COURT FILE NO.: FC-10-1805-3 DATE: 2017/03/13 ONTARIO SUPERIOR COURT OF JUSTICE

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

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF M.H. (Born […], 2015)

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – B.H. Respondent (Father)

Danielle Marchand, counsel for the Applicant Deanna Paolucci and Lisa Sharp, counsel for the Respondent

HEARD AT OTTAWA: February 21 – 24, February 27 – 28, March 3 & 6, 2017

REASONS FOR JUDGMENT

PHILLIPS J.

[1] This case concerns the future of M.H., a boy born […], 2015. Now 22 months old, he has been in the care of the Children’s Aid Society of Ottawa (“CAS”) since he was apprehended at birth.

[2] M.H. was born with opiates, methadone, and marijuana in his bloodstream and spent his first weeks of life trembling and crying inconsolably as he suffered the effects of drug withdrawal.

[3] The Applicant, CAS, seeks an order for Crown wardship for the purposes of adoption.

[4] The Respondent father, B.H., seeks an order that the boy be put in his care, supplemented by a supervision order if necessary. In the alternative, B.H. proposes that M.H. be placed in the joint care and custody of him and his sister, S.H. Under this arrangement, B.H. and S.H. would work cooperatively in furtherance of the child’s best interests. As another alternative, S.H. proposed at the end of her evidence that she would take full custody of M.H. and prevent B.H. from having any contact if that is what it would take to keep M.H. in the family.

[5] M.H.’s mother, A.F., is currently serving 30 months incarceration for committing aggravated assault on December 29, 2015 against the Respondent father. She stabbed him numerous times in a dispute arising out of a shared cocaine binge. There is no answer or plan of care from the mother before the Court for consideration.

The Facts

[6] Much of the evidence received in this matter was presented on consent. In addition, the Court heard from 22 witnesses, including a Family Court Clinic psychiatrist and an addiction physician who were authorized to provide expert opinion evidence. I find the following facts to have been proven on a balance of probabilities.

[7] B.H. is 49 years old. He has been married twice and has access in respect of two children from his second marriage which lasted from 1998 to 2013. Since adolescence, he has suffered from debilitating migraine headaches. While seeking relief for that chronic pain he became addicted to prescription opiates and other medications. As well, his recreational relationship with illicit drugs is also long-standing and has both preceded and coincided with his medical treatment. He reports that it was in his late teens that he first intravenously injected cocaine and heroin.

[8] The evolution of B.H.’s drug dependency has changed him immeasurably. It has had a deep and long-standing impact upon his behaviours, choices in living environment and mental health. While B.H. was once fairly high achieving, enjoying professional success and contributing appropriately to his children’s needs, his addiction has compromised his functioning abilities for a long time in a very meaningful way. A tipping point seems to have occurred around 2013.

[9] On July 19, 2013, at about 8:30 P.M., police were dispatched to a parking lot where they found B.H. slumped forward in the driver’s seat of his car, with the seat belt the only thing preventing him from falling over. Police roused him and noticed that his skin appeared very flushed and that small sores could be observed on his arms. Paramedics were called. Police located a large quantity of prescription drug medication in the vehicle, including opiates fentanyl and dilaudid. B.H. admitted that he abuses his medication, and in fact intravenously injects it, causing the sores on his arms. Later, when B.H. was being released to his wife, police were advised that he had been abusing drugs for the previous five years.

[10] On August 18, 2013, police were called by B.H.’s recently estranged wife. She indicated that he had attended her home while “completely stoned on drugs” and was verbally abusive to the point of scaring the couple’s children, then aged 12 and 8. When he eventually left, he slammed the door on Ms. H.’s arm. Soon thereafter, she began to receive texts from him expressing suicidal ideation. Police caught up to B.H., finding him to be heavily medicated. It was learned that he and his wife had recently separated due to his drug addiction. He was no longer working. Through a drug dealer, he had met a woman 15 years his junior, A.F., who was well known to police for both assaultive behaviour and drug abuse. Police apprehended B.H. under the Mental Health Act and transported him to hospital. He was released soon thereafter.

[11] B.H. continued his relationship with A.F. It was drug-fueled and volatile. On January 17, 2015, police were dispatched to the couple’s apartment on M[…] Street about a disturbance. Upon arrival, officers could hear an adult female, along with a female child, crying inside the unit. They knocked at the door and were greeted by B.H. who did not want police to enter. They insisted otherwise, and did. At some point thereafter, police noticed a strange bulge in B.H.’s back pocket and conducted a pat-down search. B.H. was found to be in possession of a butterfly knife, which, given that it could be opened by gravity or centrifugal force, constituted possession of a prohibited weapon. He was arrested. Sores consistent with so-called “track marks” were observed on his arms.

