Court File and Parties

COURT FILE NO.: 6227/15 and 6232/15 DATE: 2016-05-02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHATHAM-KENT CHILDREN’S SERVICES Applicant/Respondent on Appeal – and – L.L. and T.R. Respondents/Appellants on Appeal

Counsel: Paula DeBoer, for the Applicant Margaret A. Vicente, for the Respondent L.L. The Respondent T.R. self-represented Tara Gatten, for the child T.L.

HEARD: March 29, 2016

HEENEY R.S.J.:

Reasons for Judgment

[1] This is an appeal of the judgment of Glenn J. of the Ontario Court of Justice released June 3, 2015, cited as 2015 ONCJ 312. Appeals have been brought separately by the mother L.L. (“the mother”), and by T.R. (“the father”), who are the parents of the child T.L., born […], 2012.

[2] The decision in question ordered that T.L. be made a Crown ward with no access by the parents. It also dealt with two other children, who were born to the mother but were fathered by two different men, neither of whom are parties to this appeal. The oldest child, M.L, was born […], 1999. The trial judge would have ordered her to be placed in the care of the mother under a supervision order, but for the fact that M.L. made it clear that her wish was to be made a Crown ward, albeit with regular access to her mother and her two sisters. In view of her age, the trial judge respected the child’s wishes and ordered that she be made a ward of the Crown, with two mid-week daytime visits and one overnight weekend visit with her mother.

[3] The middle daughter, J.L., was born […], 2004. The trial judge ordered that she be placed with the mother subject to a six-month supervision order. Neither J.L. nor M.L. wanted to have any contact with T.R. (who is not their father in any event), and the relationship between the mother and the father is undeniably toxic. Accordingly one of the terms of supervision was that the mother will not associate, communicate or have any contact in any way with the father.

[4] It is only the order of Crown wardship regarding the youngest child T.L. that has been appealed. Each parent submits that the child should be placed with them under a supervision order or, alternatively, that the order of Crown wardship be varied to provide for access by each parent.

[5] As was explained to the father, this is not a rehearing of the original trial, and for that reason his attempt to file several thick volumes of affidavits and documents at the hearing of the appeal, dealing with events that predated the trial, was rejected. The decision of the trial judge may be overturned only if I am satisfied that there has been an error of law, or a palpable and overriding error of fact.

[6] I do not propose to review the history of this case in detail. The key facts can be found in para. 133 of the trial judge’s reasons where she found the children to be in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act:

The over-arching reasons for this finding are that:

(a) The fathers of M. and J., RD and ST respectively, are in default and have not taken part in this proceeding, nor have they put forward a plan for their child's care.

(b) The mother has a profound and lengthy history of choosing dangerous and/or inappropriate men as partners and fathers of her children.

(c) M.'s father was age 16 at the time that she was conceived and has had little involvement in her upbringing.

(d) J.'s father was alleged to have sexually abused children, and has not taken part in these proceedings to defend against these claims. Further, he is not involved in the upbringing of J.

(e) T.'s father, TR has an extensive history with the CAS. None of his four other children are in his care. Two of his children have been made Crown wards with no access for the purpose of adoption and the first and fourth children are placed with their mothers. TR also has no access with that fourth child and at best only limited access to the first child.

(f) TR has an extensive history of convictions for abuse of his female partners, for which he has not taken responsibility nor has he shown any real remorse. Having said that, there is no record of him engaging in assaultive behaviour or being engaged with the Criminal Justice system since 2008.

(g) This may be as a result of his receiving psychiatric treatment, including prescription medication for mental health problems which were identified as including bipolar disorder.

(h) Further, he has received therapy since 2010 which appears to have ameliorated in an important way, his antisocial tendencies. This therapy has been directed at helping him recover from a profoundly abusive childhood which included him being sexually abused and being raised in a highly dysfunctional family. He is now employed, working productively, volunteering in his community, living in stable conditions, and involved in a relationship which apparently is not marked by abuse.

(i) While TR may be showing signs of redemption now, at the time that the mother engaged in a relationship with him he was clearly a dangerous individual, and indeed, even now, given his history and hers it would be dangerous for them to reengage in a continuing relationship. Even though they did not engage in domestic violence, their relationship was filled with conflict, argument and instability which played out in front of the children.

(j) The mother suffers from mental health issues which include anxiety, depression and she has claimed that she also suffers bi-polar disorder. At trial she presented as being heavily medicated and TR presented as being tangential and hyper. In the future, they both will need to expend much of their own energy in the management of their own, individual mental health needs.

