FCSFLA v. A.D. and M.C., 2018 ONSC 2323

KINGSTON COURT FILE NO.: 450/16

DATE: 20180410

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant

and

A.D. and M.C., Respondents

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Ms. Deborah H. Souder, for the Applicant Society

Mr. Stephen L. Zap, for Respondent A.D.

Mr. Douglas R. Haunts, for Respondent M.C.

HEARD: February 20, 21, 22, 23, and 26, 2018

REASONS FOR JUDGMENT

Nature of the Case/Positions

1This is a status review application pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “Act”) with respect to the male child K.C. who was 1 year and 8 months old at the start of trial. The applicant Family and Children’s Services of Frontenac, Lennox and Addington’s (“Society” or “CAS”) is seeking Crown wardship without access. The respondent mother A.D. opposes the application and seeks to have the child returned to her care pursuant to a supervision order. The respondent father M.C. also seeks to have the child returned to his care “possibly under supervisory conditions”. At trial he indicated that in the alternative he supports the mother’s position.

Factual Summary

2At the time of trial the father was 33 years old and the mother was 24 years old. The bulk of the history and evidence in this case was not disputed. Indeed the respondents for the most part adopted the Society’s summary of the evidence in its closing argument.

Early Circumstances/Relationship

3The mother and father indicated that their relationship started about five years ago.

4While not particularly relevant to this case, the father disclosed that at some point, possibly before they met, he was convicted of possession of marijuana but received a discharge.

5The mother disclosed an incident in 2013 when she admitted she hit the father over the head with a cell phone causing him to bleed. She claimed that he assaulted her first but did not give any details. As seen below the father’s position, by way of a general denial, was that he has “never laid a hand” on the mother.

6The mother said that in 2013 the father broke into her mother’s home, trashed it, and tried to stab her in the eye. She said he was convicted of both break and enter and assault against her. She provided no more detail about the alleged incidents, and her account of the convictions was hearsay. The father, however, admitted in his pleadings that he was charged in 2015 with violating his criminal no-contact order, break and enter, and uttering threats. Upon cross-examination he also admitted there was an assault charge relating to the mother. Like her, he provided few details, except to say she suffered no injuries. He said he was told by authorities that he would not be convicted if he kept the peace, but when he breached the no-contact order he had to face both the breach and the assault charges and he pled guilty. This contradicts the inference he wants the court to draw from his assertion that he has never laid a hand on the mother.

7There were no criminal records or reports available, but the father’s admissions and both parents’ timelines suggest that after he pled guilty to the assault the father received a conditional discharge. He then breached probation, pled guilty to the breach, and was sentenced on that and the assault. There was no evidence about what happened to the break and enter charge. I am unaware of any pre-sentence incarceration, the length of the actual sentence, or the terms of any post-conviction probation. The father only admitted that he spent a total of two to three months in jail.

8After the father was released from jail the parents continued their relationship, the mother indicating she was unaware whether there were any restrictions from probation conditions.

9Prior to the birth of the child the mother chronicled two other incidents of domestic violence. She indicated that one summer the father threw her over a couch and punched her in the face. She said that three police came and they took him home as she was living with three roommates at the time, but there were no criminal charges laid. I note that it would be unusual for the police to simply drive the father home without charges if the mother had told them her account at the time. She said that on another occasion when she was pregnant they argued and the father pulled her by the hair. The father provided the same blanket denial as above, namely that he has never laid a hand on the mother.

10Where the parents did agree was that they argued a lot. The mother said it was usually over money. The father said it was often over that, but also often as a result of the mother being jealous and constantly and wrongly accusing him of being unfaithful. They also agreed that the father was a heavy drinker and that alcohol was involved in their early conflicts.

Birth of K.C.

11K.C. was born in the early summer of 2016. He is both parents’ first child. The father advised that he quit drinking after the birth, and there is no evidence to the contrary.

12At that time the parents were residing together at the home of father’s mother. The Society became involved following a referral from the Kingston General Hospital regarding the mother’s cigarette smoking and marijuana use. If these were concerns at the time they no longer are. About two weeks after the birth there was an incident of conflict involving the parents. The mother’s father was involved and claimed he had been assaulted by the father. The mother agreed to a safety plan that had her staying with family on the condition she and the child would not be alone with the father. Within two weeks the parents reconciled, and the mother and child moved back in with him.

13About five weeks later in mid-August 2016 the parents separated again, and the mother and child began residing with her aunt T.S. The mother indicated that she had a bruise on her cheek and this was observed by Society staff. She further indicated at trial that she had “bruises from head to toe”. The implication was that these were the result of domestic violence, although there was no reference to any specific incident. The Society suggested that she should make a complaint against the father to the police. The mother indicated that she did attend the police station, made a report, but then left without giving a statement.