[12] Because the apartment was in such disarray and because of the general circumstances of conflict between B.H. and A.F., the Ottawa Children’s Aid Society were advised about A.F.’s obvious state of pregnancy. Their concerns were especially acute since fresh sores could be observed on A.F.’s forearms and hands, resembling the marks created by drug users who pick at their skin when they are high on hallucinogens.

[13] The evidence establishes that in the months that A.F. was pregnant with B.H.’s child, A.F. and B.H. did significant amounts of drugs, both together and her with his knowledge. On November 19, 2014, B.H. told his drug addiction counselor that he had been recently consuming both heroin and cocaine, as well as smoking cannabis most days. He indicated that he and A.F. were using a lot. B.H. told the same counselor on February 18, 2015 that A.F. was abusing drugs, including smoking crack cocaine.

[14] Because of the call from the police on January 17, 2015, Ottawa hospitals were asked to contact CAS if A.F. should attend to give birth. She attended the Monfort Hospital on May 11, 2015 and M.H. was born. Both mother and baby tested positive for opiates, methadone, and cannabis. The baby went into immediate drug withdrawal and was sedated with morphine. CAS attended and apprehended the child.

[15] In interacting with the CAS at the hospital in the context of M.H.’s apprehension, B.H. expressed surprised disbelief that either mother or baby could have any drugs in their systems. The attending social worker, a man I accept has experience about such things, noted that B.H. had track marks on his arms indicative of intravenous drug use. That same social worker gave evidence that B.H. did not appear to accept the seriousness of M.H.’s condition, repeatedly questioning the approach being taken by the medical personnel.

[16] This Application was initiated on May 14, 2015.

[17] In the months that followed, the CAS attempted to ascertain B.H.’s suitability to parent. As a result of information received about his drug use, the CAS asked B.H. to sign a release for them to access his medical records. He refused to do so. He indicated that there were things about his medical situation that he did not want the Society to know (a court order was eventually obtained for the release of the records in question).

[18] The CAS queried B.H. about whether he had any knowledge about how A.F. would have drugs in her system on May 11, 2015. He indicated that the results were positive because A.F. had taken Tylenol 3s for tooth pain, methadone, marijuana pills for PTSD, and that she falsely tested positive for cocaine due to antibiotics prescribed after she had dental work completed. B.H. claimed that A.F. had a letter from her doctor saying that the false positive was due to antibiotics. No such letter exists.

[19] As the interactions between B.H. and the CAS were ongoing, his relationship with A.F. remained dysfunctional. Although no charges of domestic violence were ever laid, police were called a few times as a result of the couple’s interactions. For instance, on November 8, 2015, police were dispatched to the same apartment on M[…] Street in response to a partner dispute. While police were unable to gather any evidence supportive of any charges, both B.H. and A.F. admitted to injecting drugs the night before. B.H. appeared to be high on drugs during his interactions with the police in that he was sweating profusely and his pupils were described as the size of pinheads.

[20] A drug test performed on B.H. on December 9, 2015 tested positive for cocaine. While B.H. now disputes the accuracy of that test, I reject his bald denial and accept the positive test as consistent with the larger body of evidence.

[21] On December 28, 2015, at the M[…] Street apartment, B.H. and A.F. did cocaine together. This went on until they ran out. B.H. got a headache, and demanded that A.F. go get more drugs. Eventually, she complied and they thereafter both consumed another quantity of cocaine. At about 5:00 A.M. on December 29, 2015 argument erupted, apparently because he wanted more drugs. She responded by gathering his belongings and throwing them into the hallway. Then, she got a knife from the kitchen and stabbed him multiple times, once perilously close to his spine. He managed to leave and drive himself to the Montfort Hospital, where he advised the medical staff that he had received his injuries as a result of falling on a knife (later, B.H. told police he had been injured in the course of being robbed by several black men). Bleeding profusely, he ended up in critical condition and was admitted to the ICU. Doctors noted that there were puncture marks over his lower extremities and B.H. confirmed that he had been injecting drugs into his groin and genitals. As a result, the physicians were unable to get IV access. B.H. eventually recovered and was released, reportedly angry that the doctors refused to prescribe large doses of narcotics. A.F. has been incarcerated ever since.