(k) The mother has repeatedly lied or misled the Society about her ongoing involvement with inappropriate partners. Indeed, she also misled the Assessor who completed the Parental Capacity Assessment in this regard when she failed to tell the Assessor that she had carried on a long-distance relationship that included talk of marriage with a convicted first degree murderer who was serving a life sentence.

(l) Even though the Society has been working with the mother for over ten years trying to get her to use better judgment in choosing safe male partners, and even with all the counselling and support offered to her, up until just a few days prior the start of trial, she was repeating the pattern of engaging men who would present a risk of harm to her children if they were to come in contact with them.

(m) Having said that, she now appears to seriously want to engage in therapy to end this poor decision making and thereby make a safer life for herself and her children. However, there is a long way for her to go to complete this endeavor.

[7] There was ample evidence before the trial judge to support these factual findings, and the trial judge made no error in law in concluding that the children were in need of protection. The real issue on this appeal relates to disposition.

[8] I will deal with the father’s appeal first.

[9] In rejecting his Plan of Care that T.L. be placed in his care under a supervision order, the trial judge said this, at para. 139:

Although he may mean well, the reality is that he has an abysmal parenting record. He may have made some progress with his issues, and he may also have taken parenting courses. However, by way of the many different court orders he has lost the care and custody of all four of his other children, and indeed, we have no evidence as to his actual ability to parent any child successfully. He has been prohibited from even having access to any of the children in this case and also with his second, third and fourth child. The status of his right to access with his first child was unclear, although the indications were that he was not receiving anything approaching regular access with that child. Further, the reasons for terminating his access to all of these children appeared to be wholly valid at the time. TR appears to have reached a new level of personal stability and has not been involved in incidents that trigger involvement with the Criminal Justice System in about eight years. No doubt this is in large part because of his mental health diagnosis, medication and therapy. He should know that those achievements are recognized and are seen as an indication of progress. However, it is far too much for him to hope that a court would simply go from a situation of court-ordered no contact with a child to placement of that child with him. At this point, any introduction of TR into the life of one of his children in my view would have to be taken in modest and controlled increments. T. would have no memory of TR at all, and M. and J. have not seen him in 33 months and don't even want to visit with him. I have no hesitation in finding that it would be out of the question to place anyone of them in the care of TR.

[10] Once again, there was ample evidence before the trial judge upon which she was entitled to make these findings. It was the fact that the mother had allowed contact between the father and the children which was largely responsible for the apprehension in the first place. He had had no contact with T.L. for 33 months as at the time of trial, and had no relationship with her whatsoever. His history as an abusive partner was well documented, and two Parental Capacity Assessments by Dr. McDermott confirmed his inability to parent. The father conceded in argument on this appeal that there was evidence before the court upon which the trial judge could conclude that he had an abysmal parenting record.

[11] I agree with the trial judge that it would be out of the question to consider placing T.L. in his care.

[12] In his Notice of Appeal, the father alleges that the trial judge had a conflict of interest and displayed bias and prejudice toward the father. No support for these allegations has been presented before this court. Indeed, the trial judge makes many positive comments about the father in her reasons, some of which are reflected in her findings quoted at para. 6 above. The father’s argument in this regard focussed on the fact that the trial judge relied on earlier child protection proceedings in arriving at her conclusions, at least some of which she presided over. However, pursuant to s. 50(1)(b) of the Act, the trial judge is entitled to consider reports, findings and reasons in earlier court proceedings that the court considers relevant. There is nothing in that section that would restrict the trial judge to considering only prior proceedings in which she was uninvolved.

[13] The father submits that the trial judge erred in not accepting critical evidence in his favour. He appears to be referring to the evidence of John Field, who has been providing him with counselling services but was not qualified as an expert witness at trial. Mr. Field’s evidence was contradicted by the evidence of Dr. McDermott, who was qualified as an expert witness. It was entirely open to the trial judge to prefer the evidence of Dr. McDermott over that of Mr. Field, and she committed no error in doing so.

[14] The father alleges that the trial judge erred in failing to “hold the Chatham-Kent Integrated Children’s Services to any level of account” for their lack of proper investigation into his suitability to parent and their failure to provide him with adequate support services. As already noted, two Parental Capacity Assessments had been conducted on the father, both with negative results. While it is correct that the Respondent did not consider the father as an option for placement following apprehension, that is entirely understandable given that it was contact with the father that was largely responsible for the apprehension in the first place.