First Apprehension

14The mother agreed with the CAS to a second safety plan -- the same as the first one -- that there would be no contact between her and the father with the child present. However, in early September 2016 the mother and father spent several days together with the child, including an overnight trip to Ottawa. After that there was another incident of conflict with the child present and, per the court’s endorsement record, K.C. was apprehended on September 13, 2016. On September 16, 2016 he was placed with the mother’s aunt T.S. and her partner by way of an interim supervision order on terms and conditions.

Second Apprehension

15The conditions of the order included that the mother reside at her aunt’s home, that the access arrangements be as established by the Society, and that the father not attend the residence without the Society’s consent in writing. The mother acknowledged that in the next two weeks the father was at times at the aunt’s home with her and the child unsupervised in violation of the order. The father attempted to minimize this violation by maintaining that when he attended at the house he was only on the sidewalk. The mother acknowledge that it was she who would call him to come over.

16Shortly afterwards T.S. and her partner advised they were unable to continue as a placement for the child. The day after, the father was again at the mother’s aunt’s home this time waiting for the mother and child to return. The mother had texted him to meet, but she had recently relocated with the child to the home of a friend without advising the Society. She was therefore coming to him in a car that was being driven by her friend’s husband. Also in the car was her friend, her older sister E.D., and the child. Her sister knew the father was not supposed to be at her aunt’s, and after arriving a decision was made to drive away to avoid contact. Not entirely surprisingly the father, having been summoned by the mother and with no explanation of this change in plan, followed them. While the mother and her sister characterized what happened after as road rage – the father getting close up behind them in his vehicle waiving and honking – the sister in her evidence conceded that the whole incident was the mother’s fault. I would add that the father was not blameless; despite the mother’s invitation he knew that he was not supposed to have unauthorized access to the child.

17As the placement with T.S. was no longer viable and with the parents disregarding the interim order, the Society apprehended the child for a second time on October 20, 2016. On October 24, 2016, on consent, the child was ordered into the interim care of the Society. That was about 16 months ago. He has remained in the same foster home ever since.

Protection Finding and 4-Month Society Wardship Order

18Between October 24, 2016 and February 22, 2017, the Society did not receive any further reports of conflict between the parents, even though they had reconciled following the latest apprehension. Both parents indicated a willingness to engage in individual and relationship counselling and to receive education on the impact of conflict on young children. At trial each provided evidence of the counselling efforts they had undertaken including PARS (Partner Assault Response program), Bounce Back and Thrive, and personal counselling.

19On February 22, 2017, the parents consented to a 4-month Society wardship order. The court found that the child was in need of protection pursuant to sections 37(2)(b)(i) (risk of physical harm) and 37(2)(g) (risk of emotional harm). There was no Statement of Agreed Facts but it is not disputed that the protection findings were directly related to the domestic conflict following the birth of the child.

20The parents’ evidence, primarily through admissions, was relied on for the bulk of the above facts. Most of the evidence of the Society workers in this trial picked up during the period of Society wardship.

First Reunification Attempt/Black Eye Injury

21As a result of positive efforts by the parents in engaging with services and with no further reports of conflict between them, the Society began the process of increasing access and decreasing supervision. Access eventually moved to overnight in March 2017, all as part of a plan to see if the child could be safely returned to the care of his parents. The Society was clear and both parents in their evidence confirmed that prior to the overnight access they were told that the continuing conflict between them was the Society’s primary concern. Both parents said that they understood and indicated that their desire to have the child returned to their care would be a motivating factor for avoiding conflict.

22Following the second overnight access visit, the Society received a community report that the mother was seen with a black eye. The Society’s Family Services Worker (“FSW”) investigated, attending at the parents’ home unannounced on March 23, 2017. The mother was in the shower and the father immediately alerted the worker to the injury, explaining that an unsecured shelf with a metal bracket attached had fallen on the mother when she was reaching to get the baby bathtub in their storage closet. The worker then observed the mother who gave the same explanation. She had a gash above her left eye, the area around the eye was blackened, and her eyeball was bloodshot. The mother had not received medical treatment as the parents were worried that people would think it was domestic violence due to their file history. The worker stressed the importance of openness and honesty, and both parents reiterated their commitment to raising the child together. The worker urged the mother to seek medical treatment.

23The next day an access supervisor observed the black eye and emailed the FSW to update her. The FSW responded:

Thank you for passing this on. I did hear this yesterday morning, and met with [the parents]. After discussing the incident with them, I do not believe this was an incident of domestic violence. Due to the history, however, I appreciate being alerted to this, and to any future concerns you may have.

