Court File and Parties

2017 ONSC 158

Kingston Court File No.: 378/15 Date: 2017/01/09

Superior Court of Justice - Ontario

Re: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant And: K.S. and J.B., Respondents

Before: Mr. Justice Timothy Minnema

Counsel: Mr. David Toupin, for the Applicant Society Mr. Stephen Zap, for Respondent K.S. Mr. Douglas R. Haunts, for Respondent J.B.

Heard: November 14, 15, 16, 17 and 18, 2016

Endorsement

Nature of the Case/Positions

[1] This is the Society’s status review application pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “Act”), with respect to the male child X.J.F.S. who was 1 year and 8 months old at the start of trial. It is seeking Crown wardship without access. The mother K.S. opposes the application and seeks to have the child returned to her care pursuant to a supervision order. The respondent father J.B. supports the mother’s position.

Factual Summary

[2] The bulk of the history in this case was not disputed. The parties filed formal admissions (Requests to Admit) and historical agreements (Statements of Agreed Facts).

[3] The mother had a very difficult childhood. She was disciplined by her paternal grandfather with a belt as were her older siblings, and as a result there was Children’s Aid Society (“CAS”) involvement including her being in the care of the Society for about three months when she was pre-teen. The local Society subsequently became involved with her family when she was about thirteen years old at which time she disclosed past sexual abuse on her by her step-uncle (mother’s side) and also subsequent sexual abuse by her on her two younger male brothers when they were ages four and two. The Society arranged counselling services but the mother, then a child, only attended two sessions. The Society ended its involvement with the mother’s family after two years, soon after her father left the home. Not long afterwards, when the mother was about fifteen years old, she moved to live with him in Thunder Bay. They moved several times and eventually the mother was back living in this area with her mother. As a result of that residence instability -- and not a lack of ability -- she managed few high-school credits and therefore had only completed Grade 9 by end of her teenage years. The mother did not describe her relationships with either her mother or her father or their parenting of her as positive. Her parents had an on/off relationship. She indicated that overall she did not have a happy childhood.

[4] The mother knew the father when she was ten or eleven years old because he had dated her older sister. He is several months short of being four years older than her. They reconnected in early 2014, began living together, and the mother became pregnant when she was eighteen.

[5] During the time they were living together and she was pregnant, there was physical abuse on the mother by the father as well as very controlling behaviours.

[6] The applicant Society received a referral from a sister agency in December of 2014 indicating that the mother was pregnant and the father was facing criminal charges for sexual interference and luring of a minor (14-year-old female). It was also alerted to the fact that the father had two older children that were in the custody of his parents and that he was restricted to supervised access.

[7] As part of its initial investigation the mother was asked by the Society why she did not end the abusive relationship with the father. Her reply -- and that of her own mother -- was that it would be short term anyway as the father was expected to plead guilty to the criminal charges and be removed by the criminal justice system when he went to jail. The Society also had a concern that the mother’s childhood trauma had gone untreated. Lastly, it had concerns about the mother’s disclosure to the Public Health Nurse (“PHN”) that she was using marijuana regularly, four times a day according to the mother’s evidence.

[8] Approximately one month before the child was born the mother moved out of the father’s home and in with her own mother, the child’s maternal grandmother (“MGM”), in a community north of Kingston. Along with receiving services from the PHN, the Society connected the mother with a community counsellor just before the birth. All of them, as well as the mother’s family physician, seemed to be aware of the father’s pending criminal charges. Although the mother indicated in her evidence that upon moving to the MGM’s home she had separated from the father, she spent a weekend with him before the baby’s birth and indicated that she thought she loved him. The father subsequently confirmed regular communication during this period.

[9] Upon the child’s birth in the spring of 2015, he was apprehended and placed with the paternal grandparents (“PGPs”), namely the father’s mother and step-father, pursuant to an interim supervision order. The Society brought a protection application seeking a 6 month supervision order along the same lines.

[10] The PGPs made it clear at the outset that their plan was not long-term care but rather to assist while the mother learned to parent full-time or until the Society developed another plan. As noted, they were already raising the father’s two previous children (X.J.F.S.’s half-brother and half-sister). The plan quickly evolved to one where the mother would live full-time with the PGPs with the expectation that she would provide care for the child under their supervision. The hope was that she would make good choices and establish herself as the primary parent and then move out with the child.

