concerns regarding the Respondent’s alleged transiency. Although there was an allegation that she “went underground” for a period of time while living in Toronto, there is no evidence of this other than that the Respondent had no telephone and that for two years she was deeply engaged in a lifestyle that conflicted with maintaining contact with the Toronto Society. When she moved to Penentanguishene she resided in one building for a period of approximately twenty-one months; I accept her testimony that she moved to an apartment across the hall and it was on that occasion that the Society briefly could not locate her. In December 2011 she moved to her present residence, a townhouse in Midland, made available through subsidized housing.

[85] Almost all of her extended family lives in the Midland area, her child R.D. is enrolled in school there, and I find it more likely than not that she will continue to remain there. Additionally, I find that she would keep the Society apprised of any change in address if the children were placed in her care.

[86] Domestic violence is a substantiated concern.

[87] The Respondent testified that she was engaged in an incident in Toronto with a former partner that resulted in charges against both of them, resulting in a peace bond for her.

[88] An altercation occurred between the Respondent and P.L. Jr. in April 2011, when she explained that he was drunk and their argument culminated in him slapping, shoving and pushing her, and pulling out a chunk of her hair. He was arrested and charged as a result of this event. Despite this and his substance abuse, the Respondent continued to be involved with P.L. Jr. until September, 2011. In October 2011 the Respondent told Linda Amos that P.L. Jr. wished to reconcile and that she had refused, as she was not sure that she wanted him back in her life. At that point, P.L. Jr. had abandoned the Respondent two weeks prior to L.L.-W.’s birth.

[89] What the evidence reveals is that the Respondent gravitates toward men who have marginal resources, limited interest in her or their children, who have substance abuse issues, and who enable her drug use. A.W.’s father, for example, is described by her as one of her supports, and that he makes her feel safe when he is at her home. Yet initially the Respondent told the Society that P.B. was not going to be involved in A.W.’s life, and she refused to identify him for a long period of time. P.B. has only started coming to some access visits in the last six months of A.W.’s life. Mr. Sara, who has had discussions with P.B., testified that P.B. had indicated that he is currently in a relationship with another woman and does not wish to reveal to her or his family that he has a son. The Respondent runs into conflict with her mother because, it is alleged, P.B. comes up from Toronto to live with her for weeks at a time, does not contribute to the household expenses, which the Respondent’s mother has been helping to pay for, and supplies her with drugs. The court heard evidence about a recent occasion where P.B. only had enough money to purchase a ticket to the Barrie bus terminal, but not enough to travel further to Midland. The Respondent cancelled her access visit in order to pick up P.B. in Barrie.

[90] On the weekend following P.L. Jr.’s incarceration for the assault described above, the Respondent had a male friend drop by because “he had heard that P.L. Jr. went to jail.” It was this individual who supplied the drugs for the April 2011 relapse.

[91] Added to this matrix is evidence of the Respondent's own reaction to stress. Ms. Amos testified that on two occasions the access visit had to end early because the Respondent was raising her voice when upset and frustrated. There has been a recent incident at P.L. Sr.’s home, where the Respondent may possibly have been involved in a physical altercation with his estranged wife, none of which was substantiated. There is insufficient evidence, however, to conclude that the Respondent is a violent person, although this was initially one of the Society’s concerns.

[92] Limited financial resources, substance abuse, and a lack of respect for another individual are a set of circumstances that combine together to erupt, and often do, into violence if a partner has that propensity. I find on these facts that there remains a possibility, as occurred with P.B., that P.L. Jr. may re-enter the Respondent’s life after his present period of incarceration ends, and her ambivalence about whether she may or may not want him to do so does not leave the court with much room to conclude with certainty that the children would be free from his presence, or the presence of an individual with similar tendencies.

Evidence of Parenting and Child Care

[93] In contrast to the above dismal picture is the evidence of other aspects of the Respondent’s ability to care for A.W. and L.L.-W.. Immediately from the time of their apprehension, the Respondent has maintained regular contact with A.W. and L.L.-W. through visits arranged with the Society. From the point of L.L.-W.'s birth, visits have occurred on Tuesdays and Thursdays for three hours each day, with slightly staggered timing so that the Respondent can have a half-hour with each child without the other being present. Ms. Amos testified that the respondent has had well over 100 visits with her children at this point. With only 10 cancelled visits, one no-show, and a late arrival on four occasions, I find that the Respondent has had a reasonably high level of commitment to the access visits.