[22] Access visits occurred between B.H. and M.H. throughout 2016. Punctuality and attendance became a problem such that B.H. was required to physically check in at the access center before CAS would send for M.H., a procedure deemed necessary to minimize the disruption on the child. At times, B.H. would indicate that he could not come for access due to the severity of his headaches. His headaches were described to be so bad as to be fully incapacitating for approximately nine days per month. Other times, B.H. would indicate that he could not accomplish the roughly one hour drive to the access center. On that point, I will indicate that I do not find the distance from his home in Spencerville to the access center to be an adequate excuse for missing access. The distance in question is less than 100 km, which on the applicable roads can be traveled in about an hour. Many commuters in Canada’s major cities spend about that time getting to work.

[23] In total, B.H. attended roughly ¾ of the scheduled access visits.

[24] In any event, the real probative value of the access visits lies more in their quality than with their quantity. B.H.’s performance at the visits has been uneven. While the majority proceeded without incident, indeed with some described quite positively, some involved him falling asleep, appearing confused, sweating profusely, and generally exhibiting such compromised acuity that the worker would deliberately stay close-by to ensure M.H.’s safety.

[25] On July 14, 2016, an access visit went awry as B.H. cried profusely as he wandered around the room appearing disoriented. His speech was observed to be slurred and he was sweating profusely and squinting his eyes. B.H. moved around the room, bent over, feeling in front of himself and once moving his hand as if across the top of a non-existent table. It appeared to the workers that B.H. was responding to things that were not there and was unaware of M.H. The visit was terminated. Thereafter, security were called to deal with B.H. who was in the parking lot with the entire contents of his bag emptied in front of him, apparently confused as to what he was looking for. Eventually, he explained he was searching for Kleenex. He was observed to be crying hard and was difficult to understand. His face and shirt were drenched. B.H. spoke of having to take the bus but was confused about how to do that, and then proceeded to speak of a wall or a barrier. Apparently, it was a hedge he was speaking of, and he required explanation as to how to walk around the hedge to get to the bus stop.

[26] A police report dated September 3, 2016 was admitted for its truth. It discloses that on September 1, 2016, police were contacted because B.H. was in the basement of his home under a trap door with a large knife and hammer because he believed people were upstairs. When police arrived, he refused to come upstairs as he wanted police to first check the house. Eventually, he complied and came to the front door. He was sweating, unkempt, unbathed and showing signs of delusion and paranoia. His residence was extremely disordered and police were concerned for his well-being and ability to care for himself. Accordingly, he was apprehended under the Mental Health Act and transported to Kemptville District Hospital on a Form 1. He was discharged a few days later. I reject the opinion of the discharging physician as to the benign nature of B.H.’s behaviour. It would appear that the doctor in question was given inaccurate information about the scope of B.H.’s participation in A.F.’s recent criminal trial, and incomplete information generally. While that trial would have been on B.H.’s mind on September 1, 2016, given his non-involvement in it, the events of that day are more likely indicative of paranoia and irrational thinking. I accept the evidence of Dr. Wood that paranoia is one of the side-effects of drug abuse.

[27] B.H. has been dishonest, manipulative and a general poor performer with respect to the testing process meant to ensure compliance with his drug treatment program. On September 12, 2016, his urine sample was suspiciously clean in that it did not test positive for the metabolites of methadone but tested positive for methadone itself. This indicated that methadone was poured into clean urine, a known trick based on the hope that methadone would show up in the urine as expected, but no other ingested drugs would (the technique would only have prospect of success from the perspective of someone who does not understand that the test is for metabolites of methadone and not methadone itself). Indeed, on September 22, 2016, another test was found to be suspicious and B.H. admitted that he had submitted someone else’s urine to thwart the testing process. Other drug test records show that B.H. tested positive for cocaine use on September 24, 2016 and again on October 3, 2016. Similarly, in January 2017, B.H. was forced to admit that he had been misusing his methadone, using it to self-medicate in a way prohibited by the methadone program protocols.

[28] On January 9, 2017 B.H. was observed to fall asleep during an access visit. He had arrived very emotional and more than once appeared to nod off. At one point, M.H. went for the door and the worker had to intervene and alert B.H. to what M.H. was up to. Later, about a half hour after the visit was completed, the worker went back to the room to get a high chair for another client and found that B.H. had stayed in the room and was asleep.