24Several days later the FSW checked in on the parents, and the mother indicated that she had opted not to seek treatment for her injury, which the worker observed to be healing.

25The father’s account of the black eye has remained consistent to date. However, several days later the mother disclosed during counselling that the black eye was the result of an incident of domestic violence. She said that the father had punched her in the face while he was holding the then 9-month-old child. This was reported to the Society.

26The results of that disclosure were immediate. Access was suspended. A Society worker made arrangements for the mother to go to a woman’s shelter.

27A couple of days later the FSW met with the mother who indicated that she had previously contemplated going to the shelter but no beds were available. She asked the worker for a support letter to assist with obtaining housing. She spoke about her plan of being independent. The circumstances of the alleged assault were not discussed, and the mother’s only complaints about the father were that they argued about finances, she was tense and unhappy with him, and that the father’s parents had witnessed his being violent towards her in the past when he pulled her hair. The mother said she intended to go to the hospital to assess her eye injury and “previous injuries”, and that she was considering making a police report.

28The next day, being April 4, 2017, the FSW spoke to both the father and his mother, the paternal grandmother. While the father confirmed that he and the mother fight regularly about finances, he maintained the original explanation for the eye injury. His theory was that the mother’s account was financially motivated in that she wanted to get out of paying bills by moving to a shelter. He indicated that the mother was irrational, and that in fact she was the abusive one in the relationship. He said she constantly accuses him of cheating on her and has hit him. The father also indicated that he loved the mother, and that she came to his home the day after she left to go to the shelter, and that they continued to communicate on a daily basis. The father’s mother did not give evidence but per the agreement in the Trial Scheduling Endorsement her hearsay statements were admitted unchallenged. She indicated that she had witnessed violence by the mother on the father, and had seen bruises on him. She confirmed seeing the parents together since the mother left.

29The next day the FSW along with a counsellor met with the mother. She was told about programs that were available at the shelter. They both encouraged her to go to the police. They discussed with her the importance of documenting incidents of domestic violence and medically documenting injuries. However, the mother indicated that she was reluctant to press criminal charges, and that while she wanted to end the relationship she at the same time wanted to remain on civil terms with the father. She gave some details of the alleged assault indicating that they had argued, the child woke up, and when she went to pick up the baby he punched her. This was somewhat different than her first account. She explained she initially supported the shelf story and lied to the CAS because she was worried about not seeing the child, losing custody permanently, or having to go back to court as a result. Notably, fear of the father was not given as a reason. The mother initially denied having seen the father since leaving the home, but when pressed admitted that she had seen him twice, and had driven with him in the car. She said he had threatened to kill them both while driving, and then he tried to stop her from leaving the apartment. However, she indicated that when he picked her up a couple of days later she had not been concerned for her safety. Needless to say, at times it was difficult to make sense of the mother’s evidence.

30Access was suspended for a short period and then reinstated as separate access for each parent either in a supervised playgroup or supervised by a family member. Overnights were discontinued and the Society stopped its plan for reintegration.

31On April 17, 2017, the police reported to the Society they had been called to the father’s apartment the previous evening due to a loud verbal argument between the parents. The mother was driven back to the shelter by the police.

32On April 27, 2017, the Society brought this status review application seeking Crown wardship. The reasons it cited were: the child’s young age, the importance for him of a permanency plan, the fact that a kin placement was already tried but was unsuccessful, a lack of further kin plans, and most importantly the parents being unable to follow through to address their conflictual and unstable relationship thereby posing risks for the child, despite clear expectations and engagement with services.

33On May 3, 2017, the police advised the CAS that a neighbour reported hearing yelling at the father’s apartment on May 1, 2017. When the police attended the parents confirmed that they were having a heated argument. There was no evidence or allegations of violence. The mother was still living at the shelter at the time.

34The Society again met with each parent to confirm with them that their ongoing conflict was the primary protection concern impacting any plan to reintegrate the child into their care as a couple or individually. Each parent once again confirmed they understood this, and both indicated that their relationship was over and they would both focus on moving forward with the goal of a return of the child to parental care.

35I would note here that the FSW and service providers were continually discussing domestic conflict with the parents and its impact. This started soon after the child was born. The parents indicated throughout that they understood and would take the necessary steps to stop it. Following the May 1, 2017 incident both parents said to the FSW that that they were ending their relationship and planned no further contact. However, the father reported to the FSW on May 29, 2017 that the mother had called him the evening before, they had an argument and she then sent harassing text messages. He said that she threatened that she was going to press charges for the purpose of sending him to jail so that she could have the child.

