COURT FILE NO.: C1154/11

DATE: 2014-06-19

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF HAMILTON

Applicant

– and –

C.H. (mother)

Respondent

Mr. John Bland – Counsel for the Society

Ms. M. Graham – Counsel for the Respondent

HEARD: June 18, 2014

the honourable MR. justice pazaratz

1. This was a Crown wardship trial in relation to 11 month old B.C.H. who was apprehended at birth on […], 2013. He has remained in care his entire life.

2. The mother C.H. is 29 years old. She elected not to attend the trial:

a. On November 28, 2013 she filed an Answer asking that B.C.H. be returned to her care.

b. But the mother recently advised the Society – repeatedly – that she was not pursuing any claims, and she would not be attending any further court dates.

c. Her solicitor of record attended for the trial, but advised she had no instructions.

3. The father of the child is unknown. The mother had advised the Society the child has four potential fathers, one of whom is deceased. None of those individuals have put forth a plan for the child.

4. On May 16, 2014 Justice McLaren made findings confirming:

a. The child’s name.

b. His date of birth.

c. B.C.H. is not Roman Catholic. There is no identified religion.

d. The child is not native and is not eligible for native status.

e. No eligible male person qualifies as a parent entitled to notice of these proceedings under the meaning of the Child and Family Services Act (“the Act”).

5. When this trial was scheduled on March 3, 2014, the original duration estimate was five to seven days. After it became apparent the mother would not be contesting the proceedings, the Children’s Aid Society of Hamilton (“The Society”) brought a summary judgment motion returnable on the first day of trial. The summary judgment motion requested Crown wardship with no access.

6. The Society’s evidence brief included eight affidavits of its employees:

a. Affidavit of child protection worker Katie Main dated May 16, 2014.

b. Affidavit of child protection worker Jennifer Conroy dated May 13, 2014.

c. Affidavit of family visit worker Patricia Reed dated May 15, 2014.

d. Affidavit of family visit worker Jamie Spence dated May 15, 2014.

e. Affidavit of family visit worker Helena Kung dated May 15, 2014.

f. Affidavit of family visit worker Terry Winder-Sholer dated May 15, 2014.

g. Affidavit of family visit worker Adrienne Gimblett dated May 14, 2014.

h. Affidavit of family visit worker Laura Newell dated May 15, 2014.

7. Those affidavits were tendered for two purposes:

a. Evidence in support of the Society’s summary judgment motion;

b. Evidence in chief (of the Society’s employees) in relation to the trial.

8. A preliminary issue arose as to whether the Society should proceed with its summary judgment motion, or whether – in all the circumstances – the trial should simply proceed on an unopposed basis:

a. The mother had filed no responding affidavit in relation to the summary judgment motion.

b. The mother had previously advised that she would not be attending the trial or presenting any evidence.

c. The mother’s counsel did not intend to call any witnesses on behalf of the mother.

d. The mother’s counsel did not intend to cross-examine any of the Society witnesses in relation to the contents of the affidavits filed.

e. The mother’s counsel consented to the Society presenting the eight affidavits of its employees as its evidence at the trial, without the need for any of the deponents to give oral evidence or be subject to cross-examination.

9. In the circumstances, rather than spend time dealing with the distinct issues relating to a summary judgment motion, I elected to proceed with the trial itself:

a. Summary judgment motions are generally intended to promote efficient use of judicial resources where there is no genuine issue for trial, and (in CFSA proceedings) expedite resolution of children’s lives.

b. Summary judgment motions are most beneficial if they are brought well in advance of the trial date – perhaps even before a trial date has been set.

c. In this case, we were already in court for the trial. The Society’s evidence was clearly and efficiently presented through lengthy – and unchallenged -- affidavits.

d. A determination on the merits could be made just as efficiently – perhaps even more efficiently – without adding an overlay of considerations relating to Rule 16 (of the Family Law Rules) dealing with summary judgment motions.

e. Both counsel consented to proceeding in this fashion.

