ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

and in the matter of: E.J.T., born […], 2013 - Male

B E T W E E N:

Family and Children’s Services of Frontenac, Lennox and Addington

Ayana Hutchinson, for the Children’s Aid Society

Applicant

– and –

N.P. and J.T.

Respondents

Jane Thurber, for N.P.
Sheri Thompson, for J.T.

HEARD: June 16, 17, 18, 19, 20, and 25, 2014 (in Napanee)

REASONS FOR JUDGMENT

MINNEMA J.

[1] This was a child protection trial where the applicant Children’s Aid Society (“Society” or “CAS”) was seeking Crown wardship of the child E.J.T., age one. The child had been removed from the parents at birth. The mother’s position changed during the course of the proceeding, and even during the course of this trial. However, throughout she was seeking a return of the child, with or without a supervision order, and with or without a partner as part of her plan. At the trial the father was supporting the Society’s position.

Issues

[2] The first issue is whether the child is in need of protection pursuant to section 37(2) of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (all further references to legislative sections are to this Act). If the child is found to be in need of protection then the second issue is what order the court should make in the child’s best interests. The third and last issue is what if any access should be ordered.

Facts

[3] The mother Ms. N.P. was born on […], 1987, and is currently 27 years of age. Her first child C.P. was born on […], 2011, and was apprehended at birth by the Highland Shores Children’s Aid Society (“HSCAS”) in Belleville, Ontario. The concerns of HSCAS at the time were the mother’s mental health, intellectual limitations affecting the ability to parent, housing instability, lack of consistent family support, and history of abusing substances.

[4] Ms. N.P. met the respondent Mr. J.T. in the summer of 2010, although they did not start to date until around […] 2011 after C.P. was born. They began living together in the summer of 2011. Mr. J.T. had been in a previous relationship and had a child, H., now age 12, who lived with her mother and he was having regular access. Mr. J.T. supported Ms. N.P. in trying to have her first child C.P. returned to her care.

[5] A temporary care hearing regarding C.P. was held in the Ontario Court of Justice in Belleville on November 1, 2011. The court denied Ms. N.P.’s request to have C.P. placed with her finding that there was a likely risk of harm as her cognitive limitations impaired her ability to safely parent an infant without constant supervision. It relied on a report from Ms. N.P.’s long-time family doctor who said “[t]here would be considerable concern regarding [N.P.]’s ability to parent an infant and to provide the necessities of life in a consistent and continuous manner …” It also relied on affidavit evidence from two supervised access workers from that society indicating that they observed that C.P’s needs could not be met by Ms. N.P. without their assistance during access visits. Lastly the court noted concerns regarding an incident of domestic violence involving Mr. J.T.’s alcohol use, which was admitted by both parties, and a lack of family support. It concluded:

Ms. [N.P.] at present does not have any family who could adequately supervise her. She would need someone to live with her who could provide constant supervision. Mr. [J.T.] works full time and their relationship has been strained.

[6] On April 24, 2012, a Family Court Clinic section 54 assessment was completed on Ms. N.P., her partner the respondent Mr. J.T., and on C.P.’s father. Ms. Elleen Bonner was the assessor. The assessment included supporting Psychological Reports on the parents and on Mr. J.T. by clinical psychologist Dr. Christopher Cooper. The report recommended that C.P. be made a ward of the Crown for the purposes of adoption.

[7] At the end of May 2012, Ms. N.P. completed selected seminars in a positive parenting program.

[8] While the protection proceeding regarding C.P. was ongoing, Ms. N.P. conceived her second child, the first with Mr. J.T. S.P.-T. was born on […], 2012. She was apprehended by the HSCAS at birth resulting in two separate child protection proceedings before the Ontario Court of Justice. Shortly afterwards, on June 25, 2012, S.P.-T. was returned to Mr. J.T. and Ms. N.P. pursuant to an interim supervision order. The plan was that the Society, Ms. N.P’s family, and many services were all to be heavily involved to support the return, with a schedule that essentially provided for constant supervision of Ms. N.P. when caring for S.P.-T. However, despite all the support, less than a month later on July 18, 2012 the child was ordered back into the care of the HSCAS. The court’s decision was delivered orally, but the evidence at this trial indicated that the reason was the parents did not abide by the interim supervisory conditions.

