CITATION: Children’s Aid Society of London and Middlesex v. R.L.T., 2016 ONSC 741

COURT FILE NO.: C1544/12-02

DATE: February 10, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

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

BETWEEN:

CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX

Applicant

• and -

R.L.T., P.J.W. and M.P.

Respondents

COUNSEL: Sandra Welch for the Society David Winninger for R.L.T. Robert Cunningham for P.J.W. Paul Lepine for M.P.

HEARD: September 8, 9, 10, 11, 14, 15, 16, 17, 18, 2015; October 19, 20, 21, 23, 2015; and January 4, 5, 6, 7, 8, 2016

REASONS FOR JUDGMENT

VOGELSANG J.

[1] In Children's Aid Society of London and Middlesex v. R.L.T., 2014 ONSC 5974, [2014] O.J. No. 5053 (Sup. Ct.), I gave reasons in determining a summary judgment motion under rule 16 of the Family Law Rules, O. Reg. 114/99. I found these two children, J-L.T. and D.T., to be in need of protection, but dealt differently with the disposition issues, saying:

28 Mr. Winninger argued that R.L.T. has put squarely in issue her claimed rehabilitation and ability as a potential caregiver for these two young children. She has cited her attendance at the numerous parenting classes. He submits that she should be granted a parent's accustomed opportunity to put her present and future circumstances before the court before a decision is made which might involve her permanent loss of her children.

30 Having determined that the issue of R.L.T.'s rehabilitation and future ability is a triable issue, it is equally apparent that there is absolutely no juridical benefit in allowing an examination of M.P.'s capabilities as a parent at the trial. The Society and every party except R.L.T. accepts her as a proper parent. The trial should be about R.L.T., not M.P.

[2] Should a Crown wardship order eventually be made, a secondary issue was identified:

32 It is apparent to me that the generous position advanced by the foster mother raises a significant question concerning access, and a genuine issue, should a Crown wardship order be made. …

To me, the potential access issue possesses both the authenticity and relevance necessary to require a trial and full evidentiary development. …

33 Because of Ms. S.'s [the foster parent] professed inclination to preserve contact by the parties (and De.T.) to D.T. the openness issue appears, to me, alive. …

GENERAL

[3] The basic issue is R.L.T.’s possible rehabilitation and potential to act as a parent. Because of her residence with her mother, De.T., their close association and the willingness of the latter to put herself forward as a quasi-parental support for her daughter, her rehabilitation is important too.

[4] My reasons set out the basis for the finding in need of protection:

14 From and after May, 2012, the Society was making even more of an effort to assist. By that time, R.L.T. was caring for the newborn D. as well as J.L.T. Seemingly intractable problems persisted, all described in the March 7, 2014 affidavit of Sarah Gillham, the other affidavits in the Society Affidavit Brief and Exhibit 2, the Summary of Society Concerns. All of the affidavit evidence more than satisfies me of the following problematic circumstances:

a) an infestation of lice which required a number of methods of treatment of J-L.T.;

b) recurring scabs, bug bites and diagnosed flea bites, again necessitating continuing treatment for J-L.T.;

c) D.T.'s chronic affliction with a significant rash on his buttocks and diaper area, extending to his leg creases, throughout the summer and fall of 2012;

d) the rather suspicious presence of an older man, John M., who was in and out of the [undisclosed] home of R.L.T. and De.T. and who, despite his protestations that he did not live there and assurances that he provided no caregiving to the children, seemed to be persistently involved with and attending on J-L.T.;

e) ongoing and unresolved blackened, sticky dirty floors;

f) chronic neglect of J-L.T.'s dental health leading to extractions of several teeth and needed repair of cavities;

g) despite clear orders from the Society workers that no one other than R.L.T. and De.T. was to be placed in a caregiving role, frequently J-L.T. being left with a young female named "Amanda." R.L.T. did not know her last name;

h) numerous refusals to answer the door when the Society worker attended, often in suspicious circumstances where unknown younger people were going in and out;

i) a long series of occurrences involving potential risk to young children from available knives, pills, unexplained bodily marking, numerous short-term visitors at the home, inappropriate parenting techniques and poorly explained incidents of nearby neighbourhood violence and property destruction; and

j) despite instruction and clear direction, a stubborn insistence on smoking cigarettes in the house, leaving ashtrays filled with butts in close proximity to the children.

15 In Children's Aid Society of Toronto v. U.(E.), [2014] O.J. No. 299 (Ont. C.J.), Sherr J. explained the sort of risks to be addressed by s. 37(2)(b), saying:

101 The risk of harm under clause 37(2)(b) of the Act must be real and likely, not speculative. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Fam. Ct.).

103 Harm caused by neglect or error in judgment comes within the finding. See: Children's Aid Society of the Niagara Region v. T.P., 2003 CanLII 2397 (ON SC), [2003] O.J. No. 412 (Ont. Fam. Ct.).

16 I am satisfied of the reality of the apparent risks to these children and that neglect and repeated errors in judgment were, in large part, the cause of those risks.

[5] Since this is a disposition hearing, some important considerations apply. Again, Sherr J. said in Children’s Aid Society of Toronto v. U.(E.), supra:

116 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. See: Catholic Children's Aid Society of Hamilton - Wentworth v. G. (J) (1997), 23 R.F.L. (4th) 79 (Ont. Gen. Div.).

117 In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. See: Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.).

[6] Other factors exist. The evidentiary focus must be on the child, as it is in the statute. In Children’s Aid Society of Haldimand and Norfolk v. M.(J.H.), 2014 ONCJ 590 (Ont. Ct.), Sherwood J. said:

58 Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with the child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. See Children's Aid Society of Toronto v. R.H., supra, per Katarynych J., at para. [16].

59 The Child and Family Services Act is a child welfare statute and not a parent's rights statute. Young children who have been in care all of their short lives should not be kept in limbo. Such children would benefit most from permanency planning so that they can attain the stability and develop roots necessary to their healthy physical and emotional development. See Children's Aid Society of Hamilton v. S.H., [2005] O.J. No. 5114 (Ont. S.C.J.) per Milanetti J., at paragraph [19].

[7] In an issue of Crown wardship, a careful (although not unfairly restrictive) examination of the evidence is required by the serious nature and possible result of the proceeding, as Chappel J. stated in Catholic Children’s Aid Society of Hamilton v. M.A., 2012 ONSC 267, [2012] O.J. No. 223 (Sup. Ct.):

21 In this case, the Society is requesting an order for Crown Wardship. This is the most intrusive order that the 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." [Catholic Children’s Aid Society of Toronto v. S. (S), 2010 CarswellOnt 10496 (Ont. C.J.); Catholic Children’s Aid Society of Hamilton Wentworth v. G. (J.), 1996 CarswellOnt 1428 (Ont. Div. Ct.); Children’s Aid Society of Toronto v. U. (L.), 2008 CanLII 26661 (ON SC), 2008 CarswellOnt 3192 (Ont. S.C.J.).]; Further, caution should be taken not to judge parents of limited means and potential by unfair, unrealistic middle class standards of child care, provided that the standard that is actually used is not contrary to the child's best interests. [Catholic Children’s Aid Society of Toronto v. S. (S.) Ibid.; Catholic Children’s Aid Society of Hamilton v. M. (M.A.), 2003 CarswellOnt 1122.]

[8] In resolving the disposition issue, real change is demanded of the parent, as described by Ratushny J. in Children’s Aid Society of Brockville, Leeds and Grenville v. C., [2001] O.J. No. 1579 (Sup. Ct.) where she stated:

56 The issue that has been the most difficult to assess is whether there is enough of a track record of change. There has to be more from the parents than just the right words and good intentions. There has to be some demonstrated basis for a determination that they are able to parent the child without endangering her safety. This is the issue Dr. Carney grappled with and in the end he concluded that the continued evidence of a serious attachment disorder "seriously undermined their good intentions" and left the risk too high for him to be able to recommend anything other than Crown wardship with no access. Dr. Carney also concluded that the parents' significant psychological issues had the effect of transforming their good intentions into wishful thinking. I would agree with Dr. Carney, except that the parents have started to address their psychological issues. They haven't done enough, nor have they consulted a qualified psychotherapist, however, they have demonstrated that they can and have followed professional advice. Dr. Carney understood that the parents were seeing Dr. Findlay. He did not understand the kind of advice Dr. Findlay was giving them.

57 It is, of course, for this court to consider the entirety of the circumstances and, as Justice L'Heureux-Dubé stated in [Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.)], to balance the rights of the parents with the right of the child to protection and well-being in considering the best interests of the child. In a situation such as this where the order sought will permanently break apart the family unit, the Society has to have established by a clear preponderance of evidence that Crown wardship without access is the order that is in the best interests of the child. This onus on the state influences this balancing.

