CITATION: Children’s Aid Society of London and Middlesex v. C.P.A., 2017 ONSC 6021

COURT FILE NO.: C1116/16-01

DATE: November 17, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

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

BETWEEN:

Children’s Aid Society of London and Middlesex

Joseph Belecky for the Society

Applicant

• and -

C.P.A. and K.T.

David Winninger for K.T.

Respondents

HEARD: September 13, 14, 15, 18, 19, 20, 21, 22 and 25 of 2017

MITROW J.

BRIEF OVERVIEW AND SYNOPSIS OF THE FINAL ORDER

[1] This Crown wardship trial involves a female child, L., born in 2016 (“the child”). The Society seeks a protection finding and an order of Crown wardship to permit adoption by the foster mother.

[2] The respondent, C.P.A., is the child’s mother (“mother”) and the respondent, K.T., is the child’s father (“father”). Sadly, the mother passed away in April 2017. Her body was discovered in a farm field in Huron County. There was no evidence at trial as to the mother’s immediate cause of death, nor was there any evidence as to the state of the police investigation.

[3] The evidence established that the mother had a history of substance abuse and mental health issues. For reasons that follow, I find that the child is in need of protection. However, in terms of disposition, I find that the evidence proffered by the Society to support an order of Crown wardship was unconvincing. The Society’s efforts to support the father in his plan to parent the child were not sufficient.

[4] The Society’s concerns as to the father’s parenting and his interactions with the child during the Best Beginnings program and during numerous access visits were, at times, overstated; at other times, the criticisms of the father bordered on the trivial. To the extent that there were observed deficits in the father’s ability to interact with, care for or parent the child, those concerns can be addressed by a supervision order.

[5] During the course of the trial, I requested the Society to provide the names of potential qualified persons who could conduct a parenting capacity assessment pursuant to s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] (“the Act”). This was done in order to leave open the possibility of adjourning the trial to complete a parenting capacity assessment on the father, after which the trial would resume with further evidence in relation to the parenting capacity assessment.

[6] The Society was in agreement with a parenting capacity assessment but the assessment was opposed by the father, although the father did submit that he would cooperate with an assessment should one be ordered.

[7] Section 2 of Ontario Regulation 25/07 sets out the criteria for ordering an assessment pursuant to s. 54. One of the criteria is that an assessment (in this case, an assessment of the father) is necessary for the court to make a determination under Part III of the Act. After considering all of the evidence, I am not satisfied that an assessment in this case is necessary.

[8] The Society elected to proceed with this Crown wardship trial without a parenting capacity assessment. The submission of the Society at trial was that the Society had been open to an assessment but that the father did not consent. However, it was always open for the Society to have brought a motion for an assessment, particularly when the trial of this case had been adjourned a number of months earlier. Further, given the length of time that the child has been in care, it is important for this case to be finalized; ordering an assessment at this late stage would delay, unnecessarily, the completion of this trial.

[9] The final order made below places the child with the father pursuant to a ten month supervision order with terms and conditions, and with access to the foster mother and the maternal grandmother. Schedule A appended to the reasons is a table of contents.

THE SOCIETY’S EVIDENCE

A. Evidence of Anna Gavin

[10] The Society based its case on the theory that the father is unable to parent the child on his own, that he has no supports and that the child would be at risk in his care.

[11] Ms. Anna Gavin (“Ms. Gavin”) testified for the Society. Ms. Gavin has been employed by the Society for 26 years. She has a university degree in sociology.

[12] Ms. Gavin is familiar with “Circle of Security” parenting, which is an attachment based parenting program that is taught by the Society to parents who are referred to that program.

[13] Ms. Gavin testified that she is a certified Circle of Security parenting facilitator. She obtained that certification by taking a four-day course.

[14] Ms. Gavin also is certified as an Adult Attachment Interviewer coder. During cross-examination, Ms. Gavin described her continuing education regarding the Adult Attachment Institute that involved two two-week courses; in addition, over a two-year period while Ms. Gavin continued to work fulltime with the Society, she achieved the required proficiency in coding and administering adult attachment interviews.

[15] Although Ms. Gavin was not qualified by the Society as an expert witness, the Society relied on Ms. Gavin’s evidence as an important cornerstone to support its claim of Crown wardship.

[16] Ms. Gavin administers a program at the Society known as Best Beginnings. The father was referred by the child protection worker to this program that spanned a period of six to seven weeks starting January 10, 2017 and ending February 23, 2017.

[17] The Circle of Security parenting is a foundation for the Best Beginnings program which consists of 14 modules. Each module covers a topic relating to the care and needs of babies and infants[^1]. The first hour of the module is an instruction or lesson format and the second part of the module involves a 90-minute session with the child, where the parent is observed by the Best Beginnings facilitator and other Society staff who are present and assisting the parent. The purpose of the session with the child includes assisting a parent with childcare advice, providing “hands on” experience for the parent and observing and assessing how a parent applies the lessons learned.

[18] Ms. Gavin produced a three-page report dated March 1, 2017 (“the report”) summarizing the father’s involvement in the Best Beginnings program. The father attended 11 of the 14 sessions. Ms. Gavin agreed that missing three sessions was not instrumental to achieving success in the program. Ms. Gavin explained that during the parent-child time, information can be covered that a parent missed because of non-attendance at a previous session.

[19] Ms. Gavin’s report has the following brief summary of the Best Beginnings program on page 1:

The Best Beginnings Program is a group format parenting program that teaches its participants basic infant care best practices as well as “Circle of Security” parenting in order to facilitate repairing the ruptured relationship that occurs when children are apprehended from their biological parent.

[20] It was Ms. Gavin’s evidence in-chief that the father required a lot of repetition and that he had a difficult time integrating what was taught; ongoing issues included problems with napping, feedings, engagement of the child and face-to-face interaction with the child.

[21] The report was critical of the father for his failure to show sufficient consistent “facial affect,” noting that Society staff had to remind the father at the beginning of visits to show facial affect “as well as engaging tones of voice.” The report stated that the father “rarely” provided this type of engaging contact with the child.

[22] Ms. Gavin’s report noted that, while the father recognized the child’s cues for sleep, the father was unable to follow through with naps for the child.

[23] In the report, feedings were noted to be “particularly difficult” for the father, stating that the child “rarely” drank her bottle.

[24] The report concluded that although the father could “verbalize when the child was exploring her environment, he was unable to support and encourage her in doing so.” The report discussed the child’s inability to seek out the father’s attention during access, and Ms. Gavin opines in her report that this confirms that the father “was not capable of providing the necessary stimulation and engagement necessary to shape a secure connection with his child.”

[25] In her report, Ms. Gavin finds that the father “lacked the ability to accurately respond” to the child’s cues. Ms. Gavin concludes that the father “would require hands on support to continuously navigate [the child’s] developmental stages.”

[26] I find that the weight to be placed on Ms. Gavin’s evidence and report is impacted adversely by two main factors. First, the Best Beginnings program concluded in February 2017, after which the father continued exercising access up to the trial in September 2017 on a regular basis which increased ultimately to three times per week. Ms. Gavin was clear in her evidence that she based her conclusions on her own observations.

[27] However, the evidence at trial (discussed in more detail below) in relation to supervised access visits demonstrated in a material way that the father displayed an animated affect, engaged the child in many child-appropriate activities, sang for the child, fed and diapered the child properly on many occasions, was able to put the child down for naps, engaged in regular face-to-face contact with the child and that the child would “track” the father with her eyes or crawl towards him.

[28] The evidence as to access visits came from the access supervisors, the father and his stepsister, who attended a few of the visits. Ms. Gavin did concede that she had no awareness of what others observed during the father’s supervised access visits outside of the Best Beginnings program.

[29] Secondly, a particularly effective cross-examination of Ms. Gavin in relation to alleged difficulties regarding feedings, revealed frailties in her earlier evidence; also, Ms. Gavin did concede that there were times when the father followed and implemented recommendations, for example, displaying a variety of tones and facial expressions. Specifically, Ms. Gavin agreed that the January 17, 2017 visit was a good visit.

[30] Ms. Gavin agreed that the father was always polite and amenable to receiving direction from Ms. Gavin and Society staff. During her cross-examination, Ms. Gavin testified that she observed “lovely pockets of interaction” between the child and the father.

[31] I deal now specifically with the cross-examination on the issue of Ms. Gavin’s evidence that the father had difficulty feeding the child. Ms. Gavin testified, in response to a question from the court, that the father was “really good” at recognizing the child’s cues when she was hungry.

[32] During cross-examination, Ms. Gavin’s complaint was not with the father’s ability to make up the bottle of formula but it was the feeding that was the issue. Ms. Gavin testified: “He wasn’t able to get [the child] to drink her bottle.”

[33] Ms. Gavin put her concerns in unequivocal terms in the following testimony during cross-examination:

Q. Right, and is it his fault she might not have taken all the formula all at once?

A. It’s not about taking all the formula all at once. It’s about seven weeks of not being able to feed a baby a bottle when she’s not taking it, and clearly, she’s needing to feed. It wasn’t that he wasn’t giving her the bottle. It wasn’t that the bottle wasn’t ready. It was he was unable to have her feed the whole entire time, so whatever interventions I used, however I taught were followed through with for a brief period of time, and then it wasn’t followed through with, so she didn’t get to drink her bottle is what I’m saying. [my emphasis]

Q. You’re saying she didn’t drink any of her bottle?

A. I didn’t say she didn’t drink any of her bottle. She most of the time, left hungry and didn’t often drink her bottle.

[34] Ms. Gavin had notes as to what happened at the scheduled 90-minute access portion of the Best Beginnings program. There was no issue at trial to Ms. Gavin referring to those notes. Some notes were made by Ms. Gavin, while other notes were made by another person who was present and observing Ms. Gavin interact with the father and the child. The notes were not filed as exhibits.

[35] Ms. Gavin was referred to the first visit (which would have occurred on January 10, 2017 according to the report). Ms. Gavin agreed that there was no reference in the notes to any attempt made to feed the child, nor was there any reference to the child’s bottle. Ms. Gavin agreed that if a feeding had occurred, that would have been reflected in the notes. Ms. Gavin, in essence, agreed with the suggestion that no feeding issue arose during this visit, stating during cross-examination that “I don’t have any concerns about anything yet, because this is just the very first visit.”

[36] For January 31, 2017, Ms. Gavin was asked to describe how the father fed the child. There is no evidence to suggest that the father did anything wrong. During that visit, Ms. Gavin advised the father that the child would take the whole bottle. The father followed Ms. Gavin’s direction how to warm the bottle and to have the child facing him; the child took some of the formula, being half of the bottle. The father then gave the child her pacifier, walked around the room with her and rocked her gently. The father next exposed the child to some musical toys and then resumed his efforts to feed the child, alternating between using the pacifier and the bottle, and occasionally burping the child. The child eventually finished “almost two-thirds” of the bottle according to Ms. Gavin. I find, based on the evidence, that one would be hard-pressed to discern anything improper done by the father in feeding the child.

[37] For the visit on February 16, 2017, it was Ms. Gavin’s evidence that the father, while warming the bottle, asked access staff to tend to the child. Ms. Gavin did testify that the father put the child on the floor while feeding her, which was contrary to the instructions given earlier on how to hold the child while feeding her. Notably, however, Ms. Gavin clarified in cross-examination that the child was able to finish “almost her entire bottle.”

[38] During the visit on February 21, 2017, Ms. Gavin’s evidence includes that the child was fussing, that the father burped the child after the child took only “a couple of ounces.” Although that is the extent of the formula consumed by the child, there is no evidence to suggest that some blame or fault should be attached to the father for the efforts he did make to feed the child on that occasion.