[11] Although stating to service providers throughout this process that she was willing to do anything required to have the child returned to her care, there was no wholesale buy-in by the mother with that plan. She would go to her own mother’s on the weekends thereby relinquishing primary care of the child to the PGPs for long periods. She continued her intimate relationship with the father. While she improved her child care skills such that she was left alone with the child for longer periods of time, she still needed reminders regarding making and attending appointments. The mother had been experiencing mood swings and was being treated with medication for stress by her family doctor.

[12] Around that time the mother learned that the father had recently been intimate with his previous partner (the mother of his two other children) and further that he was having inappropriate conversations with a 15-year-old female. Regarding the latter, she did not know what to do, but after encouragement by her community counsellor and her legal counsel she eventually contacted the police. In the course of being interviewed she disclosed the past abuse on her by the father. He was charged with five offences on May 7, 2015. He spent 28 days in pre-trial custody.

[13] On May 22, 2015, with the agreement of the parties, a final 6 month supervision order was made resulting in the child remaining with the PGPs.

[14] Soon after giving her statement to the police, the mother was back with the father when he was out on bail in early June 2015. Although the police were not prepared to do it, she indicated that she wanted to recant her statement to get the charges dropped. The father is an American citizen. The mother stated to the Public Health Nurse that, with respect to the earlier more serious charges related to the minor, there was a strong chance that the father would get deported upon being convicted and serving his expected sentence. She said if that happened she and the child would move to the United States to be with him if he got the help that he needed. The mother spent the weekend of June 20, 2015 with the father.

[15] The mother had been told about unhealthy relationships and was cautioned that continuing with the father would impact her plans to have the child returned to her care. A meeting took place on June 25, 2015 between the mother, the PGPs, the community counsellor, and the CAS worker. It was reiterated that she was not to have contact with the father. The community counsellor testified that she felt by the end of June 2015 that the mother was developing more awareness about unhealthy relationships as a result of their work together. She felt that by the end of July 2015 the mother was having success working on her self-confidence and very low self-esteem.

[16] On July 22, 2015 the father pled guilty to an assault on the mother and one count of failure to comply with previous conditions; the other counts were withdrawn. As noted the father had spent 28 days in pre-sentence custody, so his sentence was suspended with an 18-month probation order. Intertwined with the above-noted criminal charges, the father was also charged on June 16, 2015 with four counts of failure to comply. He pled guilty on August 21, 2015 to two of those counts. He had spent 33 days in pre-sentence custody and was sentenced to a further 27 days. The more serious charges of sexual interference and luring of a minor remained before the criminal courts.

[17] Despite the community counsellor’s view that the mother was making gains, the mother freely admitted that the father was calling her from jail in June and July.

[18] The mother was also seeing a mental health counsellor in the northern community from April to August 2015. As reflected in his evidence, the mother knew she had relationship issues, the most obvious was with the father. The concern about her unhealthy choices had therefore been identified by all her service providers, and the need to address this concern had been very clearly voiced by the CAS, the PHN, and the community counsellor. Even the paternal grandmother had advised the mother at the very outset to stay away from her son.

[19] Despite all the clear directions and cautions, the mother maintained the relationship. As noted by the mental health counsellor, it seemed to be “up and down, back and forth”. One reason was that it revolved in part around the father’s incarcerations. It was also impacted by other events. There was a brief pause upon the mother learning of the father being intimate with his previous partner as noted above. There was another lull in September of 2015 when the mother became upset upon learning that the father had become intimate with “T.” a person who she described as her long standing “gay best friend”.

[20] The Society brought its status review application and, with agreement of the parties, a further final 6 month supervision order was made on September 24, 2015 leaving the child in the care of the PGPs.

[21] The father’s probation conditions included a ‘no-contact order’ prohibiting him from seeing or communicating with the mother. Despite all the above, the mother had that order lifted in early October 2015. I note that the mother suffers from acute anxiety that was observed and documented by service providers before and after this time. It was something that was being worked on. She would avoid simple requests because of a difficulty to cope. Examples in evidence were that she had difficulty doing simple things like leaving a telephone message for a service provider or asking for a ‘doggie bag’ container at a fast food restaurant. She only managed these with support and direction. Yet she was able in this instance to arrange to have the no-contact order lifted without the assistance of her direct supports.