[9] Best interests considerations being at the root of disposition, some principles were nicely framed by Zuker J. in Children’s Aid Society of Toronto v. R.G., 2009 ONCJ 82, [2009] O.J. No. 1151 (Ont. Ct.):

67 In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. They must be examined from the child's perspective. See Catholic Children's Aid Society of Metropolitan Toronto v. C.M., supra.

69 The issue is not whether the children will be better off with parents other than natural parents. If that was the criterion for a protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving a level of parenting care that is below the minimum standard tolerated in our community. See Saskatchewan Minister of Social Services v. S.E. and E.E., 1992 CanLII 8071 (SK QB), [1992] 5 W.W.R. 289, 41 R.F.L. (3d) 405, [1992] S.J. No. 375, 1992 CarswellSask 327 (Sask. QB).

70 I agree that the significance of the child-centred approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance: see Children's Aid Society of Winnipeg v. Redwood (1980), 1980 CanLII 3654 (MB CA), 19 R.F.L. (2d) 232, [1980] M.J. No. 245, 1980 CarswellMan 44 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. See Children's Aid Society of Brockville, Leeds and Grenville v. C. and J. (2001), 104 A.C.W.S. (3d) 892, [2001] O.J. No. 1579, [2001] O.T.C. 287, 2001 CarswellOnt 1504 (Ont. Fam. Ct.). …

THE EVIDENCE

[10] In the summary judgment reasons, I gave directions concerning the trial which included the following:

35 …

3. The issues for trial are strictly limited to (i) the issues of R.L.T.'s rehabilitation and abilities to parent, and (ii) the issue of post-Crown wardship access, should the Society succeed;

[11] R.L.T. gave evidence. She appears older than her age (25) and is reasonably articulate. She described her early life and estrangement from her natural father. He was not part of the family. As she grew up, she said they had “all [they] needed to live”. She admitted that, if she had had the benefit of more discipline, it “probably would have changed [her] early teen life” in which she remembers being a “wild child” who “liked to be outside a lot.”

[12] J-L.T. was born in […], 2009. R.L.T. had become pregnant during the week she first met P.W. in June, 2008; however, their relationship was destined to last only three months. When she found out that she was pregnant, she approached P.W. but they fought and he chased her away. When she finally confronted him about J-L.T.’s impending birth, he stated “he didn’t make girls,” but a subsequent paternity test proved he was the father and, oddly, he served her with a custody claim shortly after J-L.T. was born.

[13] R.L.T. testified that she is now “going through” Leads Employment with the assistance of a worker where: “they’re looking … they’re trying to get me a job to better my life.” She stated that her eventual ambition is to obtain all her Grade 12 credits and then embark on four years at a community college, taking combined courses in early childhood education and personal support work. There is, however, little, if any, past performance to suggest that she will ever do this.

[14] She rather weakly blames her troubles with the Society and the ongoing court case for her lack of employment and present lack of effort at finally furthering her education. Unfortunately, her seeming complete inability to follow through is consistent with the essence of the complaints of the Society witnesses about the parenting style and effort she demonstrated in the past which led to their bleak assessment of her abilities in the future.

[15] R.L.T. did not fare well in the witness box. She tried to cover for her mother, De.T., about the visits of the shadowy 43 year old male figure, John M., who has apparently associated with De.T. for eight or nine years and has a past in which – De.T. herself admitted – he had “done drugs.” Before De.T. herself revealed in the box that John M. is, and has been, at the house “between four and five days a week,” living in and sleeping in the back of the unfinished basement in De.T.’s rented home at an address in East London, R.L.T. had testified that the man was only at the residence “once in a blue moon.” It was interesting and a concern to me that Mr. M. did not testify. R.L.T. and De.T. were well aware that the Society employees had always been emphatic that J-L.T. – and D.T – were not to be around John M. and the latter was not to be in a parenting role. That knowledge and R.L.T.’s feeble attempt to minimize his presence are quite worrisome, especially when viewed in the context of John M.’s past quite substantial criminal record as set out at tab 8 of Ex. 10.

[16] R.L.T. was defensive and less than persuasive in her testimony about the appalling condition of the residence where the children had lived. The Society social worker assigned to the T. family, Sarah Gillham, had found the walls to be very dirty and the floors “sticky, black and brown” seven months before the children were placed in Society care. That complaint was never ever really remedied. R.L.T.’s initial evidence that Ms. Gillham had never described the floors in those terms was watered down to the point that she eventually testified she “could not recall” the statement being made. When examined about Ms. Gillham’s detailed observations of the continuing dirty floors, R.L.T. gave quite incredible evidence about a daily mopping and sweeping of the floors and getting on her hands and knees and “scrubbing the floors with SOS pads.” In the face of Ms. Gillham’s measured and well-documented evidence of her observations during her many visits before December 2012, I do not accept R.L.T.’s denials. I find the floors were in a continuing unfit state at that point and afterwards.

[17] I come to a similar conclusion about R.L.T.’s explanations of the loose dirt and debris apparent to Ms. Gillham on her visits. That cannot be blamed on J-L.T. coming inside after being outside playing. R.L.T. could not explain the presence of debris if, in fact, the floors were swept every day. The only rationalization she could offer was “it’s dust balls coming in.” Quite unsatisfactory.

[18] I will not go through in detail all of the rest of Ms. Gillham’s concerns and complaints about the state of the residence and its unfit character as a home for little children. Suffice it to say that R.L.T.’s – and, later, De.T.’s – reactions in their testimony were to minimize, deny and vaguely promise supposed plans to rectify the various problems. The walls were not deeply stained – they were “scuffed.” The abundant piles of clothing were minimized and supposedly being readied for laundry. The “clutter” was always going to soon be collected and sold in a garage sale. The absolute mess and disorder in the basement was said to be not a problem because “J-L.T. did not go down there,” but that excuse was quite apparently not true.

[19] Many of the physical deficiencies of the home were blamed on the uncaring policies of London Housing which provided the “geared to income” housing residence to De.T. R.L.T. and De.T. argued about the kitchen area not being anywhere near a proper state. The ashtrays around the house, overflowing with butts, were minimized and Ms. Gillham accused of exaggeration. In their minds, De.T.’s real problems walking made it necessary to have ashtrays in the home and they denied the evidence that they were left within reach of the children.

[20] In R.L.T.’s evidence, P.W. was also neither truthful nor accurate when he testified about R.L.T. neglecting to renew J-L.T.’s health card and, in any event, she said she never experienced any of the problems he described in obtaining medical care for the child without a valid card. I believed him, not her.

[21] R.L.T.’s reluctance – and eventual outright refusal – to take advantage of available daycare for the children despite continuing Society insistence was based, she said, on the simple fact that she was neither working nor going to school and was at home such where she could look after them. Sadly, she had no idea that a child from a deprived and unfortunate background can really benefit from the routine, structure and supervision of a daycare placement.

[22] De.T. testified. She is put forward by R.L.T. as the support and assistance provider who will help raise the children. She appeared substantially older than her stated age of 52 years, and recounted a sad, unhappy life. Her two sisters died from complications of cystic fibrosis. She is estranged from the survivors of her family, except K.T., a niece. Except for R.L.T. and her grandchildren, she says she is completely alone.

[23] Ms. T.’s mother started living with A.R. in about 1972. A.R. raped De.T. when she was about 10 years old. Her mother did not believe her complaints. She said her mother never loved her and “didn’t want her anymore.” She “signed [her] over as a Crown ward” when she was eleven years old. She was placed in the Salvation Army Children’s Village but rebelled and was harshly punished. She recites those bad memories as the basis for her later resisting a Society plan to provide daycare for J-L.T. at the Salvation Army facility.

[24] De.T. was examined and cross-examined about her health. It is, and has been, quite poor. She was diagnosed with an attention deficit disorder at a young age and prescribed Ritalin. She says she lost the use of her vocal cords for six years because of the trauma she suffered at the hands of R.W., R.L.T.’s father, who she “dated.” R.W. drove a London city bus and frequently attended De.T.’s residence after R.L.T. was born. That was when the abuse continued.

[25] De.T. has suffered from depression for 25 years and needs nightly prescription sleep medication. She has developed trouble controlling her bowels intermittently in the last few years. She has no teeth (like R.L.T.) as both were afflicted with pyorrhea and gingivitis. They say their teeth “rotted from the inside out.” To her credit, De.T. admitted some degree of responsibility for the loss of their teeth, ascribing it to their poor dental care and the food which they ate. It stood in contrast to her evidence about later “wonder[ing] about the black marks” which were appearing on J-L.T.’s teeth and her stated easy acceptance of some dentist’s supposed statement that a child could not be seen before age three. To accept that was simple negligence.