[15] Finally, the father alleges that he had incompetent legal representation at trial. He did not raise this issue during the trial, nor did he request an adjournment so that he could retain other counsel. He did not follow this court’s protocol where such an allegation is raised on appeal, with the result that his counsel was not made aware of this attack on his professional competence, and was therefore afforded no opportunity to defend himself. In any event, for this argument to succeed, the father must demonstrate that a miscarriage of justice occurred: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520. He is unable to do so, because his case was simply unwinnable, no matter how competent his counsel was.

[16] There is no merit to the father’s appeal and it is dismissed.

[17] The mother’s situation, however, is considerably different.

[18] She was described in the Parental Capacity Assessment as emotionally needy, naive and vulnerable to abuse and rejection, with serious, longstanding mood and personality issues that will require years of therapy to deal with. Notwithstanding this, she apparently was a very capable parent. The trial judge commented upon the two older children in these terms, at para. 113:

It has been striking that the two oldest children have always appeared to be well adjusted, bright children who do extremely well at school and are without any behavioural concerns. Both are avid readers. They are respectful, happy, well behaved and well-rounded children who get along with each other and are involved in activities outside of school.

[19] This theme continued at para. 114:

The Family service worker commented in her evidence that the mother must have been doing some things right in order to have produced children like this. Her observations of the mother's interactions with her children were very positive and she reported the mother to be kind, patient and nurturing. The mother has always participated in the Plan of Care meetings and medical appointments for the children.

[20] Given her demonstrated ability to parent these children, the Society’s plan in the early part of 2014 was to place T.L. and her two sisters with the mother under a supervision order to be made on consent. Access was steadily increased to facilitate reintegration, to the point where she was receiving unsupervised access to all three children on Mondays and Thursdays from 2:30 p.m. to 7:30 p.m., and Fridays at 6:00 p.m. overnight to Saturdays at 6:00 p.m. The plan was to return all of the children to her by mid-September 2014.

[21] This plan went off the rails due to what the trial judge described as “the bombshell”. Towards the end of August, 2014 during a therapy session, the mother revealed that she had re-established a “pen pal relationship” with M.J., who happens to be in prison serving a life sentence for the first degree murder of his teenaged sister in January of 1998. This relationship had been going on for about 6 months, and they had even talked about marriage.

[22] Once this information was revealed, the Society changed their position and proceeded to trial seeking Crown wardship with no access.

[23] This was a bombshell because the mother’s primary fault as a parent was her emotional neediness and her poor judgment in her choice of partners. Her relationship with the father T.R. was a prime example of her tendency to become involved with inappropriate partners, and it was a chronic issue between the Society and her. Furthermore, she continued to surreptitiously have contact with the father even when prohibited from doing so, which caused the Society to doubt that they could trust her. The trial judge commented on this at para. 149:

It should have been clear to the mother that the protection issue that brought her before the courts repeatedly, and indeed ended up causing the apprehension of the children from her care, was because of her poor relationship decisions. How then could she have been foolish enough to so flagrantly breach the Court order of September 26, 2013 when the Society was beginning to think about the reintegration of the children back to her care? And then, how could she have rekindled her relationship with MJ in June of 2014 as this matter was getting close to trial?

[24] The trial judge concluded that she could not trust the mother to avoid re-engaging in a relationship with the father, or to get herself involved in another inappropriate relationship. However, that did not deter the court from ordering that the middle child, J.L., be placed with the mother under a supervision order. Her reasons in that regard are at para. 163:

The Society asks that I make J. a Crown ward with no access for the purpose of adoption. However, J. is now almost eleven years old and is deeply attached to her mother. Both M. and J. are very attached to each other and have proven to be survivors of the challenges that their mother has brought to their lives. I believe, as did Dr. McDermott, that J.'s age and the buffer of her continued relationship with M. would provide a degree of protection from any of their mother's difficulties as she continues to transform herself. Further, given that J.'s foster parents are not prepared to adopt her, her age and her strong attachment to her mother and to M., the long-term prospects of her being adopted are more speculative. After considering the "Best Interest of the Child" provisions of s. 37(3) of the CFSA, I am inclined to return J. to the care of her mother. In particular I take into account her views and wishes, her relationship and emotional ties with her mother, the fact that she would likely be looking at spending a lengthy period of her formative years as a Crown ward with all the hazards of being moved from foster home to foster home. Had M. wanted to return home, I would have allowed her to do so as well. Given that M. will remain living in a foster placement, I realize that this will separate the girls to some degree but they have individually come to their own decisions to request that they take separate paths at this point in their lives. In any case they will continue to have regular contact when M. has access visits.