[94] All of the Society’s witnesses who have personally observed the Respondent’s interactions with her children had positive comments about her skills and abilities, in particular her overall attentiveness to her children’s needs at various stages of their development.

[95] Ms. Amos testified that the Respondent has worked very hard at establishing a bond with her children. A.W., in particular, was challenging at first because he avoided eye contact. This changed with the Respondent's efforts, and Ms. Amos observed that the bond and attachment grew over time. Today, Ms. Amos feels that their relationship has developed into a close and strong one. On some visits she observed that he resisted going into the room where visits occur, but during the last visit he easily separated from his foster father and ran in to see his mother.

[96] As of April 2011 the Respondent was permitted to leave the Society's office once a week, with Ms. Amos still supervising, to take her children to the park and the waterfront. As of January 26, 2012, this one weekly visit was permitted to be unsupervised. Ms. Amos testified that she felt that the Respondent was ready for that step. By this point A.W. was objecting to leaving at the end of the visit, which was a positive development. Ms. Amos observed that A.W. was happy and content on visits and outings with his mother, often smiling and responding positively to the attention and interaction provided by the Respondent and the maternal grandmother.

[97] After L.L.-W.'s birth, the respondent did very well in dividing her time between the two children and introducing A.W. to his sister. She showed confidence in her ability to meet her newest baby’s needs with feedings, diaper changes and picking up on cues. She maintained a journal with the foster parent outlining L.L.-W.'s care, routine and health information. Such a journal was not possible with A.W.’s foster mother, who I find has not been receptive to maintaining such contact with the Respondent.

[98] With the exception of the incident of falling asleep while holding A.W. as a baby, and an isolated incident when the Respondent may not have seen her son stand up in a stroller to reach for a light switch, there have not been any physical safety concerns.

[99] Ms. Amos stated that the Respondent focuses all of her time on the children during access visits and has positive interaction with them throughout. She has brought snacks for A.W. and on occasion has also brought items of clothing and toys. She has also provided gifts to both on special occasions such as Christmas, Valentine's Day and Easter. She always ensured that the children were clean and their diapers changed and ready to leave at the end of visit times. She also ensured that the toys in the room were picked up and the room was tidy before leaving at the end of visits.

[100] The Respondent speaks proudly of her children and it is obvious to the court that she is extremely attached to them. She is aware of their interests and personality characteristics, such as A.W.’s shyness and his need to adjust to new people and situations, and L.L.-W.’s love of music and the way that she follows what her brother is doing when they are together. She described how she is working with L.L.-W.’s foster mother to monitor her daughter’s progress toward sitting up and crawling, and works with her during the visits to strengthen her leg muscles, as there is some indication from the foster mother that L.L.-W. may be slightly delayed in developing such skills.

[101] Mr. Sara has been to the Respondent's home on many occasions. He agrees that it is always clean, tidy and well stocked.

[102] The court’s own observations of the Respondent are that she is an organized, bright, articulate and polite individual. If the Respondent could cease her drug habit and the lifestyle choices that accompany that, she could very well be poised to effectively raise her children. She did not, however, take the opportunities that have been given to her to produce clean drug screens in the two years since A.W.’s birth, as offered to her in the June 15, 2010 order of Wood J..

Co-operation with the Society

[103] Mr. Sara and Ms. Amos testified that, overall, the Respondent has been co-operative with the Society.

[104] However, a grave breach of trust occurred on May 24, 2012, when the Respondent took the opportunity offered by her unsupervised Thursday visit to take both children to her home, as she had organized a birthday party for A.W.. She deliberately lied to the Society and told them that she was planning to take the children to the Dairy Queen and to the park for a celebration; instead she arranged for a taxi and took the children to her home. Her son R.D., P.B. and three other family members were present. Although the court has sympathy for her motivation – she believed that it might be the last time that her children could all be together – it was a deceptive act that showed blatant disregard for the trust the Society had put in her, and ignored the serious consequences for the Society if something had occurred to the children during that event.