[26] The list of De.T.’s physical ailments continued. She had her first foot surgery some 27 years ago. Now she has only three toes left after various amputations, rendering her unable to walk or stand for long periods. Of more concern are her bouts of Hepatitis C and her history of drug involvement. She describes herself as, in her words, a “fully recovered cocaine addict.” She said she first contracted Hepatitis from drug spoons in 2002 and was “cured” in 2004. Unfortunately, she contracted the disease again in 2005 from a sexual encounter and remains untreated, because her attending physician apparently needs to verify her liver “levels” and see her gain weight – she is painfully thin – before starting any treatment.

[27] De.T. has a son, R. (six years older than R.L.T.), from a short term relationship with a man, D.W., which ended just after the boy’s birth.

[28] De.T.’s evidence was contradictory and extremely confusing. It was very hard to pin her down about times when important events occurred. She would say one thing and then change her evidence when the next lawyer cross-examined her.

[29] De.T. admitted that she has smoked marijuana for 30 years and that she began injecting cocaine (after R.L.T. was born) with her friend Jim, an addict who has since died. At some point – she gave several estimates – she stopped using cocaine and submitted to a series of methadone therapies, now discontinued. As will be discussed later, she said definitely that her last injection of cocaine or any drug was in 2006.

[30] De.T. then met and married J.E. in about 1987, their union lasting only three months. In her words: “my husband put me out on the street.” She prostituted herself for two to three years – obtaining babysitting for her son as she worked – until R.L.T. was born in […], 1990.

[31] At some point, when R.L.T. was around eight years of age, she took the children to Oklahoma City, having met a man, O.B., on the Internet and wanting to get away from the continued beatings by R.W., R.L.T.’s father.

[32] Three months after arriving in the United States, she married O.B. but he beat her and, shortly thereafter, the Oklahoma police brought De.T. and the children back to Ontario, but O.B. followed them. He beat her in London and, she says, was deported back to Oklahoma. Technically, she is still married to O.B.

[33] About two years after R.L.T. was born, De.T. applied for and received Ontario Disability Support Program payments in 1991 or 1992, based on some of her present ailments. Even now, she continues to receive about $1,100 as her monthly benefit. Her funds are augmented by $120 rent from R.L.T.’s $400 Ontario Works payment. Both R.L.T. and De.T. are admitted heavy smokers and long-time regular users of marijuana. They offered no estimate of the funds they had left after these recreational expenses were met. Interestingly, R.L.T. herself admitted that her very first exposure to the London and Middlesex Children’s Aid Society was when “they showed up at the hospital when J-L.T. was born with marijuana in her system.” R.L.T. was unconvincing when she avowed that “using marijuana is not a good idea,” as it appears she continues it even now.

[34] De.T. stands as the key to R.L.T.’s claim to have the two children returned to her. All of the Society workers and those involved in the parenting and access programs accepted De.T. as an active part of the parenting “package” proposed. She provides the house in which the children are to live and appears more involved in its upkeep. I noted that it was De.T. who stayed up all night cleaning the house before the September 15, 2015 inspection by Ms. Hatfield, while R.L.T. went to bed. As well, it was De.T. who would have nothing more to do with Carolyn Nunn, the family support worker sent in to help by Ms. Gillham, after she suggested that R.L.T. leave her mother’s home and move out on her own. De.T. and her daughter appear inseparable.

[35] De.T. representing such an important figure in R.L.T.’s case for the children’s return, I became quite concerned when other testimony seriously damaged her credibility and, consequently, the overall reliability of her evidence. After all, she had testified extensively about the Society complaints and tried to convince me there was little real substance to them.

[36] De.T. appeared quite forthcoming about her drug abuse in the past. While some parts of her story differed substantially through the various cross-examinations, she was firm that she had not injected cocaine since 2006. She absolutely denied ever injecting Ritalin and (unconvincingly) tried to appear naïve about the techniques involved in preparing drugs for that purpose.

[37] P.W., however, gave a quite different story. He remembered an outing in 2008 when he saw De.T. “shoot up” in her leg – as did John M. – under the bridge in Sarnia when he was out with the family. R.L.T., who was also there, told him to “just ignore it.” He also testified, when picking up J-L.-T, that he was able to see syringes on the kitchen ledge inside the door at De.T.’s. While De.T. was never questioned about the bridge incident, she vigorously denied that any needles were left on the kitchen counter or ledge – a position maintained by R.L.T. as well – although she rather lamely then tried to say that one S., a one-time boyfriend of R.L.T., was a diabetic and would use needles in the house.

[38] I found the evidence of De.T. and R.L.T. quite unconvincing. Their descriptions of the front of the house and the area just inside the door where P.W. would pick up and drop off J-L.T. were confused and changed many times. They did not succeed in showing that the physical layout of the front of the house would prevent P.W. from making the observations he described. A simple photograph would have supported their evidence if P.W. was lying. None was produced.

[39] P.W. himself obviously relished his opportunity to malign both R.L.T. and De.T. from the witness box. He went over every aspect of mistreatment or neglect that his daughter, J-L.T., had been subjected to by her mother, including being left unkempt, dirty clothes, the lice, bedbugs and the refusal to attend to her health card and dental needs. He displayed himself to be an intemperate witness who became argumentative, aggressive, vindictive and hostile during cross-examination. Even with that, I believed his evidence about J-L.T.’s circumstances when he exercised access and his observations about the visible syringes.

[40] De.T.’s credibility was further assailed when Ms. Welch called Michelle D. in reply. De.T. had, in her evidence, steadfastly denied ever boiling and injecting Ritalin, the prescription stimulant used to treat attention deficit disorder. Ms. D. told a much different story. She described being a neighbor of De.T. and R.L.T. when the latter was about two years old. She and De.T. would socialize, drinking tea and sometimes using cannabis oil. Ms. D. moved away after a short time. After what would have been about 12 years, in 2007, M.D. met De.T. on a bus. They exchanged telephone numbers and soon De.T. called looking for Ritalin, allegedly because R.L.T. had lost hers and needed some. Michelle D. knew a woman, Tracey, who had stopped her medication and would perhaps have Ritalin and put De.T. in touch with her. She next described meeting De.T. and R.L.T. in a car a few weeks later and watching De.T. perform a classic drug buy. She talked about being in De.T.’s vehicle as it was driven to Masonville Mall and a walk-in medical clinic. De.T. and R.L.T. entered and later emerged with a paper, then attending at a nearby Shoppers Drug Mart. De.T. came out with a container of pills and they drove across town to a parking lot where a scary unidentified man gave De.T. $200 for the pills. Then on to Tracey’s place where Tracey gave De.T. the Ritalin pills for the $200.

[41] This all ended badly, Ms. D. testified, as she received several telephone calls from De.T. later complaining bitterly that she was not able to “boil them down” and that she “could not get it into the syringe.” Ms. D. said: “she was screaming at me.” De.T., for her part, denied ever knowing or seeing Michelle D.

[42] The frailty of De.T.’s evidence and the weaknesses in R.L.T.’s version of events leave me in substantial doubt about the truth of their denying and minimizing the observations compiled by the Society workers throughout their involvement. They did not come close to satisfying me that the observations and conclusions to which Anna Gavin eventually came were wrong in any way. That does not bode well for the future. The court said in Catholic Children’s Aid Society of Hamilton v. B.(T.), 2013 ONSC 6300 (Sup. Ct.):

51. It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children. (Worthington v. Worthington 2000 CanLII 22469 (ON SC), 13 R.F.L. (5th) 220; [2000] O.J. No. 4853).

[43] I placed very little faith in the reliability of the denials and excuses offered in the evidence of both of the T.s. They were not telling me the truth.

[44] Similarly, I found little in the balance of the evidence of either R.L.T. or De.T. about the unfortunate circumstances in which J-L.T. and D.T. were living before December, 2012 that was believable.

[45] I did not accept that the unsuccessful, late toilet training for J-L.T. could be blamed on P.W. and his new partner and their supposed harsh methods when J-L.T. was at access visits with her father.

[46] I did not accept R.L.T.’s evidence that a dentist told her that J-L.’s obvious severe dental problems could not be remedied until she was three years old. In fact, it was only the insistent intervention of the Society and Mr. W.’s fortunate contribution of $300 as a required deposit which allowed J-L.T. to undergo – under general anaesthetic – the serious oral surgery which repaired eight cavities and thankfully allowed four front teeth to be capped and not extracted.

[47] Similarly, I did not believe the T.’s attempts to minimize the extent and duration of the children’s stubborn afflictions with D.T.’s diaper rash and J-L.T.’s lice infestation and bed-bug bites. Like the other complaints about the condition of the residence, the lack of any realization of the importance of basic dental care and the refusal of daycare, these demonstrated a provision of childcare far below any reasonably acceptable minimum standard. The efforts of R.L.T. and De.T. to deny them or explain them away were not persuasive at all.

REHABILITATION?

