CITATION: Children’s Aid Society of Ottawa v. L.F., 2017 ONSC 5971

COURT FILE NO.: FC-11-1819-3

DATE: 2017/10/06

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 L.L. born […], 2010 and J.L. born […], 2012

BETWEEN:

L.F. and L.S.F.

Applicant on the Motion

– and –

The Children’s Aid Society of Ottawa

Respondent on the Motion

K.M.

-and-

J.L.

Respondents on the Motion

Cedric Nahum, counsel for the Applicant

Tara MacDougall, counsel for the Respondent (Children’s Aid Society of Ottawa)

HEARD: October 2, 2017

Decision on a motion

BLISHEN J.

Introduction

[1] The applicants, L.F. and L.S.F. are the maternal grandparents of L.L. who is almost 7 years old (born […], 2010) and five year old J.L. (born […], 2012). After litigation which lasted almost four years, including numerous appeals brought by the maternal grandparents, the order made by Justice Mackinnon on December 3, 2015 making L.L. and J.L. Crown Wards with access to their mother and maternal grandparents, was upheld.

[2] The applicant maternal grandparents now seek leave under s. 65.1 (5) of the Child and Family Services Act (“the Act”) to bring a status review application under to 65.1 (4) of the Act with respect to the Crown Wardship orders. The children have been in care for approximately four and a half years. After the last motion for leave to appeal brought by the maternal grandparents was dismissed on January 27, 2017, the Society began an intensive search for an appropriate adoptive family for the boys. An adoptive couple was identified and the match was approved on August 18, 2017. The maternal grandparents and the boys met the adoptive family for the first time on September 15, 2017.

Positions of the Parties

[3] The Society strongly opposes the request for leave to bring a status review application and argues that a consideration of the five principles for granting leave outlined in Catholic Children’s Aid Society of Metropolitan Toronto v. F. (B.A), 1988 CanLII 1432, when applied to the facts of this case make it clear the maternal grandparents’ motion for leave must fail.

[4] The father of the child is J.L. Although there was no order of access to him, he was served with the maternal grandparents’ motion, did not respond and did not appear on the motion. He was not involved in the previous court proceedings with respect to the children.

[5] The respondent, K.M. is the mother of the children. Although duly served pursuant to the Family Law Rules, she did not file any responding material. She provided a letter, filed as an exhibit to L.S.F.’s affidavit indicating she fully supports her parents having custody of her children as being in their best interests. The motion was first returnable on September 28, 2017 and was adjourned to October 2, 2017. K.M did not appear on September 28, 2017. On October 2, 2017 she appeared, spoke with duty counsel and requested an adjournment to consult with and possibly retain counsel on the motion.

[6] K.M.’s request for an adjournment was denied based on the following:

1. There have already been numerous delays over four and half years of litigation. The hearing of the motion was urgent as the Society planned to place the children for adoption on Thursday October 5, 2017.

2. The mother was served with the maternal grandparents’ Notice of Motion and the supporting affidavit of L.S.F. on September 14, 2014, two and half weeks ago and did not file any responding materials. The notice of motion clearly indicates “if you want to oppose this motion or give your own views, you should talk to your own lawyer and prepare your own affidavit, serve it on all other parties not later than 4 days before the date above and file it at the court office no later than 2 days before that day.” The date provided on the notice of motion was September 28, 2017.

3. K.M. indicated to the court that she had consulted with her own lawyer regarding an openness application if the children were placed for adoption.

4. K.M. was not presenting an independent plan for the children to be returned to her care but was supporting her parents’ plan as indicated in the letter filed as an exhibit to her mother’s affidavit.

[7] The maternal grandparents, L.F. and L.S.F. argue they meet the five part test outlined in the Catholic Children’s Aid Society of Metropolitan Toronto v. F. (B.A), as there have been significant changes in their circumstances and in the circumstances of the children since the order of Crown Wardship. They argue, if leave were granted, a hearing on the status review application would likely result in a finding that placement with them is in the children’s best interests. The grandparents did not state what order they would be seeking on a status review application under s. 65.1. Would they be seeking an order under s. 65.2 (1) (a) that L.L. and J.L. be placed in their care and custody subject to Society supervision or, pursuant to s. 65.2 (1)(b), an order that custody be granted to them? There was no question they would be seeking an order that the children be placed with them but the nature of that placement was left unclear.