[105] I find that the Respondent has also had periods of deception when she has attempted to mislead Mr. Sara about her drug use. Upon meeting him she erroneously told him that she had been drug-free since January 2010. On April 2, 2012, the Respondent advised Mr. Sara that she had not used cocaine with P.B. after picking him up from the bus station; when the urine test showed otherwise she admitted that she used on March 28th. The Respondent was asked about the identity of A.W.’s father on many occasions and she vacillated between saying that she did not want to identify him and that she was not certain of who his father was. It was not until sometime late in 2011 that the Society learned of his identity. She also lied about having a doctor’s appointment, when in fact she was going to pick up P.B. in Barrie. Although admitting to “occasional” marijuana use in November 2010, when she spoke with Mr. Sara on April 2, 2011, she admitted that she is a regular marijuana user.

[106] A word at this point about the Respondent’s credibility as a witness. I found that, despite her attempts to mislead the Society in the past, that she was endeavouring to be as transparent to the court as possible, and she gave testimony that was adverse to her interests on many occasions. There were really only one or two points on which her evidence regarding drug use diverged from the findings that I have made, and in each case I have endeavoured to explain why I have accepted the expert testimony over that of the Respondent’s. While I make this observation, it is of course the totality of the evidence heard during the trial that the court must look to in making a determination in this case, and not just the willingness of the Respondent to be honest with the court.

Finding that the Children are in Need of Protection

[107] A protection hearing is bifurcated, with the court first determining whether, under s. 37(2) of the Act, the child is in need of protection and secondly, if the protection issue has been proved, the court must arrive at an appropriate disposition under s. 57(1): Children's Aid Society of the Niagara Region v. T. B., [2011] O.J. No. 1975, 2011 ONSC 2702, at para. 9; Kelly v. Kelly (2003), 2003 CanLII 2344 (ON SC), 45 R.F.L. (5th) 403, [2003] O.J. No. 3611 (S.C.J.). Counsel agreed during this trial to have the evidence heard as a whole.

[108] Both counsel made submissions on what constitutes “risk” as it is understood to mean in s. 37(2).

[109] The Respondent’s counsel referred the court to cases in which the court commented on the degree of risk necessary to make a finding of protection. In Children’s Aid Society v. A.M. (2002), 26 R.F.L. (5th) 265, 2002 CanLII 45665 (ON CJ), [2002] O.J. No. 1432 (Ct. J.), which involved a motion for temporary care and custody, at para. 18 the court noted that “a reasonable ground to believe that there is a risk that the child is likely to suffer harm in a parent's care differs qualitatively from a reasonable ground to believe that there is a risk that a child might or may possibly suffer harm in that person's care." In Children’s Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (ON SC), 2000 CarswellOnt 2156 (S.C.J.), also involving an order for temporary care and custody, at para. 10 the court states “…The Children's Aid Society must establish on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that he will suffer harm. Further, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents."

[110] The question remains, how much risk is too much? Several cases have reviewed the concept of an enhanced civil burden of proof in child protection proceedings, particularly where Crown wardship is sought: The Children's Aid Society of the Niagara Region and P.-L.R., 2005 CanLII 11791 (Ont. S.C.J.); The Children's Aid Society of the Niagara Region and T.B., 2011 ONSC 2702, [2011] O.J. No. 1975; Children's Aid Society of Ottawa v. B., [2002] O.J. No. 1369 (S.C.J.). Each of the above cases indicates that the burden of proof, even in Crown wardship cases, is the ordinary civil burden based on the balance of probabilities. However, a divergent line of cases stands for the proposition that a high degree of probability is needed: W.(N.) v. Prince Edward Island (Director of Child Welfare), 1997 CarswellPEI 106 (S.C. - App. Div.); Prince Edward Island (Director of Child Welfare) v. W. (N.) (1994), 1994 CarswellPEI 12 (C.A.). As pointed out by the Prince Edward Island Court of Appeal in W. (N.), the best that can be said is that there are divergent opinions held by different courts in Canada on the issue of the burden of proof at the adjudication stage of a protection or wardship proceeding. Currently, there are no cases from the Ontario Court of Appeal that provide guidance. There can be no doubt, however, that courts must take most seriously their grave responsibility in assessing, with great scrutiny, the evidence bearing on the issue of the likelihood of risk if the child remains with or is returned to the care of his or her parent, due to the severe consequences that that evaluation can have for children and parents.