[29] On January 12, 2017, B.H. completely lost control of himself while on the phone with his 11-year-old daughter in a way demonstrative of an inability to act in the best interests of his child. The context involved B.H. trying to convince his daughter to convince her mom to testify in a way helpful to him at this trial. Given the way he was speaking to her, the girl became so frightened that she put the phone on speaker. Her mother could then hear B.H. yelling “you tell your mother that I’m going to bury her and she’s going to jail”. It would appear that being pulled into the adult conflict sphere has had a harmful effect upon the girl. She feels that the fighting between her parents is all her fault. Sometimes, she wishes she could go straight to heaven.

[30] On January 13, 2017, B.H. sent threatening text messages to his estranged wife. They are worrisome and should involve the police: “I’m gonna give you to the end of today to explain yourself if not I’m going to get my fucking big stick and say goodbye your fucking life” ... “So I just got off the phone with my lawyer. You’re lucky she’s got calmer heads than I do. You have no fucking idea what I was about to do”.

[31] On January 16, 2017 B.H. appeared at the supervised access center for a visit and was observed to be staggering and his speech was observed to be slurred. When he left, he leaned on a doorway, appearing as if needing help navigating the door.

[32] In February 2017, B.H.’s drug dependency physician saw fit to make arrangements for B.H. to receive psychiatric evaluation and treatment. Such treatment has yet to begin.

[33] B.H. never authorized the CAS to assess his Spencerville home with respect to its suitability for housing a child. To his credit, he indicated awareness that it was unsuitable for that purpose. After December 29, 2015, B.H. took to couch surfing with friends and occasionally sleeping in his car. In early 2016, he spoke to the CAS worker of plans to move to Toronto. Ultimately, in 2017, he moved to Montréal to be closer to his sister. Needless to say, his move to Montreal is a recent and significant change in his life.

[34] In late 2016 and early 2017, B.H.’s sister, S.H., expressed some interest in caring for M.H., either absolutely or in conjunction with B.H. The Children’s Aid Society of Montréal undertook an assessment of her abilities and circumstances. That assessment remains incomplete. Unfortunately, Suzanne’s marriage recently dissolved. As a result, her life is in a state of flux. Her family is in crisis and in the midst of considerable change.

[35] B.H. testified. I found his credibility to be lacking such that I will not take his word for anything. As an example, I found his explanation as to how it was that he submitted another man’s urine for his own drug test to be an illogical fabrication. He said that he was at a friend’s apartment the morning of his scheduled drug test and shared that he was worried that he might not be able to urinate at the doctor’s office, since the washroom at that office was not very private. The un-named friend proposed that B.H. should solve that stage-fright problem by bringing in a container of his (the friend’s) urine to be submitted if B.H. indeed ended up having trouble urinating. The problem with that explanation is that if the idea was to have some urine on hand for submission in the event of difficulty urinating at the doctor’s office, there is no reason why B.H. could not have brought his own urine in for that purpose. B.H. could have urinated into a container in the relaxing and private confines of his own apartment at any convenient time prior to attending the doctor’s office and simply brought that sample in. I find it obvious that the reason another man’s urine was required was because B.H. knew that his own would reveal that he had ingested illicit substances. I reject B.H.’s explanation and find it to be an example of a willful distortion of the truth detrimental to his credibility generally.

[36] I do not believe B.H.’s evidence that he does not remember being stabbed by A.F. I find it incredible that he remembers his calm mood and the exact words used in the argument immediately preceding the stabbing, but has no memory of the highly unusual event of receiving multiple knife wounds at the hand of his girlfriend. It seems to me that B.H.’s position that he has no memory of the stabbing is of a piece with his earlier positions that he fell onto a knife or suffered knife wounds at the hands of some black robbers in front of the building. His dishonest unwillingness to inculpate A.F. as his assailant is distressing enough on its own. In addition, however, it is troubling in its inconsistency with his present claim to have no hopes for any sort of future with her. Shading his evidence in a way to protect her is inconsistent with his assertion to no longer have any feelings for her.

[37] I found B.H. to be an evasive witness who consistently minimized his drug use history. I noticed when he recalled only that M.H. had to be weaned off methadone after birth, conveniently leaving out the more troublesome illicit substances the boy was also withdrawing from. I found his choice of words with respect to his heroin use, that there “may have been the occasional something like heroin, maybe”, to be an example of a general approach of only revealing his drug use when he has to and even then with great reluctance.