Litigation History

[8] As stated above, the Society’s status review application requesting an order of Crown Wardship was before the court for almost four years.

[9] The children had previously been found in need of protection pursuant to s. 37 (2) (b) (1) of the Act and had been placed with their maternal grandparents under the terms and conditions of a supervision order. They were apprehended from their grandparents’ care on February 4, 2013 and the Society filed a status review application requesting an order of Crown Wardship. The children remain in the same foster home placement. L.L. was two years and three months old when he came into care and J.L. was approximately a year old.

[10] The mother and the maternal grandparents contested the Society’s status review application and a six day trial was held in September and October 2013. On November 21, 2013, Justice Mackinnon made an order for Crown Wardship with supervised access to the maternal grandparents once per week. The Society’s plan was for adoption of the children.

[11] On December 23, 2013, the maternal grandparents filed a Notice of Appeal and on October 30, 2014 the appeal was allowed and the Crown Wardship order was set aside on the following terms:

1. The matter was returned to the trial judge for reconsideration of her order in view of the application of s. 37 (4) of the Act;

2. For such purpose the parties were entitled to adduce further evidence and make further submissions relevant to s. 37 (4); and

3. Counsel were to contact the trial judge for directions so that the reconsideration could proceed as expeditiously as reasonably possible.

[12] Section 37 (4) of the Act provides:

Where child an Indian or native person

(4) Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity. R.S.O. 1990, c. C.11, s. 37 (4).

[13] Justice Mackinnon determined that part of the reconsideration ordered by the Divisional Court would include an inquiry as to whether the children fit within the scope of s. 37 (4) of the Act.

[14] Given that the Crown Wardship order had been set aside, the mother and the maternal grandparents both filed amended answers and plans of care. Therefore, the “reconsideration” was in fact a trial of the original status review application based on the up to date circumstances of the parties and the children.

[15] A trial date was scheduled for April 24, 2015 but was adjourned to June 29, 2015 when the mother and her new partner proposed a plan for the children. In addition, the maternal grandparents delivered a notice of constitutional question challenging the validity of the definitions of “Indian” and “native person” under the Act.

[16] The trial finally began in October, 2015, a full two years after Justice Mackinnon heard the first trial. By that time, it was common ground that no party and neither child fell within the applicable definition of “Indian” or “native person” under the Act. The evidence was the maternal grandfather and through him, the mother and her children, were of Aboriginal ancestry, of Algonquin decent, and were non-status Indians.

[17] The trial continued for 9 days in October, 2015 and dealt with: the constitutional question, the plan of the mother and her partner for the children to be placed in their care and the maternal grandparents’ plan for the children to be returned to their care. Justice Mackinnon provided an extensive review of both plans in the context of the best interests of the children and their need for permanency. She noted the children had been in care since February, 2013, well over the permitted time period established under s. 70 (1)(a) of the Act. In considering the mother’s plan she concluded “the best interests of the children at present are supported by an order of Crown Wardship. These children have been in limbo for too long to now embark upon a plan that will not, on a balance of probabilities, become permanent in short order.” She also concluded it was not in the children’s best interests to be returned to the care of their maternal grandparents’ home.

[18] On December 3, 2015, Justice Mackinnon ordered Crown Wardship for both children with access to the maternal grandparents and the mother once per week. She held access would reasonably address the issue of preserving the children’s Aboriginal cultural background. Justice Mackinnon further ordered the access right holder should be the adults so they would be able to seek openness in the event of an adoption placement.

[19] On December 31, 2015, the maternal grandparents again filed a Notice of Appeal. On April 12, 2016 a single judge of the Divisional Court dismissed the maternal grandparents appeal for delay but on July 4, 2016, the Divisional Court set aside that order and added the case to the Divisional Court list for the week of October 27, 2016. On October 28, 2016, the Divisional Court dismissed the maternal grandparents appeal.