[39] Also, and importantly, the communication book used by the foster mother included a note for February 21, 2017 that the child had her last bottle “at noon” and then the note continued that the child probably would not need a bottle. Although there is no evidence as to the exact time of this particular visit at the Best Beginnings program, the foster mother had given evidence that she would write notes in the communication book to assist during visits with the child. The communication book, which was an exhibit, corroborates the conclusion that the father is not to be faulted for the child not finishing her bottle on this occasion. If anything, the father likely did well in having the child consume as much of the formula as she did. There was no evidence adduced from Ms. Gavin to suggest that she had read the communication book for that visit or that she was aware as to the foster mother’s specific feeding instructions for that day.

[40] Some context, also, is required regarding Ms. Gavin’s observations of the feedings during the Best Beginnings program. Although there were 14 sessions, the father did miss 3 sessions, as mentioned earlier; also, the last session, which the father did attend, did not have an access portion. Hence, of the 10 visits that were observed by Ms. Gavin, the foregoing 4 visits identified during cross-examination would represent 40% of the total visits observed by Ms. Gavin.

[41] During cross-examination, it was put to Ms. Gavin that these four visits were a representative sample of all of the visits, as the representative sample included visits at the beginning, middle and end of the Best Beginnings program. It was put to Ms. Gavin that this was hardly not feeding the child at her access visits or the child not drinking her milk at the visits. Ms. Gavin then was asked whether she wanted to go through the other visits.

[42] Ms. Gavin responded that it could be left at four and that “… of the four, she drank her bottle once, the full bottle.” Ms. Gavin’s response suggests that she was content to use the four occasions as a representative sample.

[43] Of the four visits, there was no observation of any feeding at all on the first visit. On the January 31 visit, the evidence shows that the father not only persevered in feeding the child but that he was successful in doing so. The fact that the child took two-thirds as opposed to a full bottle is immaterial and can hardly be the subject of criticism. On February 16, the child finished almost the entire bottle. Although the child was on her back while being fed, contrary to what was taught at the Best Beginnings program, it is hard to criticize the father as he was able, in the end, to have the child finish her bottle. Further, Ms. Gavin did acknowledge during cross-examination that all children feed differently and require different holds. Finally, on February 21, the father did well in feeding the child two ounces, given the foster mother’s note.

[44] Later, during cross-examination, in relation to a visit on January 24, 2017, it was Ms. Gavin’s evidence that the child took half the bottle; however, there were various efforts made by the father to feed the child and Ms. Gavin agreed that she was not faulting the father for any lack of perseverance in attempts to feed the child.

[45] While I accept Ms. Gavin’s evidence that, over the course of the visits she observed some issues relating to the father feeding to the child, I find that the evidence does not support Ms. Gavin’s generalized statement as to the father’s alleged inability to get the child to drink her bottle over the approximate seven weeks of the Best Beginnings program. I find that Ms. Gavin’s evidence on the feeding issue, described charitably, is a palpable overstatement.

B. The Father’s Supervised Visits

[46] Melissa Sheffield (“Ms. Sheffield”) was called as a witness by the Society. Ms. Sheffield supervised a number of the father’s access visits, somewhere within the vicinity of 23 visits or so.

[47] In her brief evidence in-chief, Ms. Sheffield noted that the father generally arrives on time for the visits, then he sets up for the visit and receives the child well. It was Ms. Sheffield’s evidence that she consistently worked on issues such as feeding and napping.

[48] Ms. Sheffield testified that by August 2017 she would have hoped that the father could have implemented basic-care needs, such as feeding, napping and diapering. However, Ms. Sheffield testified that the father often required instruction on those matters and was not implementing what was being taught.

[49] An integral aspect of the Society’s case against the father is that he is unable to implement on a sufficiently consistent basis what he has been taught regarding the child’s care, including diapering, feeding, napping and interaction with the child. Therefore, the evidence as to what actually transpired during the supervised access visits takes on a heightened significance and, in turn, it becomes necessary in these reasons to scrutinize the visits in much more detail than would otherwise be necessary.

[50] Much of the brief evidence in-chief of Ms. Sheffield was expressed in terms of generalities, rather than specifics, with an exception, being the access visit on August 14, 2017.

[51] As to the frequency and duration of supervised access visits, that was covered during the evidence of Sarah Kaczynski which I accept, and which can be summarized as follows:

(a) the father initially had visits in October and then November 2016; later in November 2016 when the father received a spot at the family visit centre, the visits were once per week for one-and-a-half hours;

(b) before the Best Beginnings program, the father had approximately seven or eight visits;

(c) the visits then increased to two weekly visits and, by early April 2017, a third visit had been added; accordingly, from that time forward, the general schedule was that there was a one-hour visit on Monday, a visit a little over three hours on Wednesday and a one-and-a-half hour visit on Friday.

[52] Initially, the Monday visit, although at the Society, was in effect “unsupervised” as the father was permitted to spend time with the child but without the presence of an access supervisor; that visit later reverted to a more traditional supervised visit primarily because of the father’s failure, according to the Society, to write in the communication book as to what had transpired at the visit.

[53] While the father should have been more diligent in making entries in the communication book, his failure at times to do so hardly can be described as a protection concern.

[54] For about 45 minutes, the father was given “unsupervised” access at the Society during the lengthy three-hour visit where the “unsupervised” part was in the middle of the visit.

[55] At the outset of her cross-examination, it was Ms. Sheffield’s evidence that there was face time between the father and the child but that it was not constant. The father was described as very efficient in playing with the child and Ms. Sheffield felt that that comes to him “naturally.” It was her evidence that the father reads to the child, sings to the child and pays attention to the child.

C. Melissa Sheffield’s Access Notes

[56] What follows is a discussion of the evidence revealed in Ms. Sheffield’s access notes that were filed as an exhibit. No issue was raised by any party as to accuracy of these notes. The circumstances of the filing of these notes is discussed later.

(i) November 2, 2016 (10:15 a.m. – 11:15 a.m.)

[57] It appears that this is the first visit supervised by Ms. Sheffield. During this visit, the father is polite and receptive to learning. He brought his own supplies, including baby items, clothes and formula. As the one hour visit started at 10:15, there was no feeding of the child as she had been fed shortly before the visit.

[58] The father is described as supporting the child’s neck when he picked her up and speaking to her softly “face to face.” The father was praised for holding the child chest to chest supporting her neck. There is a description of the father having good floor time with the child, including laying face to face with the child. He read a book to the child.

[59] It was noted that the father’s “face to face time in arm’s length is excellent,” as babies at that age cannot focus very far.

[60] During the visit, there were many prompts and instructions offered which the father followed well, including changing the child’s diaper.

[61] I find that this is a good, positive visit.

(ii) November 9, 2016 (10:15 a.m. – 11:15 a.m.)

[62] The child arrives, the father takes her out of the car seat and then the child begins to cry. The father offers the child a soother and he then cradles and sways the child, speaking softly. The child calmed. It was noted by Ms. Sheffield that the father seemed “a bit more comfortable” holding the child and she mentioned that to the father. The child then fussed and started crying. The father noted that perhaps the child needs changing and Ms. Sheffield supported the father as he changed the child’s diaper. Though the father apologized for being slow in changing the diaper, he was able to complete the task with less instruction than the previous time. At the conclusion of the visit, the father kissed the child’s cheek and said goodbye.

[63] I make specific reference for this and other visits as to the interaction between the father and the child at the conclusion of the visit, as there was some negative evidence from Ms. Gavin regarding the manner of the father’s interaction with the child at the conclusion of a visit.

(iii) March 1, 2017 (10:15 a.m. – 11:15 a.m.)

[64] After a hiatus, Ms. Sheffield resumed supervising the access visits, explaining she would now supervise the majority of the visits. During the visit, the father was described as attending to the child immediately, taking her out of the car seat and saying hello; the father held the child at times face out, offering her a toy; he would then walk around the room with the child, chest to chest, showing the child pictures and toys. The child was described as content for the visit.

[65] At the conclusion of the visit, the father kissed the child on the cheek and said goodbye.

[66] At this visit, the father’s interaction with the foster mother was appropriate and positive. Although not always specifically mentioned below, many of the notes do refer to interactions between the father and the foster mother, and those interactions can be summarized as appropriate and positive.

(iv) March 22, 2017 (10:15 a.m. – 11:15 a.m.)

[67] Prior to the child arriving, the father as usual took time to set out toys that he had brought for the child. The toys were described as age-appropriate for the child. After the child’s arrival, the father offers the child a stuffed toy, he walks around the room with the child, speaking to her softly pointing out animal pictures on the wall; the father shows the child a toy piano and sings along to the music.

[68] The father was able to change the child’s diaper with no issue noted, other than tearing a tab on the diaper that then prompted the diaper change.

[69] In preparing to feed the child, it was noted that while the father was in the kitchen warming the bottle, that the child “protested slightly” when the father was out of sight. Ms. Sheffield suggested that the father speak to the child from across the room.

[70] I do mention that the child was noted to protest slightly when the father was out of sight given Ms. Gavin’s report indicating that the child was not able to seek out the father’s attention during access.

[71] During feeding, the child took only an ounce. The father made several attempts to feed the child. It is difficult to find any fault with the father’s attempt to feed the child. The visit was only for an hour, with a feeding time to be approximately in the middle of the visit. Children cannot be expected to feed on demand.

(v) March 29, 2017 (10:15 a.m. – 11:15 a.m.)

[72] On arrival, the father held the child chest to chest as he walked around the room with her, showing her the paintings on the wall. The father sat the child on his lap, allowing her to look at a musical toy and the child was noted to reach for the buttons and press them, with the father speaking softly to her. The child is observed to be verbalizing and the father was talking to her. While the child is laying on her back, the father is beside her.

[73] The child is described to be in a “happy baby pose” with her hands holding her toes, while the father speaks softly to the child. After reading the communication book, the father set out the items to prepare the bottle and did so.

[74] When the child was offered her bottle, she turned her head and declined. After checking the child’s diaper (it was dry), the father reoffered the child the bottle. This time the child accepted the bottle as the father cradled the child and rocked her from side to side. This would have been the way to hold the child while feeding her, as described in the Best Beginnings program.

[75] The child then became squirmy and refused the bottle any further. Although, it is not noted how much of the bottle the child took, there is nothing in the father’s behaviour or efforts to feed the child that could be criticized. Ms. Sheffield does note at the end of the visit that the father struggled to get the child in the car seat and had to be assisted by Ms. Sheffield.

(vi) April 12, 2017 (10:15 a.m. – 11:15 a.m.)

[76] In waiting for the child to arrive, the father set out age-appropriate toys for the child. On the child’s arrival, the father was smiling as he bent down to greet the child but it was noted the child’s face appeared to be blank as she looked at someone else. The father laid the child on the quilt and sang “Old MacDonald” to her. He was looking at the child face to face. The father sat the child on his lap and then read her a book. He continued to engage the child on the quilt, either holding the child on his lap or having the child on her back.

[77] The father changed the child’s diaper and there is nothing noted as to the father having any problems in doing that.

[78] During the visit, Ms. Sheffield notes the child’s age as being seven months and that the child should be able to sit almost independently. The father then positioned the child into a seated position. He offered his hand to spot the child in case she fell over and Ms. Sheffield praised the father for this.

[79] The father did struggle again to get the child into the car seat and it was noted that the child looked at the foster mother while the father said goodbye.

(vii) April 19, 2017 (10:15 a.m. – 11:15 a.m.)

[80] This was to be an expanded visit of a little over three hours. It appeared that the father had forgotten about that, although he had been reminded recently. With the foster mother’s cooperation, the visit proceeded for one hour starting at 10:15 a.m.

[81] The father interacted appropriately with the child throughout the visit, including having the child on his lap, laying her on the quilt, lying beside her, speaking to her softly and offering her toys. The child had had a bowel movement and the father changed the diaper, wiping the child appropriately. No issue was noted in the manner in which the father changed the diaper. The father was able to buckle the child into her car seat at the end of the visit, although he continued to have some problem with one of the clips.