36The parents continued receiving services. The mother was asked in cross-examination what she learned from the Woman’s Counsellor at K3C Counselling Centers about avoiding domestic violence. The mother said that in her seven sessions up to June 29, 2017 (the date of the K3C report) she had learned that in order to separate from the father she needed to keep distance between him and her, not to text, see, or call. She said that she understood and got that advice, but that regardless they continued to have contact.

Second Reunification Attempt/Christmas Eve Incident

37The Society did not receive any further reports of conflict between the parents since May 29, 2017. It appeared that they really had separated and were avoiding contact and therefore avoiding conflict. The mother was no longer at the shelter and each had their own separate residences. Access with the child continued to be positive with both, so the Society again started the process of increasing access, decreasing supervision, and moving to overnight visits.

38Unbeknownst to the Society, there was another incident around September 2017. The father called his youngest sister indicating that he was bleeding from the head where the mother struck him with an object. The sister told him she would call the police. He told her not to. She did anyway. When the police attended the hospital where the father received stitches, he told them that he had hit his head on a kitchen cupboard.

39The mother’s older sister indicated she was aware in October of 2017 that the parents were talking and hanging out together. She assumed it was a couple of nights a week. While admitting they were together, for some reason the mother made a point of indicating they were not “intimate”, although her own sister assumed otherwise.

40In November of 2017, based on the apparent progress of the parents but unaware of the contact that was occurring, the Society began planning for the potential reintegration of the child to their separate care. It applied for funding for child protection mediation to allow the parents to work out a time sharing arrangement and to establish ground rules for communication and interaction concerning the child. If an agreement was reached, the Society was planning to move forward with a supervision order incorporating the terms and then “road test” the arrangement to see if the parents could parent individually without conflict.

41In December, the Society was advised by the foster parent that the mother had been driven to two playgroup visits by the father and that they had been seen together in the community. When confronted with this information, both admitted that this contact had occurred. In their evidence at trial they not only acknowledged these instances, but also disclosed greater contact in line with the mother’s sister’s evidence.

42Once again, the FSW met with the parents on December 22, 2017, the mother in person and the father by telephone. She made it very clear to each of them that (1) a renewal of their relationship, (2) their presence together with the child at access, or (3) any further police reports of conflict would derail the plan of returning the child in some type of shared time arrangement. The parents admit these communications, and indicated that they were clear about what they were being told.

43Notwithstanding that, the very next day on December 23, 2017 the parents by mutual arrangement got together with the child. They went to Canadian Tire, then went to City Hall to skate with the child on the maintained outdoor rink. The father’s older sister met them there. She indicated that she was surprised to see the mother present, but she did not inquire why being under the impression the CAS was moving towards a resolution. The father did not tell his sister they were not to be together for access. Afterwards everyone went to the father’s apartment for a festive family gathering. The father’s mother and youngest sister were there. The youngest sister on seeing the mother and aware of the past restrictions, questioned the father about her presence. He brushed her off in a way that suggested it was okay. The father admits that he misled his sisters by leaving the impression that he and the mother were allowed to be together with the child while working on a co-parenting plan.

44The family had a nice evening and Christmas meal; the youngest sister described it as a very happy time. The sisters left early in the evening but both the mother and the child’s grandmother stayed. The parents then put the child to bed together and watched television. The mother slept over. She indicated that while she and the father shared a bed they were not intimate. The next morning, no surprise, the parents got into an argument. They gave different accounts on what it was about, and neither made much sense. The father said the child had opened a present containing a toy Mexican toolkit and the mother then accused him of sleeping with a Mexican. The mother said the father wanted her to go out and buy cigarettes for him.

45The mother indicated that as a result of the argument the father grabbed her by the hair, pulled her out into the hallway of the apartment building, and began choking her. The noise in the hallway alerted other tenants on the floor who came out, and someone called the police. The mother said that she didn’t think the child would have heard the incident, but then conceded that he might have. Certainly the tenants in the other units did, and the argument started from within the father’s apartment where the child was. One tenant who knew the mother offered her sanctuary in her apartment. However, the mother chose to leave the scene. She walked to a grocery store, then took a bus home. She said the police arrived at her home a few hours later indicating they had already arrested the father based on accounts given by the other witnesses.

46The mother said the incident happened around 10 a.m. She initially claimed that almost immediately following the incident she called the foster parents from her cell phone. She then said that it was after she calmed down and took the bus home. She then said she called the foster mom about four hours later, at around 2 p.m. On further cross-examination, she conceded that she did not call the foster mother at all until the next day, and only then to ask about her next access visit. It was only when the foster mother indicated to the mother that she knew about the incident that the mother asked how the child was.