[38] I did not believe B.H.’s account of the night of January 17, 2015. He indicated that A.F. was in medical distress, frantically looking for car keys to go to hospital. He too thought it best that she go quickly to hospital, but managed to stay calm. He participated in looking for the car keys and while he was looking for them near the TV, the TV just fell over. He does not explain why he initially refused to open the door to the emergency personnel, an act that is inconsistent with his testimony that he was on the verge of calling 911 as A.F. clearly needed help. It seems incredible that he had both an intention to call 911 and a disinclination to open the door to them at the same time.

[39] I do not believe B.H.’s evidence that he did not know that A.F. was using drugs while pregnant. Certainly, his evidence in that regard is inconsistent with what he was telling his drug addiction physician during the time-span in question. On November 19, 2014, January 2, 2015 and March 3, 2015, he directly revealed knowledge of A.F.’s heavy drug use while pregnant and his participation in same. On February 26, 2015, A.F. was brought to hospital after B.H. called an ambulance, fearing she had overdosed. The physician’s note from March 3, 2015, admitted for its truth as a business record, reads: “He says she is actively using substances during the current pregnancy, and he is very concerned about the effect this may have on the fetus”. I cannot see how he can now say that he was surprised when M.H. was born with drugs in his system.

[40] In all respects, I prefer the written records over B.H.’s testimony. Equally, wherever his evidence conflicts with that of another witness, I prefer that witness. I simply do not believe him.

[41] Finally, before leaving the facts, I will note that I accept the affidavit at volume 1, tab 6 of the continuing record and find that the child M.H. was born […], 2015 in Ottawa, Ontario. His father is B.H. and his mother is A.F. He is of the Anglican faith. He has no aboriginal heritage.

Law and Analysis

[42] This application involves section 37(2) of the Child and Family Services Act, R.S.O. 1990, which provides that:

A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglecting caring for, providing for, supervising or protecting the child.

(b) There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child are caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglecting caring for, providing for, supervising or protecting the child.

[43] The burden to demonstrate that the child is in need of protection and should be made a Crown ward is on the applicant Children’s Aid Society. The Court must first consider whether the Society has proven that the child is in need of protection. If the society fails in that regard, the inquiry ends and the child must be returned to the parent. If the child is found to be in need of protection, the Court must determine what disposition is in the child’s best interests. As such, the proceeding is a bifurcated one.

[44] Before the state shall be allowed to intervene in the relationship between parent and child, there must be significant evidence to justify it. In assessing the risk of harm, the risk must be real and not speculative. While actual intention to cause harm is not required, there must be real risk that harm will occur in the foreseeable future. The concept is forward-looking, and is not meant to punish for misdeeds of the past. I will add that I am aware of the stigma that attaches to drug addiction and I recognize that this is not the forum for moralistic judgment about drug use. The Court is concerned only with whether this child is in need of protection and, if so, what if anything ought to be done in respect of the child’s circumstances going forward.

[45] When assessed in totality, the evidence in this case demonstrates a long history of drug abuse and dependency on the part of B.H. In my view, his drug use cannot be attributed to his relationship with A.F. He was abusing opiates, including injecting them intravenously, long before he met her. Even if she is removed from the picture, he remains a man with a well-established pattern of using hard drugs to cope with his life circumstances and stressors.

[46] Even if I entertain the proposition that B.H. has stabilized since about January 2017, the ensuing period pales in comparison to the long track record of his persistent abuse of hard drugs. When viewed in the larger context, the recent period of stability is a short anomaly and of no reassurance. The man has simply done too many hard drugs for too long for a few months of abstinence to have meaningful offsetting effect.

[47] It would appear that B.H.’s battle against drug addiction is a sort of ‘two steps forward, one step back’ process. As such, it is variable and irregular. I expect B.H. will be faced with stressors in the future, not least of which being A.F.’s upcoming release. If he relapsed because of stress felt when she was in jail, I assess the risk of him doing so again when she is in the community to be high. At the very least, the future vis-à-vis his drug dependency is unpredictable. While hope springs eternal, prognostications about abstinence on the part of B.H. are imprudent given his history. In fact, it is substantially likely that he will use illicit drugs in the foreseeable future as he has within the past six months. If he could not resist the pull of drugs during the time period of this Application, when he knew his conduct was the focus of many and custody of his son hung in the balance, I worry about what will happen after this trial when the pressure is off.

[48] One day, B.H. might achieve remission and stability with respect to his drug dependency. That day has not yet come.

[49] I accept the evidence from the foster home caregiver that M.H. is a high-energy toddler who requires constant one-on-one supervision. I also accept her evidence that when B.H.’s mental acuity or affect is compromised, it has a deleterious effect on the boy. It is clear that even though he is quite young, M.H. picks up on his father’s instances of diminished capacity. For instance, at the end of the July 14, 2016 visit, the worker describes M.H. as seeming very nervous: “When I picked him up he held on to me tightly”. The foster mother described how M.H. would suffer regression in his behaviours after such contact with B.H.

