Valoris for Children and Adults of Prescott Russell v. S.M.N. et al.[^1]

[Indexed as: Valoris for Children and Adults of Prescott Russell v. N. (S.M.)]

Ontario Reports

Ontario Superior Court of Justice

Charbonneau J.

June 12, 2018

144 O.R. (3d) 424

Case Summary

Family law — Children — Child welfare — Applicant originally placing child with foster mother with intention that foster mother would adopt him — Applicant changing its mind and supporting paternal aunt's plan to adopt child — Applicant applying for status review — Removing child from foster mother's care would have negative impact on his emotional well-being and development — Child and Family Services Act not conferring any right on foster mother to challenge applicant's decision to withdraw child from her care and place him in aunt's custody under s. 57.12 of Act — Order under s. 65(1) of Act not being possible as it would not be in child's best interests — Court exercising its parens patriae jurisdiction and declaring child to be Crown ward with express purpose of being adopted by foster mother — Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 57.12, 65(1).

In October 2015, the child was declared in need of protection and placed in the applicant's care as a ward of the Children's Aid Society. The child was placed with the foster mother for adoption. The applicant applied for a status review, seeking to have the child declared a Crown ward without access for adoption by the foster mother. The child's paternal aunt then became involved and wished to adopt the child. The applicant filed an amended application for status review, this time favouring adoption by the aunt. The foster mother was made a party to the application.

Held, the child should be adopted by the foster mother.

The child had been in the foster mother's care for 28 months. He had exhibited major anxiety issues and attachment problems in his first year, and was now happy, healthy and closely attached to the foster mother. Removing him from the foster mother's care would have a negative impact on his emotional well-being and development. The Child and Family Services Act did not confer any right on the foster mother to challenge the applicant's decision to withdraw the child from her care and place him in the aunt's custody under s. 57.12 of the Act. Section 65(1) of the Act, which authorized the court to make the custody order sought by the applicant and the aunt, stipulated that the order had to be in the child's best interests. As it would not be in the child's best interests to remove him from the foster mother's care, the court could not make any of the orders provided for in s. 65(1). There was therefore a legislative gap that enabled the court to exercise its parens patriae jurisdiction. The exercise of that jurisdiction was the only way in which the court could protect the child's best interests. The child was declared a Crown ward with the express purpose of being adopted by the foster mother. His best interests required that he remain under her care and that he be adopted by her. The foster mother was directed to immediately complete all of the forms and steps required to obtain an adoption order. [page425]

Cases referred to

A. (A.) v. B. (B.) (2007), 83 O.R. (3d) 561, [2007] O.J. No. 2, 2007 ONCA 2, 83 O.R. (3d) 575, 278 D.L.R. (4th) 519, 220 O.A.C. 115, 150 C.R.R. (2d) 110, 35 R.F.L. (6th) 1, EYB 2007-112046; Beson v. Newfoundland (Director of Child Welfare), 1982 32 (SCC), [1982] 2 S.C.R. 716, [1982] S.C.J. No. 95; Catholic Children's Aid Society of Hamilton-Wentworth v. G. (M.), [2005] O.J. No. 3616 (S.C.J.); Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), [1994] 2 S.C.R. 165, [1994] S.C.J. No. 37; Children's Aid Society of the County of Renfrew v. D. (J.), [2011] O.J. No. 413, 2011 ONSC 744, 197 A.C.W.S. (3d) 135 (S.C.J.); D. (M.) v. L. (L.) (2008), 2008 9374 (ON SC), 90 O.R. (3d) 127, [2008] O.J. No. 907, 52 R.F.L. (6th) 122, 166 A.C.W.S. (3d) 126 (S.C.J.); G. (C.) v. Catholic Children's Aid Society of Hamilton-Wentworth (1998), 1998 3391 (ON CA), 40 O.R. (3d) 334, [1998] O.J. No. 2546, 161 D.L.R. (4th) 466, 110 O.A.C. 338, 39 R.F.L. (4th) 389, 80 A.C.W.S. (3d) 582 (C.A.); R. v. Ndiyo, [2008] O.J. No. 3638 (S.C.J.); R. (C.) v. Children's Aid Society of Hamilton, 2004 58384 (ON SC), [2004] O.J. No. 3301, [2004] 4 C.N.L.R. 1, 8 R.F.L. (6th) 285, 132 A.C.W.S. (3d) 1107 (S.C.J.)