[25] With respect to the youngest child T.L, though, the trial judge concluded that the risk of being exposed to inappropriate male partners justified an order of Crown wardship. She said this, at paras 164 - 166:

However, with regards to T., she is only two years old. The mother still has a long way to go in making permanent changes to her life. I have considered the provisions of s. 37(3) of the CFSA and note that given her age she is highly vulnerable to the negative impact of being exposed to the inappropriate male partners of the mother and would have little ability to protect herself if the mother were unable to correct her negative pattern choosing partners. T.'s attachment to her mother would not have been nearly as established compared with her older sisters and she will more easily form new permanent attachments within an adoptive home. She has no relationship with TR and except for the first month of her life, has only ever lived in foster care. She is too young to have expressed her wishes about her future. I appreciate that the mother and her older sisters feel a strong bond with her, and no doubt she has some bond with them, however, there is no reason to believe that she is anything other than highly adoptable.

In addition, the mother will need her emotional and physical energy to focus on her own healing journey which could become severely taxed by taking on the care of an infant. Further, her issues with stress could also be made worse by the additional pressures of being a single parent of two children, one of whom was an infant. The financial pressures on her would also be greater if she had the care of two children. This could be a critical issue if, indeed she is forced to pay for her own therapy.

There is a secondary consideration regarding the placement of T. That is that the mother might be tempted to re-engage in a relationship with TR should this child be placed in her care. Given the instability and domestic conflict that marked this relationship, this could ultimately undermine the placement altogether. Accordingly, T. will be made a Crown Ward.

[26] The mother submits that the trial judge erred in law in failing to conduct a thorough analysis of all of the factors enumerated in s. 37(3) of the Act in considering the best interests of the child. In particular, it is argued that the trial judge focussed almost exclusively on the risk of exposure to inappropriate partners without considering the many positive benefits to the child of being reunited with her mother and siblings, and the negative impact of severing those familial ties.

[27] The decision of the Ontario Court of Appeal in Children’s Aid Society of Toronto v. G.S., 2012 ONCA 783 is very much on point. In that case, the child had been placed with the father, on condition that the child have no contact with the mother, who had unresolved mental health issues and represented a risk of danger to the child. In an unannounced visit, the Society found the child in the unsupervised care of the mother, while the father was at work, and apprehended the child. At trial, the trial judge concluded that, in light of the risk that the mother posed to the child, and the father’s conduct in exposing the child to that risk and then lying about it, the child’s best interests required that he be made a Crown ward.

[28] At paras. 23 to 28, the Court concluded that the trial judge had erred in principle in her analysis of the best interests of the child, and the Superior Court judge who had heard the initial appeal erred in law in failing to identify this error:

On appeal to this court, the appellant argues that the Superior Court appeal judge erred in failing to hold that the trial judge erred in law by failing to consider the bond between M.S. and his father, the risk that the bond would be diminished or terminated as a result of the Crown wardship order, and the harm to M.S. that could follow.

We agree with this submission.

In our view, the trial judge made the following error in principle in analyzing M.S.'s best interests: she failed to identify the risk of disruption to the valuable relationship with his father that a Crown wardship order would introduce as a relevant factor in the "best interests" analysis and she failed to balance this risk against the risk of harm to M.S. through exposure to R.O.

On appeal, the Superior Court appeal judge repeated this error by deciding the case based on deference without reference to this omission in the trial judge's "best interests" analysis.

Subsection 37(3) of the CFSA requires a person in determining a child's "best interests" to take into account all relevant circumstances, including those specifically listed.

In this case, the child's emotional needs in connection with his relationship with the appellant (s. 37(3)1), the importance of the child's development of a positive relationship with the appellant (s. 37(3)5), the child's relationships and emotional ties to the appellant (s. 37(3)6) and the risk of harm to the child if he were kept away from his father (s. 37(3)11) were all highly relevant. While the risk that the child may suffer harm through being allowed to remain in the appellant's care was also relevant, it was an error for the trial judge to consider that risk alone.

[29] I agree with counsel for the mother that, had a thorough analysis of all of the factors listed in s. 37(3) been undergone by the trial judge, many or most of those factors would have militated against wardship and in favour of the less intrusive measure of placing the child with the mother under a supervision order. Moreover, when one takes into consideration the fresh evidence that has been admitted on this appeal, a consideration of these factors now overwhelmingly supports returning the child to the mother under a supervision order.