[22] It is admitted that the mother was told prior to October of 2015 by the PGPs that she was not to allow the father into their home. It is also admitted that she was told by the CAS worker that she was not to allow the father to have any contact with the child. The mother, knowing that the PGPs were going to be away for a day, contacted the father and arranged for him to attend the home with her and the child on October 16, 2015. Later that same day the parents met with the Society worker who was unaware that the father had been in the home. They told the worker that they were having daily contact and wanted to work slowly towards having a relationship together and that they might like the opportunity to be a family. The worker indicated that she did not support them being in a relationship and that if they did not make decisions that put the needs of the child first the Society would move forward with a different permanent plan.

[23] The PGPs had been suspicious because the father was seen in the area of their home and items had gone missing. They had set up a spy camera. It caught the father being in the home on that day. They subsequently told the CAS, and when the mother was questioned several days later, she denied it. She claimed that the father had tried to attend but she refused him at the door. It was only when confronted with the actual visual recording that she confessed. Not only was the father in the home with her, but he also held the baby.

[24] Around this time the mother confided in her community counsellor that she wanted to be with the father. Also around this time the mother told the counsellor an odd and disturbing incident that raised further questions about her judgment and relationships. She indicated that when she was staying over at her mother’s house her “creepy neighbor Charles” came in one night and crawled into her bed. He was not invited or welcome, but she did nothing to repel him or otherwise deal with the immediate situation. They did not have sex. He stayed the night and left in the morning. This was concerning to the counsellor who had further discussions with the mother about boundaries, healthy choices, and her right to express herself.

[25] The mother fully realized the significance of her being caught in the PGP’s home with the father and child and fully expected the PGPs to tell her to leave. However, their extreme patience and support had one more level, and they gave her yet another opportunity to show that she could focus on the child rather than on the father or on her weekends away. However, nothing changed. It was not until a few weeks later when the paternal grandmother questioned the mother about her relationship with the father and the mother confirmed that they were talking and still together, that she was asked to leave.

[26] The mother moved back in with her own mother on November 3, 2015 in the community north of Kingston. There was agreement that this home is an unsafe place for a child. The mother therefore had no viable plan for the child’s return. She began access at the Community Centre for two hours three times a week. The access was not fully supervised but it was in a secure setting and other people were not to attend without the Society’s approval.

[27] The mother and father continued their intimate relationship until the end of January 2016. At that time the father was convicted of the criminal charges that had been outstanding since before the Society’s involvement and before the child was born namely (1) communicating with a person under the age of 16 for the purpose of facilitating an offence (“luring a child”), and (2) sexual interference with a person under the age of 16. He was sentenced on January 25, 2016 to 21 months in jail followed by three years of probation, including an order that he not be in the presence of anyone under the age of 16 except in the presence of an adult who is aware of the convictions. He indicates that his early release date is in March of 2017. He does not share the mother’s counsel’s assertion that notwithstanding that he has been a landed immigrant for thirteen years he will be automatically deported to the United States upon his release.

[28] In January 2016 the mother was still having difficulty using her voice in dealing with the “creepy neighbour”. She indicated that he had spread rumours in the community that she was dating him. She was at a gathering with her peers around that time and Charles was there. She had a female friend give her a hickey to discourage his interest. The counsellor explained to her afterwards that she needs to be direct and tell him she is not interested rather than go to such extremes. Also raised in the context of poor decisions regarding relationships was a plan by the mother to move in with her friend T..

[29] The mother decided shortly afterwards to move into Kingston. She was connected by her northern community counsellor with a housing service but to get subsidized housing she needed to be a resident in the city. That service recommended a temporary boarding house. The mother managed to obtain the accommodation for three weeks and then an apartment was found. Her ability to meet on her own with the landlord for the short-term accommodation was seen as a huge positive achievement by her service providers given her lack of self-esteem. After the move the mother did not want the child to have to travel to Kingston for the access, and the Society paid for taxis to facilitate it continuing at the northern Community Center.

[30] Around the same time, in February of 2016, the Society brought its second status review application asking for a further 6 month supervision order placing the child with the PGPs. However, as already noted, the grandparents had never intended to be a permanent plan for the child. They just want to be grandparents. A foster home was found that indicated it would be willing to adopt the child if he became a Crown ward, and that it was open to post-adoption contact with both the mother and the PGPs (and through them the child’s half-siblings). So on May 19, 2016, on consent of the mother and unopposed by the father, the Court on motion made a without prejudice order effective the next day placing the child in the interim care and custody of the Society with access to the parents in the Society’s discretion, and the child’s placement was changed.

[31] The mother asked to have the child with her for a birthday party in her mother’s home in March of 2016. The Society worker and the community counsellor came. People from the neighborhood who also attended included a teenaged female named “Teeny” known by the mother to be a risk to children, a woman described as the “crazy neighbor” Ruth who was suspected by the mother to have mental health issues and to have poisoned the MGM’s two dogs and a cat, and the “creepy neighbor” Charles.