[9] On November 8, 2012, the parties in the proceeding regarding Ms. N.P.’s first child C.P. agreed that the child was in need of protection, and to a 12-month supervision order placing her in the care of her father. The agreement provided for access to Ms. N.P. once per week for 6 hours supervised by that Society. The mother’s lack of family support, substance use, and unstable housing were no longer noted as protection concerns. However, added to the concern that Ms. N.P.’s cognitive limitations affected her ability to meet the child’s basic needs, there was a new concern about domestic conflict with Mr. J.T.

[10] In January, February, and March of 2013, there was a trial regarding S.P.-T. It involved the same respondents as in this case, but as noted a different Children’s Aid Society. The child was found to be in need of protection and an order was made for Crown wardship, without access, for the purposes of adoption. After a ‘last visit’ the parents had no further contact with this child. The Reasons for Judgment of the Ontario Court of Justice are dated March 14, 2013, and are found at 2013 ONCJ 151. The section 54 assessment regarding the child C.P. was in evidence at that trial, and Ms. Bonner and Dr. Cooper both testified. It was noted that Ms. N.P. was pregnant at the time.

[11] E.J.T., the child who is the subject of this proceeding, was born on […], 2013. As noted, he was apprehended at birth. The main concerns were the mother’s limited ability to care for a child, the father’s alcohol abuse, and domestic conflict between the parents. The Society brought an application for Crown wardship. On June 11, 2013, an order was made placing E.J.T. in the temporary care of the Society with access to the parents in its discretion. The parents filed a joint answer on July 9, 2013, seeking to have E.J.T. returned to their care subject to a 12-month supervision order.

[12] The parents had provided the names of three possible kin placements for the child: Ms. N.P.’s mother, her sister, and the father’s employer/friend. Ms. N.P. then advised that her mother would not be able to present a plan because of health concerns. Her sister had been previously assessed as a possible kin placement by the HSCAS and was not approved. Mr. J.T.’s employer and his wife had been working with a private adoption practitioner, and they were approved as a place of safety for E.J.T. The child was placed with them following the apprehension, and they subsequently became foster parents.

[13] The access visits between E.J.T. and his parents were initially three times a week supervised, twice at the foster home, and once at a service provider Food For You, Food For Two, where educational support was available. The foster home was some fourty to fourty-five minutes from Napanee, Ontario, where the parents lived and where the CAS had its office. The bulk of the driving was done by the Society workers or volunteer driver, as neither the mother nor the father drove. The mother also attended with the worker and foster mother for doctor’s appointments for E.J.T.

[14] As noted, the father worked for the foster father. I will not describe the business given its identifying nature in a small community. At times the father would see the child unofficially when near his employer’s home in the course of work. This raised concerns for the mother. She felt the Society was favouring the father and that it was unfair that he was able to see the child more.

[15] Both parents initially raised concerns that the foster parents were acting as if they were going to adopt the child. For example, the foster parents expressed a desire to call the child by a first name picked by them. They were redirected by the Society. People at the work site in the presence of the father congratulated the foster father about having a child in his care, and people sent congratulatory greeting cards that were seen by the mother. However, those events were out the foster parents’ control given that in such a small community a new child in the home would be noted. Still, it made the access in the foster parents’ home quickly uncomfortable for the parents. The mother asked for the access visits to be elsewhere, and this was accommodated. Around mid-July 2013 the visits changed, and the foster home times were moved to the CAS offices and the Early Years Centre, another service provider. This required the foster father to drive the child to the CAS and wait until access was over, again at some distance, which was done without complaint. The visits at Food For You continued.

[16] At some point during that first summer the parents moved from the actual town of Napanee to a very small community still part of Greater Napanee area but twenty minutes away. The new home was right next to the father’s place of work. The Tuesday access visits began occurring there, still supervised.