[30] Section 37(3) of the Act provides as follows:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall 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.

[31] With respect to the first two factors, I have already noted that the mother obviously has adequate parenting skills to meet the physical, mental and emotional needs of the child, given how well the two older children turned out. In the affidavit of Michelle DiNardo M.S.W., sworn March 23, 2016, which was filed as fresh evidence by the Office of The Children’s Lawyer, it is noted that the foster mother has developed a positive relationship with the mother during the access visits that she is consistent in attending. The foster mother is “impressed with L.L.’s parenting skills”. The foster mother has also taken the opportunity to act as a mentor to the mother, and is prepared to continue to do so if the child is returned to the mother’s care. This would add additional assurance that the child’s needs would be met.

[32] Ms. DiNardo reported that the access supervisor confirmed that all of the mother’s access visits have been “positive”, and the mother always has a good meal and/or an activity or craft planned for the child’s visits.

[33] The child’s development is normal, but for the need for some speech therapy, which she is receiving and which she would continue to receive whether she was made a Crown ward or returned to her mother’s care.

[34] With respect to the third and fourth factors, both the mother and the foster mother regularly attend the same church on Sundays, where the mother and child enjoy additional time to visit, over and above their regularly scheduled supervised access visits. Placing the child with her mother would ensure continuity of this religious aspect of her upbringing.

[35] With respect to the fifth and sixth factors, the fresh evidence confirms that the child looks forward to her visits with her mother and her sisters, and enjoys her visits very much. She gets excited before her visits, and is excited to talk afterward about all the things she did while visiting her mother. The foster mother advises that the child and her mother “appear to be close”. The child has also developed a close relationship with her sisters.

[36] The access supervisor consistently observed demonstrations of affection and the exchange of hugs and kisses between the child and her mother. T.L. refers to her mother as “mom” and “mama”. T.L. and her sister J.L. “appeared to be loving and close to one another”.

[37] Placement with the mother would give the child a firm place in an established family, with the support of two sisters and a mother with whom she has strong bonds of love and affection.

[38] The seventh and eighth factors speak to the need for continuity in the child’s life, and the need for permanency planning. The fresh evidence confirms that the child is not in a “view to adopt” foster home. Thus, if she remains a Crown ward and is adopted, there will be a complete disruption in the continuity of the child’s life. While some disruption would be experienced returning to mother’s care, it would be less than she would experience with an adoption, given that she would be returning to live with familiar faces to whom she is already bonded, as opposed to total strangers.

[39] With respect to the ninth factor, there was no way to ascertain the child’s views and wishes at the time of trial, given that she was only two years of age. However, she is now almost four years old and very vocal. One can infer from the degree of excitement and enjoyment that she displays from visiting with her mother and her sisters that she would be very happy to be placed in her mother’s care.

[40] As to the tenth factor, I agree that at the time of trial in January, 2015, there would be no reason to believe that the child was anything other than highly adoptable. At that young age, the child would have had no difficulty integrating into a new family. However, 15 months have elapsed since then, during which she has become more and more bonded with her mother and her siblings. This delay makes adoption a less attractive disposition than it was at the time of trial.

[41] Factors eleven and twelve speak to risk to the child, both if she were returned to the mother’s care but also if she were permanently removed from the mother’s care. Dealing with the latter first, I have already commented on the close relationship she has developed with her mother and her siblings. One can infer that she will suffer a significant emotional loss if those ties are permanently severed.

[42] The risk of returning the child to the mother’s care is the risk that she will expose the child to inappropriate male partners in the future. It is precisely that risk that led the trial judge to order Crown wardship. Given the mother’s history, the trial judge was right to be skeptical as to her ability to keep herself away from undesirable partners.

[43] In ordering that the middle child J.L. be placed with the mother subject to a supervision order, the trial judge imposed eleven conditions. Conditions viii) and ix) provide as follows:

viii) The mother will not associate, communicate or have contact in any way with TR and MJ.

ix) The mother will not enter into any intimate, dating or adult relationships during the term of this order. This provision, in particular, shall be reviewed on the next Status Review.

[44] The fresh evidence filed by the mother confirms that she has strictly abided by these terms. She has had no communication with the father T.R. since April, 2014. She has had no communication with M.J. since August or September of 2014. She continues to receive and benefit from counselling from Mr. Caldwell, although since funding has been discontinued she faces financial challenges paying his fees of $135 per hour. Notwithstanding that, she had sessions in June and October of 2015 and in February of 2016.