[20] After receiving the Divisional Court’s decision, the Society, for the third time, began the process of child specific adoption recruitment for both L.L. and J.L. The adoption recruitment again had to be put on hold when the maternal grandparents brought a motion for leave to appeal to the Ontario Court of Appeal. On January 27, 2017, the motion for leave was dismissed with costs fixed in the amount of $500.00.

Adoption Plan

[21] In April, 2017 the child specific adoption worker, Sharon Kollaard, began regular meetings with the children to prepare them for adoption. She investigated all potential adoption applicants determined through the Adoption Resource Exchange in Eastern Ontario and province wide. She reviewed 20 home studies to determine a short list of families who could best meet L.L. and J.L. needs. Ms. Kollaard, deposed “in addition to being able to meet the boys physical, emotional and psychological needs, the key child specific criteria I used to screen families and determine a good match are as follows: a) the family needed to have a good understanding of openness and be willing to support L.L. and J.L. in maintaining connections with birth family members; b) a family who identified as Indigenous and would be able to continue to support L.L. and J.L. in maintaining their Indigenous heritage; c) a family who has a good understanding of the trauma and loss and is able to parent from an attachment-based lens; and d) the family needed to have a good understanding of mental health issues and be prepared for the fact that the boys are at an increased risk to be identified with mental health issues due to a history of mental health concerns within the extended birth family.”

[22] Based on the above criteria, Ms. Kollaard formulated a short list of 5 families she felt had the most potential to be a good match for L.L. and J.L. On July 13, 2017, she scheduled an initial screening disclosure meeting with an adoptive couple, B.A. and B.C. After that meeting, the full disclosure process was undertaken and the match was confirmed on August 18, 2017.

[23] B.A. and B.C. were determined to be the adoptive couple that best matched L.L. and J.L.’s needs for the following reasons:

1. They are an energetic couple in their 30’s.

2. There are no other children in the home and the couple will be able to focus their time and attention on ensuring the boys are well supported.

3. B.C. has indigenous heritage and the couple attends a variety of indigenous events in their community.

4. They both understand and value openness and are fully prepared to support the boys in maintaining family relationships with their mother and maternal grandparents.

5. Although they live in Burlington, they have connections in the Ottawa area and are prepared to travel to Ottawa to support the boys in maintaining the connections with their maternal grandparents, birth mother and their half- brother T.

6. They are an active couple who enjoy the outdoors and share similar interests to the boys.

7. They can provide L.L. and J.L. with a stable, structured environment where they can feel safe and secure.

8. They are aware of the significant mental health concerns in the extended family and are prepared for future unknowns with respect to L.L and J.L.’s mental health.

9. B.A. was adopted herself and there is also an adoption within the couple’s extended families. They have a good understanding that parenting a child through adoption is different than parenting a child born to you.

10. They have a good support system and are well connected to services in the Burlington area.

11. Both have extensive experience working with children as well as children with special needs. B.C. is an Early Child Educator and B.A. is a Behaviour Specialist and Early Child Educator.

12. They have a good understanding of attachment based therapeutic parenting and have attended intensive training in this area.

13. They will support the boys and continue to see an attachment therapist who will work with the whole family.

14. B.A. plans to take parental leave and would seriously consider staying home full time if this would be in the best interests of the boys.

[24] In addition to meeting with the boys monthly since April, the adoption worker made a referral to an attachment therapist on May 3, 2017 for additional support.

[25] As noted above, the children have been with the same foster family over the last four years. Although the foster mother has been clear and consistent that foster care is temporary and the judge still has to make a decision on whether they will return to birth family or be placed in an adoptive family, the boys were asking more questions and appeared anxious and confused. Further meetings were held with the boys. The attachment therapist provided support and assisted them process more information about adoption. She also clarified the roles of birth families, foster families and adoptive families.