[17] As an aside, the mother and father disagreed about the date that they moved. The father said it was on August 31, 2013, and the mother said it was July 13, 2013. The mother said she was sure of her date as it was the same date that her grandmother died. However, in her other evidence she indicated that her grandmother died on September 25, 2013.

[18] Two events in quick succession triggered a period of residential and access instability for the mother. It needs to be noted that prior to that her attendance for access had been very consistent.

[19] On September 26, 2013, the mother was dealing with some personal issues, including the death of her grandmother, and she interacted aggressively with the CAS worker at the parents’ home. As a result a decision was made by the Society to move the Tuesday access visits back to the Society’s office. This upset the mother and she began refusing to attend visits.

[20] Shortly afterwards the parents separated. As noted there had been domestic conflict in the past. This time the father was quite upset because Ms. N.P. questioned his paternity of E.J.T. As the mother described it, he kicked her out of the home. As he described it, he was tired of all the conflict, and it made sense that he stay in the home as it was right next to his place of work and he didn’t drive. As a result the mother lived for brief periods back and forth between a women’s shelter, her mother’s, and her sister’s. The shelter located two apartments she could rent but they were not to her liking.

[21] The father’s access continued every Tuesday and Thursday in his home and every other Saturday at the Early Years Centre. Without the mother present his visits became loosely supervised. The mother had no access for a period of six weeks from the beginning of October until November 19, 2013 when she decided to resume. Her access after that point was once per week on Tuesdays for two hours at the CAS offices.

[22] Around this time the court proceedings regarding Ms. N.P.’s first child C.P. concluded with the filing of a ‘Consent to a Final Order’ on October 31, 2013. The resulting Order gave C.P.’s father sole custody and provided for supervised access to Ms. N.P. at the Supervised Access Centre for a minimum of 3-hours every other week or as otherwise agreed. Despite that order Ms. N.P. indicated that the last time she saw the child was in December of 2013. She indicated that she does not like the Supervised Access Centre so she chose not to see C.P.

[23] At the Assignment Court for this proceeding on November 29, 2013, the parents’ legal counsel at the time advised that she was going to bring a motion to get off the record for Mr. J.T. Both parents subsequently retained new counsel.

[24] When the parents were exercising access to E.J.T. together, the father was observed to be taking what could be described generally as the lead role. There were concerns noted by the workers, consistent with observations and findings regarding the children C.P. and S.P.-T., about the mother’s ability to parent. Despite good effort on her part in engaging with services and asking many questions, she had difficulty with feeding, and safety concerns were noted, one example being that when access was in the home she had almost allowed her large dog to step on the baby’s head. She had difficulties reading the child’s cues, examples being her stimulating the baby when he was giving clear signs he was ready to nap, and reacting as if he was choking when he only burped. She would also engage socially with the supervising workers rather than with the baby for longer than what would reasonably be expected. There were examples of the mother not appreciating the child`s level of development, such as leaving him on a couch when he was not yet able to sit up on his own, and putting him in a bouncy chair before he was able to hold up his head unsupported. As noted, once the parties separated, the supervision regarding the father’s access loosened considerably, with just a periodic checking in by the workers and foster father. The mother’s access, however, remained closely supervised, as no sustained significant improvements were noted. The mother had difficulty retaining what she had learned, and exhibited a lack of confidence often looking to the supervising worker for reassurance.

[25] After the separation the mother wanted the Society to intervene and call the father to allow her back into the home. She blamed the Society for triggering the separation. The father was clear in his evidence that the separation was his decision. However, when the mother’s sister dropped her off at the father’s home in late November and she had nowhere else to stay, the father let her remain there. The CAS then advised the father that the access in his home would have to go back to being more closely supervised, due to the history of domestic conflict. This upset the father, and he arranged to have the mother leave the home by December 5, 2013. She went back to the shelter. From the mother’s point of view, the Society had a hand in forcing the continued separation.

[26] Shortly afterwards, on December 19, 2013, at a full meeting at the CAS office with the mother and service providers, Ms. N.P. announced at she was not going to see E.J.T. again after her next access visit on December 24, 2013. This was despite encouragement to continue by those present. Prior to that next visit, the mother was again asked to reconsider, but she confirmed that she decided to not have further access as it was too hard. However, following the visit she asked the access supervisor to tell her worker that she did not want it be her last one, that she was just mad. The worker told Ms. N.P. that if she wanted further access she could call and the mother agreed.