Statutes referred to

Child and Family Services Act, R.S.O. 1990, c. C.11 [rep.], ss. 1(1), 37(3), 57.1, 64, 65, (1), 65.2(4)

Children's Law Reform Act, R.S.O. 1990, c. C.12

APPLICATION for a status review.

Anaïs Paré-Chouinard, for applicant.

Emily Gallagher, for S.M.N.

Judith Charest, for S.G. and V.C.

Julie Bergeron, for respondent A.M.

[1] CHARBONNEAU J.: — AN was born on May 1, 2015. SMN is the biological mother and her biological father is SG. When AN was born, SMN had no longer been cohabitating with SG for several months. She was cohabitating with CP. At that time, SG did not have any contact with AN. CP did not participate in the judicial proceeding.

[2] In January 2015, Valoris had received information that the biological mother would have a great deal of difficulty properly caring for her child when she was born. Accordingly, Valoris was involved as soon as AN was born. After a period of several months, on July 3, 2015, Valoris obtained a temporary order from the court without prejudice, placing AN under the care and custody of Valoris for a three-month period. AN had been placed in foster care with MD on June 30, 2015.

[3] The total parental incapacity of the biological mother and her complete disinterest in the child were noted and, on October 22, 2015, Valoris obtained a final order from the court placing AN under the Valoris' care as a society ward.

[4] The respondent AM (the foster mother) had already been in contact with Valoris for a year in order to adopt a child. In a joint agreement in the fall of 2015, it was agreed that she would be [page426] an ideal candidate for adopting AN. On December 10, 2015, AN was placed with the foster mother for adoption.

[5] The biological father did not come to court for the hearings of June 18, July 3, July 14, July 28, September 3, September 17. On October 22, 2015, his failure to appear was noted by the court.

[6] On January 6, 2016, Valoris applied for a status review, seeking to have AN declared a Crown ward without access, for adoption by the foster mother.

[7] At the first appearance on status review, the biological parents did not appear. They were also absent on February 4 and 18. On February 18, 2016, the court noted their failure to appear. The application was adjourned to March 3, 2016 for an uncontested trial. At that time, everything appeared to be leading the matter to a close.

[8] The first child protection worker was Suzanne Pilon ("Pilon"). She had not verified whether a kin placement had been sought, i.e., a placement with a member of the child's extended family. She acknowledged her mistake during her testimony, because one of Valoris' statutory responsibilities is to see whether such a placement is viable and in the best interests of the child.

[9] Pilon transferred the file to Marie Claude Bastide ("Bastide") in December and Bastide identified SG as the possible biological father. She met with him in December 2015. The biological father had never met his son, he was not even sure that he was his father and Valoris or the court had never heard from him. There was no way that he would take AN under his care because he did not have the ability or the desire to do so.

[10] Bastide asked him whether someone from his family could take AN into their family. The biological father sent a text to his sister SG (the paternal aunt), who tried to reach him, unsuccessfully.

[11] On January 12, 2016, the paternal aunt contacted Valoris directly. Bastide met with her afterward with her life partner, HC, and with other members of their entourage, including the paternal grandmother. According to Bastide, the aunts showed a great deal of interest and wanted to meet AN.

[12] From that time forward, there were two factions formed at Valoris. One faction favoured the plan for adoption by the foster mother, and the other favoured the new plan, for an order granting custody to the aunts. The senior managers made a decision, and the aunts' plan was put forward through the filing of an amended application for status review, submitted on August 22, 2016.