47Because the father is subject to criminal charges counsel to some degree avoided asking him about details related to the incident. He simply said that they argued, he opened the door to get the mother to leave, she pulled him into the hallway, and then she ran off. The police attended his apartment and he was arrested for assault and possession of cocaine. As noted those charges are still before the criminal court. Despite the implication, there is no issue in this case of drug use by the father. This was the first time that the mother has ever given a statement to the police about domestic violence by the father, although with no other domestic violence charges laid she appears not to have disclosed any previous alleged incidents.

48It is clear that, knowing that the access was prohibited, the mother left the father’s apartment/hallway hoping that the Society would not find out. She chose not to call the police or alert the foster parent or Society. It is also clear that the argument started in the apartment where the child was. The arrest of the father also occurred there.

Current Situation

49As a result of this last incident, access was returned to supervised. Group access and overnights were discontinued. The Society advised both parents that the reintegration plan was no longer possible.

50The father’s Recognizance of Bail is dated December 27, 2017. One of the conditions is that he not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with the mother. Another condition requires him to live with his oldest sister as his surety. There is no evidence of any contact between the parents since that Christmas Eve incident, less than two months before the start of the trial.

51The Society’s position remains as in the status review application, namely Crown wardship without access. Notwithstanding the inability of the parents to remain separate and apart and to avoid engaging in conflict, their access visits individually with K.C. remain positive, child focused, and without concern.

52The child has remained in the same foster home since his second apprehension, about 17 months ago. By all accounts he is developmentally on track and thriving. The foster parents have indicated that they will adopt him if he cannot be returned to the parents or kin. They have a good relationship with each parent, and if an adoption were to occur they are willing to entertain some form of openness.

Issues and Analysis

53The parents agree that the test on the Society’s status review application is what disposition is in K.C.’s best interests, provided he is found to be in continuing need of protection. They agreed to my making that latter finding. I do so in view of, but also regardless of, the consent. Both parents admitted that there are risks in exposing a child to domestic conflict, and while disagreeing on the specific accounts they both admitted that such incidents have regularly occurred.

54As to possible dispositions, per section 65 of the Act the court is limited to the orders available under section 57 and 57.1. In the context of this case the parents are not suggesting that the child be returned without conditions, and there is no evidence of a kin plan despite thorough investigation by the Society. The options, then, are either a supervision order to one or both parents (s. 57(1)1), or Crown wardship (s. 59(1)3). While the length of time the child has been in the care of the Society precludes me from making a society wardship order (per s. 70(1)(a)), I could per s. 70(4) still order a brief period of society wardship, about one month, if satisfied that it is in the child’s best interests. No party requested such an order. Lastly, if Crown wardship is ordered, a decision on each parent’s access will be required, notwithstanding an oversight in the mother’s pleadings.

55Even though this is a status review application, I find from the summary of the evidence above that the Society has used its full resources and drawn on outside services to assist the parents both before and after intervention under the Act.

56Some further brief comments on the efforts to create kin plans. I have mentioned some family already in the fact summary. The mother’s father and mother (the maternal grandparents) live in Amherstview, just west of Kingston. The mother has a 19 year old brother and two sisters, an older one age 26 and the younger one age 14. They all live in her parent’s two bedroom apartment, except for her brother who comes and goes, seemingly living there part-time. The maternal grandparents are struggling with the behaviors of their 14 year old daughter (the mother’s youngest sister) to the extent that it has affected their employment. While the maternal grandmother indicated some interest in presenting a plan, it was and remains clear that she does not have, nor has put forward, any viable proposal. The father’s parents separated some time ago. His father still lives in Kingston and is 60 years old. His mother re-partnered and he has two younger half-sisters. One is about 28 years old, married with a child and step-child, and lives in a house she owns just north of Kingston. The other is 18 years old, single, and lives in a condominium she owns in Kingston. While willing to support the father, no members of his family put forward a plan to care for the child. The initial kin plan with the mother’s aunt and her partner was short lived. When the Society arranged a mediated Family Group Conference in July 2017 to develop a family plan for the child, no family members came forward. In my view, although this is a status review application, the considerations in section 57(4) were fully addressed and, more specifically, no kin plan is being put forward on this status review application as a disposition for the court to consider in the child’s best interests.

Best Interests

57The circumstances the court is required to consider when determining which disposition would be in the child’s best interests are set out in s. 37(3). I have examined them and note the ones arising from the evidence and submissions that I consider relevant.