[82] At the conclusion of the visit, he kissed the child’s cheek, telling her I love you. This was a positive visit.

(viii) May 3, 2017 (10:15 a.m. – 1:30 p.m.)

[83] From 10:15 to 11:15 a.m., the access was moderately supervised. Then for 45 minutes, from 11:15 to noon, the access was not supervised and then from noon to 1:30 p.m., the access was moderately supervised. This was the regular structure for the long visits.

[84] Ms. Sheffield read the communication book, noting when the child last ate and noting that the child had started daycare. The father joined the child on the quilt, placing the child in a seated position and speaking to her “animatedly but quietly.”

[85] When the father went to get the change pad, the child began to crawl after him and the father praised the child. This is another important example of the child seeking out the father’s attention, contrary to Ms. Gavin’s earlier observations.

[86] In relation to the diaper change, Ms. Sheffield noted that the father “completed the task in a timely manner, using diaper cream, speaking to her all the while.” It was noted that the child had had a bowel movement and that the father had wiped the child appropriately.

[87] Following the unsupervised portion of the visit, the father changed the child’s diaper again with no issue being noted. When the child was offered her bottle, initially she was taking it on and off. However, later, the father offered the child the bottle and she drank the remainder of it. Afterwards, the child fell asleep.

[88] At the conclusion of the visit, the father kissed the child and said goodbye. This was a positive visit, particularly in relation to feeding and two diaper changes.

(ix) May 10, 2017 (noon to 1:30 p.m.)

[89] The father’s stepsister, M.L., was present at the visit. Ms. L. participated in holding and feeding the child.

[90] The father was observed to change the child’s diaper “in a timely manner.”

[91] In an effort to get the child to sleep, the father sat in the baby rocking chair with the child, as offered by Ms. Sheffield. The father continued to rock the child and she fell asleep.

[92] The father did write in the communication book when prompted by Ms. Sheffield. The father kissed the child goodbye at the end of the visit.

(x) June 7, 2017 (10:15 a.m. – 1:30 p.m.)

[93] The father greeted the child warmly and the child’s arm was wrapped around his shoulder as he held her. As usual, the father set out the age-appropriate toys that he had brought for the child. The father was attentive to the child, engaging her on the blanket with a toy piano and the child was smiling. The father read the communication book.

[94] Approximately 30 minutes after the child arrived, the father changed the child’s diaper. Ms. Sheffield described that the father completed the diapering “in a confident and timely manner” and that he was speaking to the child as he did so.

[95] The visit also included several occasions when the father took the child outside and pushed the child on the swing, with the child described as smiling.

[96] No issues were noted as the father prepared the bottle and then fed the child. The child did not drink the bottle all at once but the father persevered appropriately and the child was able to finish the bottle at 1 p.m.

[97] The father did engage Ms. Sheffield for advice as to whether the child was tired. Ms. Sheffield did prompt the father about a strategy for nap time and eventually the child did fall asleep; the child remained there until approximately 2 p.m. so she could finish her sleep.

[98] While feeding the child her bottle, the father was cradling the child. During the visit, the father did read the communication book and also wrote in the communication book. This was a good visit.

(xi) June 21, 2017 (10:15 a.m. – 1:30 p.m.)

[99] The father greeted the child warmly and the child was described as going to the father calmly. The father asked for and was given permission to go outside. The father got the child ready to go. He put a hat on her head and applied sunscreen appropriately. While outside, Ms. Sheffield described the father as pushing the child in the swing and providing “close proximity and safety.” When prompted at noon as to whether the child required a diaper change, the father did tell Ms. Sheffield that he had checked the diaper and that it did not feel wet.

[100] In relation to feeding the child, no issues were noted and the child was described as finishing her bottle.

[101] Ms. Sheffield did prompt the father about naps, as the child had yawned. The father did change the child’s diaper and Ms. Sheffield described that this was done “in a timely manner.” The child had been in the quiet room, as suggested by Ms. Sheffield, to facilitate the nap but the father later carried the child out of the quiet room.

[102] Ms. Sheffield did continue to encourage sleep time; however, the father indicated that they cannot see each other enough, but that when the child was at home then she would sleep. When asked whose needs are being met at that time, the father replied “both of ours.” This was a poor response as it failed to place the child’s needs first. Though the father did return the child to the crib, she did not sleep, but Ms. Sheffield did suggest to the father that “quiet time is just as well.”

[103] Other than the father’s inappropriate response, this was a good visit.

(xii) July 5, 2017 (10:15 a.m. – 1:30 p.m.)

[104] The father was pleasant upon greeting the child. The father had laid out a quilt and joined the child on the floor, who was in a seated position. The child then began to crawl and the father joined her crawling. During this visit, the therapy dog arrived. The father assisted the child in greeting and petting the dog. The child was animated in her facial expression. The father was described as smiling and taking delight in the interaction with his daughter.

[105] The father accomplished a diaper change, described by Ms. Sheffield as being completed “in a timely manner” while speaking softly to the child.

[106] The child is now trying to walk. The father assisted the child as she pulled herself to a standing position and gently pushed the child around the room, along with a toy pushcart. The father was described as continuing to interact with the child, helping her to walk briefly. The child is vocal during her play and the father is described as mirroring her language.

[107] The father initiated feeding the child earlier so he could go outside during the unsupervised portion of the visit. The father prepared the bottle and the child is described as accepting the bottle. The father then took the child outside with a hat and sunscreen.

[108] During this visit, Ms. Sheffield praised the father as to his progress. Ms. Sheffield had asked the father if he had any questions about the child’s development. Ms. Sheffield then wrote in the notes:

I shared with [the father] that his confidence in attending to [the child]’s needs seems to have increased, such as diaper changing. [The father] shared that in the beginning he didn’t know much about babies but in time he has learned. I agreed. [The father] asked if he could have my number? that if [the child] moved home he could call and ask questions. I explained that things are in a “maybe stage” at this time however, if the court ordered [the child] home there may be a family support person. [The father] said he would be open to that.

[109] Later, after coming in from outside, the father fed the child the remainder of her bottle, cradling her on his lap and the child fell asleep. When the child woke up, the father changed the child’s diaper. Although the child cried as he changed the diaper, the father was noted to speak softly to the child, reassuring her that he was almost done. When the diaper change was finished, the father picked up the child and she calmed. No issue is noted regarding the way in which the father changed the diaper.

[110] Also noted is that when the father set the child down to wash his hands, that the child cried and crawled after him. The father, after washing his hands, picked up the child and she wrapped her arm around his shoulder and calmed. The father then held the child chest to chest.

[111] The fact that the child crawled after the father, and then calmed when he picked her up, is important and is further evidence that the child is able to seek out the father’s attention during access.

[112] Near the end of the visit, the father took the child to the window to point out the bird feeder and the father then sat with the child on his lap and then on the floor, with the child being content as the father tidied up his area. The father joined the child at the exersaucer, as she had crawled over and then pulled herself to stand up. The father helped the child into the exersaucer. When the driver arrived to pick up the child, the father kissed the child’s cheek and told her that he loved her. The father waved goodbye and the child was described as remaining calm during the departure.

[113] This visit demonstrates many positives as to the father’s interaction with, and care of, the child. Ms. Sheffield’s comments noted above speak well to the father’s progress.

(xiii) July 12, 2017 (10:15 a.m. – 1:30 p.m.)

[114] The father did the usual set up of toys as he waited for the child. The child went to the father calmly after being greeted with a smile.

[115] Good interaction is described between the child and the father engaging in play activities. The father prepared a bottle and fed the child. The child is now eating solids and some fruit had been sent by the foster mother. Ms. Sheffield urged the father to use the highchair to feed the child. No issue was noted as the father fed the child peaches, and also offered the child sips from her bottle.

[116] The child was yawning and the father put her in the crib, however, soon after that, Ms. Sheffield checked on the father and the child and the father appeared to be asleep on his side on the floor while the child was in the crib. Ms. Sheffield had to say the father’s name twice before he opened his eyes. Ms. Sheffield explained he cannot sleep at an access visit and needs to be awake for the child.

[117] When Ms. Sheffield handed the bottle to the father, he had to be corrected as he gave the child the bottle “like you would feed a baby goat.” The father was reminded to pick up the child, cradle her and rock her before feeding and the father followed through.

[118] The child was placed in the crib and appeared to be asleep, while the father wrote in the communication book. At the conclusion of the visit, the child was still asleep and the father picked up the child, holding her chest to chest and rubbing her back, with the child remaining asleep with her head on the father’s shoulder.

(xiv) August 9, 2017 (10:15 a.m. – 1:30 p.m.)

[119] On arrival, the child was described as going to the father calmly, although without smiling, only with a “flat face.” The father was reminded to document clearly in the communication book what the child had eaten because on the previous visit the foster mother thought the child had not eaten enough. The father interacted with the child in activities that involved pointing out letters on the letter magnet board and then joining the child in the toy kitchen area on the floor, as the child explored the toy food. The father spotted the child’s back as she brought herself to a standing position at the toy kitchen counter.

[120] The father interacted well with the child as she continued to explore the play area. The child became vocal and smiled. After the unsupervised portion, the father was observed changing the child’s diaper.

[121] The father had started to feed the child her snack and a bottle was made. The father sat the child in the highchair. He sat in a chair in front of the child at eye level and spoon-fed her the lunch that the foster mother had packed. The father spoke to the child as he fed her, smiling. When offering the child the spoon, he waited for the child to open her mouth, then put the spoon in and was patient in waiting for the child to eat the food.

[122] Later, the father reoffered the child the bottle and she drank about an ounce. The father did request a nursing room but it was occupied and therefore the father cradled the child and walked around with her. This was at 12:30 p.m. In an effort to get the child to sleep, the father followed Ms. Sheffield’s suggestion to put the rocking chair in a darker hallway and try to rock the child, as her routine is to sleep after lunch. The father followed that suggestion; however, it was noted by Ms. Sheffield that the room was quite busy and loud that day and the child began to play with toys. The child did not have a nap that day.

[123] The father wrote in the communication book when reminded by Ms. Sheffield. There was an exchange noted between the father and the foster mother and the father shared with the foster mother what the child had eaten. He kissed the child and said goodbye.

[124] This visit subsequently led to much evidence regarding the father’s ability to diaper the child properly. On two occasions, the foster mother had taken photographs of diapers that were improperly placed on the child, with one occasion occurring in April and the other occasion occurring after this August 9 visit. The foster mother testified that, in April, the diaper was not put on properly and, in fact, the tabs were actually attached to the child’s skin. In August, the diaper was not put on properly but the sticky tabs were attached to the diaper. The foster mother pointed out that the improper placement of the diaper creates issues with leakage onto the child’s clothes.

[125] When asked about any comments regarding the return of the child after access, the foster mother, in relation to diapers, indicated that on a few times the diaper would not be on right.

[126] In addition to the April and August occurrences, the foster mother added that on some other occasions the diaper may have been not right but not by much.

[127] While the father did continue at times to struggle with putting the diaper on properly, there are numerous examples of no issues relating to the father’s diapering. Considering all the evidence, I find that diapering is not a protection issue.

[128] Far too much time was spent in this Crown wardship trial on the issue of diapering.

(xv) August 14, 2017 (12:30 p.m. – 1:30 p.m.)

[129] As usual, the father set up in his area, spreading a quilt and putting out the toys that he had brought for the child. The father greeted the child verbally and with a smile but Ms. Sheffield noted that, while the child transferred to the father calmly and easily, the child did so with low affect and her facial expression was one of a straight face.

[130] The father did read the communication book and Ms. Sheffield explained that they would review diapering. The communication book indicated that the child would not require a bottle.

[131] During the diaper change, Ms. Sheffield noted that the father had all the supplies that he needed for the diaper change and that he cleaned the child appropriately and then applied cream; however, Ms. Sheffield noted that the father initially was about to put the diaper on backwards. When prompted as to whether something was wrong, the father adjusted the diaper correctly.