[13] On July 25, 2016, Kane J. ordered that the foster mother be added as a party to the proceeding. The Divisional Court subsequently allowed Valoris' appeal and set aside Kane J.'s order. [page427]

[14] On July 13, 2017, the Court of Appeal set aside the Divisional Court's decision and reinstated the foster mother as a party to the proceeding.

[15] The paternal aunts were added as parties to the proceeding.

Issues

(a) Is it in AN's bests interests to continue his placement in the foster mother's care and custody or in the aunts' care and custody?

(b) If it is in AN's bests interests to remain in the foster mother's care, what order can be made to ensure that the best interests of the child are protected?

The Law

[16] The Child and Family Services Act, R.S.O. 1990, c. C.11 (the "Act") applies to this proceeding. Subsection 1(1) of the Act provides: "The paramount purpose of this Act is to promote the best interests, protection and well being of children." The Act was replaced on April 30, 2018, but there is no retroactive clause in the new 2017 Act. For the purposes of this proceeding, the two statutes are essentially the same. All of the proceedings, except the decision, took place before April 30, 2018.

[17] Subsection 37(3) of the Act lists the criteria that the judge who makes a protection order must consider. In this case, the following criteria are relevant:

(i) The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

(ii) The child's physical, mental and emotional level of development.

(iv) The child's cultural background.

(v) The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

(vi) 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.

(vii) The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

(viii)The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for [page428] adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

[18] The Act provides that a foster parent has only a limited right to participate in the child protection proceeding, except with leave by the court. As stated, the foster mother was joined to this proceeding as a formal party and has all the related rights.

[19] In October 2015, the child was declared in need of protection and entrusted to Valoris as the society's ward. This hearing took place within the framework of a status review. Therefore, ss. 64 and 65 apply in this case and the court may:

65(1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1.

(Emphasis added)

[20] Section 57.1 can be used to make an order to grant custody to a person, "other than a foster parent of the child".

[21] Section 65 applies when there is a status review, if a child has already been declared a Crown ward. In that case, the court may, through s. 65.2(4) of the Act, make the following orders "in the child's best interests":

(a) order that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months;

(b) order that custody be granted to one or more persons, including a foster parent, with the consent of the person or persons;

(c) order that the child be made a ward of the Crown until wardship is terminated under this section or expires under subsection 71(1); or

(d) terminate or vary any order made under section 57 or this section.

(Emphasis added)

[22] It is worthy of note here that the initial review that led to the child's placement for adoption with the foster mother was a Crown ward adoption application.

[23] It is important to note that ss. 64 and 65 provide that the court can make an order only if that order is "in the child's best interests". [page429]

The Parties' Arguments

[24] Valoris contends that a permanent placement with the aunts is in the child's best interests. Valoris filed very little evidence to support this position. For one thing, it appears that Valoris feels legally obligated to favour a placement with members of the extended family. Valoris also relies on the requirement to preserve AN's linguistic and cultural background as much as possible. More specifically, AN is a Franco-Ontarian, his biological parents are Franco-Ontarian. It is important that he be raised in French. According to Valoris, the aunts' environment is more Francophone than the foster mother's environment and, accordingly, it will protect AN's language more.

[25] Valoris claims that AN is a healthy child and that there is nothing to indicate that there will be negative consequences if he is removed from the foster mother's care.

[26] From a more technical standpoint, Valoris contends that the court cannot make the order sought by the foster mother, i.e., a Crown ward order for her to adopt him. In fact, Valoris states that the court cannot make any order in the foster mother's favour, and in particular, cannot make a custody order since it involves a status review of a society ward order and the Act prohibits such an order.

[27] The aunts want custody of AN because they adore him and could protect his linguistic and cultural background. They submit that AN is a member of their biological family and that it is important for him to stay in contact with his biological family. They are worried that the foster mother could not protect AN's linguistic background because she is first and foremost Anglophone. They will continue to allow AN to visit the foster mother so that he can maintain his emotional ties with her.