[32] On June 21, 2016, the Society amended its status review application to seek Crown wardship. When the child’s placement changed, it made sense for the mother’s access to occur in Kingston. She was going to create a plan for community access, but while that was in the making, to avoid any disruptions, the Society arranged for it to occur at its offices for three hours twice a week. The mother did not create a plan with the organization she had originally contemplated, but eventually arranged for access at Métis Nation of Ontario several months later in August of 2016. The access at both places was not supervised, but in a secure setting as the Society was not confident that the mother would commit to no family or friends attending.

[33] With the move to Kingston, the northern community counselor introduced the mother to an aboriginal and rural outreach worker from Kingston Interval House (“KIH”) who could provide similar services. The transition happened around March of 2016. The new worker noted that in their initial discussions the mother described her relationship with the father as abusive and not healthy but she was left with a sense that the mother wanted to rekindle it. The new worker was aware at the outset that the mother needed to work on healthy relationships, decision making, and boundaries. However, these goals got side-tracked in the sense that the majority of the work for the first approximately five months was on the complicated process of trying to obtain the mother’s native status or “status card” as it would provide her a number of long term social, service, and financial benefits. It was only in August of 2016, several months before the trial, that work began related to the Society’s concerns. Despite that small window of time, the outreach worker was very supportive of the mother, indicating that she had already made “tremendous changes” in beginning to understand the tools available to her and in working them into her life. However, there was little evidence to support that. The worker had to assist the mother to problem solve very basic situations. For example, the mother indicated she wanted to meet with her grandmother but her step-uncle -- the one that sexually abused her -- lived in the same home. It took the worker to suggest that she ask her grandmother to come to her. The mother said she wanted to go back to school but was impeded by a twenty dollar fee. The worker needed to suggest that she call Ontario Works to see if it could assist. Although the worker conceded that the mother had self-esteem issues that made it difficult for her to follow-through with plans, she felt that she was not as vulnerable as she once was, while conceding that more work was needed. The relationship counselling started just before the commencement of trial.

[34] Around July of 2016, the mother was also connected to the program coordinator for the Health Babies Healthy Children (“HBHC”) service run by Métis Nation of Ontario. It provided advocacy with the CAS, budgeting and nutritional advice, and a venue for access to occur twice a week. The HBHC coordinator indicated in her evidence that although the mother is not Métis, her agency will work with others wanting its service. While the access was not supervised, the worker had glowing things to say of the mother’s relationship with the child. Similar to the KIH outreach worker, this coordinator noted that the mother was very vulnerable to others which might lead to an inability to follow-through with her plans, which was a concern.

[35] The HBHC program coordinator referred the mother to a Mental Health and Addictions (“MHA”) program coordinator within the same organization, Métis Nation of Ontario, about a month before trial. This program coordinator is not a registered counsellor and they only met three times. She assists people to cope with mental health issues and makes referrals while staying involved and providing cultural support. Her focus was on lifestyle changes by the mother to have the child returned, with identified issues of planning follow-through and self-esteem. The MHA program coordinator indicated that it takes a while to get to know clients, but she had already observed self-esteem as a foundational weakness in the mother. The treatment plan was using self-help books. The coordinator confirmed that her work with the mother was only just starting. She made a referral in the weeks before the trial to a sexual assault clinic which the mother had yet to follow up on. Although I heard no expert evidence in this trial, the MHA program coordinator’s view, which was generally shared by all the other service providers going back to the PHN, was that the past sexual abuse of the mother was connected to her self-esteem issues which were in turn connected to her difficulty in coping and following-through because of a fear of being told no. The Society had been encouraging the mother to seek treatment for her past sexual abuse throughout.

[36] The undisputed sum of the above evidence regarding the mother’s connection with services then, consistent with the closing submissions of all parties, was that she has only really been accessing them in a meaningful way over the past several months. The service providers, however, are all very committed to the mother’s goal of having the child returned to her care.

[37] Coming into this trial the Society had accepted the mother’s assertions that she had stopped all marijuana use soon after the baby’s birth and that it was not an issue. However, her evidence was that she still used from time to time.

[38] There is no dispute that the mother loves the child very much. She has consistently attended her access visits, at times walking significant distances when living in the north to do so. All the evidence points to her having a positive relationship with the child.