[27] Subsequently the mother called the Society and left a message about access, the call was returned and a message left, but the mother did not call back. A worker from the shelter then called the Society inquiring about an access schedule and was told to have Ms. N.P. call. On January 10, 2014, the Outreach Worker from the shelter called and advised that the mother wanted her access to resume. It was set up for January 21, but the child was sick that day, so the mother’s first visit was on January 28, 2014, after not seeing the child for a full five weeks. This was the second significant continuous gap in the mother’s access.

[28] In February and March of 2014, the mother cancelled four out of seven arranged visits.

[29] On March 11, 2014, Mr. J.T. filed an amended answer for himself, clarifying that he was now supporting the Society’s position. He noted in his pleading that he was confident given his relationships with the foster parents and the child that he would have continuing access following an adoption.

[30] On March 17, 2014, the court heard a motion by Ms. N.P. seeking a number of interim orders related to the access, including unsupervised access or to have her access supervised by her family or her new spouse. She also sought a section 54 parenting capacity assessment. The motion was denied on all counts except a request to take the child for family photographs at a studio. The court found, based on the affidavit evidence, that there were “striking similarities” between the facts and concerns in the previous parenting capacity assessment report and the current situation.

[31] On March 31, 2014, the court dismissed a motion brought by the Society for summary judgment. Among the factors it noted in its finding that there was a genuine issue requiring a trial was that the mother’s plan no longer included Mr. J.T. and it now included a new partner, Mr. S.B., who had not yet been assessed or tested. The court noted that the child was nine months old at the time, and that the trial dates had already been set for mid-June.

[32] The mother asked the Society for more access in April of this year. She was told that because of the missed access she would have to first show consistent regular attendance before it could be expanded.

[33] At trial the mother indicated that she has been receiving benefits on the Ontario Disability Support Program (“ODSP”) since she was 18 or 19 years old, related to her learning disability. She stated that she suffers from depression and anxiety. It was noted that she had been involved with Healthy Babies Healthy Children around the child’s birth, a program by the health unit for families with young children. Ms. N.P. indicated that she had a number of community supports, including her family. She noted a number of current supportive services, which included both an outreach worker and a court support worker both from the women’s shelter, and a mental health services counsellor. The shelter’s outreach worker and the mental health counsellor both provided letters confirming that they were providing services. The mother indicated that she previously had an Adult Protective Services Worker, but she had not seen anyone officially in that capacity for about eleven months. Her pastor also wrote a letter that was referred to but not put into evidence. The details of her involvement with the church were confusing; the mother maintained that she had been continuously attending, while the letter and evidence from her current partner suggested she had become recently re-involved.

[34] Both Ms. Bonner and Dr. Cooper testified. Dr. Cooper indicated that the psychological findings he had made previously were enduring, stable over time, and tended not to change in adulthood. He said there was no need to reassess the parents for four or five years. He noted that Ms. N.P.’s developmental delay had significant implications regarding a broad spectrum of functioning, and in a general sense would raise questions of about her ability to learn, her judgment, her foresight, and her ability to prioritize. Regarding learning, Dr. Cooper noted that a parent needs to be able to learn, retain what is learned, and has to adapt as a child’s development progresses. He said there are fairly serious questions about Ms. N.P.’s ability in that regard. When questioned about her ability to parent with supports, Dr. Cooper said that in his experience she would likely function best if she had a live-in arrangement with family/parents, which he described as well integrated support on an ongoing daily basis. When asked about Ms. N.P.’s capacity for formal schooling, he said that it would be exceptional, and highly unlikely, for Ms. N.P. to go to college and graduate. Ms. N.P. had been indicating a desire to become a lawyer, and when asked about that Dr. Cooper indicated that it was totally unrealistic, and evidence of her poor judgment and reality testing.