[48] All of this was indicative of the circumstances when the children came into Society care. What is important in this trial is the extent of the success, if any, R.L.T. and De.T. have demonstrated in their learning and rehabilitation as caregivers.

[49] Immediately after the loss of the children, the Society worker laid down “key expectations” with respect to R.L.T.’s plan to have J-L.T. and D.T. returned to her care, where she would be assisted by De.T. in a supporting role. In a December 13, 2012 letter, the list of goals and tasks included: (i) seeking out and completing an addictions assessment at Addictions Services of Thames Valley; (ii) participation in parenting courses; (iii) attending access and implementing the skills and techniques learned in the parenting courses with the children; (iv) maintenance of the house in a clean and appropriate manner and, (v) continuing regular meetings with the Society worker.

[50] Unfortunately, with the exception of some parenting classes and regular access attendances, none of the expectations was ever realized. Only a few days after the children were placed in Society care, Ms. Gillham referred R.L.T. to the highly specialized and intensive Therapeutic Parenting Program operated by the Society. At the intake meeting with R.L.T. and De.T. – the pair seeking parenting instruction – R.L.T. agreed to work on establishing a secure attachment relationship with her children, developing a structured routine, working on learning and maintaining healthy meal choices and housekeeping. While De.T. was initially apparently reluctant, she agreed as well.

[51] Between March 25 and mid-June, 2013, there were 32 long visits with R.L.T. and De.T. and, variously, the children, all under the close supervision of the Therapeutic Parenting Program staff and the case manager, Anna Gavin. In all, R.L.T. and De.T. received 137 hours of “one to one intensive parenting interventions” to meet the assistive goals they had agreed to at the intake meeting.

[52] Even before the Therapeutic Parenting, R.L.T. had received instruction in seven (out of ten) classes of the Parenting Toddlers to Pre-Schoolers parenting program offered by the Society. She testified about the benefits of the program for her and the value of information she received. The facilitators were complimentary about her contributions and participation. The next program she attended – Building Secure Connections – ended in mid-March 2013. The report of the Children’s Aid Society Family Support Group and the facilitator, Wendy Smith, appeared at tab 6A of Ex. 3 and, again, described R.L.T. as attentive, comfortable and participating. On the other hand, there were a few descriptions of her being disconnected from her son and examples of the boy seeking comfort from all the adults except his mother.

[53] In the witness box, R.L.T. was glib about the theoretical aspects of parenting to which she had been exposed in the two programs from January to mid-March 2013. Indeed, many of her responses had a rote quality to them, as if she had memorized some of the catch-words and phrasing in the programs.

[54] Interestingly, none of the evidence from the two parenting programs could give any assessment of the extent to which R.L.T. had internalized or integrated the helpful information presented to her. In fact, Marion Hartung was quite specific about the results of the Parenting Toddlers to Pre-Schoolers program. She testified that R.L.T. being attentive and participating led her to her belief that she had absorbed the information in many of the areas discussed, but she denied ever concluding that any of the knowledge or skills had been integrated because she never saw R.L.T. with her children.

[55] While Mr. Winninger emphasized R.L.T.’s cooperation with the programs and the extent of her participation, when contrasted with the next most intensive phase of her instruction, a picture developed which demonstrated that apparent understanding of proper parenting techniques when presented is not of any great assistance in the absence of any real demonstrable ability to carry lessons into practice when the supervised assistance is over.

[56] After the two programs were finished, R.L.T. had received a great deal of information which she said was of assistance to her, from all kinds of hands-on dealings with small children to the fact that organized day-care can be a great help to children being raised in less than optimal circumstances. She immediately embarked on the specialized intensive therapeutic parenting program with Anna Gavin, whose task it was to instruct, observe, intervene and correct the actual parenting of the children by R.L.T. and her support, De.T. After the whole program, an assessment and recommendation would be made, based on the apparent extent of integration of the parenting concepts and instruction over time and the level of secure attachment between the parents and the children.

[57] Unfortunately for R.L.T. and De.T, that final assessment was disastrous for them. Ms. Gavin recommended that R.L.T. and De.T. not be in a caregiving role and that the Society immediately seek a permanency plan for J-L.T. and D.T.

[58] Anna Gavin was called to the witness box. After a lengthy voir dire, she was qualified to explain her observations and to give opinion evidence concerning the theory and indicia of attachment between parent and child and, as well, the structure, goals and expectations of therapeutic parenting programs.

[59] Ms. Gavin quite readily admitted that she lacked the expertise and training of a parenting capacity assessor and, in fact, had not ever intended to undertake a parenting capacity assessment of R.L.T. and De.T.

[60] The evidence presented by Ms. Gavin was measured, professional and not at all slanted in favour of her employer, the Society. She was fair to R.L.T. and not reluctant to compliment her when she recognized what she termed “pockets of moments when R.L.T. was interacting and the children were actively involved.” She described R.L.T. as “always receptive and cooperative,” and freely admitted that the children enjoyed coming to the therapeutic access program, smiled, were not stressed and “on occasion” came running when they saw R.L.T. She was quick to say – as did the report in several places – that, some days, R.L.T. did exhibit appropriate play activities.

[61] Ms. Gavin reviewed the program goals arrived at jointly with R.L.T. and De.T. at their initial interview. They, again, included working on establishing a secure attachment relationship with the children, developing a structured routine for the children – based on their routine in their foster home, working on healthy meal choices that would protect, with proper dental brushing, J-L.T.’s vulnerable teeth. Good housekeeping techniques were also worked on.

[62] I was particularly impressed by the common sense proposition Ms. Gavin put forward: that the clear expectation of the therapeutic program was that the parents would participate over the access time daily using their best abilities to demonstrate their skills, because they knew they were receiving intensive supervision and training and their parenting and caregiving were being assessed. As she said: “I’d expect they’d be ‘on’ … when they’re under someone’s assessment.”

[63] Unfortunately, the opinion expressed in the report and in Ms. Gavin’s evidence was that, although there were “pockets of change” in some aspects of parenting, there was no essential difference in the pattern of R.L.T.’s and De.T.’s behaviour, although causing that change in behaviour and lessening risk was the whole purpose of the intensive program. With the lack of follow-through demonstrated, and the intensive and long-term structure of the program taken into account, Ms. Gavin was firmly of the view that failing to meet the initial goals and “without any significant change in any area of caregiving that [she] felt they could do in any unsupervised area,” her recommendation was warranted.

[64] In cross-examination by Mr. Cunningham, the lack of behavioural change was reinforced by Ms. Gavin who had seen “no change in caregiving that [she] would feel comfortable in [R.L.T. and De.T. having] unsupervised time with the children.” She testified with respect to the type of attachment demonstrated by R.L.T. with the children. After conceding that some attachment always exists between a parent and a child, she characterized the attachment she observed as primarily “dismissive” and, secondarily, “unresolved,” this from an available attachment spectrum of: (1) secure; (2) dismissive; (3) preoccupied and (4) unresolved or disorganized. Her assessment of dismissive attachment flowed from the neglectful qualities R.L.T. displayed in caregiving, the frequent primacy she and De.T. attached to their own needs over the wishes of the children, their inability to read the children’s clues accurately and then respond effectively with the result that they were left to fend for themselves. The unresolved attachment flowed from the children’s avoidant responses which they observed during the program.

[65] I found Ms. Gavin’s evidence cautious, considered and reliable. Her report and subsequent testimony were not shaken despite extensive cross-examination. I think it was the tightly controlled structure and routine of the therapeutic parenting program itself which enabled R.L.T and De.T. to perform even minimally as well as they did, because Ms. Gavin and other staff were always present and prodding, suggesting, cajoling, correcting, reinforcing and reminding. Without that intensive structure and support, if these children were returned to the plainly less than acceptable home De.T. maintains for her daughter, and parenting by R.L.T. and De.T., they would be left to the chaos from which they were taken into care.

[66] Ms. Gavin was asked about the possible theoretical benefits of future instruction or courses for R.L.T. (and De.T.). Significantly, she said that, at the conclusion of the therapeutic program, she had reviewed the course with R.L.T. and De.T. and discussed possible future courses. In her view, any of them would have been redundant, and would still be “trying to teach the basic things to them.” All she could do was suggest R.L.T. undertake counselling for childhood trauma and look to her social worker for suggestions about any new programming.

[67] Mr. Winninger called Tara Burlock, a Society employee who dealt with R.L.T. and De.T. in her capacity as case manager of the Family Visiting Program which provided semi-weekly supervised visits between the T. children, R.L.T. and De.T. after February 2013, a period of over three years. He made much of her testimony in his submissions.

[68] Ms. Burlock was generally complimentary about the cooperation and engagement R.L.T. and De.T. displayed, although she seemed not impressed by the number of times R.L.T. missed visits because of stated illness. She termed those absences “not a good pattern of consistency of visits, because even if you’re under the weather, still you’re a parent.”