10. As it happens, family services worker Katie Main gave oral evidence updating her May 16, 2014 affidavit.

a. Main is case manager of the file. She has had long-standing involvement with C.H., and has worked closely with her.

b. On May 21, 2014 Main drove the mother to her lawyer’s office to facilitate a pre-arranged meeting with the lawyer for the mother to privately discuss possible resolution of this case.

c. Main testified that she dropped the mother off at the front door of the lawyer’s office and presumed that the mother went inside to meet with the lawyer.

d. Main subsequently learned that the mother never made it up to the lawyer’s office. Instead she went shopping.

e. The same plan was scheduled for June 3, 2014. Again Main was to provide transportation for the mother, to facilitate a scheduled lawyer’s appointment. But when Main attended at the mother’s residence C.H. wasn’t home.

f. The mother subsequently advised Main that she had no intention of either meeting her lawyer again, or attending any more court dates.

g. On June 9, 2014 Main spoke to C.H. again, at which time the mother asked that Main not call her any more.

h. The mother also declined offers to assist her in arranging counselling, or arranging visits with the child.

11. The facts of this case overwhelmingly support the Society’s request for Crown wardship with no access.

12. The mother has a long history with child protection agencies, both as a child and as a mother:

a. Between 1993 and 2000 she was involved with the Sarnia Children’s Aid Society as a child.

b. Her behaviours as a child were reported to be out of control, and she spent a period of time in a girl’s home.

c. During this time she was involved in criminal activity, including an assault charge which led to time in custody. She also attended an alcohol and drug treatment center.

d. In February 2006 the mother became involved with Sarnia CAS as a parent regarding her first child. During that pregnancy the mother was admitted to hospital after cutting her wrists, and an uncle reported she was using drugs.

e. The mother’s first child was born June 3, 2006. She was apprehended and placed in the care of the maternal grandmother in September 2007. Five days later the child was returned to the mother’s care under a supervision order.

f. But in March 2008 the mother was arrested with her partner after they were found driving 172 kilometres per hour with open alcohol in a vehicle. The mother’s then 21 month old child was in the car at the time. The child was subsequently placed in the care of the maternal grandmother who eventually obtained a custody order.

g. The mother’s second child was born December 19, 2010. Her meconium tested positive for exposure to marijuana. The mother acknowledged she was unable to care for this child, and placed her in the Society’s care by way of Temporary Care Agreement. On March 13, 2013 the maternal grandmother obtained a custody order in relation to this second child, pursuant to s. 57.1 of the Act.

13. The mother’s two previous children are now ages eight and three. They remain in the maternal grandmother’s care. C.H. has almost no contact with either child.

14. The maternal grandmother had considered putting forward a plan in relation to B.C.H. as well, but ultimately she decided she was unable to do so. The mother has not proposed any alternate caregivers. The Society is unaware of any other potential kin placements.

15. The Society materials set out serious concerns about the mother’s ability to care for B.C.H. (or any child).

16. The mother has not attended access visits consistently since they commenced in August 2013:

a. After apprehension and following B.C.H.’s discharge from hospital the mother was given two access visits per week for 1.5 hours each visit.

b. Between August 2013 and May 2014 the mother only attended 46% of her scheduled visits with the child.

c. Her last visit was April 28, 2014. Before that it was March 31, 2014. Before that it was February 24, 2014.

d. On May 14, 2014 the mother’s visits were placed on hold – for the fourth time in nine months -- as a result of her poor attendance.

e. Despite invitations to do so, the mother has not made any requests for visits to be reinstated.

17. I accept the Society’s evidence that C.H. has a very limited relationship with B.C.H.:

a. When she attended visits, the mother was observed to be affectionate and loving toward the child.

b. But she struggled when the child was fussy or cried for an extended period.

c. At times she would become anxious and overwhelmed.

d. At times the mother cried when she was having difficulty with the child’s crying.

e. The mother did not consistently accept parenting suggestions in a positive manner. At times she presented as “challenging” the information provided by Society workers.

f. C.H.’s lack of regular and frequent contact with B.C.H. prevented her from developing familiarity, insight, and sensitivity with respect to the child’s needs.