[26] On August 23, 2017, the boys were told a decision had been made and the plan was for them to be adopted. They were curious to know who the adoptive parents were. The foster mother used a photo album made by B.A. and B.C. in talking to the boys about their adoptive family and was able to show them pictures of their new home and community. One of the first questions that L.L. and J.L. asked the foster mother was when they could meet B.A. and B.C.

[27] On September 15, 2017, the boys brought the photo books to school to show their teachers. Later that day they met B.A. and B.C. for the first time. The boys were excited. They showed the couple their rooms and their favourite toys and asked B.A. and B.C. questions about moving to their home in Burlington. The adoption worker informed the boys they would have visits in the foster home, in the community and in Burlington so they would all have a chance to get to know each other before moving. A weekend visit took place shortly thereafter and reportedly went very well. J.L. told the foster mother “I am glad they are adopting me.”

[28] With respect to the maternal grandparents’ involvement, on August 2, 2017, L.F. and L.S.F. were advised the Society had identified an adoptive family for L.L. and J.L. The worker offered to facilitate a meeting with the adoptive family on August 17, 2017 but the grandparents stated they were not ready and the visit did not take place.

[29] The grandparents did meet B.A. and B.C. in Ottawa on September 15, 2017. The worker noted B.A. and B.C. reassured the grandparents the boys would not be removed from their lives. They very much want L.F. and L.S.F. to play a grandparent role. B.A. and B.C. stated they were looking forward to building a positive relationship between the two families.

[30] On September 14, 2017, just prior to that meeting, the maternal grandparents filed a notice of motion requesting leave to bring a status review application.

[31] On September 19, 2017, a letter was forwarded to the grandparents counsel and the children’s mother and father indicating the Society’s plan to place L.L. and J.L. for adoption by October 5, 2017. The motion for leave was originally set for September 28, 2017 but was adjourned and argued on October 2, 2017.

Law

Statutory Framework

[32] The maternal grandparents are seeking leave to bring a status review application under s. 65.1 (4) of the Act as parents.

[33] The definition of a “parent” is found in s. 37 (1) and includes :

(e) An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.

[34] The maternal grandparents have court ordered access rights to L.L. and J.L. and are therefore “parents” for the purposes of bringing a status review. However, under s. 65.1 (5), in situations where a child has lived continuously with the same foster parent for at least two years, a parent must seek leave of the court to bring a status review application. Granting leave is not a mere formality but a matter of substance. See Children’s Aid Society of Haldimand Norfolk v. M. (J.A.), 2011 ONCJ 53.

[35] It is important to note that once an order is made for Crown Wardship, the focus of the Child and Family Services Act shifts to establishing a permanent and stable placement preferably through adoption. See Children’s Aid Society of the Niagara Region v. C. (J.), 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.).

[36] Section 65.1 (5) is an example of that shift. Other sections of the Act also emphasize this focus.

[37] Pursuant to s. 59 (2.1), there is presumption against court order access for a Crown ward in order to facilitate permanency planning through adoption.

[38] Under s. 63, once a child is made a Crown ward, all the rights and responsibilities of a parent for the purposes of the child’s care, custody, and control shift to the Crown, including the right to give or refuse consent to medical treatment. The powers, duties and obligations with respect to the child are to be exercised by the Society caring for the child. Further, pursuant to s. 63.1, once a child is made a Crown Ward, the Society is required to make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through: adoption, a custody order or, in the case of a child who is an “Indian or native person”, a plan for customary care.

[39] The shift to permanency planning is further emphasized by s. 70 (1) which states the court shall not make an order for Society Wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years of age when the court makes the order. This period of time can be extended for not more than six months but only if it is in child’s best interests (s. 70 (4)).

[40] The Child and Family Services Act emphasizes children should not be left in limbo, in temporary placements for lengthy periods of time. Children require decisions to be made expeditiously to place them in them in a permanent, stable family home environment. L.L. and J.L. have been in a temporary foster home placement since February 2013. They have benefited from some stability given the consistent care of the same foster parents but, given the protracted legal proceedings and the numerous appeals, there has never been an opportunity for these children to achieve permanency.