[69] Ms. Burlock testified about the April 29, 2015 Family Visiting Agreement, required by a changed Society policy injecting more of an educational component into the access visits. Issues which needed even more parenting work included, again, the need to limit sugar intake, to set limits on the children’s behaviour and to pay more attention and strategy to washroom breaks. Over time, Ms. Burlock noted a slight, but not significant, improvement in compliance with the sugar restrictions made necessary to protect J-L.T.’s very vulnerable teeth and some response in reminding and teaching R.L.T. about proper control and direction of the children’s behaviour.

[70] On the positive side, the access supervisor testified about the children’s observed happiness and play during the visits and when greeting R.L.T. and De.T., and their not infrequent dismay when it was time to terminate a visit. At the same time, R.L.T. often had to be reminded that she could not engage herself tangentially in interaction with other families and that she had to prevent J-L.T. from going off with children of other access parents or the other parents themselves.

[71] Ms. Burlock painted a picture of over three years of access in the structured environment provided by the Society, closely supervised by access staff who would watch, instruct and remind R.L.T. and De.T. about how they were handling the children. It was instructive that R.L.T. and De.T. were never allowed community access, even for short periods, despite their frequent requests. I am not surprised that they generally responded appropriately to the children’s needs under close supervision and in the established routines of the access program. Those responses, however, do not banish the very real concerns identified by Ms. Gavin, and manifested in the rest of the evidence, about the poor chance or possibility of their following through and really integrating their lessons.

[72] The Society undertook what Ms. Gillham called “parallel planning” for the children. At the same time, R.L.T.’s abilities to act as a parent to the children would be monitored; available kin or community plans would be explored and possible adoption would be addressed. J-L.T.’s paternal grandmother, M.P., volunteered as a kinship placement for J-L.T. and was assessed. R.L.T., in turn, proposed a friend, Michelle L., but she subsequently withdrew. She then proposed a cousin, K.T., but later withdrew her consent to that possible placement.

[73] Ms. Gillham testified that the Society deemed least intrusive a plan: placing J-L.T. with M.P. (then approved as a kinship placement) subject to supervision (after assessing how the girl settled into M.P.’s home); obtaining a Crown wardship order with respect to D.T., and continued contact with J-L.T. if D.T. were to be is placed for adoption.

[74] After the very negative assessment they received at the conclusion of the Therapeutic Access Program, R.L.T. and De.T. could have reacted with a concerted effort to finally put to use all the advice, assistance and direction they had received in Ms. Gavin’s intensive program, from the Society worker, during their continuing attendances for access at the Family Visiting Program and from their parenting courses. Unfortunately, they chose not to follow through in that way. In fact, they rejected all this instruction and almost all of Ms. Gillham’s persistent efforts in helping them.

[75] The frustrated efforts made by Sarah Gillham to continue to monitor any improvement in the ability of R.L.T. and De.T. were set out in her September 2, 2015 affidavit introduced as Ex. 3B. She was cross-examined at length about the events.

[76] In visits to the home from January, 2013 to the spring of 2014, the clutter was reduced, at times, in areas (excepting the basement). That indicated that R.L.T. and De.T. did, in fact, realize how to start to remedy their circumstances, if only they could gather the will to follow through; however, when Ms. Gillham pointed out the visible dirt, debris and stains which persisted, they dismissed her. They did not understand how the current state of the home could affect the children’s safety.

[77] R.L.T. and De.T. became unusually evasive at that point. Arranging successful visits to inspect the home became quite difficult. An April, 2014 visit showed the home in a worsened state and required Ms. Gillham to review again her serious concerns about cleanliness with R.L.T.

[78] Two unannounced visits were impossible in May, 2014 when no one answered the door. Each time, Ms. Gillham took note of the video camera in the front window which was said to be there to monitor access to the house in a crime-ridden neighbourhood – not to warn of an approaching Society worker.

[79] Later visits twice in June and September 2014 revealed some effort at reducing clutter, dirt and debris although it was still present, as were the stained walls, ceilings and kitchen cupboards. At the September visit, the piles of clutter in the basement had not changed. John M. was in the basement and somebody identified as R.L.T.’s boyfriend was asleep in her bed in the cluttered room.

[80] In the next four months, every attempt made by Ms. Gillham to visit the home was frustrated. Letters and telephone messages went ignored. Importantly, she offered a one-time access visit with the children supervised by Anna Gavin in the home but was rebuffed. That would have been an excellent opportunity to show Ms. Gavin real promising change for the future.

[81] After February, 2015, Ms. Gillham was still trying to see the home, but De.T. and R.L.T. told her that a visit was impossible because they were accommodating, variously, “family,” “boarders” or “renters.” In her subsequent testimony, De.T. described the now “friends” as “Hamoody and his girlfriend.” She said they stayed two months and were eventually asked to leave when they offered to pay no rent.

[82] Letters scheduling visits were sent. Even face-to-face meetings when R.L.T. and De.T. arrived for access at the Society offices achieved nothing more than vague promises to make future arrangements to see the house. When Ms. Gillham did attend, no one was home or R.L.T. and De.T. had left, without explanation.

[83] When the trial began in September of 2015, the result of all this continued evasion by R.L.T. and De.T. was that no Society worker had been able to inspect the home for almost one year. Mr. Winninger negotiated with the Society for an inspection to be carried out by a worker other than Ms. Gillham, and Catherine Hatfield was assigned the task. Her case note was marked as Ex. 13 and was augmented by her evidence at trial.

[84] The assessment of the T.’s home was revealing. While the absence of kitchen clutter and the cleared counters were an improvement, caked on dirt remained all around the area and in the appliances. De.T. was proud that she had stayed up all night to clean and that John M. had assisted for part of the time. R.L.T., Ms. Hatfield was told, had cleaned after attending court that day but had gone to bed. While the floors were sticky and appeared dirty, Ms. Hatfield was unable to see into the living room to assess if anything else had improved because the room was darkened. R.L.T. had actually begun cleaning the stained, dirty walls and had rendered a four foot by eight foot strip “cleaner than the other … a cleaner beige.” The basement was still quite cluttered with laundry piled around, large amounts of clothing (including the children’s old clothing), old bedframes and materials which, once again, De.T. said were being readied for a garage sale or drop off at Goodwill. The bedrooms remained unkempt and cluttered.

[85] Ms. Hatfield’s overall worry was what the state of the home must have been like before the marathon cleaning took place, and I share her concern. De.T.’s words describing her residence as “lived in … I can’t say ‘white gloved’ but not dangerous to anybody” are far off the mark and I have no confidence at all that she and R.L.T. will ever find the wherewithal to maintain a clean, tidy, safe place for children to live. Had they been able to react appropriately themselves and had they started regular, real cleaning long before, and put into practice the lessons they were supposed to have learned in the parenting classes, the therapeutic parenting program and the Family Visiting Program educational component, they should have been more than anxious to show Ms. Gillham their success and cooperate with her home visits. Had they done that, they would have welcomed the opportunity to show Ms. Gavin that she was wrong by coming to a supervised access home visit with the children which the Society worker offered to R.L.T. and, perhaps, subsequently starting down the road of outside community access. A wasted opportunity.

[86] R.L.T. and De.T. want J-L.T. and D.T. placed in their joint care. Mr. Winninger points to the quite obvious love they have demonstrated they have for the children and reminded me of the broad legislative statement of purpose in the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended], particularly subsection 1(2)(1), which emphasizes the autonomy and integrity of the family unit and the desirability of supporting those concepts. The entire section, however, reads:

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

(2) 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.

[87] In my view, Mr. Winninger has misplaced the real purposive thrust of the statute: see Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, 284 D.L.R. (4th) 682 (S.C.C.) at para. 64, where Abella J. holds:

64 Child protection work is difficult, painful and complex. Catering to a child’s best interests in this context means catering to a vulnerable group at its most vulnerable. Those who do it, do so knowing that protecting the child’s interests often means doing so at the expense of the rest of the family. Yet their statutory mandate is to treat the child’s interests as paramount. They must be free to execute this mandate to the fullest extent possible. The result they seek is to restore the child, not the family. Where the duties to the child have been performed in accordance with the statute, there is no ancillary duty to accommodate the family’s wish for a different result, a different result perhaps even the child protection worker had hoped for.

[88] In Children's Aid Society of London and Middlesex v. T.(B.J.), 2014 ONSC 1115 (Sup. Ct.), the following appears:

3 Since both parents seem to argue that the integrity and maintenance of their family unit should be of primary importance, it is helpful to review the words of Katarynych J. in Children's Aid Society of Toronto v. R.D., [2013] O.J. No. 5891 (Ont. C.J.) where she says at paras. 17 to 19:

[17] All decision-making required by the Child and Family Services Act must be done in a manner that fuels the Act's "paramount purpose" to "promote the best interests, protection and well-being" of the child subjected to the decision-making. See CFSA, sub-section 1(1).