[28] The foster mother argues that AN risks suffering serious negative consequences if her relationship as the child's principal parent is ruptured. She maintains that AN has specific needs related to the lack of attachment to his mother in the first months of his life. This lack of attachment caused him serious physical and emotional illnesses that were barely mitigated by the attachment that she managed to establish with him, with great difficulty.

[29] She states that she is willing and able to maintain AN's linguistic and cultural background. She says that she believes that it is important that AN maintain close contact with his biological family. To do so, she is prepared to ensure that AN continues to have access to his biological family. Among other things, [page430] she will also allow supervised visits with the biological mother, who no longer has contact with the biological father's family.

[30] The biological mother supports a placement with the foster mother. The biological father supports a placement with his sister. Both acknowledge that they do not have the ability or means to take AN into their care.

Analysis

1. The important criteria in this case

[31] Some facts are obvious.

[32] First, I note that the biological parents are not able or willing to take AN into their care. The biological father left the mother when she was pregnant. For a long time, he thought that AN was not his child. He was not present in court when the child was apprehended. He did not show any interest in the child before Bastide spoke to him about him and asked him whether someone in his family might be interested in taking AN under their care. Although he texted his sister about AN at the time, he did not pursue the matter and it was not until his sister contacted Valoris directly that the kin placement was examined. He would not take AN into his care even if this was offered to him.

[33] The biological mother was never attached to AN. It is because of his mother's rejection that AN experienced serious emotional adjustment problems and anxiety problems for several months after his birth. (I will return to this below.) After Valoris' intervention because, among other things, she had been seen shaking AN, she regularly missed the visits that she was offered and showed a blatant lack of interest in the child.

[34] The biological father said that he supports his sister's plan and the biological mother says that she supports the foster mother's plan. I find that their positions are not the product of serious reflection based on the child's interests. The biological father attended a good part of the trial but he slept in court most of the time. Both of them believe that it will be easier to see AN occasionally if AN is with the person that he or she favours.

[35] I therefore consider that little relevance need be assigned to their future participation in AN's life to identify the child's best interests. It is my opinion that in any event their future involvement in AN's life will be minimal at best. I say this because, inter alia, the biological father is not close to the members of his family. Based on all of the evidence, he sees them occasionally. As for the biological mother, she has not shown any genuine interest for the child since he was an infant. [page431]

[36] Second, the aunts and the foster mother are honest and capable people. They have AN's well-being at heart. Each of them can offer a good home to the child. In both homes, the child will be surrounded by several adults who are attached to him and who want to continue to offer him their affection and to take care of him as much as possible. Certain members of each family cried when they testified. Both homes are potentially good homes.

[37] Third, today AN is a healthy, adorable, cheerful, intelligent and athletic child. This was not the case when he was first placed into foster care with MD in June 2015. In fact, it was the exact opposite. He was anxious, constantly woke up screaming, did not want to leave his principal caregiver's arms, slept with his eyes open, jumped when there was noise or a knock at the door. In addition, he was constantly struggling with violent diarrhea and suffered from multiple illnesses that required many medical visits and follow-ups. Today, his only problem is a mild asthma problem, controlled by a pump.

[38] The foster mother and the aunts all stated that they want AN to continue to see the other family. The evidence is not clear with regard to the nature and frequency of the visits. I note that it is impossible to predict what importance will truly be assigned to these visits.

[39] I therefore find that these are the three most relevant criteria to examine in deciding which plan is in the child's best interests:

(1) first, the child's cultural background and his biological ties with the extended family;

(2) the importance of continuity in regard to the attachment to the foster mother and the consequences that a disruption of this attachment could have on the child;

(3) the child's emotional needs and the care appropriate to respond to his needs.