[111] In this case, there is ample evidence that the children were at risk of harm on the date of their apprehension and thereafter. The Respondent's cocaine addiction poses a serious threat of risk of harm. As the Respondent explained during her testimony, when using cocaine one's body goes numb and one is not thinking of the consequences. Also, as she testified, it is impossible to stop at just one hit. The Respondent has shown little control over her addiction from the time of A.W.’s apprehension and thereafter.

[112] There is a substantial body of jurisprudence that stands for the proposition that where a parent is abusing drugs or alcohol, the child is at risk: Lennox and Addington Family and Children’s Services v. S.W., 2010 ONSC 2585, [2010] O.J. No. 1862 at paras. 6, 13-15, 22, 47-51, 58-62, 106; Children’s Aid Society of Ottawa v. M.C., 2003 CanLII 67754 (Ont. S.C.J.) at paras. 22-24, 31, 34; Children’s Aid Society of Waterloo Region v. F.(S.J.M.), 1994 CanLII 4424 (Ont. S.C.J.) at paras. 12-13; Children’s Aid Society of London and Middlesex v. S.M., [2000] O.J. No. 2064 (S.C.J.) at paras. 22-23; Children’s Aid Society of Durham v. M.F., [2000] O.J. No. 4007 (S.C.J.) at paras. 3-5, 12-14; Children’s Aid Society of Hamilton v. L.V., [2009] O.J. No. 1468 (S.C.J.) at paras. 11, 13, 70, 80-81, 83, 94, 97; Children’s Aid Society of Owen Sound v. A.L., [2008] O.J. No. 5133 (Ct. J.) at paras. 34, 40, 58-61; Children’s Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 at paras. 28-32; Frontenac Children’s Aid Society v. S.A.E., [2001] O.J. No. 5487 (S.C.J.) at paras. 3, 23, 27, 29. As Perkins J. stated in Children's Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 (S.C.J.) at para. 30:

The father's objection to the trial judge's taking judicial notice of certain facts surrounding drug addiction is not well founded. The substantial impairment of a person's parenting abilities caused by cocaine, to the point of obliviousness and unconsciousness, and the resulting risks to children in the parent's care, are facts commonly understood by reasonable people, and all the more by judges who hear child protection cases. That there is a serious risk of relapse among people who have been regular users of narcotics is similarly well known. We are long past having to prove these basic facts in each case.

[113] Primarily as a result of her ongoing drug use, I find that A.W. and L.L.-W. are in need of protection as there is a risk that they are likely to suffer physical harm inflicted by the Respondent, despite her expressed intentions, pursuant to section 37(2)(b) of the Act. Secondarily, on the basis of the likely risk of further domestic violence in her life, I find that they are at risk of emotional harm. This secondary risk would be based upon subsection 37(2)(f ) of the Act, which was not pled by the Society. Despite that lack in the pleadings, it is in the best interests of the children that the likelihood of both risks be recognized.

[114] I turn now to the disposition stage of the hearing.

Submissions of the Society

[115] The Society argues that no biological parent has positioned themselves to care for the children. Further, no kinship plan has been presented by any member of either of these children’s extended families. The Respondent has failed to demonstrate an ability to carry out any part of her plan. She has a past and current pattern of drug use. She admits to having used crack cocaine on five occasions in a fifteen-month period, in spite of her pregnancies, in spite of having left Toronto to escape a drug culture, and in spite of counselling and rehabilitation. She continued to use while being on probation, despite being under the scrutiny of the court, despite having her two children in foster care, and despite the Society having made its expectations very clear.