[50] The sorts of drugs that B.H. has historically used would impair anyone’s ability to properly parent a toddler. Certainly, B.H.’s apparent hallucinations and incoherence exhibited on July 14, 2016 is behaviour that falls short of any minimum standard in that regard. I draw the same conclusion with respect to the side effects of such drug use, including the sort of paranoia that sent him into his basement with knife in hand on September 1, 2016. That sort of unstable behaviour has manifested as recently as a few weeks ago in early 2017.

[51] I find that the Society has met its persuasive burden and I am satisfied on a balance of probabilities that the child in question is indeed a child in need of protection. There is a risk that M.H. is likely to suffer physical harm inflicted by B.H., caused by or resulting from B.H.’s likely failure to adequately care for, provide for, supervise or protect the child.

[52] Having found that the child is indeed in need of protection, I must now determine whether to make an order regarding disposition pursuant to section 57(1) of the CFSA. In this sense, I must determine if further intervention through a court order is necessary to protect the child in the future. There are four possible orders of disposition: the supervision order, Society wardship, Crown wardship, or consecutive order of Society wardship and supervision or custody pursuant to section 57.1. I am cognizant that Crown wardship with no access for the purpose of adoption, the result sought here by the applicant CAS, is the most intrusive of the dispositional orders. Accordingly, the evidence must be scrutinized carefully and such a result must be justified with a high degree of probability.

[53] The Court must make an order in the best interests of the child. In determining the best interests of the child, consideration shall be given to the factors enumerated in section 37(3) of the CFSA. Those factors include:

1. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs
2. 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;
3. the importance of continuity in the child care and possible effect on the child of disruption about continuity;
4. 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;
5. effects on the child of delay in the disposition of the case;
6. the risk that the child may suffer harm from being returned to or allowed to remain in the care of a parent; and
7. the degree of risk, if any, that justified the finding that the child is in need of protection.

[54] I consider that this is a non-exhaustive list. I also consider that no one heading is determinative or necessarily paramount. The relative importance of each will depend on the circumstances. In any case, the Court must keep in mind the central purpose of the CFSA which is set out in section 1 of that legislation. I remind myself that the overall purpose of the act is to promote the best interests, protection and well-being of children. I also keep in mind that the least disruptive course of action that is available and appropriate should be selected.

[55] The Respondent has presented a plan of care, which is in the trial record. In essence, B.H. proposes that M.H. should live full time with him at his new apartment in Montréal. It is proposed that B.H.’s nearby sister, S.H., will serve as an assistance resource should he ever need help. Additionally, B.H. promises to co-operate with and follow the terms of any supervision order or other attention from the Montréal CAS. As an alternative, during the course of the trial it has been proposed that M.H. be placed in the joint care and custody of his father and S.H. The central idea is that the pair would work in conjunction to further the child’s best interests. Finally, as a further alternative, S.H. proposed that if all else fails, she will adopt M.H. and regulate B.H.’s contact with him to any degree ordered by this Court.

[56] With respect to B.H.’s plan, I note that he has learned that his sister’s family doctor prescribes methadone. While B.H. has never met that doctor, it is proposed that she can seamlessly take over his methadone treatment from the Ottawa Oasis Center where he has been treated since 2014. Also, B.H. proposes that his current Ottawa support structure, such as his “trauma counselor”, his “drug treatment case manager” and even his reflexologist can be replicated in Montréal. That said, no actual steps have been undertaken to accomplish that Montréal reconstruction of B.H.’s support network. In fact, B.H. believes it will take him at least six months to get a Québec health card. While I can imagine that those sort of supports might be arranged sometime in the future, given the passage of time since M.H. was taken into care, this case needs to be decided on the facts as they exist now and not how they might end up later.

[57] In my view, while a perfect and fully formed plan is not required, the plans of care proposed by B.H. are based more on hopes than realities. While I agree he has signed a lease on a suitable apartment, and that his sister is indeed nearby, there are too many details left to address with respect to his extensive support needs. In the circumstances, I foresee B.H.’s move to Montréal as requiring so much work and change as to trigger significant stress, a result that is worrisome given how he reacts to stress generally.