Jurisprudence

[41] There is no statutory guidance on the test to be followed when granting leave for a parent to bring a status review application. The 1988 decision of Ontario Court Justice Bean in Catholic Children’s Society of Metro Toronto v. F. (B.A.), 1998 CanLII 1432, outlines five principles to be applied when considering a motion for leave under s. 65.1 (5). This case has been consistently followed by Ontario Courts. The Superior Court of Justice affirmed that the five criteria “have in effect become the equivalent of statutory criteria” See Durham Children’s Aid Society v. S.(J.), 2009 CanLII 80106 (ON SC), [2009] O.J. No. 5901.

[42] The five criteria which must be proven on a balance of probabilities by the individual requesting leave are :

1. the proposed status review is requested in good faith;

2. it is the least drastic remedy for the relief sought;

3. there are unusual circumstances that warrant the court’s intervention;

4. the status review would meet the purposes and objectives outlined in section 1 of Child and Family Services Act; and

5. there is prima facie a prospect of success if leave is granted.

[43] In G.R. v. Windsor-Essex Children’s Aid Society, 2017 ONSC 285, Justice Tobin provided a thoughtful analysis of the five principles and notes the following:

21 In Durham Children's Aid Society v. J-AS 2009 CanLII 80106 (ON SC) the Court considered the principles set out in Catholic Children's Aid of Metropolitan Toronto v. F. (B.A.) supra and appeared to give prominence to the fourth principal -- meeting the purposes of the Act -- as follows at para. 47:

• "...I think that it is sufficient to say that any party making an application for a review of a Crown Wardship order, which does not lie as of right, must satisfy the court, on the balance of probabilities, that such review would meet "the paramount" and "other purposes" definitions found in section 1 of the CFSA. Best interests are included therein."

22 The fifth principle referred to by Justice Bean, that is, there must be a prima facie case before leave is granted was considered by the court in Children's Aid Society of Haldimand and Norfolk v. J.A.M.-F. 2011 ONCJ 53, where Justice Thibideau concluded at para. 56 as follows:

• "Has the moving parent placed before the court... apparently credible and weighty evidence that is sufficient to warrant holding a hearing on the merits? Is the evidence sufficient to demonstrate that there is reasonable prospect of success? However, this test would apply to all of the evidence and all of the circumstances of the parent and the children before the court at the time leave is requested to be given. Once again, context is everything, it is not sufficient that the context be restricted to the facts and circumstances related only to the parent. It is required that the evidence take into account the facts and circumstances of the parent and the children who are the subject of the application. Justice Spence, in S.R. v. Catholic Children's Aid Society of Toronto 2011 ONCJ 11 held with respect to the fifth principle that the court should not allow a status review application to proceed unless the moving party is able to establish, "a meritorious case for relief".

23 A consideration of the five principles provides a helpful guide for conducting a contextual analysis of whether leave should be granted. At the same time the court's discretion should not be constrained by a requirement that all five principles must be met by a moving party or that other compelling considerations should not be taken into account: Children's Aid Society of Toronto v. S.C. v. I.K. 2017 ONCJ 240. The analysis engaged must be a child focused one that gives effect to the paramount and other purposes of the Act.

Analysis

Five Principles

1. Is the motion brought in good faith?

[44] The maternal grandparents love their grandchildren. That has never been in question. Their motivation in bringing this motion is a firm belief that placement with them would be in the boys’ best interests. I do not find, based on the evidence before me, an ulterior motive to disrupt the plan for the identified couple to adopt L.L. and J.L. There were, however, delays pursuing the motion for leave which will have a negative impact on the children who have been prepared for months for an adoption placement.

[45] The children have had the support of an attachment therapist; they have met on a number of occasions with the adoption worker and the children’s worker regarding the adoption; they have gone through confusion and anxiety regarding what will happen to them and have been reassured they will be placed in a forever family without losing contact with their grandparents; they have met the prospective adoptive parents and have had visits with them; they are excited and happy with the prospect of moving with their adoptive family to Burlington.

[46] The maternal grandparents could have filed their motion on July 27, 2017.