[35] Ms. Bonner was asked whether the previous difficulties she had observed Ms. N.P. experience in access visits with the child C.P. would be expected to be different now for E.J.T., a child of similar age. She said no, and added that for C.P. the mother was offered every available support, and she tried to the best of her ability to parent that child, but it had little impact. When asked if Ms. N.P. could parent with extensive support, Ms. Bonner noted that with C.P. she was getting eight hours a week access with hands on support and was still having difficulties. Consistent with what Dr. Cooper had stated, Ms. Bonner said that Ms. N.P. would have needed someone living with her full time to assist with C.P.

[36] Although there was no plan by a family member to live with Ms. N.P. to help care for the child, as noted the mother indicated that she was close to her family. She went to great lengths in her evidence to point that out. She cannot drive. Her new partner Mr. S.B. does not drive. Mr. S.B. indicated that after work on the weekdays he cleans up after dinner and they usually go for a walk. He indicated that Ms. N.P. goes to bed around 9 p.m. They have no telephone land line, and Ms. N.P. has no cell phone. When she needs to use the telephone Ms. N.P. indicated that she borrows Mr. S.B.’s cell phone. Yet Ms. N.P. in her evidence indicated that she speaks every night on the telephone to her father. She said she speaks every day and night on the telephone with her sister. She said she speaks to the mother of her new partner Mr. S.B. every night on the telephone. She said she talks every night with her pastor’s wife. She says that she talks to her niece on the phone every night. I was left with the impression that Ms. N.P. was somewhat prone to exaggerate the contact she has with her supports, none of whom testified at this trial.

[37] I should add that Dr. Cooper’s testing noted an elevation in the paranoid scale regarding Ms. N.P. Indeed, she did not trust the Society or the foster parents. An example was that she believed that the foster father had attempted to buy both the child S.P.-T. and E.J.T. It was not clear how she perceived this alleged purchase was to happen, given that the alleged gifts and promises of gifts were to her and the father, while both children were apprehended at birth and never really in their care. Some of the pay-offs that were alleged were a cell phone and a laptop. The father did not deny receiving these, but as he convincingly described and I find, they were needed for the business that he was essentially operating and managing for the foster father. Ms. N.P. also alleged that free rent was provided as a pay-off. This was denied by the father. The property where they lived was not owned by the foster father or his business, and I find on the evidence that rent was actually being paid – indeed even Ms. N.P. said at one point that she had been paying it. The mother also indicated that the foster father had offered to buy them a house. This too was denied by the father. The mother suggested rather generally that the offer was made to her alone. There was no evidence of a direct conversation between Ms. N.P. and the foster father along these lines or what was alleged to have been said. It did not make any sense why an offer would be made to her alone when she had no relationship with the foster father.

[38] An important aspect of this case is Ms. N.P.’s current partner Mr. S.B. They started dating on January 23, 2014 of this year. According to Ms. N.P. they had a discussion about his co-parenting E.J.T. as early as February 2014, even before they began cohabiting. They moved in together afterwards on March 10, 2014. Mr. S.B. was put forward as a possible access supervisor on the mother’s motion heard on March 17, 2014. By the time of the summary judgment motion heard on March 31, 2014, he was part of the mother’s plan and a reason why the Society’s motion as unsuccessful. Since then the Society has tried to meet with Ms. N.P. to investigate her plan with Mr. S.B. but has been unable to do so. Mr. S.B. has not made himself available to meet with the Society.

[39] Mr. S.B. is 24 years of age. He has a steady job that takes him out of the home from about 7 a.m. to 5:30 p.m. weekdays and every other Saturday morning. He has babysat older family members but has no real parenting experience. He stated he does not drive as he lost his licence for an impaired driving conviction in 2009 and has not had the money nor the time since to get it back. No criminal record check was in evidence. Mr. S.B. stated regarding other criminal activity that he was convicted of assault also in 2009. He related both of these criminal dispositions to problems with drinking, and he made claims about total abstinence afterwards that were not entirely accurate.

[40] This somewhat new relationship seems to be moving slowly. Although Ms. N.P. gave evidence about her having a close relationship with her mother and sister, Mr. S.B. indicated that he had only met each of them once. Ms. N.P. said she was not sure whether her cohabiting with Mr. S.B. will affect her disability benefits as she had not yet inquired. Related to that, she stated she had no idea what Mr. S.B. earns as she had never asked him, even though they currently share household expenses and they have a plan to parent E.J.T. together.