[132] There was good interaction between the father and the child during the visit, including at the kitchen playset, with the father joining the child, getting down to her level, engaging her in play and taking items that she passed to him. The father then initiated a game of passing a ball with the child and the child smiled as she threw the ball in the father’s direction.

[133] Another diaper change was required. Ms. Sheffield observed that the father put the diaper on the correct way but needed some further direction “to not fold the tabs into themselves.”

[134] The goodbye consisted of the father kissing the child’s forehead and saying that he would see her “Wednesday.” The child left calmly with the driver and was staring at the father as she went out the door.

(xvi) August 21, 2017 (12:30 p.m. – 1:30 p.m.)

[135] Again, the father followed his routine prior to the child’s arrival in setting up the area, spreading out a quilt and putting out the age-appropriate toys that he had brought. On arrival, the child was sleeping and the father followed Ms. Sheffield’s suggestion to take the child to the nursing room, where it was quieter. The child was awake but relaxed.

[136] The communication book, read by the father, indicated that the child would not need to eat during this visit.

[137] The father accomplished a diaper change, according to Ms. Sheffield, in a “timely manner,” including appropriately cleaning the child and applying diaper cream and positioning the new diaper appropriately without any cues from Ms. Sheffield. Ms. Sheffield praised the father for this.

[138] The father engaged the child in playing with a ball and, as the child was “cruising” around furniture, the father was noted to provide adequate supervision spotting the child as required. When the child crawled to another area and played with a toddler activity toy, the father joined her and the father sang to the child along with the melody on the toy. The father then wrote in the communication book.

[139] Ms. Sheffield noted that the child was watching the father as he walked away from her to retrieve a pen for the communication book. This is another example of the child tracking the father.

[140] At the conclusion of the visit, the father said goodbye, I love you and see you Wednesday. While leaving with the driver, the child was described as calmly watching the father as she left.

D. Discussion Re: Ms. Sheffield’s Evidence

[141] The result of Ms. Sheffield’s evidence, including her supervised access notes, as a whole, is that while some issues were identified, there were many instances where the father had good interaction with the child and was able to feed and change the child appropriately and to have the child nap.

[142] In relation to the feeding issue, it was put to Ms. Sheffield during cross-examination that the child may have been affected by the noisy environment in the access supervision area. In responding to that question, Ms. Sheffield noted that the feeding issues have been progressing since March until August and it was her evidence that she had not experienced the father feeding the child successfully over those months. That conclusion, I find, is not supported by the evidence.

[143] During the visits on May 3, 2017, June 7, 2017 and July 5, 2017, the child finished her bottle. On those three occasions, that information is specifically recorded by Ms. Sheffield. On July 12, 2017, the child was fed some fruit and given the bottle on a number of occasions, as recorded in Ms. Sheffield’s notes. Although the notes do not indicate to what extent the bottle was consumed, the father’s note in the communication book appears to indicate that the child had almost all of her bottle.

[144] Not unlike the evidence of Ms. Gavin, Ms. Sheffield’s evidence, on the issue of feeding, was an overstatement. This serves again to underscore the frailty inherent in the Society’s approach to this case by having its witnesses make general statements alleging ongoing issues, but where the alleged generalizations do not withstand scrutiny once one “drills” down to the specifics of the visits.

[145] I take into account that the foregoing visits, summarized in detail, do not include all of the visits supervised by Ms. Sheffield; however, the foregoing visits represent a substantial number of the visits that Ms. Sheffield supervised. If it was the Society’s view that the visits discussed above did not fairly represent the general theme of the visits, as supervised by Ms. Sheffield, then the Society was at liberty to call specific evidence as to any of the other visits, or at least the Society could have filed additional access notes.

[146] The Society had called Ms. Sheffield as a witness and, as noted earlier, her examination in-chief was quite brief. The Society elected not to file any of the supervised access notes and relied primarily on Ms. Sheffield generalizing as to what she had observed. Ms. Sheffield’s access notes that are discussed above were filed during the cross-examination.

[147] I do find that the court did not have a true and accurate picture of the access visits following Ms. Sheffield’s evidence in-chief and that it was the cross-examination and the filing of the supervised access notes that provided a more complete and reliable description as to what had transpired at access visits.

E. Evidence of Karen Fisher – Access Supervisor

[148] Karen Fisher (“Ms. Fisher”) is a Society access supervisor and she was called at trial by the father. She supervised three visits in November 2016. Her access notes were filed as an exhibit.

[149] During the first visit, the father was receptive to receiving suggestions from Ms. Fisher, including how to calm and hold the child. Ms. Fisher noted during that visit that the father moved “between nice face to face contact and holding [the child] to his chest.” During her evidence in-chief, Ms. Fisher testified that the father talked to the child and that his interactions were positive. She also noted in her evidence in-chief that the father appeared to have a natural ability to recognize when the child needed attention.

[150] For the second visit, Ms. Fisher testified that the father greeted the child warmly, that there was face to face contact and that he implemented techniques to calm the child that Ms. Fisher had discussed with him on the first visit. The access note for the visit confirms that the father changed the child’s diaper with no concerns being noted. The father held the child and she almost fell asleep; the father was noted to do a good job at figuring out why the child was crying, and was given some constructive feedback about that.

[151] For the third visit, although the child was apparently asleep on arrival, the father was noted to hold the child in the cradle position and also holding her face to face and speaking to her softly with the child smiling in response.

[152] An emphasis during the visits supervised by Ms. Fisher was the father’s willingness to receive instruction and to learn about child care. There was no evidence during the cross-examination that detracted from the general positive tone of the access visits supervised by Ms. Fisher.

F. Evidence of Linda Andrews – Access Supervisor

[153] Linda Andrews (“Ms. Andrews”) supervised approximately ten visits and she was called as a witness by the father.

[154] It appears the earliest visit supervised by Ms. Andrews is December 5, 2016 Thereafter Ms. Andrews supervised four visits in March, and one visit in each of April, May, June, July and August.

[155] Ms. Andrews observed the usual type of interaction between the child and the father described previously, including the father singing to the child. Ms. Andrews noted some issues regarding the father getting the child to sleep. However, on one occasion there was noise and distraction, which made it difficult for the child to sleep.

[156] There were some issues noted with diaper changes during some visits and other times diapering was not an issue.

[157] It was Ms. Andrews’ observation that the father did not persevere enough at specific activities, such as feeding or getting the child to go to sleep. Ms. Andrews also noted that there were some difficulties with measuring the formula when ounces were utilized as opposed to millilitres, which the father was used to.

[158] Although some concerns are noted, there are also positives noted; overall, I find this evidence does not raise protection issues necessitating Crown wardship when considered with all the evidence in relation to supervised access visits.

G. Evidence of Robin Pridding – Access Supervisor

[159] Robin Pridding supervised one access visit. Although Ms. Pridding did not testify at trial, her case note from the visit was filed by the father. This visit was a lengthy visit, being over three hours in duration.

[160] This visit was September 6, 2017, one week prior to trial. This visit is significant because it was the last visit before trial that was described in detail in the evidence.

[161] The case note describes a positive and ongoing interaction between the father and the child, playing with various toys and engaging in different play activities. At one point, the father held the child up to the magnetic board and played with the letters, an activity which the child appeared to enjoy.

[162] Time was spent playing with a musical toy. The child was noted to be switching between walking and crawling. The father was observed to remain close by to support the child in her various activities.

[163] There was a diaper change noted. The child does have a bad rash and the father was described as being very thorough in cleaning the child and putting the diaper on and applying cream. There is no issue noted with the manner in which the father changed the diaper.

[164] During this visit, the quiet rooms were occupied and there was no crib available to place the child for a nap, so the father responded to Ms. Pridding’s suggestion to lie down with the child on the quilt for some quiet time.

[165] The child is described as taking her bottle, including some solid food offered by the father. The note continues to describe a number of play activities that the father and child participated in. At the conclusion of the visit, the father gave the child hugs and kisses and Ms. Pridding notes that the father stayed back to tidy up and that he left his area cleaner than when he arrived.

[166] The description of this three hour visit occurring on the eve of trial shows the father fully engaged with the child in many activities and attentive to, and able to care for, the child in terms of diaper changes, feeding and a nap or quiet time.

H. Evidence of Sarah Kaczynski

[167] Sarah Kaczynski (“Ms. Kaczynski”) is the child protection worker who had carriage of this case since the child’s birth. While Ms. Kaczynski did testify at trial, a portion of her evidence in-chief was given via two affidavits filed as exhibits.

[168] Ms. Kaczynski described in her evidence in-chief the process leading to the child’s apprehension. On September 9, 2016, two days after the child was born, Ms. Kaczynski had to attend at the hospital because of reports from hospital staff as to the mother’s behaviour.

[169] On arrival at the hospital, Ms. Kaczynski personally observed the mother behaving in an erratic matter, including yelling and displaying fluctuating moods. Ms. Kaczynski had significant concerns regarding the mother’s mental health. The child was observed by Ms. Kaczynski to be in the mother’s arms. The mother had to be coaxed, and eventually agreed, to have the child removed from her physical grasp.

[170] It was Ms. Kaczynski’s evidence that she was in the process of preparing documentation in support of a warrant to apprehend the child, but given her assessment at the hospital that the child was at immediate risk of harm, Ms. Kaczynski, at 10 a.m., apprehended the child without a warrant. At that point, the father was not at the hospital.

[171] Later that day, around 2 p.m., Ms. Kaczynski received a call from the father. The father was at the hospital and Ms. Kaczynski could hear the father telling the mother, in somewhat vulgar language according to Ms. Kaczynski, to keep quiet while he was on the phone. Ms. Kaczynski stated that the purpose of the father’s call was to know what had happened and why the child came into care.

[172] Ms. Kaczynski testified that she explained to the father the immediate risk of harm to the child earlier that morning and why the child had to be removed from the mother’s care. During that conversation, Ms. Kaczynski arranged to meet the father, along with her supervisor, at the Society office three days later on September 12, 2016.

[173] It is noteworthy that Ms. Kaczynski’s evidence in-chief had started on the afternoon of September 14, 2017. On that day, near the outset of her evidence in-chief, Ms. Kaczynski was asked whether she had a recollection of when it was that she first met the father. Ms. Kaczynski answered as follows:

I didn’t first meet [the father] until significantly after the child’s birth. I believe it would have been October or November, and she was born on September 7^th^.

[174] It was during Ms. Kaczynski’s testimony, the next day on September 15, 2016, that Ms. Kaczynski made reference to meeting the father on September 12, 2016, a meeting, I find, that did take place as Ms. Kaczynski referred to her notes in describing that meeting. There was no attempt by Ms. Kaczynski to explain why she had told the court earlier that she did not meet the father until significantly after the child’s birth when, in fact, she had met the father five days after the child was born.

[175] I do find this conflict in Ms. Kaczynski’s evidence somewhat troubling; at the least, it raises some concerns as to the reliability of Ms. Kaczynski’s independent recollection that is unassisted by her notes.

[176] Ms. Kaczynski testified in-chief as to what was said at the meeting on September 12, 2016, involving herself, her supervisor and the father.

[177] It was Ms. Kaczynski’s evidence that during this meeting the father was advised as to the Society’s serious concerns regarding the mother’s mental health and her ability to care for the child, which then led to the removal of the child from the mother. The father asked if the child could be placed in his care. After referring to her notes, Ms. Kaczynski testified that she had encouraged the father to attend in court the following day, on September 13, to speak with duty counsel. Ms. Kaczynski further let the father know that the matter was likely to be adjourned at court and Ms. Kaczynski encouraged the father to follow through with getting a lawyer of his own choosing.

[178] It was Ms. Kaczynski’s evidence that the father seemed to be understanding of the need for a “temporary foster home.” The father told Ms. Kaczynski during that meeting that he was no longer in a relationship with the mother.