[47] Although it did take time for them to obtain legal counsel; draft affidavit materials and gather supporting documents, it was not until September 14, 2017 that the Notice of Motion was filed. They were well aware as of August 2, 2017 that an adoption plan was underway. They have met the adoptive parents. The final adoption placement is planned for Thursday October 5, 2017, three days after the motion was argued.

2. Can the relief sought be obtained in another way?

[48] The Society concedes and I agree there is no other manner for the relief sought by the maternal grandparents to be obtained.

3. Unusual Circumstances

[49] In Catholic Children’s Aid Society of Metropolitan Toronto v. F. (B.A.), 1998 CanLII 1432, Justice Bean defines “usual circumstances” as being unexpected changes that are not simply a matter of the passage of time. He notes the following:

21 I find that there are no unusual circumstances, as I would characterize them. There have certainly been some changes in the circumstances of virtually all of the parties since the making of the order. Many of those are simply a matter of passing of time-people get older, relationships change, people mature, et cetera. In my opinion, that is not sufficient to constitute “unusual” circumstances. It may constitute a material change in circumstances but, in my opinion, that is not the test for granting leave. The test ought to be: are there some “unusual” circumstances beyond those circumstances that would normally change in the lives of every child, every foster parent and every natural parent, that justify the granting of leave at any time, notwithstanding the two-year limitation.

[50] The maternal grandparents argue they have met the burden of proof on a balance of probabilities that there have been numerous significant changes that meet the test of unusual circumstances as follows:

1. The children are now older, of school age and somewhat less physically demanding. I find this to be a normal, expected change.

2. Their behaviour has improved and the grandparents can now keep up with them. This has been observed on weekly two hour access visits.

3. They have the assistance, if necessary, of their son, P.F. and his wife who have written letters of support as have other friends. Their son and daughter in law could assist and possibly take over caregiving if necessary. Very little detail was provided as to this potential plan. The support of family and friends was considered by the Divisional Court in dismissing the appeal on October 28, 2016.

4. L.F.’s significant health difficulties have been reduced in that his Stage III lung cancer is in remission.

5. The grandparents have attended parenting classes to assist in recognizing and handling the physical and emotional needs of the children.

6. The concerns regarding the mother, K.M. have now been alleviated. The Society no longer has protection concerns with respect to her two and a half year old child, T. who is in her full time care. In addition, the relationship between the mother and the maternal grandparents appears to have improved.

7. The children will have to move from their long term foster home to a new home in any event which will be a significant disruption for them. This is indeed the case but L.L. and J.L. have been prepared for such a move since April, 2017 and are looking forward to it. Adoption has always been the plan as it must be for many Crown Wards. The Society made efforts throughout the years to find prospective adoptive families but those efforts were always put on hold due to numerous court proceedings and appeals.

[51] Many of the circumstances and concerns noted by Justice Mackinnon in 2013 remain today.

1. The grandparents were 59 and 61 years old in 2013 and are now four years older in their mid-sixties.

2. L.L. and J.L. are active five and six year old boys who require ongoing supervision.

3. The grandfather suffers from chronic pulmonary disease. In 2013, he was using an inhaler and medication and had also been treated for bi-polar disorder. The evidence today is his Stage III lung cancer is in remission but there is no medical evidence provided regarding his other significant health difficulties.

4. The grandmother has high blood pressure and had trouble keeping up with the children from a physical stand point. There is no medical evidence provided as to the grandmother’s high blood pressure.

5. There were safety concerns given the grandparents’ difficulty controlling the children. There is no evidence the activity level of these five and six year old boys has significantly diminished.

6. The grandparents permitted the children’s mother to be in their home which was a clear contravention of a court order. The ongoing relationship between the mother and her parents appears to have improved but little detail was provided.

7. Justice Mackinnon found “it would be essential for [the grandparents] to co-parent at virtually at all times so that one of them is not alone and outnumbered, unable to ensure the safe control and management of these two young active children…it is probable that one or the other of them would be required to look after the children on his or her own at various points at time.” L.L. continues to work and L.S.F. would be left alone on occasion to look after the children.