[41] Mr. S.B. and Ms. N.P. gave evidence about their relationship. Mr. S.B. said he and the mother have differences now and then but they try to talk it over and agree. Ms. N.P. described their relationship as “fine, not perfect”, and indicated that when they argue each goes into their own room to cool down, Mr. S.B. has a smoke, and then they discuss. She said that they fight once in a while, have disagreements maybe once a month. It needs to be noted that Ms. N.P. has stated to the father that Mr. S.B. had been violent with her, and she has stated to the Family Services Worker that living with Mr. S.B. was like living with the father all over again, in reference to conflict.

[42] Mr. S.B. indicated in his evidence that he had some awareness of the past difficulties the mother is alleged to have had with parenting. He knew she had three children none of whom were currently in her care. However, without any factual basis at all, he confidently stated that he doubted that the concerns alleged by the Society were true, and he said that they did not raise a concern with him. He clarified that by saying that he does not have any concerns as he has not seen Ms. N.P. parent any child.

Analysis

[43] Ms. N.P. brought an oral motion to amend her answer at the start of trial that I granted on consent. Her first position was that the Society’s application should simply be dismissed, and she be allowed to care for E.J.T. without any Society supervision. Her second alternative position was that if E.J.T. is found to be in need of protection, then he should be placed with her pursuant to a supervision order on conditions that the court deems appropriate. Her third alternative was that, if the child is made a Crown ward, she wanted an access order. In her closing submissions she added that an order could be made placing E.J.T. with both her and Mr. S.B., either by way of a custody order or a supervision order.

[44] Understandably, the mother’s focus at trial was on the plan with Mr. S.B. Given the previous findings of this court and the Ontario Court of Justice, and given the evidence of the Ms. Bonner and Dr. Cooper, that was clearly her best plan as there was no evidence from anyone familiar with this case, other than Ms. N.P. herself, suggesting she could safely parent E.J.T. on her own. I find her first position of a straight dismissal of the Society’s application, leaving her without any supervision or conditions, to be completely out of touch with reality. So too was her refusal to acknowledge any legitimate protection concerns. She even went so far as to state that the application for ODSP was originally done without her knowledge or consent, implying a mistake about the extent of her learning disability, notwithstanding that she has continued to qualify and receive those benefits for the past eight years.

[45] The mother loves E.J.T. and wants what she thinks is best for him. Despite the missed access and her difficulty in visits, her desire to parent the child is sincere, as is her belief that she has the capacity to do so safely. She was quick to rightly point out to the Society any concerns she was able to identify, such as when she saw a picture of the child being near water without a lifejacket.

[46] As to the specifics of Ms. N.P.’s plan with Mr. S.B., she indicated that the child would be in Day Care three days a week, and that they would do many activities when he was home. Given Mr. S.B.’s long work hours, Ms. N.P. would be unsupervised with the child at the start and end of those three days, as well as on the full two weekdays E.J.T. is not in day care. The implication was that when Mr. S.B. was around he could play a large role in the child care and even in the supervision of Ms. N.P. However, he had very little child care experience and did not believe there were any concerns with Ms. N.P.’s ability to parent. He said he would take a parenting class if it was recommended.

[47] The Society’s plan was Crown wardship. Section 63.1 directs the Society to make all reasonable efforts to assist a child who is a Crown ward to develop an enduring relationship within a family, and this includes an adoption. The specific plan was adoption of E.J.T. with his current caregivers, who, as noted, are community placements that the father continues to support.

Protection Findings

[48] The Society has pled that the child is in need of protection pursuant to subsections 37(2)(b)(i) and 37(2)(g). I find that E.J.T. is a child in need of protection on the first ground. There is overwhelming evidence that there is a risk that the child is likely to suffer physical harm in the care of his mother. Without belabouring the point, it has not even been safe for her to have access to E.J.T., or her two previous children, without constant supervision. The second ground, however, is not made out. While there was evidence that Ms. N.P. can expect to experience difficulties in the future, these were not specifically tied to any resulting risk of emotional harm to the child as set out in that subsection.