[179] Ms. Kaczynski was asked whether the discussion went on to include access. Ms. Kaczynski responded that she thought she had suggested that they would talk about it at court the next day or that regular supervised access would be set up for the father once that could be facilitated at the Society office.

[180] The child had been placed in the neonatal intensive care unit (NICU) following the child’s birth. Ms. Kaczynski’s affidavit evidence indicated that the child was released to the foster mother’s care on September 13, 2016.

[181] On September 12, 2016, after meeting with the father, Ms. Kaczynski met with the mother later that day at the hospital. The mother was in the process of being admitted to the psychiatric ward for further treatment.

[182] While the child was in the NICU, the Society, on apprehending the child on September 9, exercised its authority as to who could be present in the NICU with the child.

[183] There is clear evidence that the Society left instructions with the hospital as to who could see the child in the NICU which did not include the father. Ms. Kaczynski did agree that she authorized the foster mother to be with the child “day and night” at the NICU and Ms. Kaczynski also confirmed that the maternal grandmother was permitted to have access to the child. It was the foster mother’s evidence that she was in the hospital with the child for the first five days.

[184] It was not until September 13, 2016 that the court made its first order, which was a temporary without prejudice order placing the child in the care and custody of the Society. That order provided for reasonable access to both parents, with the Society to have discretion as to whether the access is supervised and, if so, as to the level of supervision. This order was still in force at the time of the trial.

[185] It was Ms. Kaczynski’s evidence that the meconium sample tested positive for cocaine and methamphetamines and that the child required some treatment for withdrawal.

[186] The immediate risk prompting the child’s warrantless apprehension was related to the mother’s conduct. Given Ms. Kaczynski’s evidence, that she was unable to contact the father after the child’s birth on September 7 and prior to the apprehension on the morning of September 9, and that the father was not at the hospital on the morning of September 9, I find it was reasonable for the Society to have apprehended the child.

[187] However, it was also quite apparent that the Society needed to meet and speak with the father quickly. The Society was aware that the father wanted the child to be placed in his care and that the apprehension was related to the immediate risk posed by the mother’s conduct.

[188] I find it quite troubling that during the meeting on September 12, 2016 involving Ms. Kaczynski, her supervisor and the father, that no effort was made by Ms. Kaczynski or her supervisor to conduct a thorough and professional interview with the father. That meeting was a perfect opportunity for the Society to obtain information from the father. Instead, the evidence shows, and I find, that the meeting on September 12, 2016 was little more than a perfunctory and superficial meeting where the Society was focused already on supervised access for the father – rather than focusing immediately on its duty to obtain information about the father so that the Society could articulate a lawful reason why this newborn infant should be withheld from the father’s care or at least why the father could not see the child in the NICU.

[189] The Society failed as at September 12, 2016 to implement any immediate access for the father to see the child while the child was still in the hospital. The father testified, and I accept his evidence, that he wanted to see the child and that he asked nursing staff to do so but, instead, the nursing staff referred the father to the Society.

[190] Worse yet, the Society made the decision not to allow the father to see the child at the NICU without having availed itself of the opportunity to properly interview the father on September 12, 2016.

[191] Ms. Kaczynski was subjected to an effective cross-examination on the issues relating to the September 12 meeting and the fact that, following the apprehension while the child was in hospital, the father was not permitted to see the child. No rational explanation was offered by Ms. Kaczynski as to why the father was not interviewed properly on September 12. No reason was offered by Ms. Kaczynski as to why at that meeting she failed to authorize an immediate access visit that day. The most that Ms. Kaczynski could muster by way of an answer was to say: “I suppose that could have been an option.”

[192] During cross-examination, Ms. Kaczynski referred to the period of time between the apprehension on September 9 and the first court order on September 13 as a “period of flux” and Ms. Kaczynski explained that during this “period of flux,” she did not know what she is “bound by.” With respect, that is hardly a helpful explanation to the father, who cannot see his daughter in the NICU because of the Society exercising its authority over hospital staff after apprehending the child.

[193] From the father’s perspective, as at September 12, 2016, the full weight of the authority of the State in apprehending children from their parents was in plain view – the father was confused as to why he could not at least see his daughter while she was in the hospital post apprehension. I find that his confusion was justified. The denial of access to the father, as at September 12, 2016, I find, was arbitrary.

[194] It was Ms. Kaczynski’s evidence in-chief, basically, that the father continued to struggle during access visits and could not care for the child on his own.

[195] On September 8, 2017, less than a week prior to trial, Ms. Kaczynski and the access supervisor, Ms. Sheffield, met with the father. The purpose of this meeting was to discuss with the father how his visits were going.

[196] In her evidence in-chief, Ms. Kaczynski said that, at that meeting, the father was told that a strength was his attendance, for the most part. However, the father was told that there were ongoing concerns as to the father’s ability to provide basic care for the child, multi-tasking during his access visits and that overall the father continued to struggle.

[197] When Ms. Kaczynski was asked in-chief whether they spoke to the father in terms of generalities or specifics, Ms. Kaczynski referred to one example occurring at that very meeting. It should be noted that this meeting took place with the father during an access visit while the child was present.

[198] Ms. Kaczynski testified that the child was standing up walking and holding onto furniture where they were meeting. Ms. Kaczynski expressed a concern that the father was struggling to engage in conversation with herself and Ms. Sheffield, while at the same time not properly “spotting” the child to make sure the child did not fall. Ms. Kaczynski added that the father was not doing the spotting, and that Ms. Sheffield pointed out that this was the father’s job, not her job. It was Ms. Sheffield who was spotting the child.

[199] Ms. Kaczynski also explained that a further specific concern was that the father “still continues to struggle to feed [the child] during access.”

[200] Ms. Kaczynski added: “… If it’s a time during an access visit when she still needs to have a bottle, he still struggles to provide her with that bottle each time.” (my emphasis)

[201] When asked to explain what is meant by “struggles,” Ms. Kaczynski testified that the father will offer the bottle but that he cannot get the child to take it. Further, it was Ms. Kaczynski’s evidence that, over time, the father’s ability to adequately feed the child has not changed, that he still struggles.

[202] Ms. Kaczynski also testified that the father struggles with elementary tasks, such as diapering.

[203] Ms. Kaczynski did agree that there are times when the diapering is done adequately and also the feedings. However, the father fails to perform those tasks consistently.

[204] The extensive and effective cross-examination of Ms. Kaczynski on these and other concerns exposed, at times dramatically, various weaknesses in Ms. Kaczynski’s evidence. Some specific examples are discussed below.

[205] There was much evidence about some access visits that the father missed. While it is true that the father missed visits when he should not have, the reality is that the father attended about 90% of the visits, an estimate that Ms. Kaczynski agreed with.

[206] During cross-examination, it was put strongly to Ms. Kaczynski that surely the missed visits “can’t be a reason” why the Society is seeking Crown wardship. However, Ms. Kaczynski responded that it was a reason, although that was not her “biggest concern” with the father’s parenting.

[207] I find Ms. Kaczynski’s intransigent position, to continue to include missed visits as a reason in support of the Society’s plan, to be unreasonable considering in particular the following evidence from Ms. Kaczynski:

Q. I thought I covered that with you this morning. You agreed that he’s been very consistent in his access and you questioned him when he missed the odd visit, is that fair?

A. That’s fair.

[208] There was much cross-examination of Ms. Kaczynski regarding her evidence that the father had failed to “spot” the child during the meeting with Ms. Kaczynski and Ms. Sheffield. Ms. Kaczynski, in rationalizing her criticism of the father, testified during cross-examination that it was important, for herself, as a worker, to observe a parent multitasking; in the father’s case, as explained by Ms. Kaczynski, the multitasking would be engaging in a conversation with Ms. Kaczynski and her supervisor, while at the same time watching over the child. Ms. Kaczynski then analogized this to a situation where a parent takes a child to a doctor and the parent has to be able to multitask at the doctor’s appointment – meaning being able to speak and interact with the doctor, while at the same time caring for the child.

[209] I find Ms. Kaczynski’s analogy to be somewhat misguided and, respectfully, quite unfathomable. At a doctor’s appointment, a parent is not being scrutinized by persons who will be testifying in a Crown wardship case about a parent’s performance. In the present case, the father was required to meet with both Ms. Kaczynski and Ms. Sheffield in a rather important, high-stakes meeting, on the eve of trial, during which the father would be expected to pay close attention to any criticism of his performance at access visits. The father was not given an opportunity to have this discussion either before or after the access visit which easily could have been arranged; to some extent, this whole episode has the appearance of the father being “set up.”

[210] Ms. Kaczynski did agree in cross-examination that the access supervisor, Ms. Sheffield, had opportunities during the many supervised access visits to observe the father “multitasking.” Further, the unmistakable impression created by Ms. Kaczynski during her evidence in-chief was that the father was not in a position to intervene if the child should fall. When Ms. Kaczynski was asked in cross-examination how far away the father was from the child, she responded:

A. He was kneeling down right next to her practically. (my emphasis)

[211] When it was suggested to Ms. Kaczynski that if the child had fallen, that the father would have been right there to catch her, Ms. Kaczynski answered that “… yes, he could’ve been …”

[212] As it turned out, the child did not fall. The suggestion by Ms. Kaczynski that this incident demonstrates a failure to multitask is, I find, bereft of merit.

[213] Ms. Kaczynski, when referred during cross-examination to a portion of an access visit that she observed on July 26, 2017, admitted that the father was interacting appropriately with the child. However, Ms. Kaczynski then put a damper on this positive interaction, suggesting that the father has the ability to interact with the child appropriately if supervised. Ms. Kaczynski added: “My concern is more when he doesn’t have someone there to help him.”

[214] Ms. Kaczynski, however, was forced to agree that for that visit she was not there to help the father, but rather to observe him, and that he does have the ability “… to do just fine.” Even more revealing was the following admission by Ms. Kaczynski:

Q. So you’ve never seen him struggle at all during these visits, have you?

A. I haven’t personally.

[215] The Society evidence that the father “struggles” to meet the child’s needs was noted earlier in these reasons. Although it was a recurring theme in her evidence, Ms. Kaczynski had difficulty describing any “struggles” in the father’s interaction with the child that she had observed.

[216] Indeed, it is quite apparent that Ms. Kaczynski relies on the observations of others made during the supervised access visits and the Best Beginnings program in formulating her opinion that the father “struggles.” Ms. Kaczynski testified during her cross-examination:

Q. And is it fair to say you justify your request for Crown wardship because, in your view, [the father] is struggling?

A. Yes.

Q. Based on reports that you’ve had from supervised access?

A. Yes and the Best Beginnings program as well.

[217] The concerns expressed by Ms. Kaczynski that the father’s positive interaction with the child that she observed at a supervised access visit would not occur outside the confines of the Society’s premises is, I find, prognostication based on little more than questionable speculation, especially when this speculation is founded on the supervised access visits and the Best Beginnings program, neither of which support the Society’s request for Crown wardship for reasons discussed earlier.

[218] During cross-examination, Ms. Kaczynski was unable to recall that the father read books and sang to the child; however, Ms. Kaczynski did agree that the father is loving and caring with the child and that there is bonding between the father and the child.

[219] The Society plan of care signed by Ms. Kaczynski, when describing why the child cannot be protected adequately while in the father’s care, listed two reasons: the first reason already discussed earlier was that the father’s “struggles” in meeting the child’s needs during supervised access; the second reason was stated as follows: “The Society has concerns regarding the father’s developmental capacity and his ability to parent and protect the child.”

[220] When cross-examined, Ms. Kaczynski agreed that she had no evidence regarding the father’s developmental capacity. Ms. Kaczynski explained that she had explored with the father, during a family meeting in February 2017, what his education was, whether he could read or write and whether he had ever had any “diagnosed delays or assessments.”