Plans

58Not only does subsection 37(3)8 indicate that the court can consider the merits of the plans of each party, section 56 and subsection 53(1)(b) require it.

59Put simply, the parents’ plan is for the court to impose on the Society almost the same reunification plan it has already tried twice before without success. However, given the timing restrictions in s. 70, there is no longer any realistic opportunity for a graduated return. The parents in their testimony tried to assure the court that this time it will be different, and that there will be no more contact or conflict. I was urged to rely on and take notice of the apparent effect the father’s current bail conditions have had in stopping contact. However, I note that the parents were back together very quickly after the father’s previous conviction for assault on the mother. If their plan is realistic, what has changed?

60The mother’s older sister said that she does not support the mother with the father, she has talked to her about it, and that the mother listens to her for the most part. But obviously not on that point. She was supportive of her sister and said she believed the mother was now prepared not to have contact with the father. However, she did concede that the mother has lied to her before and she acknowledged that the mother had a “soft spot” for the father. Her reasons for believing the mother this time were the current criminal charges and how serious they are, and the situation not being good or healthy for the child. However, similar circumstances have never stopped the mother from continuing contact with the father in the past. Further, the mother’s reaction following the last incident was telling. She essentially hid hoping that the police and CAS would not find out.

61The maternal grandmother, the mother’s mother, was aware of the conflict. She said she saw bruises before the baby was born. She told her daughter that it would not get better, and that she needed to decide why she goes back or needs to go back, and that it was up to her daughter to make that happen. She said her daughter had been in love with the father and they were making plans together. However, she said she believed it would be different this time, as her daughter seemed stronger and more confident over the past two months. Asked what had changed, she referred to more support and that the “law” - understood to be a reference to the bail conditions - made her feel safer. However, the mother had all these same supports throughout and has been in protective situations in the past, particularly when she was living at the women’s shelter. It made no difference.

62The father’s family was candid about their feelings towards the mother. The paternal grandfather, the father’s father, said that the father has never had another adult relationship, and that the mother was the love of his life. The father’s younger sister said she believed the father still loved the mother.

63The parents made no real effort to convince me in formulating their plans that they were now done with each other. In closing submissions they both proposed “joint shared custody” meaning not just equal time but joint decision making. Given that they have argued heatedly and constantly about comparatively trivial matters, it does not follow that would all of a sudden change around parenting issues. As noted in Johnson v. Cleroux, 2002 CanLII 44929 (ON CA), [2002] O.J. No. 1801 (Ont. C.A.) at para. 4, “[t]he law and common sense accord on the matter of joint custody - it requires a high degree of co-operation between the parents.” The evidence is this file is replete with accounts not just of physical conflict, but of verbal arguments and harassing texts. As noted in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (Ont. C.A.) at para. 11 “hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody.”

64Both parents love the child. But they also love each other. Every family witness was aware of the conflict, and many communicated to the parents that they frowned on the relationship. Despite that, each witness acknowledged that they could not influence the parents to stay apart or remain conflict free. Despite promising to stay away from each other many times the parents were unable to do so. They freely admitted in their evidence continuing to have contact while at the same time indicating to the Society that the relationship was over. The mother’s counsel quite accurately characterized the attempt to have Christmas Eve access without conflict as a “fantasy”. I put the parents’ assurances that they are now finished with each other but will co-parent in a joint custody arrangement in that same category. A supervision order cannot protect the child when the parents while supported by services have been shown to willingly disregard direction from the Society, mislead both the Society and their own families about their relationship, and ignore a court order.

65The Society’s plan as noted is for Crown wardship. Section 63.1 directs it to make all reasonable efforts to assist a child who is a Crown ward to develop an enduring relationship within a family, and this includes adoption. It plans to place K.C. for adoption in the foster home where he has been residing for the past 17 months. As noted the foster parents have developed a relationship with the parents such that post-adoption contact between them and the child will occur. All the evidence indicates that the child is thriving in that home.

66In comparing the two, in my view it is obvious that there are serious questions about whether the parents can carry out their plan. Two similar plans have already failed. They seem to lack the ability to shield the child from their own unhealthy relationship and decisions. Their plan leaves little to assure the court that it will be permanent and provide the child with safety and security.

Needs, Care and Development

67I have considered the child’s level of development and his physical, mental and emotional needs, and the appropriate care or treatment to meet those needs (subsections 37(3)1 and 2).

68K.C. is healthy and developmentally on track, meeting all of his milestones. He has no special needs. However, he will be two years of age in two months, and is in need of permanence and stability.

Positive Relationships and Security

69I have considered the importance for the child’s development of a positive relationship with a “parent” (which does not include a foster parent) and a secure place as a member of a family (subsection 37(3)5).