18. The mother has a long-standing history of substance abuse:

a. She admits to being addicted to drugs since age 12 – for the past 16 yrs.

b. She continues to use drugs despite being involved in a methadone program.

c. The Society’s evidence sets out a number of instances in recent years when the mother has either admitted to using drugs, or tested positive for using various drugs.

d. In late January 2013 – when she was three months pregnant with B.C.H. – the mother suffered a drug-induced heart attack and was admitted to St. Joseph’s Hospital. Hospital staff attributed the medical event to the mother’s use of crystal methamphetamine, cocaine and hydromorphone (described as a drug “ten times more potent than morphine”). During her hospitalization the mother’s behaviour was described as “explosive”. C.H. ultimately left hospital against medical advice.

e. At the time of B.C.H.’s birth in […] 2013 nurses at St. Joseph’s Hospital described the mother as “higher than a kite” and under the influence of crystal methamphetamine. Hospital staff also stated the mother had been verbally aggressive and screaming. The mother called 911 twice while in hospital to complain about hospital staff.

f. B.C.H.’s meconium test was positive for hydromorphone and amphetamine. The child exhibited withdrawal symptoms following his birth including jittery behaviour and irritability. He was placed in the Neonatal Intensive Care Unit and had to be given a dose of morphine every four hours to help with the withdrawal symptoms. B.C.H. had to remain in hospital approximately 24 days to manage his pain and other symptoms.

g. B.C.H. has medical and developmental needs that may be related to his prenatal exposure to substances. He is currently being monitored and treated by various specialists and therapeutic programs.

h. During the year since B.C.H.’s birth, the mother has continued to use drugs. As recently as May 2014 the mother admitted taking illegal drugs – including horse tranquilizers – despite being periodically involved with a methadone program.

i. When Society worker Main asked the mother on May 15, 2014 if she would agree to attend substance abuse treatment, the mother declined, explaining that she was “sitting waiting to die”.

j. The mother refuses to engage in services or a rehabilitative program to address her addiction issues.

19. The mother has not been cooperative with the Society:

a. She has not maintained regular communication

b. She has declined to provide contact information.

c. She has failed to consistently attend visits in relation to B.C.H., and also in relation to her previous child.

20. The mother has demonstrated a lack of interest and commitment in relation to counselling or services. Last month she declined a Society offer of counselling, commenting that she didn’t perceive any need for counselling.

21. The mother has serious lifestyle problems including significant involvement with prostitution:

a. She has a history of working as a prostitute since age 13.

b. In early 2012 the Society discovered advertisements the mother had placed through on-line escort services. The mother admitted she placed the ads on the website, but claimed she had never followed through with the service.

c. The mother recently advised a society worker that she had a better life when she was involved in prostitution.

d. She has also been involved in criminal activity.

22. The evidence confirms other longstanding concerns about the mother:

a. She has a history of involvement in violent and abusive relationships.

b. She has had a transient lifestyle.

23. The evidence confirms the mother has learned nothing; changed nothing.

a. It was clearly explained to her why her first two children were taken away from her.

b. It was clearly explained to her why her third child B.C.H. was apprehended at birth.

c. Throughout, the concerns have remained the same.

d. The mother has clearly – repeatedly – been told what she has to do. What problems she has to address.

e. Not only has the mother failed to make the necessary changes to her lifestyle and behaviours – to a large extent she doesn’t even acknowledge that changes are appropriate or justified.

24. I accept the thorough and unchallenged evidence of the Society:

a. C.H. lacks the skills, motivation and stability to be an appropriate caregiver for this young child.

b. B.C.H. requires permanence and stability. His developmental and cognitive issues require a structured, enlightened, sensitive and stimulating home environment.

THE LAW

25. The Child and Family Services Act sets out a statutory pathway to be followed in a child protection application.

26. Where a child has been apprehended by a Society, the Society is required to commence an application under section 40(1).

27. There are two stages to a protection application. The court must first determine whether the child is in need of protection pursuant to section 37(2).

28. The Society asks that B.C.H. be found in need of protection pursuant to sections 37(2)(b)(i) and (ii); and (g) of the Act. The relevant provisions state:

37(2) Child in need of protection

A child is in need of protection where,

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

failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

. . . (g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

29. Section 57(1) sets out the options available and relevant considerations once a child is found to be in need of protection:

57(1) Order where child in need of protection

Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

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

2. Society wardship — 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.

3. Crown wardship — 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.

4. Consecutive orders of society wardship and supervision — 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.

57(2) Court to inquire

In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

57(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 him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

57(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 him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship 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.