[18] Additional purposes catalogued for consideration are not permitted to undermine the Act's paramount purpose. Those additional purposes include recognition and consideration of the least disruptive available and appropriate course of action to help a child, recognition that help to a parent should give support to the autonomy and integrity of the family unit and wherever possible be provided on the basis of mutual consent, and recognition of a particular attitude to services to children and their families and how those services are to be rolled out to families and children. See subsection 1(2).

[19] It is legislation, in short, that tries to make plain that the child's needs and interests are distinct from the needs and interests of others, and must be the central focus of all decision-making. It is legislation that values a child's family and tries to protect a child within her family, but requires that option to be consistent with the best interests, protection and wellbeing of the child as the Act envisages those concepts. [emphasis added]

[89] The unusual nature of this case demands cogent and compelling evidence that the circumstances of De.T. and R.L.T. have indeed changed and, from the children’s perspective, that their need for a permanent solution be respected. As Sherr J. said in Children’s Aid Society of Toronto v. U.(E.), supra at para. 118:

118 A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.).

ANALYSIS

[90] The statute requires the application of best interests considerations in every Part III protection determination. Subsection 37(3) is formulated as follows:

BEST INTERESTS OF CHILD

(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.

[91] The best interests of the child are specifically stated as the applicable criteria in a disposition under s. 57 of the Child and Family Services Act, the available options in this case (because of the past length of time in Society care) being the following:

Order where child in need of protection

57. (1) 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:

Supervision order

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

Crown wardship

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

Where no court order necessary

(9) 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.

[92] Section 57.1 is as follows:

Custody order

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

Deemed to be order under Children’s Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children’s Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

Restraining order

(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children’s Law Reform Act.

Same

(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children’s Law Reform Act, and shall be treated for all purposes as if it had been made under that section.

Appeal under s. 69

(5) Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 69.

Conflict of laws

(6) No order shall be made under this section if,

(a) an order granting custody of the child has been made under the Divorce Act (Canada); or

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court.

Application of s. 57 (3)

(7) Subsection 57 (3) applies for the purposes of this section.

[93] Mr. Winninger’s approach in his submissions was to minimize each of the aspects of the Society evidence in order, drawing my attention to the testimony of his client and her mother who consistently either denied the allegations or offered explanations or justifications. He argued forcefully that the lice finally went away, the rash was eventually cured and the bed bugs were fumigated. He said the dirt and squalor were exaggerated by the Society and, in any event, finally became the subject of some attention from R.L.T. and De.T. He said their evidence showed progress and reclamation, with the result that the degree of risk to J-L.T. and D.T. has been diminished and they could be returned, if appropriate supervisory terms were imposed.

[94] In the evidence, I had developed little confidence, however, in the veracity or reliability of either of R.L.T. or De.T. They are individuals who have lived hard, difficult lives. It has damaged each of them. They are left in a hardscrabble existence, about which they cannot tell the truth.

[95] The constellation of all of the evidence includes: the lack of secure attachment between R.L.T. and her children; the failure on R.L.T.’s part to demonstrate any real integration and internalization of the considerable instruction and parenting training she has received; the refusal by R.L.T. and De.T. to cooperate with Ms. Gillham’s continued but futile attempts to visit the home of the mother and grandmother for a period of over one year, and the general inability of either of them to do something substantial and positive to demonstrate actual change.

[96] As Sherr J. pointed out in Children’s Aid Society of Toronto v. U.(E.), supra, at para. 117, a focused assessment of the continued degree of risk from the perspective of the children is the first step in the best interests determination. On this evidence, the risk concerns continue today.

[97] The important statutory circumstances on these facts from s. 37(3) are as follows:

(1) Needs, Care and Treatment

[98] In Children's Aid Society of London and Middlesex v. A.K., [2008] O.J. No 5853 (Sup. Ct.) the following appears:

61 The enumeration of statutory considerations in s. 37(3) in determining a child's best interests subsumes the common sense proposition that children have to have a nurturing environment with consistent rules, structure, routine, expectations and supervision. From the evidence I heard, none of [the parental contenders] could come close to providing that.

[99] Anything, of course, is possible. It might be that R.L.T. and De.T. have somehow now found the skills and ability to carry on raising these two young children. The September visit certainly did not establish that fact and I am concerned by the barriers they erected to avoid scrutiny by the Society workers. Assessing the evidence on the basis of a balance of probabilities, while they can function in a supervised, structured setting with the benefit of constant reminders and patient instruction, the children would not return to a safe, nurturing environment with them alone.

[100] In a case with a similar factual context, Pazaratz J., in Catholic Children’s Aid Society of Hamilton v. S.(B.L.), 2014 ONSC 5513 (Sup. Ct.), said at para. 99:

99. The pattern of behaviour must be considered. The lack of improvement in the pattern. The lack of insight. The lack of progress in addressing well-founded concerns, despite repeated opportunities to do so. The lack of candor. The lack of good faith. And the lack of any reason to have confidence that either of these parents has the ability and/or commitment to make necessary improvements within timelines sensitive to JJJ’s needs.

Curtis J. had similar concerns in Children’s Aid Society of Toronto v. S.(B.), 2013 ONCJ 492 (Ont. Ct.) when she said:

69. The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child’s life with the result that in giving the parents another chance, the child would have one less chance: Children’s Aid Society of Winnipeg (City) v. R. (1980), 1980 CanLII 3654 (MB CA), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety: Children’s Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Ont. Sup. Ct.).

[101] The foster mother testified. She described the work she has done with professionals ameliorating J-L.T.’s speech delay and limited articulation since the girl arrived in her home aged 3 years and 9 months. J-L.T. has settled in at home and school and shares warm relationship with her little brother, her 12 year old “foster sister” and her school friends. The unsuccessful toilet training evident when J-L.T. came was quickly overcome. Ms. S. testified about the additional care J-L.T. takes brushing her teeth twice daily, a routine which the foster mother repeats to ensure the necessary benefit, and her application of a special fluoride enhancer paste daily to the girl’s teeth. Interestingly, neither J-L.T. nor D.T. has had a cavity appear since their arrival in the foster home.

(2) Level of Development

[102] In Children's Aid Society of London and Middlesex v. A.K., supra, the court said:

63 These two children are quite young. Therefore, they are more vulnerable compared to older children or teenagers. Their needs are amplified by their age and immature development in every sphere, physical, mental and emotional.

[103] J-L.T. is soon to be seven years old. She has lived with the foster parents for almost half her life. D.T. has just turned four years old: he was only ten months old when taken into care. In my view, the length of time the children’s needs have been met in care is a relevant and important factor in disposition, magnified by their young age when their care had to be assumed by the State.

(5) Developmental Importance of Positive Ties to Secure Parent and Family

[104] These children are each at a critical stage of development and have had the advantage, fortunately, of the care and nurture provided to them by the foster parents over a lengthy period of time. The foster parents continue their wish to adopt D.T. and the Society has gradually increased J-L.T.’s access with her grandmother, M.P., assisted and encouraged by the foster parents, with the goal that she could provide permanent care for the girl.

[105] Security and comparative material advantage is always a hard issue to discuss. It is particularly relevant here, and difficult because of the impoverished state of the De.T. and R.L.T. home. In Children's Aid Society of London and Middlesex v. C.E., [2007] O.J. No. 4536 (Sup. Ct.), the following appears:

48 In Children's Aid Society of Algoma v. Carrie Ann A., Darren C. and Shirley A. (No. 2), [[2007] O.J. No. 5530 (Ont. C.J.)], there was evidence from a psychologist that the grandmother lived in a state of a "significant degree of social and cultural deprivation." Her environment for the child was termed "not enriched." That is not the case before me. Although Ms. Christine S. will not be able to provide materially for her grandson on a scale equivalent to that of Mr. Bradley K. and Mrs. Nancy K., I am satisfied that she can provide the basics of accommodation, nourishment, stimulation and activity that the boy requires. The notion of competition between foster parents and parents or a relative for a custodial placement is always invidious: see Children's Aid Society of Metropolitan Toronto v. Donna S. and Fred S. (1991), 1991 CanLII 4537 (ON CJ), 28 A.C.W.S. (3d) 205, 11 L.W.C.D. 424, [1991] O.J. No. 1384 (Ont. Prov. Div.) cited with approval in Rosemary L. and Gerald L. v. Children's Aid Society of Metropolitan Toronto (1995), 21 O.R. (3d) 724, 1995 CanLII 5589, [1995] O.J. No. 119, 1995 CarswellOnt 1700 (Ont. Gen. Div.), and explained in Children's Aid Society of Toronto v. Jacqueline D. and David G. (2001), 107 A.C.W.S. (3d) 249, [2001] O.J. No. 3295, 2001 CarswellOnt 2792 (Ont. C.J.). At any stage, it cannot be a contest. Admittedly, there is a gradient in the material resources and advantages that could be offered to Brian E. in the future if he were adopted by the foster parents, compared to the environment in which he would live with his grandmother. Nothing specifically exists in subsection 37(3) about the ability of the prospective custodians who provide for material things, but it may be that paragraphs 1 (providing appropriate care to meet needs) and 5 (security as a member of a family) bear on the issue. While this factor may favour Mr. Bradley K. and Mrs. Nancy K., it is not determinative.