70For the first aspect, all the evidence points to the child having a positive relationship and bond with both his parents. That has been secured and maintained through regular access that has been consistently attended.

71For the second aspect, the child has not been in a secure place as a member of either parent’s family. He only remained with the parents for the first three months of his life, but amid conflict and two failed safety plans. He was then placed with the mother’s aunt but that placement failed after only five weeks, disrupted by the parents’ lack of regard for the interim court order. Since then two attempts to place the child with the parents have failed as a result of their own actions and decisions.

Emotional Ties

72I have considered the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community (subsection 37(3)6). Other than the emotional ties with the parents, there is limited evidence of other adults or children in the mother’s and father’s world who have a bond with K.C. There was no evidence of a continuing relationship between the child and the mother’s aunt, the only extended family who cared for the child for a significant period of time.

Continuity of Care

73I have considered the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity (subsection 37(1)7).

74Per paragraph 71 above the Society has worked diligently to either keep him in or return him to the parents’ care. Glorious opportunities were lost; the parents chose to put their own troubled relationship ahead of their relationships with the child. The child has now been in the care of foster parents that would adopt him for over 17 months with only the parents to blame. As he was apprehended the second time at four months old, that is the only stable home he has known. To disrupt that continuity the court would need to be confident of the parents’ plan.

Delay

75I have considered the effects on the child of delay in the disposition of the case (subsection 37(3)10). It needs to be noted that while the time for a further society wardship order has for all practical purposes expired, the Society has in fact been working to return the child to the parents since the day he was first apprehended. There have been no complaints by the parents about delay, and rightly so.

76Although the father lamented the fact that there was no section 54 assessment in this case, he never sought one. There was no request for it at trial, nor any request or motion to adjourn the hearing. The parents have already squandered the better part of twenty months of assistance. They had the solution they wanted in hand less than two months before the start of trial. They were not able to follow through. From the child’s perspective, while quite young he is too old to be without a permanent plan.

Risk of Harm and the Degree of Risk

77I have considered the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent (subsection 37(3)11). I have also considered the degree of risk that justified the finding that the child was in need of protection (subsection 37(3)12).

78Simply put, the protection concerns have been consistent and have not diminished from the outset of this case. They are the same ones that justified the finding that the child was in need of protection. The primary protection concern has always been the conflict between the parents and its impact on their stability and their ability to provide safe and consistent care to their son. Everyone, including the extended family members and the parents themselves, recognized conflict as a safety risk for the child. Many promises were made by the parents to address it. They were empty promises. Disrupting the current stable placement for one that would put the child’s safety in question would be contrary to his best interests, protection, and well-being, and therefore contrary to the paramount purpose of the legislation (subsection 1(1)).

Conclusion re Disposition

79I have considered above in paragraph 64 whether the concerns of the Society could be addressed by supervisory conditions (subsections 57(1)4, 57(3), and 53(1)(d)(ii)). I am not confident that the court can craft conditions that will protect the child after the criminal process regarding the father runs its course.

80In considering all the factors above in their totality, I cannot accept either parents’ plan. I have no confidence that placing the child with either of them would be in his best interest. This is not to say that there are no positives. They both have individual parenting skills in one-on-one access with the child. However, parenting is more than just a good relationship and love. It requires, in this case, an ability to put the child’s needs ahead of one’s own. Good access does not outweigh the concerns related to the child’s safety and well-being.

81I adopt the Society’s simple characterization/summary of the difficulties. First, the parents are still attracted to each other. They are like two magnets. You can pull them apart, but when placed too close together they end up reconnecting. The evidence strongly supports this. Second, whatever the reasons and regardless of who was the aggressor in any particular incident, the parents together will always result in conflict. This was confirmed by virtually every respondent witness. Third and last, being around parental conflict is unhealthy for the child. This too was conceded by virtually every witness, and was clearly understood by the parents themselves who, given all the programs and instruction, are virtual experts.

82In the face of that basic analysis, the parents’ joint custody plan is simply wishful thinking. They have been given every opportunity to show that they can apply what they have learned, but are now up against the legislated timelines and out of further chances. There is no more time left to wait for a change that appears unlikely to happen. The child’s need for a permanent plan now takes priority. Their heartfelt desire to resume care of their child is sincere, but their plan is speculative and unconvincing. In the face of several failed experiments, it does not follow logically that a similar undertaking with few if any changed variables will render a different result. More than twenty months of working with the parents has failed to achieve any sustained progress with the core issue, and with their access still required to be supervised it has failed to get them to where either can be a full-time parent. The child is not to be the subject of further wishful but unrealistic experimentation; he is entitled to a permanent plan now. I find that the plan that is in the child’s best interests is Crown wardship, and so order.