57(5) Idem: where child an Indian or a native person

Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,

(a) a member of the child's extended family;

(b) a member of the child's band or native community; or

(c) another Indian or native family.

57(6) [Repealed 1999, c. 2, s. 15(2).]

57(7) Idem When the court has dispensed with notice to a person under subsection 39(7), the court shall not make an order for Crown wardship under paragraph 3 of subsection (1), or an order for society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47(1) has been held upon notice to that person.

57(8) Terms and conditions of supervision order

If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on,

(i) the child's parent,
(ii) the person who will have care and custody of the child under the order,
(iii) the child, and
(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

(d) [Repealed 2006, c. 5, s. 13(5).]

57(9) Where no court order necessary

Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

30. In determining which disposition is in the child's best interests, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be made a Society ward under section 70 of the Act:

70(1) Time limit

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.

70(2) Same 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.

70(4) Six month extension

Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

31. The factors to be considered in determining the best interests of a child are contained in section 37(3) of the Act:

37(3) Best interests of 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 take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. 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.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. 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.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. 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.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

14. A Crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J.) (1996), 23 R.F.L. (4th) 79 (Ont. Div. Ct.).

15. I have considered all of these criteria in reviewing the evidence on this summary judgment motion. In applying the best interests criteria set out in section 37(3), I have attempted to maintain a child-centered focus, reflecting the paramount purpose of the CFSA as set out in section 1:

1(1) Paramount purpose

The paramount purpose of this Act is to promote the best interests, protection and well being of children.

1(2) Other purposes

The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

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.

6. Based on the evidence, I find the following:

a. B.C.H. is in need of protection.

b. C.H. cannot adequately care for him.

c. There is an overwhelming risk that the child is likely to suffer physical and emotional harm if placed in the care of the mother.

d. The options now available are limited by the timelines set out in s.70 of the Act. B.C.H. has already been in care his whole life – almost the 12 month maximum permitted for a child of this age. Even a six month extension pursuant to s.70(4) would not give the mother enough time to adequately address and rectify her multiple problems. In any event, an extension could only be granted if it were in the best interests of the child – and in this case an extension would not be in the best interests of B.C.H.

e. The real options at this stage are to either return the child to the mother (with or without supervision) or Crown wardship.

f. As stated, it would not be safe to return the child to the mother. She is uncooperative and unreliable. No amount of supervision could ensure the safety of this child.

g. There are no other family and/or community placement options available.

h. The Society has made reasonable and commendable efforts to assist the mother.

i. B.C.H. is young and vulnerable. He has special needs, likely attributable to the mother’s use of drugs during pregnancy. He now requires above-average parenting, which the mother is completely unable to provide.

j. B.C.H. requires permanence.

k. I am satisfied that an order of Crown wardship is the only safe and realistic option available for B.C.H. in these circumstances. No less disruptive option is available, given the mother’s very troubling circumstances.

ACCESS

35. The Society has an obligation pursuant to section 63.1 of the Act to make all reasonable efforts to assist a child who is made a Crown ward to develop a positive, secure and enduring relationship within a family through one of the following:

Where a child is made a Crown ward, the society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through one of the following:

1. An adoption.

2. A custody order under subsection 65.2(1).

3. In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.

4. In this case the Society seeks Crown wardship with no access for purposes of adoption.

5. Access is dealt with in sections 58 and 59 of the Act. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a Society. But section 59(2.1) creates a presumption against access where the child is a Crown Ward. Section 59(2.1) has not been changed by the recent Amendments:

59(2) Termination of access to Crown ward

Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

59(2.1) Access: Crown ward

A court shall not make or vary an access order made under section 58 with respect to a Crown ward 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.