[39] The mother’s current accommodations in Kingston are by all accounts clean and adequate for her and the child. However, other than the service providers that she has engaged with over the past two or three months, there was little evidence about her current social situation. What did come out was that she had dated a Mr. V. in 2015, another poor relationship choice. The PGM was concerned that the mother’s new social group was her father and Mr. V’s family, none of whom were identified as positive influences. The Society worker reported that the mother asked her if she could take X.J.F.S. to her girlfriend’s for a birthday lunch, which was not approved. The mother subsequently divulged that this friend had physically abused her own child. Lastly, although the mother was not permitted to bring unauthorized people to access, around September of 2016 her friend T. visited with the child for a short time when he was picking up the mother. She referred him to the child as “Uncle T.”. She was cautioned that if the child was in her care the Society would not support his being exposed to T.. Just weeks before this trial T. sent the mother internet pictures of self-harming (ie. cutting his wrists). The mother asserted at trial that she had just ended this long-standing friendship.

Issues and Analysis

[40] The parties agree that the test on the Society’s status review application is what disposition is in X.J.F.S.’s best interests, provided he is found to be in continuing need of protection. They agreed to my making that latter finding.

[41] As to possible dispositions, per section 65 of the Act, the court is limited to the orders available under section 57 and 57.1. In the context of this case the mother is not suggesting that the child be returned without conditions, and there is no evidence of a kin plan despite thorough investigation by the Society. The options, then, are either a supervision order to the mother (s. 57(1)1) which again is her position supported by the father, or Crown wardship (s. 59(1)3) which is the Society’s position. I could also reject both and order a period of Society wardship given that the child has only been in care of the Society for six months. The mother requested that as her fallback position. Either wardship disposition would require a decision on access.

[42] The circumstances the court is required to consider when determining which disposition would be in the child’s best interests are set out in s. 37(3). I have examined them and note the ones arising from the evidence and submissions that I consider relevant.

Plans

[43] Not only does subsection 37(3)8 indicate that the court can consider the merits of the plans of each party, section 56 and subsection 53(1)(b) require it.

[44] I have already touched on the broad aspects of the respective plans. The mother’s amended plan is dated July 18, 2016, and as noted she seeks to have the child placed in her care pursuant to a 12-month supervision order. Otherwise, her plan generally is to continue with her current service providers, complete her high-school, and go to college to become a veterinary technician. Despite concerns noted in the evidence about her relationship with her own father, she indicated in her formal plan that he was one of her supports as was his common-law spouse. Neither gave evidence, and her father’s partner was not even mentioned.

[45] The Society’s amended plan is for Crown wardship. Section 63.1 directs it to make all reasonable efforts to assist a child who is a Crown ward to develop an enduring relationship within a family, and this includes an adoption. It plans to place the child for adoption in the foster home where he has been residing for the past 7 months. The formal plan, which is corroborated by the evidence, indicates that the home has developed a relationship with the PGPs such that post-adoption contact between them and the child will occur. This will include the child’s half-siblings who live with the PGPs. The foster parents also plan to include the mother in some of the child’s basic care; she has already met them and that has gone well. The evidence indicates that the child is thriving in that home.

[46] In comparing the two, in my view it is obvious that at this point that there are serious questions whether the mother can carry out her plan. Despite small improvements, her anxiety and the related concerns about her ability to follow-through raises questions about whether her educational and parenting goals are obtainable without the services that are only just starting. Her ability to protect the child from her own unhealthy relationships is another major concern, touched on further below.

Needs, Care and Development

[47] I have considered the child’s level of development and his physical, mental and emotional needs, and the appropriate care or treatment to meet those needs (subsections 37(3)1 and 2).

[48] While X.J.F.S.’s development seems to be satisfactory, he is approaching two years of age and is in need of permanence and stability. As to the child’s care, as noted by service providers and the paternal grandmother, when the father was in jail the mother did a better job of focusing on the child. However, when he was out of jail her focus was on the father and that took priority. I am concerned that when the optimal learning/parenting arrangement was put in place in the PGPs’ home and the mother had their full support, she regularly chose not to be available to meet the child’s needs. As the paternal grandmother noted, the mother would quickly move her priority away from the child to the father, another man, or to an event. Meeting a child’s needs is a full-time job. When given the opportunity for a trial run it was clear that the mother was not ready. With few services since that time, there is little evidence to suggest that she has made herself ready in the past year.