[221] Although Ms. Kaczynski understood that the father’s education was at the grade 10 level, Ms. Kaczynski was satisfied that the father could read and write and Ms. Kaczynski agreed that she had received no information from the father to suggest any past “assessments” or “special education.”

[222] Ms. Kaczynski summarized her concerns about the father’s developmental capacity by stating that based on her interactions with the father she “just still wondered if there was some sort of a capacity concern.”

[223] There was no reliable evidence adduced at trial to support any finding in relation to the father’s developmental capacity. As to the concern raised in the plan of care regarding the father’s ability to “parent and protect” the child, the former has been discussed earlier; regarding the latter, I find little, if any, evidence supporting a conclusion that the father is unable to “protect” the child.

THE PARENTS

A. The Mother

[224] By all accounts, the mother, who was much younger than the father, had significant difficulties in her young adult life, struggling with substance abuse and mental health issues.

[225] The maternal grandmother, who testified for the Society, told the court that her daughter (the child’s mother) had a wonderful life until her mid-twenties when she began to encounter difficulties with drugs. It was her evidence that the mother did go to a rehabilitation facility, and that she tried her best.

[226] The mother has an older daughter (age 8, according to the maternal grandmother). This child did live approximately three years with the maternal grandparents, at which time they supported that child being placed in the custodial care of her father. This child remains living with her father and his wife.

[227] In regards to the present case, the maternal grandmother testified that she and her husband made a difficult decision not to propose a plan of care to parent the child, citing some medical issues affecting both of them. The maternal grandparents do maintain a relationship with their older granddaughter’s father and they do have visits with their older granddaughter.

[228] While coping with the tragic loss of their daughter, the maternal grandparents have maintained a relationship with the child through contact with the foster mother.

[229] It was obvious that the maternal grandmother has a negative opinion of the father; she did admit that her only knowledge of the father was information received from her daughter. Although the maternal grandmother had only met the father at the hospital when the child was born, and had spoken to him on another occasion by telephone, the maternal grandmother was very supportive of the child being adopted by the foster mother. The maternal grandmother testified she would be “terrified” that she would not see the child should the child be placed with the father.

B. The Father

[230] The father, a first-time parent at age 49, is a person with limited formal education, having quit high school in the early part of grade ten in favour of taking a job cutting wood. The father did attend, as a young adult, at an educational institute in an attempt to further his education but he was only able to achieve part of his grade ten.

[231] The father is not a sophisticated gentleman. During his testimony, his grammar and his somewhat limited vocabulary attested to his limited education. His manner of speaking, described by his stepsister, M.L. (“Ms. L.”), as “monotone,” was apparent in the witness box.

[232] The foregoing observations are not intended to be critical of, or disrespectful to, the father. Rather, those traits explain, at least in part, the father’s submissive response to the Society actions that prevented him from seeing the child while she was still at the hospital. As the father explained in-chief, the nurses told him, referring to the child, that “… I couldn’t see her and stuff.” He testified that he did not know what to do.

[233] The father took issue during cross-examination with Ms. Gavin’s report. One aspect of the report that criticized the father for lack of sufficient “facial affect” and animation, particularly irked the father. His combative but credible response to Society counsel, Mr. Belecky, on this point merits repetition:

A. Okay, for the first one, like, it says I was – she kept remindin’ me that I had to show facial effect [sic] and be animated. She kept on sayin’ animated. Well, at the beginnin’ when you got three people sittin’ in a chair lookin’, lookin’ at you and watchin’ every move you make, I wasn’t used to talkin’ like Donald Duck in front of people and just I had to get adjusted to that. Be somethin’ new to me.

[234] When all the evidence is considered, particularly the supervised access visits, it belies any purported criticism that the father was incapable of sufficient facial affect or animation. Also, I find that the father quite likely felt some angst and discomfort from being watched while he was interacting with the child.

[235] The father’s stepsister, Ms. L., who testified for the father, was an interesting witness. She corroborated the father’s description of being raised by his mother and Ms. L.’s father. The father did explain that he was probably age 5 when his mother remarried. He never met his biological father, and he harbored negative feelings towards his biological father for mistreatment of his mother.

[236] The father was not challenged in any material way on his description of his work history that spanned many years of employment centered around jobs that included driving trucks and manual labour. The father had worked for a period of time out west on a pipeline and lived in a camp while engaged in that employment. The father was able to save money while working out west and that, combined with an inheritance he received as a result of his mother’s death approximately three years ago, resulted in the father not working after that time, other than some income derived from selling goods at flea markets.

[237] At the time of trial, the father testified that he was in receipt of Ontario Works and that his plan was to raise the child and be a “fulltime dad.” It was his testimony that he planned to continue to rely on Ontario Works to be supplemented by the child tax benefit should the child be placed in his care.

[238] Ms. L. testified that she and her two sisters were raised by their father who had obtained custody of them. She corroborated the evidence that her stepbrother (the father) joined her family when he was age 5; Ms. L. was age 12 at the time. Ms. L. described being close to her stepbrother despite their age difference. She respected her stepbrother’s kindness and compassion, citing as an example that he had reached out to the family of a girlfriend who had passed away and that he had paid for her funeral; Ms. L. testified that it was only later that she had learned about that. Ms. L., too, was critical of her stepbrother for his lifestyle in his younger days, testifying that she did not approve of the poor choices that he had made.

[239] In contrast to her stepbrother, Ms. L.’s demeanor in the witness box was one of confidence. She was most articulate.

[240] Ms. L. was recently married and resides with her husband in Michigan at a location which is approximately a two-hour drive from where her stepbrother resides.

[241] Ms. L. is employed by Autism Ontario. She has a son, by a previous relationship, who is age 25 and who has autism. He resides in a city near London. Ms. L. works within southwestern Ontario on a regular basis. She describes seeing her stepbrother two to three times monthly but more often recently.

[242] It was Ms. L.’s testimony that her stepbrother was at the hospital when her own son was born and that he was “wonderful” to her son while he was growing up. Ms. L. described her stepbrother in very positive terms, in playing and interacting with her son.

[243] Ms. L. presented as being quite invested in her stepbrother’s attempt to have the child placed in his care. She recommended that her stepbrother see Karen Wyse, who is also a certified instructor in Circle of Security parenting, which he did; however, as Ms. Wyse did not testify, I treat Ms. Wyse’s letter only as evidence that the father attended the program with her, which is corroborated by the certificate that he received; at Ms. L.’s suggestion, her stepbrother attended for a drug test and attended a course about children’s car seats. In relation to the drug test, the document tendered at trial as an exhibit does not appear to be the test result, but rather verification that a test was conducted.

[244] Given her work schedule flexibility, Ms. L. testified that she would be available as a support person for her stepbrother. She testified that if the child was returned to her stepbrother’s care, that it was her expectation that she would be heavily involved. Ms. L. testified that she wants to be involved and feels that she can offer her stepbrother direction, as she has in the past. Ms. L. works remotely and can organize her employment responsibilities to make herself available to assist her stepbrother.

[245] Ms. L. has been present during three supervised access visits. She testified that, given her current employment, she has seen interactions between children and parents. She felt that she was a good judge of parent/child interactions.

[246] Regarding the access visits, Ms. L. described that her stepbrother would pick up the child, talk to her and make funny noises to her, such as “duck” noises. Ms. L. felt that she saw better interaction on the last visit than the first visit as she thought that her stepbrother was nervous when she was there.

[247] It had been approximately four weeks since Ms. L.’s last attendance at a supervised access visit. Ms. L. described watching her stepbrother prepare a bottle and hold the child in a cradle position in an attempt to feed her. The child at first did not take the bottle and then her stepbrother offered the bottle again and he burped her successfully. Ms. L. noted that she was struck by the way her stepbrother burped the child, saying it was “perfect.”

[248] Ms. L. observed a diaper change, including her stepbrother applying cream. In terms of sleep time, Ms. L. did observe her stepbrother placing the child in a crib and calming her. Overall, Ms. L.’s evidence was quite positive as to her observations of her stepbrother’s interaction with the child.

[249] During her testimony, Ms. L. expressed a rather strong opinion that her stepbrother was a victim of gender bias by the Society. While I do not accept Ms. L.’s evidence that there was gender bias, and in fact I find that there was no evidence of gender bias, I do find Ms. L.’s evidence relating to her stepbrother’s past, including his interactions with her son, her observations of the access visits and her willingness and ability to assist her stepbrother as an effective support person, to be persuasive and reliable. I accept that evidence. Ms. L. was not shaken in any material way, if at all, on those matters during cross-examination.

[250] The father was subjected to a thorough cross-examination; however, there is nothing in the cross-examination that cast into doubt the basic premise of the father’s case – that the child should be placed with him.

[251] The father has a criminal record consisting of two convictions of drug possession and one of uttering a threat that occurred in the range of 10 to 15 years ago. The father does have a more recent assault related conviction involving a previous partner; the father explained the circumstances, including that no injury was sustained. No evidence was tendered to contradict that explanation.

[252] The father agreed he had failed to comply with the Society request to provide a criminal record check. The father did testify that he went to the police station but that he was unclear as to the type of record check that he should request and, further, the father stated that the police would only accept payment by credit card and that he did not have a credit card.

[253] While the father’s excuse for not obtaining the criminal record check was not particularly persuasive, the Society, if it was placing any significance on the father’s criminal record, easily could have subpoenaed the London Police Services records, which is a practice routinely utilized by the Society in protection trials. No reason was offered by the Society why it had failed to do so.

[254] The father’s criminal record as explained at trial does not prevent placing the child in his care. I find that the father’s drug use is historical. There is no evidence of any recent or current issue of substance abuse by the father. Appropriate terms and conditions as part of a supervision order are sufficient to address the father’s criminal history.

[255] Regarding the father’s relationship with the mother, I accept the father’s evidence as to the difficulties in that relationship and that the difficulties stemmed primarily from the mother’s conduct brought on by her substance abuse and mental health issues. I accept the father’s evidence that he was not physically aggressive with the mother except in defending himself against her aggression as occurred when she attempted to strike him with a flashlight.

[256] Prior to the child’s birth, the father appeared to harbour a somewhat naïve hope that he could work things out with the mother and parent their child together.

[257] During cross-examination, the father testified in relation to the mother that he would have “loved to help her out” and get her treatment and that she “probably was a really nice person” if she was not doing drugs.

[258] There was evidence at trial regarding the father’s roommate, J.L. (“Mr. L.”). Based on the evidence, it appears that Mr. L. can be described as the father’s “step-nephew.”

[259] Mr. L. was called by the Society; he was the Society’s first witness. Mr. L. described that he has been diagnosed as a paranoid schizophrenic with manic tendencies. Mr. L. described that his mental health is under control with medication.

[260] Mr. L. has had mental health issues for a number of years and has been involved in treatment for approximately 20 years. He is in receipt of disability payments from the Canada Pension Plan and the Ontario Disability Support Program.

[261] Mr. L. has lived with the father for many years. Ms. L. testified that her stepbrother was kind to Mr. L. and took him in to live with him.

[262] The father and Mr. L. were residing in a two bedroom apartment. An issue surfaced at the trial as to whether Mr. L. had vacated that apartment. Some confusion resulted from a letter from the father’s counsel, Mr. Winninger, near the end of June 2017, indicating that Mr. L. had vacated the apartment.

[263] As it turned out, this was not accurate information. At the beginning of the trial, Mr. L. testified that in effect he was in the process of moving out and looking for a place to stay. He did testify that he gave up his bedroom for the child and that he had some of his belongings at a friend’s place and that some of his belongings were still with the father and that he stayed some days during the week at the residence with the father.

[264] While it appears that the father provided inaccurate information to his lawyer about Mr. L. having moved out, by the conclusion of the trial, based on the father’s evidence, I find that Mr. L. did in fact move out.

[265] The father had testified that someone at the Society had told him that Mr. L. would need to move out if the child was to live with the father. That was specifically denied by the Society and I accept Ms. Kaczynski’s evidence to that effect.