[52] Two years later, after the second trial, Justice Mackinnon noted that, although the evidence supported the fact that the maternal grandparents were able to look after the children during visits and made meaningful and positive contributions to the children’s lives, there was not an apparent improvement in their physical abilities since 2013. She once again concluded it was not in the children’s best interests to be placed in the maternal grandparents’ care and made an order of Crown Wardship with access to both the maternal grandparents and the mother.

[53] On the third appeal, decided on October 28, 2016, the Divisional Court noted the following:

10 The trial judge was concerned about the health and age of the appellants, which would invariably affect their ability to care for the children on a permanent basis. She was also concerned about poor judgment shown in certain circumstances, their difficulties in controlling the two children, and the relationship with the children's mother's partner. While the appellants have a close and loving relationship with the children, the trial judge recognized this by making an order of access. She also concluded that the access of the mother and the appellants would reasonably address the issue of preserving the children's Aboriginal ancestry.

11 The fresh evidence filed for this appeal by the appellants does not persuade us that the order of Crown Wardship should be set aside. There are still grounds for concern about the appellants' health that have not been adequately addressed. While there is evidence of future support from friends and family, it does not appear sufficient to address the concerns about their ability to care for these children on a full time basis until the children are adults.

[54] A motion for leave to appeal to the Ontario Court of Appeal was dismissed on January 27, 2017. Therefore, eight months ago, the findings of fact made by the trial judge and her concerns remained.

[55] The grandparents evidence, confirms: their devotion and dedication to the children; a positive and loving relationship with the children; that they have attended a parenting program; and they have significant support from extended family members and the Aboriginal Community. It does not however, address the undisputed concerns of the trial judge with respect to their abilities to permanently parent the children.

[56] The grandparents have not met the burden of proving on a balance of probabilities, significant, unusual and unexpected circumstances justifying an intrusion into the children’s long term permanency planning.

4. Purposes of the Child and Family Services Act

[57] The paramount purpose of the Child and Family Services Act as outlined in section 1, is to promote the child’s best interests, protection and well-being. The focus is on the child.

[58] A consideration of the best interests factors listed in s. 37 (3) of the Act is of assistance in determining whether the grandparents have met their burden on this motion.

The Children’s Physical, Mental and Emotional needs, and the Appropriate Care and Treatment to Meet Those Needs

[59] The grandparents argue they are able to handle the physical demands of parenting. Their access visits do go well and they are now more able to deal with the behaviour of the children. However, the visits are two hours weekly and do not involve full time parenting.

[60] The trial judge found the grandparents did not meet L.L.’s physical needs resulting in severe dental decay.

[61] If the children remain in foster care they can proceed with the transition to the adoptive family as planned. The adoptive couple have been thoroughly screened and assessed and found to be able to meet all of the boy’s physical, mental and emotional needs as outlined above.

The Children’s Cultural Background

[62] The maternal grandfather, and through him the mother as well as L.L. and J.L. are of Aboriginal ancestry, of Algonquin descent, and are non-status Indians.

[63] The grandparents argue that L.L. and J.L. have ties to a specific Aboriginal community in Ottawa. They have attended Aboriginal Headstart at Minwaashin as well as Pow Wows and other activities. The involvement in local Aboriginal activities has certainly been valuable to the children in preserving their cultural background.

[64] The Society’s evidence is that one adoptive parent is Indigenous and the family has committed and demonstrated their ties to her culture. In addition, the children’s cultural connections can be maintained through an openness agreement which will preserve the relationship with the birth family.

The Importance for the Children’s Development of a Positive Relationship with a Parent and a Secure Place as a Member of a Family

[65] There is no question the children have a loving and positive relationship with their grandparents. They have also developed an attachment to their mother and half sibling, T. However, over the past four and half years, they have been unable to establish a secure place as a member of a ‘forever family’. Granting leave, at this time, could once again delay placement in a stable, permanent family home.