Cultural Background

[49] I have considered the child’s cultural background (subsection 37(3)3). There was an admission from the mother that the child is not “Indian” as defined in the Act. There was no evidence that the child is a “native person” in the sense of being a “member of a native community”. However, the evidence establishes that both parents have native heritage, and the mother in particular is now exploring that. I have considered the importance of preserving the child’s cultural identity as described in subsection 37(4). This consideration would be addressed if the child was returned to the mother, and I have weighed that along with all the other considerations. The foster parents were chosen in part because they indicated an intention to support cultural traditions in keeping with the child’s indigenous heritage.

Positive Relationships and Security

[50] I have considered the importance for the child’s development of a positive relationship with a “parent” (which does not include a foster parent) and a secure place as a member of a family (subsection 37(3)5).

[51] For the first aspect, all the evidence points to the child having a positive relationship with his mother. The words “bond” and even “attachment” have been used in consistent descriptions by most service providers. There is little evidence of a positive relationship with the father.

[52] For the second aspect, the child has not been in a secure place as a member of the mother’s family. His stable placement was with his PGPs for the first fourteen months of his life, and then, with the PGPs’ blessing and the mother’s consent, with the current foster parents for the six months before trial. The mother assisted in the child’s care for the first eight months, but not consistently, and she has been a visiting parent since then, roughly six hours per week for the twelve months before trial. She made the decisions that put her into that role.

Emotional Ties

[53] I have considered the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community (subsection 37(3)6). Other than the mother, the PGPs, and the half-siblings in the PGPs care, there is no evidence of any other adults or children in the mother’s and father’s world who have a relationship with X.J.F.S.

[54] Indeed, I would add that the evidence with respect to the mother’s family was generally concerning. With no suitable supports, she seemed to be out of options other than to go back to her mother’s home, an unsafe place for a child, and to seek out relationships with her grandmother and her own father. That the mother would consider going to the home of her grandmother who was living with the very step-uncle that had sexually abused her as a child was a concern shared by both her previous and current counsellors.

Continuity of Care

[55] I have considered the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity (subsection 37(1)7).

[56] The times and placements for the child are summarized in paragraph 52 above, and can be summarized by noting that at 20 months old he has never been in the mother’s full-time care. The eight months that the mother lived with the PGPs was a glorious opportunity lost; she chose not to step up to the plate and grow into the role of primary parent. The child has been in the care of foster parents that would adopt him for the past seven or eight months. To disrupt that continuity the court would need to be confident that the mother was presenting a viable permanent, safe, and stable plan.

Delay

[57] I have considered effects on the child of delay in the disposition of the case (subsection 37(3)10).

[58] While there has to be an opportunity to rehabilitate a parent to resume care of a child, clearly waiting too long runs counter to the child’s need for a permanent and stable placement. The Act in section 70 allows for 12 months before making a decision on Crown wardship for a young child, but that does not mean that the court has to exhaust the full period: Children’s Aid Society of Ottawa v. C.(S.), 2003 CarswellOnt 9373 (S.C.J.). I adopt the following passage from Children’s Aid Society of Toronto v. R.H. at para. 16:

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 chance to correct parenting inadequacies must be balanced with a 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 Kingston and Frontenac County v. J.G. and D.B. (1997), 73 A.C.W.S. (3d) 82, [1997] O.J. No. 3205, 1997 CarswellOnt 2830 (Ont. Fam. Ct.), per Justice Cheryl J. Robertson.

[59] Although a different case on its facts, using wording borrowed from the C.(S.) decision the mother here has squandered the better part of 20 months of assistance by the authorities and service providers during the course of three court proceedings, of which eight months was hands-on assistance in the PGPs’ home. She is only just now starting to address her problems in a substantial way. From the child’s perspective he is at a young age and still without a permanent plan. In my view this is unacceptable, not child focused, and further delay is not in X.J.F.S.’s best interests.

Risk of Harm and the Degree of Risk

[60] I have considered the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent (subsection 37(3)11). I have also considered the degree of risk that justified the finding that the child was in need of protection (subsection 37(3)12).

[61] The mother having to work on “unhealthy relationships” was a common theme among all of her service providers. Other than the PGPs, the mother had unhealthy relationships with virtually all of the people identified as active at some point in her life: her mother, her father, T., Charles, Mr. V., her grandmother (in continuing to share accommodations with the very man who abused her granddaughter), and the child’s father himself. This case was not just about the father as a clear risk, but rather the mother’s inability to say no to anyone in her social circle. The father was only the most consistent and striking example. Again, this risk of harm was identified in three court proceedings and in the Statements of Agreed Facts when past orders were being made.