[266] However, it was understandable that the father, at least in his mind, was of the view that his plan of care would have to be presented with Mr. L. not living with him. Mr. L. appeared to be the focus of much interest by the Society; the father cannot be criticized for forming an impression that the Society may have concerns if Mr. L. continued to live with the father should the child be placed in his care. However, on a practical level, Mr. L. would need to move as his bedroom would be occupied by the child.

[267] The father has prepared the child’s room for her anticipated arrival. Photographs of the room were tendered. It is obvious that the father went through a substantial effort to carefully paint, decorate and equip the room for the child. Ms. L. was quite glowing in her description of the substantial effort made by the father to prepare this room for the child.

[268] The evidence disclosed that the father has a large dog. That dog needs to be walked about four times per day. During cross-examination, it was put to the father as to what he would do if he had the child, the child was sick and the dog had to be taken for a walk. It was somewhat concerning that the father initially stated that he understood from the Society that he could leave the child unattended for a few minutes, and that would be sufficient for him to take the dog for a walk.

[269] The father soon retreated somewhat from that untenable position and said that he would make arrangements to take the child to the doctor and have somebody look after the dog. While I agree that the father’s initial response was troubling, overall, a supervision order with appropriate terms can protect the child adequately.

[270] There was no evidence at trial that the Society had any prior protection history with the father.

[271] All Society witnesses, when asked, described their interactions with the father as positive and that he was polite. The father was always open to suggestions for improvement and during access visits he readily complied with directions received from access supervisors.

[272] The father acknowledged that he knew little, if anything, about childcare and on many occasions expressed a desire to improve and learn how to parent.

[273] I do accept the Society’s concerns that for the first number of weeks following the child’s birth, that the father did not attend for access visits and that he was hard to reach. The father seemed to be more concerned about the fact that his van was stolen by the mother rather than focusing on visits. The father indicated that he needed to get his vehicle back in working order in order to permit him to attend visits at the Society offices. I do find that that was a somewhat lame excuse and that the father could have found other modes of transportation, including taking the bus, to see the child.

[274] However, once the father started the Best Beginnings program and settled into the rhythm of regular attendance at access visits, this was a clear signal from the father that he was fully engaged in wanting to parent and to present a plan of care.

FINDING IN NEED OF PROTECTION

[275] I did raise with counsel the potential scenario of finding a child in need of protection, in circumstances when the protection issues relate to one parent, but not the other parent.

[276] Both counsel provided briefs containing authorities that I have considered.

[277] I adopt the conclusion of Czutrin J. in Children’s Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754 (S.C.J.), at paras. 49-50, that when making a finding whether a child is in need of protection, the court should be able to consider evidence at any stage of the protection application from the time the application was commenced up to the hearing. The court is not limited to considering only the evidence at the start of an application. (See also, to the same effect, Children’s Aid Society of Brant v. T.(J.A.), 2005 ONCJ 302 (Ont. C.J.), at paras 20-23 and Catholic Children’s Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717, at paras. 98-99 (Ont. C.J.).)

[278] I find that the evidence supports a finding that the child is in need of protection pursuant to s. 37(2)(b) and s. 37(2)(b)(i) of the Act.

[279] The most compelling evidence supporting the finding is the presentation of the mother while at the hospital at the time of the apprehension. Later evidence raised the potential issue whether the father, on his own, could parent the child.

[280] The statutory findings required in s. 47(2) are as follows:

(a) the child’s name and age is as set out in the copy of her birth certificate filed in the trial record;

(b) the child’s religious faith is not specified;

(c) the child is not an Indian or native person; and

(d) the child was apprehended at the hospital in London, Ontario, from where the child was placed in foster care.

DISPOSITION

A. The Law

[281] The paramount purpose of the Act is stated in s. 1(1):

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

[282] Section 1(2) of the Act includes additional purposes so long as they are consistent with the paramount purpose. Additional purposes include support for the autonomy and integrity of the family unit and the requirement to consider the least disruptive course of action. Specifically, paragraphs 1 and 2 of s. 1(2) state:

1(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

[283] After finding that a child is in need of protection, the court is directed in s. 57(1) to make one of a number of orders specifically listed therein, or an order under s. 57.1, if the court is satisfied that intervention through a court order is necessary to protect the child. The order under s. 57(1) is required to be made in the child’s best interests. Section 37(3) enumerates the factors that the court is required to consider in undertaking the best interests analysis. That section is reproduced later in these reasons.

[284] Section 57 contains provisions that speak to a principle of the least intrusive approach:

Court to inquire

57(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[285] In Children's Aid Society of Hamilton v. S.(D.), 2013 ONSC 2161 (S.C.J.), Chappel J., in paras. 19-30, provides a comprehensive analysis as to the stages of a protection application and the interplay between a court’s obligation to make an order in a child’s best interests and the least intrusive approach. I adopt Chappel J.’s analysis in paras. 19-30 in its entirety.

[286] Chappel J. notes in relation to s. 1(2) that the court is required in conducting a best interests analysis to do so “with an eye” to supporting the family in maintaining the integrity of the family unit. In para. 24[^2] in S.(D.), Chappel J. states:

24 These other purposes set out in section 1(2) indicate that in carrying out its duties under the CFSA, the court is required to analyze the best interests of the child with an eye to the importance of supporting the family, maintaining the family intact if possible, and accessing community supports if appropriate to promote the best interests of the child and the integrity of the family unit.^4 The non-interventionist principles set out in section 1(2) are not aimed at strengthening the rights of parents, but rather are founded on the importance of keeping the family intact if this is consistent with advancing the child's best interests.^5

[287] In Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CarswellOnt 376 (S.C.C.), the importance of child protection services operating in the least restrictive manner, while at the same time recognizing the paramount objective of protecting the best interests of children, was emphasized by the Supreme Court of Canada in the judgment of L’Heureux-Dubé J. in paras. 24, 25 and 36:

24 As I said earlier, the Ontario Child and Family Services Act governs every aspect of child protection proceedings in Ontario. The Act specifies the procedure to be followed, the evidentiary requirements under this process, and, most of all, spells out the objectives of the legislation in s. 1, of which the first and "paramount" objective of the Act is to promote "the best interests, protection and well-being of children."

25 In attempting to fulfil this objective, the Act carefully seeks to balance the rights of parents, and, to that end, the need to restrict State intervention, with the rights of children to protection and well-being. The Ontario legislation, when compared to the legislation of other provinces, has been recognized as one of the least interventionist regimes. … This non-interventionist approach is premised not with a view to strengthen parental rights but, rather, in the recognition of the importance of keeping a family unit together as a means of fostering the best interests of children. Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent. In order to respect the wording as well as the spirit of the Act, it is crucial that this child-centred focus not be lost, even at the stage of an inquiry under the status review provisions. …

36 … Essentially, the fact that the Act has as one of its objectives the preservation of the autonomy and integrity of the family unit and that the child protection services should operate in the least restrictive and disruptive manner, while at the same time recognizing the paramount objective of protecting the best interests of children, leads me to believe that consideration for the integrity of the family unit and the continuing need of protection of a child must be undertaken.

[288] In relation to s. 57(3) and the court’s obligation to consider less disruptive alternatives, Chappel J., in S.(D.), states at para. 28:

28 The duty which section 57(3) places upon the court to consider whether less intrusive alternatives would be adequate to protect the child involves reviewing the services which have been offered to the family, and whether the parties and the child have benefited from the services. This inquiry should include an analysis of whether the services which have been recommended and implemented are sensitive and responsive to the family's particular needs. (footnote omitted)

[289] The jurisprudence compels a conclusion that an order of Crown wardship is an order of last resort; it should be made with the highest degree of caution based on compelling evidence after careful examination of possible alternative remedies.

[290] The aforesaid principles underlying the court’s resort to a remedy of Crown wardship were summarized succinctly by Chappel J., in S.(D.), at para. 30[^3], in part:

30 In this case, the Society is requesting an order for crown wardship. This is the most intrusive order that the court can make in child protection proceedings. The court should only grant this relief with "the highest degree of caution and only on the basis of compelling evidence, and after a careful examination of possible alternative remedies."^9 Furthermore, caution should be taken not to judge parents of limited means and potential by unfair, unrealistic middle class standards of child care, provided that the standard that is actually used is not contrary to the child's best interests.^10 …

[291] Also compelling on the issue of Crown wardship being a remedy of last resort is the discussion by Katarynych J. in Catholic Children’s Aid Society of Toronto v. B.(N.), 2009 ONCJ 648 (Ont. C.J.), at paras. 9-16, which I adopt.

B. Discussion as to Disposition

[292] Given the many ongoing issues affecting the mother, it was very evident soon after apprehension that the mother would not be in a position to parent the child in the near future, if at all. However, the mother’s issues were not the father’s issues. Soon after apprehension, the spotlight shifted to the father, who had made it clear to the Society that his relationship with the mother had ended.

[293] It was apparent from the outset, starting with the apprehension of the child at the hospital, that the Society approached this case with the mindset that the father must prove himself. Almost immediately, the Society decided that the father was to have supervised access; and as discussed earlier, the Society arbitrarily prevented the father from seeing the child while the child remained in hospital following apprehension.

[294] Once the Best Beginnings report was prepared, the die was cast. The father was assessed as being incapable of parenting on his own. The Society, I find, failed to consider sufficiently, subsequent to the Best Beginnings report, the positive interactions between the father and the child and the father’s ability to attend to the child’s needs, including feeding and diapering.

[295] The Society failed to consider sufficiently that during the “unsupervised” portions of the access visits at the Society, that there was no evidence of any protection or other issues. Inexplicably, the Society failed to permit even brief unsupervised visits in the community.

[296] In failing to consider sufficiently the positive aspects of the father’s involvement with the child in subsequent supervised access visits, I find that the Society placed undue weight on the Best Beginnings report.

[297] The focus by the Society on evidence such as the lack of “facial affect” and diapering issues, as contributing factors to protection concerns supporting a Crown warship order, is quite puzzling. The testimony about the father’s alleged failure to “multitask” was an unfortunate low point in the evidence tendered by the Society.

[298] The Society failed in its obligation to give sufficient assistance to the father. The principle of least intrusive approach fell by the wayside.

[299] While I commend the Society for directing the father to the Best Beginnings program, and providing a teaching aspect during the supervised access visits, I find that it is a quantum leap, not justified by the evidence, to suggest that any perceived deficits in the father’s parenting justify a Crown warship order.

[300] There was no evidence that serious consideration was given to providing a family support worker. No home access visits, even for brief periods, were authorized. The Society speculated unreasonably that the father, alone, could not parent. The Society failed to implement any strategy of transitioning the child to the father’s home for brief, and then longer, periods. The preservation of the child’s “family unit,” realistically being the father well before the mother’s tragic death, was not on the Society’s radar. Rather than offer the father more supports in areas where the Society perceived parenting concerns, the Society moved forward towards its perceived goal of Crown wardship, leaving the father mired along a path of perpetual supervised visits.

[301] This case is not the type of case envisioned where Crown wardship is relief to be granted with “the highest degree of caution and only on the basis of compelling evidence, and after a careful examination of possible alternative remedies”: Children’s Aid Society of Hamilton v. S.(D.), supra, at para. 30.