Access

83Upon the child being made a Crown ward, the existing interim access order automatically terminates (subsection 59(2)). There is a statutory rebuttable presumption against the court making any further access order (subsection 59(2.1)). To rebut this presumption the onus rests on the parents to prove each of the following on a balance of probabilities: that the relationship between each of them and the child is meaningful to the child; that the relationship between each of them and the child is beneficial to the child; and that the ordered access will not impair the child’s future opportunities for adoption: Children’s Aid Society of the Niagara Region v. C.(J.), 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.) at para. 23. For the first two parts of the test found in subsection 59(2)(a), it is the relationship -- as distinct from the access itself -- that must be both meaningful and beneficial: T.L.K. v. Children’s Aid Society of Haldimand Norfolk, 2015 ONSC 5665. As observed in Children’s Aid Society of Toronto v. S.A. and O.E.A., 2013 ONCJ 737 at paragraphs 104 and 114, this is an extremely difficult and high onus. The presumptions have been accurately described as a “gateway” in the sense that only if rebutted can the analysis move on to the next step of considering whether access would be in the child’s best interests pursuant to subsection 58(1): see Children’s Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 at paragraph 30.

84Although the Society supports openness following adoption, it opposes access. I make the following findings with respect to the presumptions. I am satisfied from the evidence of virtually all the witnesses who saw the interactions between the parents and the child that they both have a relationship with the child that is meaningful to the child. They have been present in K.C.’s life to varying degrees since his birth. The evidence of the Society is replete with observations of positive interactions. One access worker noted the child enjoyed the visits. Another noted that the child was happy to see his mother. I am also satisfied that the relationship is beneficial to the child. All the access supervisors again identified positive relationships. One worker agreed that there was a high degree of emotion and bonding between the child and father. I have considered the detriment to the child of ending such relationships: Catholic Children’s Aid Society of Toronto v. C.C., 2015 ONCJ 334 at paragraph 138. Many of the interactions were educational or development oriented, including taking the child swimming, and the parents were noted to be engaging and encouraging. Lastly, I am satisfied that the access will not impair the child’s future opportunities for adoption. There is already an adoption plan with the current caregivers. They support post-adoption openness and have a relationship with the parents. There is no evidence the access would create delays or that the parents would disrupt the placement or be uncooperative. Further, in the context of the 2011 amendments, access is no longer a legal impediment to placing the child for adoption (see sections 143 and 141.1.1).

85Having met all three presumptions the parents are through the ‘gateway’ and what remains to be determined is what access if any would be in the child’s best interest. As to the general approach, I adopt the following passage from Children’s Aid Society of the Region of Peel v. A.R., 2013 ONCJ 347 at paragraph 90:

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

86No party in this case addressed what the post-Crown ward pre-adoption access should look like. Granted, any access order is expected to have a short life span in view of the adoptive plan. As noted in the A.R. decision, the expectation is that the access will be significantly less than the pre-Crown wardship regime. In that decision access was reduced to once per month for the four year old child to “allow the mother and child to maintain their connection and … hopefully allow the child to have some security in knowing that his biological mother is still a part, albeit a much smaller part, of his life” (para. 90). How much post-Crown-wardship access should be ordered depends on the child’s best interest in light of the specific facts in each case. The decision in Children’s Aid Society of the Niagara Region v. B.1, 2012 ONSC 1106, dealt with a five year old child in a home that was planning to adopt and willing to allow post-adoption contact with the mother. In an effort to recognize the new family the access was ordered to be “no more than once a month”. In a similar situation but with children aged 2½ and 3 the court in Children’s Aid Society of the Region of Peel v. D.W., 2013 ONCJ 346 at paragraph 97 granted access once every two months with the length of the visits and the time and place of the access to be in the Society’s discretion.

87In my view (1) the purpose of post-Crown-wardship access, (2) the concerns identified above relating to disposition, and (3) the existence of an already identified adoption plan, all support access in the Society’s discretion relating to the time, place, duration, and the level of supervision. So ordered. I also order that it be a minimum of once per month, but otherwise leave the frequency in the Society’s discretion. I underline that this is access. I have not considered openness, and the order I am making is not intended to set up a regime for post-adoption contact. I encourage all involved to work on openness arrangements that meet the child’s needs.

Decision

88In summary, there are ample grounds in the evidence to find that K.C. is in continuing need of protection. That order is made on consent. Not on consent, the child is hereby made a Crown ward with access as set out above. This is not an appropriate case for costs.