[116] To the Society, adoption is the only answer in this case. The Respondent has only been exposed to the children for six hours per week, and although she has been appropriate with them, she has never positioned herself to manage her own life. She has demonstrated that she is presently incapable of doing so, despite her intentions. The last time that she was a full-time parent, with R.D., he was apprehended for the same reasons that are currently at play. The Society feels that she has squandered the opportunities given to her to get and stay clean, and there is no prospect that she will now do so within a reasonable time frame. The Society asserts that the benefits of being able to plan for the children’s long-term care through adoption outweighs the benefits to the children of any bond that has developed with the Respondent, and that there is no benefit to further contact with any family members.

Submissions of the Respondent

[117] The Respondent argues that the possibility of use while the children are in her care is speculative at best, and is adamant that she would not even think of using or allowing any former drug consorts in her home if the children were returned to her under a supervision order. The evidence of her parenting skills, even within the limited window available for her to demonstrate them, should be sufficient to convince the court that, on the balance of probabilities, she would not expose them to risk of harm.

[118] Her counsel submits that evidence of attachment and bonding to her should be given paramount consideration. Both the guiding principles of the Act and the best interests factors listed in subsection 37(3) speak to the importance of preserving the family unit. The greatest risk for the children is the harm that they would suffer if the bond with their mother is ruptured permanently.

[119] The Respondent argues that any risk that the court may accept exists in this case could be managed through a supervision order. The Respondent would continue to attend counselling, and would provide releases to give access for the Society to all counsellors and health care professionals. She would also consent to undergo random and regular urine tests, for example every Monday and Friday, so that there would be constant monitoring of her lack of use.

[120] The Respondent submits that this case is not about giving her a second chance, but about giving her the chance that she never had; a chance to prove that she can remain drug free while the children are in her custody, because they are in her custody.

Evidence of Past Conduct

[121] A significant amount of evidence was heard regarding the situation with R.D. from the time of his apprehension to the present.

[122] I find that there is nothing about this evidence that informs the decision in this case other than the finding that R.D. was apprehended, found to be in need of protection, and that drug abuse was, wholly or in part, the basis of the finding that R.D. was in need of protection. Little has changed.

[123] The Respondent gave evidence that R.D. has been visiting with her regularly throughout 2011 and has come to live with her on a full time basis in April of this year, following his sixteenth birthday. She gave evidence that he now provides her with a reason to get up in the morning, and that she attends to his needs and to his discipline, and of how she has made best efforts to address his school absenteeism. These good efforts, that are now only in their third month, can do little to affect the balance of the evidence in this case.

Evaluation of the Respondent’s Plan of Care

[124] One of the most essential aspects to the Respondent’s plan is that she would continue to co-operate with the Society in ongoing supervision of her care of the children, including both random and scheduled visits and drug testing. While the Respondent has generally co-operated with the Society, the evidence also shows that she is willing to be dishonest when it suits her needs. Most importantly, her disclosure regarding her drug use has at times been misleading.

[125] The Respondent also plans to continue regular communication with her two addiction counsellors through the Elizabeth Fry Society and the Umbrella Program offered by the Canadian Mental Health Association. When her plan was prepared in January 2012, the Respondent had long ceased seeing the counsellor who she met through the Elizabeth Fry Society. That contact had stopped approximately one year earlier, when she was accepted to Hope Place. While the Respondent states that she continues to see a counsellor by the name of Ruth from the Umbrella Program, there is no evidence, other than her own, as to the frequency and duration of her contact with Ruth. It is obviously not working effectively. The Respondent has not followed through on her feeling that she needs more intensive rehabilitation therapy once again.

[126] Another aspect of her plan is to seek employment. This was also outlined in her earlier plan of June 7, 2010. The Respondent has not undertaken any job search in the last two years. She has not taken any upgrading courses or skills training. She continues to be supported by Ontario Works, the generosity of her mother and L.L.-W.’s grandfather. Even though she has had R.D. in her care since April and has additional expenses as a result, she has not done anything to further her own ability to provide for his needs.