[106] The two developmental benefits recognized by the legislature in clause 37(3)(5) are subtly different: one emphasizes the importance of a positive bond with a parent, the other a broader notion of security of membership in a larger unit, the family. With respect to the first, the statute creates a definition of “parent” which includes any individual who, among others, is required by agreement or order to provide for a child or has custody of a child: see s. 37(1) of the Act.

[107] The disposition sought in this case by all of the Society, M.P. and P.W., is a s. 57.1 custody order in favour of M.P. concerning her granddaughter, J-L.T.

[108] As far as D.T. is concerned, the Society seeks an order of Crown wardship, its intent being to place the boy with the foster parents who have raised him for over three years, most of his life, for adoption. In the Society’s view, such an order would continue the positive bond he enjoys with the foster parents who, while now excluded from the “parent” definition in s. 37(1), would attain it after adoption, and a secure family membership would be assured for him.

(6) Relationships, Emotional Ties to Parents, Relatives, Extended Family and Community

[109] Ms. Welch argues for the Society that, compared to M.P. and P.W., J-L.T. was exposed to a shallower, more chaotic and less rewarding relationship with R.L.T. and De.T. Certainly, the lack of secure attachment which Ms. Gavin described between R.L.T. and the children can be contrasted with the exemplary care and nurturing they have received from the foster parents for over three years. During that time, J-L.T. continued her accustomed access with P.W., her father, and M.P., her grandmother. All the available evidence from them, the foster parent and the Society workers indicate that the now extended access weekends with M.P. are successful and that J-L.T. is ready to take up a placement in her care. Both R.L.T. and De.T. say that they love the children. I cannot question their sincerity or the fact that the children love them; however, there are other considerations, as expressed by Curtis J. in Catholic Children’s Aid Society of Toronto v. D.(A.), 2014 ONCJ 490 (Ont. Ct.):

139. The mother states that she loves her child, and her child loves her. This is a significant factor. The mother’s relationship with the child is extremely important and must, of course, be considered.

140. However, in making a decision in the best interests of the child, the mother’s biological relationship to her child is not the only factor to be considered. The mother’s love needs to be weighed against the practical reality of her ability to care for her child, and to ensure that the child is neither harmed in her care, nor is she exposed to harm in her care (that is, what is the degree of risk). Only then can the court consider a return of any child to her care. Bald statements of her love for the child are insufficient guards against any of the real risks to the child should she be returned to her mother’s care. The court must look to the mother’s actions to determine if she has demonstrated an ability and willingness to first address those risks. The mother’s actions, over a period of almost three years, have failed to demonstrate this.

(7) Importance of Continuity in Care and Possible Disruption

[110] The over-arching fact related to continuity of care in this case is the length of time the children have been cared for by the foster parents and, for a significant period in J-L.’s case, by M.P. during her successful extended access. The only reasonable inference from the evidence is that J-L.T. and D.T. have found, over the three years, new psychological homes and that removal would be accompanied by a significant detriment to them.

[111] Similarities exist in Children’s Aid Society of Haldimand and Norfolk v. J.H.M. and C.D.W., 2014 ONCJ 590 (Ont. C.J.) where Sherwood J. said:

[145] The children have been in a consistent and supportive placement with T.S. and L.S. for over two years now and the undisputed evidence is that during this period their physical, emotional and special needs have been met. Given their young age and their respective special needs it is important that they continue to benefit from supportive parenting and the continuation of the programs, services and treatment that they have been receiving. Although there has been no evidence presented with respect to any anticipated effect on each of the children of a disruption in the continuity of their care it is accepted that any change in the children’s placement will have an impact upon them. …

[112] In the spectrum of best interests, the Supreme Court of Canada recognized the importance of the psychological bond with a foster family in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), supra, where L’Heureux-Dubé said:

39 Within the realm of best interests perhaps the most important factor in the present case, as probably in many others, is regard to the psychological bonding of a child to her or his foster family. Section 37(3) imports such considerations as the relevance of a child's emotional needs, the significance of continuity of care and the child's views. In C.C.A.S. of Metro. Toronto v. H.(K.) (1987), 1987 CanLII 2811 (ON CJ), 6 R.F.L. (3d) 1 (Ont. Prov. Ct. (Fam. Div.)), reversed (1988), 1988 CanLII 8682 (ON SC), 21 R.F.L. (3d) 115 (Ont. Dist. Ct.), affirmed (sub nom. G.(C.) v. H.(J.) (1989), 1989 CanLII 8899 (ON CA), 23 R.F.L. (3d) 300 (Ont. C.A.)), in reversing the trial judge's finding, the District Court concluded that the judge of first instance had failed to give sufficient weight to the evidence of the potential for long-term psychological harm that may arise from the child's being separated from his psychological parents. In G. (A.) v. C.C.A.S., Metro. Toronto, Ont. Gen. Div., No. 105/89, September 19, 1990, summarized at 1990 CanLII 7015 (ON SC), [1990] W.D.F.L. 1222, Matlow J., dismissing the appeal of the child's birth mother from an order for Crown wardship without access, relied on the fact that harm would be caused to the child by removing him from his foster family. Such considerations are not limited to child welfare cases, nor are they new. In fact, this Court examined the importance of bonding to psychological parents in Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173, at p. 188:

The real issue is the cutting of the child's legal tie with her natural mother. This is always a serious step and clearly one which ought not to be taken lightly. However, adoption -- given that the adoptive home is the right one and the trial judge has so found in this case -- gives the child secure status as the child of two loving parents. While the Court can feel great compassion for the respondent, and respect for her determined efforts to overcome her adversities, it has an obligation to ensure that any order it makes will promote the best interests of her child. This and this alone is our task.

In King v. Low, 1985 CanLII 59 (SCC), [1985] 1 S.C.R. 87, at p. 101, McIntyre J. held:

… the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. … The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.

These concerns apply in matters of guardianship, as well. (See New Brunswick (Minister of Health and Community Services) v. C. (G.C.), 1988 CanLII 34 (SCC), [1988] 1 S.C.R. 1073, at p. 1079.)

40 Among the factors in evaluating the best interests of a child, the emotional well-being of a child is of the utmost importance, particularly where the evidence points to possible long-term adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents. The focus of maintaining family units is only commensurate as long as it is in the best interests of the child, otherwise it would be at cross-purposes with the plain objectives of the Act, as Wilson J. noted in Racine v. Woods, supra, at p. 185:

… it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about. As has been emphasized many times in custody cases, a child is not a chattel in which its parents have a proprietary interest; it is a human being to whom they owe serious obligations.

(8) Comparisons of Proposed Plans

[113] The Society proposes a placement of J-L.T. with her grandmother under a s. 57.1 custody order and the imposition of an access regime which will continue the bond between J-L.T. and her father, P.W., but also the solid sibling relationship between J-L.T. and her brother, D.T. P.W. is in agreement with that proposal, although R.L.T. seems to be opposed, apparently based on some unexplained fault of M.P. Both R.L.T. and De.T. testified that, if they are to be unsuccessful, their wish was that J-L.T., as well, be made a Crown ward and adopted by the foster parents.

[114] With respect to D.T., the Society plan involves an order of Crown wardship and the institution of an adoption application by the foster parents.

[115] R.L.T. seeks an order returning both children to her care, subject to supervision by the Society and a number of conditions. The anticipated care of the children would, obviously, involve the assistance and participation of De.T. Her proposal is unrealistic and not consistent with the notion of a sensible permanent plan for these two young children who have been out of her care for so many years. The expression in Children’s Aid Society of Haldimand and Norfolk v. M.(J.H.), supra, is quite apposite.

[146] The Society’s plan of Crown wardship and to facilitate an adoption of the children by their current kin caregivers is a realistically achievable plan for providing a stable long term placement of the children within a family where the children’s needs may continue to be met and they can develop to their potential. The mother’s plan to have the children placed in her care would require a leap of faith that she can make the changes necessary to allow her to prioritize the children’s interests ahead of her own, work more cooperatively with the Society in facilitating their supervision of the placement and in accessing recommended services, provide a stable and appropriate residence for the children, and be able to meet their material needs on an ongoing basis. In comparing the merits of the plans presented, the Society’s plan is, in the best interests of the children, preferable.