[58] More importantly, B.H. has not yet achieved a level of stability adequate to be any kind of caregiver to a two-year-old child, even with his sister’s available assistance. Using the well-established track record demonstrated by the evidence, there is substantial likelihood of further illicit drug use on his part. The fact that B.H.’s sister is proposed as an assistance resource is no solution to the fundamental problem: that is, B.H.’s drug dependency coupled with his dishonesty about it. B.H. is the gatekeeper with respect of knowledge about the state of his drug problem and the evidence shows that he minimizes his drug use and is dishonest and manipulative with respect to attempts to monitor it. In my view, just as he did in the fall of 2016, it is likely that he would keep any relapses to himself, and indeed try to hide them. He will, therefore, likely keep his proposed helper in the dark about whether he needs any help. The high likelihood of such a result means that the proposed plans of care involving B.H. as any sort of caregiver to M.H. fail to adequately mitigate the serious protection issues inherent in B.H.’s drug dependency.

[59] I accept the expert opinion evidence from Dr. Wood to the effect that as a result of being born essentially addicted to opiates and other drugs, M.H. now has a higher risk of developing behavioural disorders and learning disabilities. As such, his needs are higher than normal and he requires higher than normal parenting ability. I also accept the evidence from the same expert to the effect that use of opiates can impair the user’s ability to emotionally engage with others. Given that at least some drug use is likely on the horizon, it seems likely that B.H. will have difficulty perceiving and addressing M.H.’s special needs.

[60] As mentioned, during the course of the trial B.H.’s sister, S.H., proposed an expanded role for herself, up to and including full custody of M.H. Also as mentioned, because this proposal has come up so late in the process, the Applicant CAS has been unable to assess her and her living circumstances in order to take a position beyond noting that her life is currently quite unsettled due to the dissolution of her marriage. Nonetheless, the Court shall assess her proposal. I am disinclined to adjourn this matter in order that further assessment be undertaken. Given the passage of time and how that subject affects the child’s best interests, I take the view that this case should be decided now on the facts as presently known. It is time for certainty and finality.

[61] S.H. is a good person who is devoted to her family. B.H. is lucky to have her in his life. However, in my view, S.H. does not appreciate the full scope of her brother’s problems. She appears to be unaware of many, and to minimize his degree of responsibility for those she knows about. She has bought into the notion that B.H. was some sort of battered partner caught in an abusive relationship with A.F. that he could not escape, and that A.F. is the fountainhead of B.H.’s questionable conduct. Similarly, in dismissing the events of September 1, 2016, she demonstrates a lack of insight into the breadth of B.H.’s mental health issues and the larger consequences from his drug dependency. While it is always preferable to keep any child within his broader family, I conclude that S.H.’s 11th hour proposal to take the child on is insufficient in the circumstances. She simply does not have enough insight into the degree of risk her brother poses to M.H., to serve as reassurance that M.H. would be protected by her from B.H. I would not describe B.H. as an “awesome father” like she does. In fairness, it would appear that she is simply not privy to the full scope of evidence tendered in this trial.

[62] Given the evidence about the intertwined and close nature of the H family, I find it impossible to imagine that M.H. would be adequately protected from B.H. by S.H. It is substantially likely that B.H. will play an integral role in M.H.’s care, supervision and upbringing. With the greatest of respect, S.H.’s position vis-à-vis her brother’s drug dependency is misinformed. This is because B.H. has misinformed her about its nature and scope. I conclude that his successful deception in that regard now renders S.H. unsuitable with respect to sufficiently mitigating the protection concerns in the foreseeable future.

[63] I find, pursuant to section 57(2) of the CFSA, that all reasonable efforts have been made to assist B.H. in addressing his needs and generally assist in facilitating a result other than Crown wardship. B.H. was generally uncooperative with the CAS, declining to share information with them about his drug addiction and treatment. They did what they could.

[64] In all respects, I prefer the plan proposed by the Applicant CAS. In my view, M.H. requires stability, consistency, permanence and contact only with those possessed of the ability to engage with him in an uncompromised condition. In light of the evidence, those results can only be achieved through Crown wardship for purposes of adoption.

[65] Section 59(2.1) of the CFSA governs the subject of access to a child who has been made a Crown ward. The burden is on the parent to demonstrate that access should be ordered. There is a two-part test. First, it must be demonstrated that the relationship between parent and child is beneficial and meaningful to the child. Second, that the ordered access will not impair the child’s future opportunities for adoption.

[66] In considering whether access should be ordered, a court must be conscious of the fact that deficiencies that may be of concern with respect to the child returning to a parent’s care may be less of a concern in the context of access.