38. Once there is an order for Crown wardship, the focus of the Act is to establish a permanent and stable placement for the child. There is a presumption against access to Crown wards. Children's Aid Society of Toronto v. C. (S.A.), 2005 ONCJ 274, [2005] O.J. No. 2154 (Ont. C.J.). The person requesting access must provide evidence with respect to both requirements of s. 59(2.1). Children's Aid Society of Metropolitan Toronto v. A. (M.), 2002 53975 (ON CJ), 2002 CarswellOnt 1923 (Ont. C.J.); D. (C.) v. Children's Aid Society of Algoma, [2001] O.J. No. 4739 (Ont. S.C.J.). The rebuttable presumption under s. 59(2.1) is conjunctive. A person must rebut both elements of s. 59(2.1) or the access cannot be ordered. This is a difficult onus for parents to discharge. Children's Aid Society of Toronto v. I.H. 2013 ONCJ 495 (Ont C.J.); CAS of Hamilton v. W. (A.) 2013 ONSC 7849 (SCJ).

39. The Divisional Court provided guidance with respect to the first part of the s. 59(2.1) test in Children's Aid Society of Niagara Region v. C. (J.), 2007 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.). Aitken J. stated at paragraph 29:

"Beneficial" has been held to mean "advantageous". "Meaningful" has been held to mean "significant" Children's Aid Society of Niagara Region v. J. (M.) (2004) 4 R.F.L. (6th Carswell 2800, at para. 45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother's relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified”.

40. It takes more than pleasant encounters to constitute a "beneficial and meaningful" relationship for a child; the child must be bonded and emotionally attached to the parent before the first branch of the test in s.59(2.1) of the Act can be satisfied: Children's Aid Society of Niagara Region v. J.C. (2007), 2007 8919 (ON SCDC), 36 R.F.L.(6th) 40 (Ont.Div.Ct.); Children's Aid Society of Owen Sound and Grey County v. T.T., 2005 24909 (Ont S.C.J.)). As Sherr J. stated in Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803 (Ont.C.J.) "even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child."

41. Even if access is generally enjoyable for the child, the court may consider whether the beneficial aspects of visits outweigh the child's need for continuity of care, and a secure placement as a member of a stable family. (Children's Aid Society of Toronto v. M.A.(2006) 2006 1671 (ON SC), O.J. No. 254.)). The quality of the relationship must be the focus. The parents have to show more than just that a child has a good time during visits. (Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523, [2006] O.J. No. 5344 (OCJ)).

42. Similarly, more is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being.

43. The issue is not whether the parent views the relationship with the child as beneficial and meaningful. The court must examine the quality of the relationship from the child's perspective. Catholic Children's Aid Society of Hamilton v.L.S., (2011 ONSC 5850 (Ont. S.C.J.)).

44. The focus of the inquiry is the nature and quality of the relationship between the child and the person seeking access at the time of trial. Section 59(2.1) speaks of existing relationships, not potential future relationships. The court should not consider whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. Children's Aid Society of Bruce v. D.J. (2013 ONSC 717). Children's Aid Society of Niagara Region v. J.C., 2007 8919 (ON SCDC), [2007] O.J. No. 1058 (Div. Ct.); Catholic Children's Aid Society of Hamilton v. T.D. & A.A., 2013 ONSC 5650 (Ont S.C.J.) The child cannot be expected to wait and suffer while a mother or father learns how to be a responsible parent: Huron-Perth Children's Aid Society v. J.F. ([2012] O.J. No. 5215 (S.C.J.)).

45. The decision about access to a Crown ward is not to be made lightly. An access order cannot be merely a consolation prize for disappointed adults. Catholic Children's Aid Society of Toronto v. M.M., (2012 ONCJ 440 (Ont. C.J.)).

46. In this case the mother has provided no evidence to address either element of the s. 59(2.1) test.

THE ORDER

47. The order:

a. The child B.C.H. born […], 2013 is in need of protection pursuant to paragraphs 37(2)(b)(i) and (ii); and (g) of the Child and Family Services Act.

b. The child B.C.H. is made a Crown ward and placed in the care of the Children’s Aid Society of Hamilton.

c. There shall be no access by the mother, and any previous access order is terminated.

Pazaratz, J.

Released: June 19, 2014

COURT FILE NO.: C1154/11

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton

Applicants

And

C.H. (mother)

Respondent

REASONS FOR JUDGMENT

The Honourable Mr. Justice Pazaratz

Released: June 19, 2014