[62] I find it difficult to accept the mother’s statement that her relationship with the father is now over for good. It ended with his incarceration but he has been incarcerated twice before and she re-established the relationship afterwards. Many times in the past she said to the Society workers and service providers that she was willing to give up the relationship with the father in order to keep her son, but did not follow through. She told the PHN that she was considering a relationship again after the anticipated current incarceration. The father’s hold over the mother has survived past incarcerations, domestic abuse, and his infidelities.

[63] The mother explained that she kept going back to the father because she felt lonely and no one else would listen to her. He was the only one who understood her and understood “the situation”. She then claimed that when he pled guilty she “looked at the big picture” and decided on her own to end the relationship. This latter assertion is inconsistent with her continuing the relationship right up to the criminal sentence despite being aware for some time of the charges, his intention to plead guilty, and the possibility of a deportation upon his release.

[64] The PGM does not believe the father is done with the mother. She said that as his mother she knows how he thinks and he came to this trial supporting the mother because he hopes it will patch things up with her. There was evidence to support this. I go back again to the mother telling the PHN that if the father was deported she and the child would move to the United States to be with him “if he got the help that he needed.” The father’s evidence seemed designed to convince the mother that he had gotten that very help. While he accepted full responsibility for his criminal convictions related to her, he minimized the seriousness of the convictions related to the minor to the point of denial, and despite not seeking relief for himself related to the child he made a point of indicating that he has now completed anger management, pro-social therapy, and partner abuse programs.

[65] I see risk in returning the child to the care of the mother when there is no evidence that she will be able to protect him from the father or from other relationships. Disrupting the current stable placement for one that would put the child’s safety in question would be contrary to the child’s best interests, protection, and well-being, and therefore contrary to the paramount purpose of the legislation (subsection 1(1)). I also see a risk in the mother’s already noted self-esteem and anxiety issues impeding her ability to advocate for and protect herself, let alone the child.

Conclusion re Disposition

[66] I have considered whether the concerns of the Society could be addressed by supervisory conditions (subsections 57(1)4, 57(3), and 53(1)(d)(ii)). It cannot be ignored that when the mother was in the home of the PGPs she intentionally breached the then existing supervision order. Even while supported by services and court orders from both this court and the criminal court the mother has been unable to say no to the father. She has been unable to distance herself from other unhealthy relationships that present risk. I am not convinced that the court can craft conditions on the mother that will now protect the child.

[67] In considering all the factors above in their totality, I cannot accept the mother’s plan. I have no confidence that placing the child in her care would be in his best interest. This is not to say that there are no positives, for example her relationship with the child and her developing awareness of their indigenous background and culture. But these do not outweigh the concerns related to the child’s safety and wellbeing.

[68] The real question, in my view, is whether allowing more time for the mother to work on her issues and develop her plan would be in X.J.F.S.’s best interest. However, she is only now starting to seriously engage in services. Given that similar efforts were started over a year ago that were unsuccessful, her ability to follow through now is speculation and unconvincing. In the face of one failed experiment – the trial run with the PGPs – it does not follow logically that a similar undertaking with few if any changed variables will render a different result. More than twenty months of working with the mother has failed to show any sustained progress with the core issues, and has failed to bring her to where she can be a full-time parent. The child is not to be the subject of further wishful but unrealistic experimentation; he is entitled to a permanent plan now. I find that the plan that is in the child’s best interests is Crown wardship, and so order.

Access

[69] Upon the child being made a Crown ward, the existing interim access order automatically terminates (subsection 59(2)). There is a statutory rebuttable presumption against the court making any further access order (subsection 59(2.1)). To rebut this presumption the onus rests on the mother to prove each of the following on a balance of probabilities: that the relationship between her and the child is meaningful to the child; that the relationship between her and the child is beneficial to the child; and that the ordered access will not impair the child’s future opportunities for adoption: Children’s Aid Society of the Niagara Region v. C.(J.), [2007] O.J. No. 1058 (Ont. Div. Ct.) at para. 23. For the first two parts of the test found in subsection 59(2)(a), it is the relationship -- as distinct from the access itself -- that must be both meaningful and beneficial: T.L.K. v. Children’s Aid Society of Haldimand Norfolk, 2015 ONSC 5665. As observed in Children’s Aid Society of Toronto v. S.A. and O.E.A., 2013 ONCJ 737 at paragraphs 104 and 114, this is an extremely difficult and high onus. The presumptions have been accurately described as a “gateway” in the sense that only if rebutted can the analysis move on to the next step of considering whether access would be in the child’s best interests pursuant to subsection 58(1): see Children’s Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 at paragraph 30.