[302] Section 37(3) of the Act lists the factors to be considered when assessing best interests:

Best interests of child

37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The child’s cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child’s views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[303] I consider the best interests factors:

(a) Paragraphs 3, 4 and 9 (cultural background, religious faith and the child’s views and wishes) have little or no relevance in the present case;

Paragraph 1

(b) The child has no special identified physical, mental or emotional needs that require special attention. The child requires a loving home where her needs can be met;

Paragraph 2

(c) The evidence suggests that the child is meeting her milestones. She has an attachment to the foster mother. However, there is evidence that the child has displayed signs of attachment to the father; also Ms. Kaczynski agreed that there is bonding between the father and the child and I accept that evidence;

Paragraph 5

(d) It is important for the child’s development to have a positive relationship with a parent and to have a secure place as a member of a family. The sad reality for the child is the loss of her mother, placing the father in the position of a sole caregiving parent. This reality heightens the obligation to give help to the father to support “… the autonomy and integrity of the family unit …”: s. 1(2), paragraph 1 of the Act;

Paragraph 6

(e) The child’s bonding with the father, and her attachment to him, were discussed in paragraph (c). The father’s relationship with the child, other than some brief contact at the hospital, was developed entirely through the Best Beginnings program and supervised access visits. The child does have some relationship with the maternal grandmother and other persons on the maternal side, through arrangements made with the foster mother;

Paragraph 7

(f) Any change in the child’s care will necessarily disrupt continuity of care as the child has been with the foster mother since birth. In relation to possible effects on the child if she was no longer with the foster mother, the Society led evidence from Ms. Gavin that the Society wants children in care to develop a secure attachment to their foster parents, and because attachment is transferable, then if children go home, according to Ms. Gavin, “… they will transfer all these wonderful, secure trusting qualities back on to the parent.” Although Ms. Gavin was not qualified to give expert evidence, I do accept this evidence, given without objection, at least as demonstrative of how the Society approaches cases of reuniting children with parents, where the children have established a secure attachment to a foster parent. Alternatively, even ignoring the foregoing evidence of Ms. Gavin, no reliable evidence was led as to any specific consequences affecting the child resulting in a change from the child’s primary caregiver;

Paragraph 8

(g) In examining the merits of the competing plans of care, the foster mother is prepared to adopt the child and she is open to maintaining contact between the child and both the maternal family and the father. The foster mother has cared for the child well and that would continue on adoption. The foster mother has support from her extended family, with whom the child has had contact. The father has a relationship with the child through access, and could parent the child with an appropriate supervision order. The father’s stepsister, Ms. L., is an identified support. Ms. L. has two sisters who live in London. They did not testify, and it is not clear to what extent they can assist the father, although Ms. L. harboured some optimism that her sisters would assist. The significant issue with the Society plan is the level of intrusiveness. The father’s plan preserves the integrity of the family;

Paragraph 10

(h) The child is already past the one year maximum specified in s. 70(1) of the Act. Any delay in disposition is not in the child’s best interests;

Paragraph 11

(i) The question to be addressed is the degree of risk that the child may suffer harm if placed in the father’s care. I find that the issue to be addressed with the father is his lack of parenting experience, requiring at times more “hands on” instruction and whether he can consistently apply what he has learned. Any risk present by the foregoing is, I find, adequately addressed by terms and conditions in a supervision order;

Paragraph 12

(j) The evidence justifying the protection finding was the real risk of physical harm to the child posed by the mother. The current situation is materially different; the issues that must be addressed are discussed in paragraph (i).

[304] I find that it is in the child’s best interests for the child to be placed with the father for a period of ten months subject to Society supervision together with terms and conditions as specified in the order below. This is the least intrusive order that is consistent with the child’s best interests.

[305] The Society is encouraged to plan for an orderly transition of the child from the foster mother’s care to the father’s care. This can be best accomplished by gradually increasing the overnights with the father, and in the meantime the child would be with the foster mother pursuant to an access order. The order below provides for such a transition. The foster mother is not a party and the court cannot order the foster mother to participate in the transition process; hence, that process is specified to be subject to the foster mother’s consent. The foster mother has indicated a willingness to have access to the child should the child be placed with the father; hence, the transition provisions are ordered in the expectation that the foster mother will consent to being involved.

[306] Should the foster mother elect not to be involved, and a transition cannot occur, then the Society is encouraged to provide to the father maximum assistance during what would have been the transition period, as required, including a family support worker.

[307] For his part, the father is encouraged to secure the assistance of his stepsister, Ms. L., to assist, as much as she is able, during the transition period.

[308] I emphasize that it is important and in the child’s best interests for the foster mother and the parties, and any support persons for the father, to work cooperatively to assist in the transition.

[309] On an ongoing basis, I find that it is in the child’s best interests for her to have access with the foster mother.

[310] In relation to the maternal grandmother, despite her negative evidence about the father, it was the father’s evidence that he supports access between the child and the maternal grandmother. I find that it is in the child’s best interests to have access with the maternal grandmother. This is particularly important as the maternal grandmother represents the maternal side of the family and will be able to promote contact between the child and her extended maternal family.

[311] There was evidence that the father is a smoker and that he had made an effort to quit smoking, including seeking assistance from his doctor. The order below addresses this matter.

[312] The Society is encouraged to assist the father by arranging for a family support worker to attend periodically at his residence to provide any necessary guidance and assistance for a period of time subsequent to any transition period. Support should also be considered where the father can call a family support worker, or other person, for any brief telephone advice.

[313] The Society, pursuant to the court’s request, had provided a list of terms and conditions that could be included in a supervision order; many of those conditions are reflected in the order below.

ORDER

[314] I make the following order:

1. The child is placed in the care and custody of the father for a period of ten months subject to supervision by the Society and subject to the following terms and conditions:

(i) the father shall not leave the child in the care of any person unless that person has been approved, in advance, by the Society;

(ii) the father shall advise the Society of the full names of any adults spending significant time in the home or staying overnight in the home;

(iii) the father shall sign all necessary consents for the release of information to and from the Society, as requested by the Society;

(iv) the father shall allow scheduled and unscheduled access to the home and cooperate with a worker and/or family support worker from the Society, as requested by the Society;

(v) the father shall allow a Society worker to have independent access to the child;

(vi) the father shall inform the Society of any change of address and/or telephone number prior to such change occurring;

(vii) the child’s principal place of residence shall not be changed from London, Ontario;

(viii) the father shall ensure that the child attends daycare on a regular basis, and if directed by the Society, the father shall ensure that the child continues to attend at her current daycare;

(ix) the father shall ensure that the child is seen regularly by a family physician, at a frequency recommended by the family physician, and follow through with all medical treatment as recommended by the family physician;

(x) the father shall apply for, obtain and provide to the Society a police record check report within three months;

(xi) the father shall participate in parenting education as recommended by the Society;

(xii) the father shall participate in counselling as recommended by the Society;

(xiii) the father shall not use or be under the influence of alcohol or illegal substances while in a child caretaking role or in the presence of the child;

(xiv) the father shall not use alcohol or any illegal substance and shall not permit others to use alcohol or any illegal substance in the home;

(xv) the father shall not use any form of physical punishment on the child;

(xvi) the father shall not allow any other person to use any form of physical punishment on the child;

(xvii) the father shall not use any physical or verbal aggression in the presence of the child and/or at any time while the child is in the home;

(xviii) the father shall ensure that the child is never left unattended at any time;

(xix) the father shall not smoke in the home, shall ensure that no one else smokes in the home and shall ensure that the child is never inside a motor vehicle while the father, or anyone else, smokes in the motor vehicle.

2. For the four weeks immediately following the date of this order, and to assist the child in transitioning from Society care, the following terms and conditions shall apply:

(a) subject to paragraph (c), the Society shall direct the schedule of time that the child continues to spend with the foster mother, including overnights, while transitioning to the father’s care;

(b) the schedule of time referred to in paragraph (a) is subject to the following:

(i) the transition shall emphasize, initially, non-overnight time with the father, with the overnight time to increase during the transition; and

(ii) the father’s overnights during the transition are subject to the following minimums: at least one overnight during the first week; at least two overnights during the second week; at least three overnights during the third week; and at least four overnights during the fourth week;

(c) the participation of the foster mother in implementing this transition is subject to the foster mother’s consent, and any time that the child spends with the foster mother during the transition shall be access pursuant to s. 58(1) of the Child and Family Services Act.

3. The maternal grandmother shall have reasonable access to the child. The Society shall assist the father and the maternal grandmother in facilitating an access schedule, including the location of access exchanges, which may be at the Society’s premises if so directed by the Society.

4. The foster mother shall have reasonable access to the child. The Society shall assist the father and the foster mother in facilitating an access schedule, including the location of access exchanges, which may be at the Society’s premises if so directed by the Society. If the foster mother participates in the transition schedule, then the access provisions in this paragraph shall take effect following the transition schedule.

5. In making access arrangements for the foster mother and maternal grandmother, consideration shall be given to including overnights.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: November 17, 2017

SCHEDULE A

PAGE 1 BRIEF OVERVIEW AND SYNOPSIS OF THE FINAL ORDER 3 THE SOCIETY’S EVIDENCE 8 A. Evidence of Anna Gavin 9 B. The Father’s Supervised Visits 10 C. Melissa Sheffield’s Access Notes 11 (i) November 2, 2016 (10:15 a.m. – 11:15 a.m.) 12 (ii) November 9, 2016 (10:15 a.m. – 11:15 a.m.) 13 (iii) March 1, 2017 (10:15 a.m. – 11:15 a.m.) 14 (iv) March 22, 2017 (10:15 a.m. – 11:15 a.m.) 16 (v) March 29, 2017 (10:15 a.m. – 11:15 a.m.) 17 (vi) April 12, 2017 (10:15 a.m. – 11:15 a.m.) 18 (vii) April 19, 2017 (10:15 a.m. – 11:15 a.m.) 19 (viii) May 3, 2017 (10:15 a.m. – 1:30 p.m.) 20 (ix) May 10, 2017 (noon to 1:30 p.m.) 21 (x) June 7, 2017 (10:15 a.m. – 1:30 p.m.) 22 (xi) June 21, 2017 (10:15 a.m. – 1:30 p.m.) 29 (xii) July 5, 2017 (10:15 a.m. – 1:30 p.m.) 30 (xiii) July 12, 2017 (10:15 a.m. – 1:30 p.m.) 35 (xiv) August 9, 2017 (10:15 a.m. – 1:30 p.m.) 36 (xv) August 14, 2017 (12:30 p.m. – 1:30 p.m.) 39 (xvi) August 21, 2017 (12:30 p.m. – 1:30 p.m.) 45 D. Discussion Re: Ms. Sheffield’s Evidence ... E. Evidence of Karen Fisher – Access Supervisor ... F. Evidence of Linda Andrews – Access Supervisor ... G. Evidence of Robin Pridding – Access Supervisor ... H. Evidence of Sarah Kaczynski ... THE PARENTS ... A. The Mother ... B. The Father ... FINDING IN NEED OF PROTECTION ... DISPOSITION ... A. The Law ... B. Discussion as to Disposition ... ORDER

[^1]: Some examples of topics are: Crying and Comforting Our Baby; Diapering, Dental, Bathing and Development; Feeding Your Baby; Safety and Safe Sleep; and Introduction to Circle of Security.

[^2]: The cases cited by Chappel J. are (a) at footnote 4: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] S.C.J. No. 37, 2 R.F.L. (4th) 313, 18 O.R. (3d) 160 (note), 165 N.R. 161, 113 D.L.R. (4th) 321 (S.C.C.); and (b) at footnote 5: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), Ibid.; Catholic Children's Aid Society of Hamilton v. M. (M.A.), 2003 CarswellOnt 1122 (Ont. S.C.J.).

[^3]: The cases cited by Chappel J. are (a) at footnote 9: Catholic Children's Aid Society of Toronto v. S. (S.), 2010 CarswellOnt 10496 (Ont. C.J.); Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J.), 1996 CarswellOnt 1428 (Ont. Div. Ct.); Children's Aid Society of Toronto v. U. (L.), 2008 CarswellOnt 3192 (Ont. S.C.J.).; and (b) at footnote 10: Catholic Children's Aid Society of Toronto v. S.(S.), Ibid; Catholic Children's Aid Society of Hamilton v. M. (M.A.), [2003] O.J. No. 1274, 2003 CarswellOnt 1122 (Ont. S.C.J.).