[116] The tool of supervision, in my view, could not be effective in this case. The basis for such an order monitoring the return of children to a caregiver was well described by Curtis J. in Catholic Children’s Aid Society of Toronto v. D.(A.), supra:

Why Not a Supervision Order?

144. One option is to return the child to the mother, subject to a supervision order. Any plan for the return of the child to the mother would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order.

145. Has the mother taken sufficient steps to establish that her unco-operative and oppositional behaviour has been sufficiently changed so that a supervision order could adequately protect the child from any risk of harm?

146. In order for a supervision order to be a meaningful and effective instrument of risk management, the parent subject to the supervision order must meet a minimum threshold of co-operation, and reliability. The effectiveness of a supervision order is dependent on the supervised parent's compliance with the terms of the order, as well as on the supervising agency’s ability to monitor that parent's compliance. If the parent fails to meet this minimum threshold of compliance, a supervision order cannot be an effective option to protect the child from possible harm.

147. The mother has not made sufficient progress in addressing the protection concerns to allow the court to believe that a supervision order would be effective in addressing risk to the child should she be returned to her care. The mother‘s oppositional and unco-operative attitude had continued unabated to the current time. The evidence clearly demonstrates that the mother has not modified her behaviour to any degree, such that a supervision order can serve as an effective instrument in managing any risk of harm to the child, were she to be placed in her mother’s care. The mother’s defiant and hostile behaviour, coupled with her lack of willingness to comply, and her failure to communicate as requested and with honesty, will render any court order of supervision ineffective. The court has no confidence the mother is able or willing to co-operate sufficiently with C.C.A.S. to address the risk to the child under a supervision order, no matter how strict the conditions imposed.

148. There is no foundation for a working relationship or a supervision order under the circumstances in this case. A cornerstone of any effective supervision order is trust and clear and accurate communication between the parties. The mother was clear in her evidence that not only could she not be trusted, she did not trust the C.C.A.S. workers. Any supervision order involving the child and the mother would be an ineffective instrument for the protection and safety of the child. The mother is not a suitable candidate for a supervision order, which requires a sense of co-operation and a willingness to work with C.C.A.S..

In this similar case, the past conduct of R.L.T. and De.T. render a supervision order impossible to protect the children adequately from further risk.

(10) Effect of Delay

[117] J-L.T. and D.T. are both very young and squarely in the formative stages of their development. Their parental figures, sadly, were both victims of long-standing abuse and deprivation. It is important, for the future of each of the children, that they be given the best chance possible to develop and mature in a proper, loving and capable environment. They have been with the foster parents in Society care for most of their young lives. As the court stated in Children’s Aid Society of Haldimand and Norfolk v. J.H.M. and C.D.W. supra:

[148] … In order to provide for as much certainty as possible in their future it is important that these proceedings be decided on a final basis so that they may secure the bond and attachment with their permanent caregivers without the apprehension of a need for future changes in their placement.

(11) Future Harm from Removal or Return to Parent

[118] The evidence demonstrates overwhelmingly that the placement of the children with the foster family – and the proposed custodial status of J-L.T. with M.P. – are very positive circumstances. The evidence, and these reasons, also underline the substantial risk of harm to the children were they, or either of them, returned to the care of R.L.T. and De.T., and the resultant significant loss of their current stability.

[119] Any risk of harm in not returning the children to them is, to me, quite minimal. It would seem emotional in nature and even quite speculative: see Children’s Aid Society of Algoma v. P.(L.), 2011 ONCJ 712 (Ont. Ct.) and Children’s Aid Society of Oxford County v. C.(W.T.), 2013 ONCA 491 (C.A.).

RESULT

[120] Section 57(4) of the statute is formulated in the following words:

Community placement to be considered

(4) 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.

In the words of the Court of Appeal in Children’s Aid Society of Peel v. W.(M.J.) (1995), 1995 CanLII 593 (ON CA), 23 O.R. (3d) 174 at para. 52:

Values which the Child and Family Services Act seeks to preserve through s. 57(3) and (4) come into play when the child is removed from the care of the person in charge of the child immediately before state intervention. It is at that point that relatives, neighbours, and extended family are given a sort of priority consideration. …

[121] Courts have emphasized that the “priority consideration” is really a question of first inquiry, not of erecting a presumption which then could be rebutted or displaced on the facts: see Children's Aid Society of London and Middlesex v. L.S., [2005] O.J. No. 5599 (Sup. Ct.), per Aston J. I mention this only to point out that the placement of J-L.T. does satisfy the statutory priority.

[122] For the above reasons discussing the facts and some of the applicable cases, I find orders 1) making D.T. a ward of the Crown and placing him in the care of the Society to pursue their adoption goal, and 2) granting M.P. the custody of J-L. pursuant to s. 57.1, to be in the best interests of the children and the least disruptive alternative to provide for their protection and well-being in the future.

ACCESS TO J-L.T.

[123] Section 58 of the Act says:

Access order

58. (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Who may apply

(2) Where a child is in a society’s care and custody or supervision,

(a) the child;

(b) any other person, including, where the child is an Indian or a native person, a representative chosen by the child’s band or native community; or

(c) the society,

may apply to the court at any time for an order under subsection (1).

Notice

(3) An applicant referred to in clause (2) (b) shall give notice of the application to the society.

Idem

(4) A society making or receiving an application under subsection (2) shall give notice of the application to,

(a) the child, subject to subsections 39 (4) and (5) (notice to child);

(b) the child’s parent;

(c) the person caring for the child at the time of the application; and

(d) where the child is an Indian or a native person, a representative chosen by the child’s band or native community.

Child over sixteen

(5) No order respecting access to a person sixteen years of age or more shall be made under subsection (1) without the person’s consent.

Six-month period

(6) No application shall be made under subsection (2) by a person other than a society within six months of,

(a) the making of an order under section 57;

(b) the disposition of a previous application by the same person under subsection (2);

(c) the disposition of an application under section 64 or 65.1; or

(d) the final disposition or abandonment of an appeal from an order referred to in clause (a), (b) or (c),

whichever is later.

No application where child placed for adoption

(7) No person or society shall make an application under subsection (2) where the child,

(a) is a Crown ward;

(b) has been placed in a person’s home by the society or by a Director for the purpose of adoption under Part VII (Adoption); and

(c) still resides in that person’s home.

[124] By statute, then, an access order can be made concerning J-L.T. consequent upon the s. 57.1 custody order, again applying the best interests test. I am satisfied that the orders as sought by the parties should be made. The affidavit of D.S., the foster mother, formed part of the evidence at trial. She was called to the witness box and was examined and cross-examined. Her evidence was compelling. She has done everything she could do to promote the bond between J-L.T. and M.P. and between J-L.T. and D.T. and I have confidence that she will continue.

[125] Since the children were placed with her, D.S. has gone out of her way to involve R.L.T. and De.T. in the children’s lives. She has informed them of school activities and events, arranged and encouraged their attendance at sports, and kept in contact by telephone. There have been occasions, however, when R.L.T. and De.T. have been somewhat less than assiduous in responding to the opportunities offered them, and their explanations seemed weak. An order will go:

1. granting P.W. a right of reasonable access to J-L.T.;
2. granting D.T. a right of reasonable access to his sister J-L.T. in the discretion and direction of Ms. S;
3. granting R.L.T. and De.T. a right of reasonable access to J-L.T. in the discretion of M.P. as to times and circumstances of access.

ACCESS TO D.T.

[126] Since D.T. will be a Crown ward, the statute requires much different considerations. R.L.T. and De.T. seek an order for access to the boy but the Society opposes any access order.

[127] Section 58 of the Child and Family Services Act permits a child or any other person to apply for access. In the case of a Crown ward, s. 59(2.1) highly qualifies an access order:

59(2.1) 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.

[128] In Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731, Pazaratz J. summarized the case law regarding the question of access to a Crown ward:

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 CanLII 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 CanLII 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 CanLII 2667 (ON SC), 4 R.F.L. (6th) 245, 2004 CarswellOnt 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 CanLII 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 CanLII 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 CanLII 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 CanLII 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.)).

[129] On all of the evidence before me, R.L.T. and De.T. have not been able to satisfy the first part of the test regarding access in the face of a Crown wardship order. While there was some semblance of consistency displayed by R.L.T. and D.T. in the supervised access visits, and there were expressions of happiness and affection by the children, the cases make quite clear that more is required. Being conjunctive with the second aspect of the test, I need go no further. There will be no order stated as to access. I fully trust the foster mother to carry out her stated intention, as she has done since D.T. was placed in her care, and continue a friendly, open relationship with R.L.T and De.T., providing them with continued contact with the boy, exercising her discretion as to times and type of contact.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Released: February 10, 2016