[70] Following the trial I requested and received further submissions from the parties regarding access to a Crown ward. The father did not address the issue and is not seeking access for himself, rather he continues to support whatever position the mother takes. Her position is somewhat unclear. She seeks “access to the child pursuant to an openness order” which I note is both contradictory (openness is not access) and premature (the issue of openness is not before me). As the Society is supporting openness following adoption, it is not opposed to access provided that it is for the mother only and in its discretion.

[71] Although unopposed, I make the following findings with respect to the presumptions. I am satisfied from the evidence of virtually all the witnesses who saw the interactions between the mother and child that they have a relationship that is meaningful to the child. Further, the mother has been present in X.J.F.S.’s life to varying degrees since his birth. He saw her before she left the PGPs’ home and she has maintained the relationship at access visits that were consistently attended. I am also satisfied that the relationship is beneficial to the child. All the service providers identified a positive bond and attachment, and that evidence was not disputed. I have considered the detriment to the child of ending such a relationship: Catholic Children’s Aid Society of Toronto v. C.C., 2015 ONCJ 334 at paragraph 138. Lastly, I am satisfied that the access will not impair the child’s future opportunities for adoption. There already is an adoption plan with the current caregivers. They support post-adoption openness with the mother. They have already met her. There is no evidence the access would create delays or that the mother would disrupt the placement or be uncooperative. Further, in the context of the 2011 amendments, access is no longer a legal impediment to placing the child for adoption (see sections 143 and 141.1.1).

[72] Having met all three presumptions the mother is through the ‘gateway’ and what remains to be determined is what access if any would be in the child’s best interest. As to the general approach, I adopt the following passage from Children’s Aid Society of the Region of Peel v. A.R., 2013 ONCJ 347 at paragraph 90:

The granting of a Crown Ward order means the end of any effort to return the child to the mother’s care. Part of the reason for access prior to a Crown Ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child.

[73] The Society seeks an order that the access be at its discretion to ensure the safety and protection of the child. It notes that this has been the interim arrangement throughout. It has not, however, indicated whether it plans to keep the current access arrangements following the Crown wardship order or if it plans on changing them and what that would look like. It may see this as a moot issue, as the access order is anticipated to have a very short life span. The mother opposes the Society’s position indicating that access should be set out in a comprehensive schedule and not merely left to the Society’s discretion. In her written argument she proposes “no less than two access visits per week with access to expand to include periods of unsupervised access…”.

[74] The mother’s position is not in keeping with the purpose of access to a Crown ward. As noted in the A.R. decision, the expectation is that the access will be being significantly less than the pre-Crown wardship regime. In that decision access was reduced to once per month to “allow the mother and child to maintain their connection and … hopefully allow the child to have some security in knowing that his biological mother is still a part, albeit a much smaller part, of his life” (para. 90). How much post-Crown-wardship access should be ordered depends on the child’s best interest in light of the specific facts in each case. The decision in Children’s Aid Society of the Niagara Region v. B.1, 2012 ONSC 1106, dealt with a five year old child and is similar to the case before me in that he was in a home that was planning to adopt and willing to allow post-adoption contact with the mother. In an effort to recognize the new family the access was ordered to be “no more than once a month”. In a similar situation but with children aged 2½ and 3 the court in Children’s Aid Society of the Region of Peel v. D.W., 2013 ONCJ 346 at paragraph 97 granted access once every two months with the length of the visits and the time and place of the access to be in the Society’s discretion.

[75] In my view the purpose of post-Crown-wardship access, the concerns identified above relating to disposition, and the existence of an already identified adoption plan, require access in the Society’s discretion relating to the time, place, duration, and the level of supervision. So ordered. I also order that it be a minimum of once per month, but otherwise leave the frequency in the Society’s discretion. I underline that this is access. I have not considered openness, and the order I am making is not intended to set up a regime for post-adoption contact. I encourage all involved to work on openness arrangements that meet the child’s needs.

Decision

[76] There are ample grounds in the evidence that supported the Crown wardship disposition to find that X.J.F.S. is in continuing need of protection. That order is made on consent. Not on consent, the child is hereby made a Crown ward with access as set out above. This is not an appropriate case for costs.

Mr. Justice Timothy Minnema

Released: January 9, 2017