2. Linguistic and cultural background

[40] AN was born in Ontario of Francophone parents. He does not belong to any religion. He is therefore what we commonly refer to as Franco-Ontarian. A member of this group belongs to the Francophone linguistic minority of the province. The great majority of Franco-Ontarians are initiated to the English language at a young age. Some become perfectly bilingual, some only develop limited knowledge of English and others are assimilated to English. The fate that can be expected for a Franco-Ontarian [page432] baby will depend on the level of education that he obtains and the region of Ontario that he lives in.

[41] No specific evidence was offered on AN's linguistic and cultural background.

[42] I find that it is more probable than not that he would not have attained a high level of education with his biological parents and that his language would have been French with limited to moderate knowledge of English.

[43] Other than language, there is little to distinguish a Franco-Ontarian from another Canadian. It goes without saying that, because of language, the young Franco-Ontarian will be much more influenced by Quebec's musical, literary and television culture than an English-speaking Canadian.

[44] The question that arises in the context of the two plans proposed by the parties is which home will better protect the child's linguistic and cultural background. I find that the aunts' home would have a slight advantage in terms of language. It is not a substantial advantage because the foster mother speaks French well. Her grandmother is said to be of Quebec lineage. Almost all of her family members make efforts to speak to AN in French. The foster mother purchased French-language books for AN and, at the daycare, his best friend is Francophone. The foster mother and her mother speak French well and demonstrated this by testifying in French. Although the foster mother's father was Anglophone, she did her primary and secondary studies in French. The fact remains that English is an important element in the foster mother's home. The foster mother's first instinct is to speak English. Her father is unilingual English. Almost everyone speaks French and the English language has a more important role there than it does at the aunts' home.

[45] The aunts' home is primarily Francophone. As I said, the advantage is not significant. In fact, the biological parents' home would have been more bilingual than the aunts' Quebec home and therefore closer to AN's Franco-Ontarian reality. However, AN's specific identity is characterized in terms of the French language and the French culture arising from that. At that level alone, the aunts' home is closer to his biological home. While not paramount, at the aunts' home, AN will be closer to his paternal aunt and paternal grandmother. The other biological family members are not very close and it is unlikely that AN would develop emotional ties with them.

[46] I find that the language requirement favours placement with the aunts slightly. However, I also find that AN will keep his French considering the family history of the foster mother, [page433] her ties with the French language since her youth, and her sincere desire to maintain the child's maternal language.

3. The consequences of rupturing the bond

[47] Valoris offered different testimony to try to minimize if not destroy any fear about rupturing the foster mother's care. I consider that this evidence has little probative value.

[48] Valoris argues that AN is a healthy child who has not shown any adaptation or attachment issues and who has adapted very well to the aunts and to their home. Accordingly, Valoris contends that it is not fair to consider the rupture as a factor that militates against placement with the aunts.

[49] I reject this argument. I consider rather that there is credible and reliable evidence that there is a risk for AN if he is moved from the home that has been his principal home for the last 28 months.

[50] Valoris' staff noticed, from the time they first encountered the child, that AN did not respond to the attention given to him and had a vacant stare. When he visited the doctor, the doctor clearly indicated that AN needed a very stimulating environment.

[51] MD, the first foster mother, who has operated a foster home since 1982, states that when AN arrived at her home on June 30, 2015, AN did not sleep well, he had nightmares, he did not smile, he did not want to be left alone, he woke up at night and cried. He looked worried and lost. He required a lot of care. During his stay, which exceeded six months, there was very little improvement. This long period without improvement is very significant. She states that the foster mother came to her home two or three times before AN was placed with her in December 2015. Later, the foster mother came back to visit her with the child. At that time, AN remained in the foster mother's arms and clung to her very tightly. Finally, she says that during visits to CHEO with Pilon, AN cried constantly.

[52] I find based on this testimony that AN was an emotionally disturbed child, anxious and suffering from severe anxiety.