Relationship and Emotional Ties to Family Members, Extended Family or Members of the Child’s Community

[66] As mentioned above, the children have significant ties to their grandparents. However, L.L. and J.L. have not lived with their grandparents since their apprehension in February, 2013. They also have emotional ties to their foster family and have begun to develop ties to their adoptive parents. The attachment to the grandparents and mother can be maintained through adoption with an openness agreement. The adoptive family is more than prepared to agree to openness and wishes to maintain the grandparental relationship.

Importance of Continuity and the Effect of Disruption

[67] The children’s continuity will be disrupted by a move to the adoptive family in Burlington. The maternal grandparents argue, given the inevitable disruption, it would be in the children’s best interests to be returned to their care.

[68] A great deal of effort has gone into selecting the appropriate adoptive couple and in preparing the children for the transition. That transition plan would have to be put on hold if leave to bring a status review application was granted. The children would once again be plunged into legal limbo.

The Effects on the Child of Delay of the Disposition

[69] It must be once again emphasized that these children have been in a temporary foster home awaiting permanency and stability for what is arguably an unconscionable period of time. As noted above, s. 70 of the Act indicates temporary placements for children 6 years of age or under should only last for 12 months. L.L. and J.L. have been in foster care without the ability to permanently plan for over 4 years. If leave were granted, the children could lose the opportunity for placement with an adoptive family well suited to meet their physical, emotional and mental needs.

Risk of Harm

[70] The risk of harm in returning the children to their maternal grandparents has already been outlined. There were detailed findings of fact by Justice Mackinnon at the trial in 2013 and the same concerns were highlighted at the trial in 2015. The Divisional Court in 2016 summarized those concerns. Findings have been made over the last four years of a genuine risk to L.L. and J.L. if returned to the care of their maternal grandparents.

[71] I also find however, there would be a risk of emotional harm to the children if they lost the strong connection with their maternal grandparents and mother. An openness agreement with an adoption would preserve the beneficial and meaningful relationship between the boys and their biological family.

5. Prima Facie Case

[72] Based on the evidence before me, I do not find the maternal grandparents have proven on a balance of probabilities they would probably obtain an order placing the children in their care on a status review application.

[73] In Children’s Aid Society of Haldimand & Norfolk v. N. (J.A.), 2011 ONCJ 53, Justice Thibideau noted:

45 ….it is not all status reviews that require leave

46 It is logical to conclude that the test for leave in these circumstances has to be substantial. If not, the plan and its implementation are jeopardized. In all other circumstances, where the criteria of section of 65.1 (5) are not present there is a direct route to a status review on the merits, whatever party seeks the review.

[74] He continues:

50 The applicant for leave does not have to prove that the children should be returned forthwith. What must be established, however, is that there is sufficient evidence to support holding a hearing and having any agency plans put on hold; some reasonable prospect of success. The parent's rights and her evidence are to be weighed against whatever negative consequences there might be from holding a hearing and a decision, as with all decisions under the Act, is to be in the best interests of the children.

[75] I do not find there to be a reasonable prospect of success on a status review application. In addition, the negative consequences of the delay to hold a hearing have been extensively reviewed above.

Conclusion

[76] The Child and Family Services Act is child focused. Its paramount purpose is not to preserve the rights of parents but to promote the best interests, protection and well-being of children. Once a child has been made a Crown ward, the focus of the legislation shifts to establishing a permanent and stable placement often through adoption. It is the duty of the Society to make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family. In this case, the delays have been significant, arguably unconscionable, from the perspective of the children.

[77] I do not find on the basis of the all the evidence before me that the maternal grandparents have met the five part test outlined in Catholic Children’s Society of Metropolitan Toronto v. F. (B.A.), 1988 CanLII 1432, on a balance of probabilities. Love and good intentions are not sufficient to meet the standard for granting leave. The grandparents have not demonstrated a prima facie case that if leave to bring a status review application was granted there would be a finding that it is in L.L. and J.L.’s best interests to make an order placing them in the care of their maternal grandparents. The motion for leave to file a status review application is denied.

Blishen J.

Released: October 6, 2017