[67] While I can agree that the relationship between father and son is beneficial and meaningful for B.H., I cannot agree that the Respondent has demonstrated that the relationship between him and M.H. is beneficial and meaningful to the child. I consider that M.H.’s first months were consumed by his withdrawal from hard drugs. Moreover, because M.H. was apprehended at birth, there is no history as between B.H. and M.H. preceding this application. The entire relationship between B.H. and M.H., therefore, has occurred within the confines of the CAS supervised access center. As mentioned, B.H.’s performance in that supervised access context has been inconsistent and occasionally even harmful. Indeed, the entire relationship between B.H. and M.H. has been dovetailed with considerable drug use and associated instability on the part of B.H. In my assessment, while there have been positive interactions between B.H. and M.H., the overall negatives tip the balance against a finding that the relationship is an advantageous and significant one from the perspective of the child. The inconsistency of it all undermines the upside.

[68] While it is not necessary to do so in light of my conclusion above, I turn now to the second step: consideration of whether an access order will impair adoption. I note that while the onus is on the parent requesting access, a court must not simply assume that an access order will impair adoption. Caution must be exercised so as not to engage in speculation regarding the impact of an access order and possible openness application on the child’s prospects for adoption. Evidence specifically addressing the relevant considerations is required.

[69] I was very troubled by B.H.’s evidence to the effect that while he made a decision to taper down his methadone use in January 2017 in preparation for this trial, he deliberately decided to keep that fact from the CAS. As he explained, he purposefully kept his methadone adjustment and its associated side-effect problems to himself because “I didn’t feel like it would be helping my case”. I infer from this conduct that B.H. tells the CAS what he thinks they want to hear and not what he knows they need to know. In the circumstances, this deliberate reluctance to share the truth about such a key issue bearing on M.H.’s best interests, bodes ill for any prospect for any positive relationship between B.H. and the CAS going forward. The relationship is revealed as a negative and guarded one, involving distrust and an absence of candour from him to them. In my view, such a negative relationship between B.H. and the CAS would have the result that an access order would impair adoption. The adoption process would be impaired by the involvement of someone willing to share only some of the facts obviously relevant to the best interests of the child.

[70] A final order shall issue that the child M.H. be made a Crown ward with no access for the purpose of adoption.

[71] I cannot leave this case without commenting on how much time has passed since the apprehension. M.H. has been in care since birth, some 22 months ago. The legislature has directed that a child his age should not be in care longer than 12 months. This time limit is clearly meant to minimize the negative effects on a child of the instability and disruption inherent in an application like this one. The evidence is that M.H. calls his foster caregiver “Momma” and has developed a deep bond with her. He is soon going to be permanently removed from her care. While some negative consequences of that disruption would have resulted in any event, the fallout is now exacerbated by the slow pace of this proceeding. The boy’s bond with his interim caregiver is now deeper than it ought to have been allowed to get.

[72] I am informed that the principal reason why this case has taken so long is because the CAS allowed the time to be spent in attempts to engineer a result short of the last resort of Crown wardship. Well more than a year was extended to the parties to remediate themselves. In addition, it is said that the proceeding unfolded as it did at least in part because of a lack of judicial resources as the Court was not available to hear the matter earlier.

[73] Whatever the reason, this child has been forced to live in limbo for too long. At some point, the interest in keeping a child with his parents must give way to minimizing the effects of instability inherent in a protracted application process. The line for when such a shift should occur has been set by the legislature at the 12 month mark. In my view, there was no reasonable prospect that A.F. or B.H. could have been expected to turn themselves around in any time close to a year, or even 18 months, from the apprehension. The nature and extent of their dysfunctions were simply too multifaceted and deep-seated. That was obvious at least after the events of December 29, 2015. The result sought by this trial should have been pursued immediately thereafter. The time expended since December 29, 2015, has only had the effect of undermining M.H.’s interest in an expeditious route to stability.

[74] Since the Supreme Court of Canada released its decision in R. v. Jordan much attention has been focused on the pace of the administration of justice as it relates to criminal proceedings. This is proper, as a trial within a reasonable time is a right guaranteed to all accused persons by the Canadian Charter of Rights and Freedoms. At the same time, however, it is worth considering that while not a constitutional imperative, a trial without delay is an important feature of a child protection application since passage of time has a real and meaningful negative impact on a child caught up in this context. The same attention and energy now being directed toward lowering time to trial in the criminal sphere should also be turned to this sort of case.

Justice Kevin B. Phillips Released: March 13, 2017