[53] The foster mother corroborates the first foster mother's testimony.

[54] Before the foster mother took AN into her care, Pilon informed the foster mother that AN, at his mother's home, had been left to himself, that he did not have an established routine, not even for meals, and that there was a report that the mother had shaken the child.

[55] During his first visits to MD's home, she took AN to the pool. She observed the child's strange behaviour. Even when she brought him to the water, he did not react. In light of this lack of [page434] reaction from AN, she decided to take nine months' parental leave to spend most of this time alone with AN, which she refers to as a "cocooning" period.

[56] The first month was particularly difficult. AN showed little emotion. He did not interact much with her. He played, but always by himself. Bedtimes were very difficult. She had to rock him, play music. He fought off sleep. As soon as she put him in his bed, he would begin to scream.

[57] In the first six months, he often slept with his eyes open. When he woke up, he was always agitated.

[58] Gradually, things improved. She succeeded in getting him to sleep more easily but he still woke up screaming. She has observed considerable improvement in his sleeping since the month of April.

[59] She attended to gymnastics and yoga classes with him. While in the beginning, he showed no emotion, gradually he showed affection in reaction to her affectionate gestures toward him. In March, for the first time, he began to give her spontaneous signs of affection. For the first time, he was truly attached to a person and trusted her.

[60] In terms of his physical health, he had to see the doctor often, more than 44 appointments on physicians' recommendations. He had a testicle that had not moved to the scrotum and he underwent surgery. He had frequent and violent diarrhea. He suffers from asthma that is controlled by a pump, as needed. Otherwise, today, AN is in good physical health.

[61] When she learned that a kin placement was being seriously considered in the spring of 2016, she admitted that she was very unhappy with the idea of losing custody of AN. However, she swears that her primary concern was the child's best interests. In her opinion, based on what she saw with AN during the first months in her care and based on what she learned about the importance of attachment for a child of that age, a rupture at this stage of his emotional development would expose him to a substantial risk of emotional issues. In light of this risk, she asked Valoris to obtain an expert's report on the impact that a rupture would have on AN. The Valoris officials refused. No reason was given that really justified this refusal.

[62] It is important to note that the child protection worker, Lalonde, who had 30 years of experience with Valoris and ample professional training on attachment in very young children, supported the suggestion to rely on an expert on this point.

[63] Lalonde indicates that attachment is paramount and the foundation of a young child's sound development. In her opinion, the Valoris team had decided to place AN in a foster [page435] care-adoption, because it was observed that AN had a particular need for attachment and stimulation. It was observed that the child was apathetic, had a neutral facial expression, did not connect with people, rarely smiled, was afraid of the slightest sound and was insecure.

[64] In addition, Lalonde indicates that for several months before AN's placement at her home, the foster mother was very involved in attachment workshops. She came to the conclusion during their conversation that the foster mother knew as much if not more than her about the attachment phenomenon. In her opinion, her primary motivation was and still is the child's best interests and how a rupture could harm AN.

[65] It is also important to note that Pilon indicates in her testimony that she supported the foster mother's plan before her superiors' decision. In her opinion, the care provided by the foster mother was better than the norm. Lalonde also described the quality of the care given by the foster mother as extraordinary.

[66] Other Valoris child protection workers testified that the foster mother was not objective, that she voluntarily exaggerated AN's problems to undermine the aunts' plan, that she was not honest with Valoris in her role as foster mother. Bastide was particularly harsh on the foster mother. I find that Bastide's testimony is biased by her opinion that the foster mother did not behave as a foster mother should, i.e., simply doing what Valoris told her to do. This opinion made her unable to understand that the foster mother was sincere and that her primary concern was the child's best interests. I find that Bastide turned a blind eye to the problems that could result from the disruption of the foster mother's involvement with the child.

[67] Bastide downplays the effect of the rupture, saying that the negative impact will be the same if custody is not granted to the aunts. I reject this claim since it is not supported by the rest of the evidence. I find that Bastide's position then influenced Valoris' position regarding the intervention.