[127] The Respondent also expects to continue to have regular contact with and support from her extended family in the Midland area. Three of these individuals testified at trial: R.D.’s grandfather, E.D., L.L.-W.’s grandfather, P.L. Sr., and L.L.-W’s aunt, P.W. They are all well intentioned and I find that they were credible witnesses. What is striking about all of their testimony, however, is that none of them is fully informed as to the extent of the Respondent’s addiction, either its severity or the length of time that it has continued. They have all been there in varying degrees to comfort and support the Respondent during the occasions following her admitted use of drugs, when she falls into depression and self-recrimination, but none of them has been able to be an active support to help her to stay away from using. This is in part because the Respondent does not call upon them for help prior to use, but also because of circumstance. P.L. Sr. works in Gravenhurst and during the summer months works from Wednesday afternoons to Saturday night, up to 14 hours a day, and is not always available by telephone during his work day. P.W. also lives in Gravenhurst and has her own family and full time career. E.D.’s contact with the Respondent varies from once a week to once a month, and he too continues to work part time. He described how he and the entire family are very close, and how the Respondent can, and does, rely on him and his wife for advice and support when she has problems, and that she can come to his house any time. The Respondent also described other aunts, uncles and cousins who are part of her extended family. It was never explained, by the witnesses who testified or otherwise, why no family member has offered to be involved enough to present a Plan of Care to the Society that might allow the children to remain within the extended family, temporarily or permanently.

[128] The absence of the biological fathers from this proceeding is proof of their level of support, even though the Respondent characterizes P.B. as one of her supports.

[129] The Respondent’s mother, W.W., has also been a large support in her life, accompanying her to most access visits until recently. The court heard evidence from the Respondent that W.W. is currently hospitalized, as she suffers from schizophrenia and had stopped taking her medication. The Respondent’s testimony is that she expects that her mother’s disease will be controlled through a new drug treatments that she is now receiving. W.W. also has a partner who has cancer, who she has been looking after before her most recent bout with illness. It was for this latter reason, it was explained, that W.W. was not available to put forth a kinship plan.

[130] The Respondent’s plan also states that her home will be occupied only by herself and her children. Testimony was received that P.B. has recently been coming and spending weeks at a time with the Respondent. And as pointed out earlier, I find it more likely than not that another male, whether L.L.-W. or another, will enter the scene at some point.

Evaluation of the Society’s Plan of Care

[131] The Society has been involved in concurrent planning for each child from the fourth month that they have been in care. As a kinship plan has never been provided, the Society has been looking at the option of adoption for some time.

[132] Janet Hook, the adoption worker for the Society, testified as to the Society’s plan. From the Society’s point of view, definite regard will be had to placing these children in the same adoptive home. The factors that the Society is aware of and that would inform their potential choice of placements is A.W.’s mixed racial heritage (P.B. is black), the Respondent’s Metis heritage, the Respondent’s family history of schizophrenia, the potential future health issues that may arise from in utero exposure to drugs, the potential (but as yet undiagnosed) of L.L.-W.’s delayed development, and A.W.’s shyness and difficulty with making transitions.

[133] A.W.’s foster parents have declared that they would provide a permanent plan through adoption. The Society would look at attachment, how long A.W. has been in that home, and whether it would make sense for that to become his permanent home. They have not yet disclosed an intention to adopt his sister; it was not clear to the court whether they have been approached, although Ms. Hook stated that an updated home study would be required before that possibility could be properly assessed.

[134] Ms. Hook’s evidence was that based on their young age and stage of development, A.W. and L.L.-W. have good prospects for adoption. There is particular urgency in making a permanent plan for A.W., who has been in care for the entire two years of his life.

[135] In terms of an openness order, the Society would not have concerns with respect to letters and photographs being provided, but would be concerned about how much face-to-face contact should continue given the considerations in this case. If there is too much personal contact between the biological mother and the child, that child is not allowed to settle and perceive their adoptive parents as their parents. Ms. Hook would support consideration being given for openness to continue with R.D., the children's half-brother, but at the time of testifying did not know enough about the case to be able to predict what form that may take. Once an adoption is finalized, the decision making around contact lies with the adoptive family.

Analysis

[136] As previously stated, this is a choice between an order for Crown wardship or returning the children to their mother under a supervision order.