[45] A Status Review application was commenced by the Society on November 5, 2015 regarding the supervision order involving the child J.L. The material filed by the Society states that the mother has been cooperative with the Society since the order was made. J.L. has transitioned well back into her mother’s care and speaks positively about her relationship with her mother. The Society is not aware of any contravention of the non-communication order regarding the father and M.J.

[46] As a result of her cooperation, the Society is seeking a softening of the term regarding association with male partners. The prohibition on contact with the father and M.J. would continue, but the prohibition on any intimate relationship with another partner is proposed to be modified as follows:

• The mother shall notify the Society immediately of any intimate or dating relationship in which she may engage;
• The mother shall not expose the child to any intimate or dating relationship without the prior approval of the Society.

[47] The fact that the mother has strictly abided by the non-communication orders for approximately two years demonstrates that she can be trusted to abide by a similar term in a supervision order with regard to the child T.L. This increasing level of trust is reflected in the position the Society is taking on the Status Review application.

[48] Crown wardship is the most intrusive order that a court can make in child protection proceedings. The court should only grant this relief with “the highest degree of caution and only on the basis of compelling evidence, and after a careful examination of possible alternative remedies”: see Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J.) (1996), 23 R.F.L. (4th) 79 (Ont. Div. Ct.). It has frequently been described as a “last resort”. That is particularly the case when an order for Crown wardship with no access, followed by adoption, will sever ties with not only the child’s parent, but also with the child’s two sisters to whom she is strongly bonded, and who will provide an immeasurable degree of sibling support as she grows up.

[49] I agree with counsel for the mother, and conclude, with great respect, that the trial judge erred in law in focussing her analysis of the best interests of the child under s. 37(3) almost exclusively on the risk of exposing the child to inappropriate male partners, without considering and balancing the many other factors discussed above that militate against an order of Crown wardship.

[50] Even absent this error, however, the fresh evidence admitted on this appeal changes the landscape completely. This court is, of course, entitled to consider evidence relating to events after the appealed decision, pursuant to s. 69(6) of the Act. The fresh evidence demonstrates that the primary risk that the trial judge identified as necessitating an order for Crown wardship can be successfully dealt with through the less intrusive measure of a supervision order.

[51] Given that a consideration of the rest of the factors enumerated in s. 37(3) almost all favour an order placing the child in the mother’s care subject to a supervision order, I conclude that the best interests of the child will be met by such an order.

[52] The appeal is allowed and the order making the child T.L. a Crown ward is set aside. In its stead, an order will go that the child be placed in the care of the mother, subject to the supervision of the Society, for a period of six months. The terms of this order will be identical to the terms imposed by the trial judge regarding the child J.L., and are as follows:

i) The mother shall allow the Society access to her home for both scheduled and unscheduled home visits.

ii) The mother shall allow the Society independent access to the child on a scheduled and unscheduled basis.

iii) The mother shall take medication as prescribed by her physician.

iv) The mother shall maintain a safe and orderly home environment and shall supervise the child according to what is appropriate for her age and stage of development.

v) The mother shall sign all releases of information, as approved by her lawyer, regarding herself and the child as required by the Society to monitor compliance with this order.

vi) The mother shall not expose the child to adult conflict.

vii) The mother shall notify the Society two weeks in advance of any change in address or contact information.

viii) The mother will not associate, communicate or have contact in any way with T.R. and M.J.

ix) The mother will not enter into any intimate, dating or adult relationships during the term of this order. This provision shall be reviewed on the next Status Review.

x) The mother will continue her therapy with Todd Caldwell.

xi) The Society will seriously consider the continuation of the funding of the mother's therapy with Todd Caldwell.

xii) The mother will provide a copy of this decision to Todd Caldwell.

[53] Given that the child has been in care for almost four years, it is not my intention that this order shall be fully implemented immediately upon release of these reasons. A reasonable period of transition is necessary, to allow the child to emotionally prepare herself for leaving her foster home and moving in with her mother and sister. Access to the mother needs to be steadily and substantially increased, including overnight visits, to facilitate the transition. While I will leave the precise details of this transition to the Society, my expectation is that the child will be fully integrated into the mother’s home within a period of two months.

[54] Given the extent to which this appeal was driven by the fresh evidence filed, my preliminary view is that this is not a case for costs. If counsel wish to pursue the issue of costs, they may do so in writing within thirty days. Otherwise, there will be no order as to costs.

Released: May 2, 2016. T. A. Heeney R.S.J.