Pre-Intervention Efforts

[49] I was required to ask what efforts the Society made to assist the child before intervention (s. 57(2)), and evidence was led by the parties. I am satisfied with the efforts made by the Society to assist the child before intervention. Although the application started with a request for Crown wardship, the mother’s continued connection to services existed prior to E.J.T.’s birth. The Society continued to consult with those services.

Disposition

[50] In the context of this case, having found the child to be in need of protection, I am now directed to either make a supervision order to the mother or another person (s. 57(1)1), a Crown wardship order (s. 59(1)3), or an order returning the child to the mother without conditions (s. 57(9)). As E.J.T. has been in care for a little over one year, I could also make an order for society wardship pursuant to s. 70(4), limited to about four months.

[51] I cannot make a Crown wardship order unless I am satisfied that less disruptive alternatives, for example a viable supervision order, would be inadequate to protect the child in the mother’s care (s. 57(3)).

[52] A supervision order to another person is to be considered before making a Crown wardship order (s. 57(4)).

[53] In deciding which of the available dispositions to order, I am directed to consider the child’s best interests, and the circumstances set out at section 37(3) that I consider relevant.

Best Interests

[54] The following are the s. 37(3) factors that I consider relevant regarding E.J.T.’s best interests.

[55] I have considered the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. Mr. J.T. is regular with his access and has a positive relationship with E.J.T. Despite starting strong Ms. N.P. has allowed two significant gaps in access and has missed other visits. With inconsistent attendance after the parents separated and limited progress in the quality of the visits, there was no basis on which to increase her frequency. As noted further below, there is little evidence of a positive relationship between mother and child. On the other hand, there is no evidence other than that the child is secure in his current placement.

[56] I have also considered 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. Again, the father has a solid relationship with the child that is expected to continue after a Crown wardship order. There was also evidence that in the child’s current placement access has been occurring and will continue to occur between E.J.T. and certain of his siblings. While there was evidence of positive interactions between the mother and child initially, these have waned with her lack of contact such that even she questioned the level of E.J.T.’s bonding and attachment to her.

[57] I have considered the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. The child had been in the care of his foster family since birth. It is the only home that he has known. If an order for Crown wardship is made and if their adoption application is successful he will remain there. The foster parents are community placements.

[58] I have noted the respective Plans of Care in this case. In weighing their merits I find that the Society’s plan offers the child the best chance to develop while keeping some family contact with his father and siblings. In many respects, given her history and the continuous supervision of her access, the mother’s plan hinged on Mr. S.B. However she did not give the Society an opportunity to fully explore that plan prior to trial. The Society indicated that the first time they heard from Mr. S.B. was when he gave his evidence in this proceeding. The plan with him seems to have been hastily put together. Mr. S.B. and Ms. N.P. had only dated two months and were not even cohabiting when they decided to try to parent the child together. They had only lived together for three months by the start of this trial. There is nothing that convinces me that this will be a stable long-term relationship or that Mr. S.B. has the parenting skills to take a leading role in the mother’s plan. Even during those brief three months together there is already some evidence of some conflict between Ms. N.P. and Mr. S.B. Lastly, I note that the mother’s plan made no reference to sibling access. She is not exercising access to C.P. herself, and has a negative relationship with Mr. J.T.’s other child H.

[59] I have considered 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. The only risk I see is in returning the child to the care of the mother. The degree of risk, another consideration, is quite marked, such that the suggestion by the mother that the child be returned to her without any conditions, her first position, only highlighted her lack of awareness of her own limitations, which is a risk in and of itself.

Supervision Order to “Another Person”

[60] As no independent plan has been presented, it is not possible to place E.J.T. in the care of a member of his community or extended family by way of a supervision order.

Supervision Order to the Mother

[61] I adopt the evidence of the experts and the previous findings of the Ontario Court of Justice. I find that Ms. N.P. would need to have someone assisting her full time if she were to safely care for a young child. Her proposed supervision order did not set out any actual or specific conditions, rather it was formed around Mr. S.B. and her argument was that she will abide any conditions that the court thinks appropriate including “very tight terms that would eliminate any risk”.