[137] While I have given due consideration to the submission of the Respondent that she will be able to control her cocaine use if the children are in her care, there is unfortunately insufficient evidence to conclude that she is capable of such control at the present time. Further, there is a preponderance of evidence that suggests that her children's best interests will not influence her decisions in the future, as they have not in the past. The Respondent’s knowledge that she was pregnant was unable to provide sufficient motivation to turn away from drugs. The knowledge that she would not get increased access, or possibly her children ever returned to her, has been insufficient to motivate the Respondent to cease using completely. Nor have previous episodes of guilt and depression upon relapse, or the chance that these episodes have given the Respondent to reflect and implement the strategies learned in treatment and counselling, been sufficient to prevent her from using.

[138] While the Respondent proposes that regular urine screens will provide close monitoring of active drug use, that proposal is inadequate to fully address the issue of prevention. Nothing short of full and complete abstinence from cocaine use will adequately protect these children while they are in their mother's care. What is to become of these children as she indulges for periods of time, “goes numb," and disregards the consequences? There is nothing in the Respondent's plan of care, which is greatly flawed as is, that plans for that very real risk. While the Respondent urges that she has frequently fallen prey to the temptation because of feeling sad and helpless that her children are not with her, and if they were to return to her she would never use again, the court is unwilling to engage in such an experiment at the potential expense of the children. This is all the more so when the Respondent's past and current track record shows that she has continued to use even while knowing that there is so much at stake for both her and her children.

[139] This case is like so many others where, a parent having not made any real progress by trial and not making progress in the foreseeable future, the child should not wait any longer for a permanent home: Children’s Aid Society of Owen Sound v. A.L. at para. 90; Frontenac Children’s Aid Society v. S.A.E. at paras. 23, 27, 29; Children’s Aid Society of the Niagara Region v. B.D., [2006] O.J. No. 389 (S.C.J.), at para. 69-72; Lennox and Addington Family and Children’s Services v. S.W. at para. 108-112, 114, 118; Children’s Aid Society of Ottawa v. M.C., 2003 CanLII 67754 (Ont. S.C.J.) at paras. 22-24, 31-32, 35; Children’s Aid Society for the District Nipissing v. M.M., 2000 CanLII 22922 (Ont. S.C.J.) at para. 15; Nova Scotia (Minister of Community Services) v. S.Z., [1999] N.S.J. No. 426, 1999 NSCA 155 at para. 21; Children’s Aid Society of Waterloo Region v. F.(S.J.M.) at paras. 12-13; Children’s Aid Society of London and Middlesex v. S.M. at paras. 28, 30; Children’s Aid Society of Ottawa v. B. at para. 13, 23, 31, 46.

[140] Given this set of circumstances, there is no reason to treat L.L.-W. differently from her brother, as there is no reasonable prospect shown on the evidence that the Respondent will conquer this addiction in the next few months.

[141] This court is left with no option but to order that these children be made wards of the Crown for the purpose of adoption.

[142] In terms of openness, subsection 59(2.1) of the Act creates a presumption against access once a child has been made a Crown ward. As that section sets out, such an order shall not be made unless the court is satisfied that:

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

[143] In this case I do not have the type of evidence that satisfies me that the Respondent has met the burden. In particular, I am not satisfied that access, if ordered, will not impair the children's future opportunities for adoption. As Ms. Hook pointed out, individuals can be uncomfortable with the prospect of the unpredictability caused by drug addiction and its associated dangers remaining part of their own lives and their adopted children's lives. In this case there is already evidence that A.W.'s foster mother has avoided contact with the Respondent for exactly that reason.

[144] In terms of an openness order involving R.D., the evidence before the court is that he has not attended visits at the Society's office since the summer of 2011 even though they have been continuing twice weekly. There is no evidence as to the value of any continuing contact of R.D. in these children's lives.

Disposition

[145] Final order to issue:

(i) That the respondent fathers are noted in default; and

(ii) That A.W. and L.L.-W. shall be made Crown wards without access for the purpose of adoption.

HEALEY J.

Date: June 20, 2012

[^1]: A summary of the drug test sample dates and results is appended to this judgment as Schedule A.

[^2]: Mr. Gareri testified that all readings indicated average drug use during the time period tested.