[62] Leaving the child in the care and custody of the mother while requiring that her access be essentially supervised at all times is somewhat inconsistent on its face. It would require restrictions and conditions that would in effect give Mr. S.B. decision making authority. I do not consider that to be reasonable. Mr. S.B. has not indicated that he is seeking care and custody. He has never met the child. Further, I am not confident such an order could be successfully implemented. While Mr. S.B. said that he would call the police or the CAS if there were problems, he clearly saw his role as supporting Ms. N.P. whom he believes can parent on her own. He has limited parenting experience and works full time. I note that the request here is for a final supervision order, but when an interim one was ordered for the child S.P.-T. on generally the same proposed terms it broke down after only one month. Overall, while I have considered subsections 57(3) and (8), I find that a supervision order would be inadequate to protect the child.

Summary re Disposition

[63] Given all the above, I find that an order for Crown wardship is in E.J.T.’s best interests. I am not satisfied that less disruptive alternatives are available to protect the child in the mother’s care. The child is in need of protection, and nothing has really changed with the mother in her ability to care for a child in the years since her first child C.P. was born. Along those lines, I do not see how it would be in E.J.T.’s best interests for me to make an order for society wardship for the next several months. That was not proposed and there was no indication in the evidence of any likely change during that period.

Access

[64] The mother argued that her access visits were generally positive, and that it is inevitable in a small community that she and the child are going to run into each other at some point. Her position was that access should therefore be permitted as it will not cause harm and will avoid future distress for E.J.T. She maintained that the foster/kin family is committed to the child, and it is therefore extremely unlikely that the court imposing an access order will disrupt the placement. I note that Ms. N.P. did not propose a specific access plan in the sense of outlining what kind of frequency she sought or how supervision would work.

[65] As to the law, upon E.J.T. being made a Crown ward the existing interim access order automatically terminates. A legislative presumption arises against my making any further access order unless pursuant to s. 59(2.1) the mother proves each of the following on a balance of probabilities: that the relationship between her and the child is meaningful to the child; that the relationship between her and the child is beneficial to the child; and that the ordered access will not impair the child’s future opportunities for adoption: Children’s Aid Society of the Niagara Region v. C.(J.), 2007 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.).

[66] I appreciate that it is difficult here as in many cases for a parent to meet the onus under s. 59(2.1). This is by legislative design, as the presumption against access is to facilitate permanency planning of the child through adoption.

[67] The mother, to her credit, recognized herself that as a result of the missed access the child’s attachment or bond to her was questionable, and she unsuccessfully sought additional access only a few months before trial to try to address the lack of a meaningful relationship. In a visit before trial the child was noted to be arching his back when Ms. N.P. held him and making strange. I find that she has not proved that access with her would be meaningful to the child.

[68] There was no evidence that the visits with the mother would provide an advantage to E.J.T. She has therefore not met the onus of establishing that access would be beneficial to the child. I would go further and find that any access ordered would actually be harmful to the child in that it would destabilize his permanent placement. After Crown wardship any access must be supportive. It is not intended to facilitate the mother having a current or future parenting role. I am not convinced that Ms. N.P. would be able to accept that, or even make the distinction. She was asked whether she could support the Crown wardship order. She indicated that she could not. She added that she was dead set against adoption – she doesn’t believe in it.

Decision

[69] I find that E.J.T. is a child in need of protection pursuant to subsection 37(2)(a)(i) of the Act. He is hereby made a Crown ward. There shall be no order as to access. This is not an appropriate case for costs.

Mr. Justice Timothy Minnema

RELEASED: August 20, 2014

COURT FILE NO.: 254/13

DATE: 2014/08/20

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant

AND

N.P. and J.T., Respondents

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Ayana Hutchinson, for the Applicant
Jane Thurber, for N.P.
Sheri Thompson, for J.T.

REASONS FOR JUDGMENT

Mr. Justice Timothy Minnema

Released: August 20, 2014