[68] In addition, Rochon favours the aunts' plan because it would be possible to maintain the biological ties with his extended family. She believes that the rupture will have an effect on AN because the foster mother is very important to him, but that gradual integration could rectify everything. In fact, she states that it is impossible to predict the extent of the impact of the rupture and that this is pure speculation.

[69] The aunts and the foster mother testified that they wanted to ensure that AN could continue to have contact with the other party. They were not specific about this contact but, in my opinion, they are all sincere that it is in the child's best interests to [page436] have contact with the other home. In my opinion, the foster mother will ensure that there is contact with the aunts and, accordingly, it is in the child's best interests that a fundamental attachment is not broken.

[70] Based on all of the evidence, I find that removing AN from the care of the foster mother will have a negative impact on AN's emotional well-being and on his short- and long-term development. It has only been a few months since AN managed to completely rid himself of anxiety and accept others. His sense of security is stable when the foster mother is in his life. His emotional stability was achieved through the foster mother's exceptional care over an extended period of time. I find that if he is a joyful and affectionate child when he is with his aunts, it is because of the confidence that he has that the foster mother is there to protect him. A rupture of his trusting relationship with the foster mother is not in the child's best interests.

[71] I certainly do not want to understate the love that the aunts and the two grandmothers in their home offer to AN. AN is clearly well when he is with them and he loves them. It is certainly important that AN be able to spend as much time as possible with them in the future. However, for the reasons given above, I find (based on the impact of the rupture) that if AN is removed from the home of the person that he finally managed to attach to, the impact on him will be significant. I find that it is in his best interest to remain in the foster mother's exceptional care while maintaining contact with the members of his extended family, who have demonstrated that they love him.

[72] Nothing allows me to find that the anxiety and insecurity problems exhibited by AN when he arrived at the foster homes will not recur if he is removed from his primary parent. An expert's report may have reassured the court, but this is not available. No evidence submitted by Valoris persuades me otherwise.

[73] In my opinion, the foster mother is the best person to ensure AN's successful development and to prevent a relapse into the severe affective and emotional trauma that troubled him for approximately the first 12 months of his life.

[74] To summarize, I find that it is in AN's bests interests to remain in the foster mother's care and custody for the following reasons:

(1) He has been in her care for 28 months.

(2) He exhibited major anxiety issues and significant attachment problems in the first year following his birth. [page437]

(3) Through the foster mother's exceptional care, little by little, he became closely attached to her. Through this emotional support, he became much less anxious and much more confident with people who show him affection.

(4) The court does not have any expert evidence that explains the reasons for his behaviour in the first 12 months of his life. In addition, the court does not have any professional opinion about the effect of a rupture in contact with the foster mother.

(5) The evidence clearly establishes that the relationship with the foster mother is the source and backbone of his stability. There is therefore a real and significant risk to AN if this close and beneficial relationship is disrupted.

(6) The aunts state that they will allow access. In my opinion, occasional visits will not prevent a rupture in the relationship between AN and the foster mother.

(7) Contact between AN and his biological family will ensure all of the benefits that come from knowing and visiting his biological family. Even more so because the foster mother sincerely believes that this contact is important.

[75] That said, the issue that remains is what order the court can make to protect the child's best interests.

What Order would Protect AN's Best Interests?

[76] Valoris' position is that the court cannot make a custody order in favour of the foster mother because s. 57.1 expressly excludes a foster parent.

[77] Valoris contends that an access order cannot be made in favour of the foster mother because the Act does not authorize such an order, except on status review after an order declaring a child a Crown ward.

[78] Valoris also contends that the court cannot use its parens patriae jurisdiction since the Act is a complete code that governs the issues and that the use of this power would amount to rewriting what was intended by the legislator. Valoris recognizes that the Court of Appeal in A. (A.) v. B. (B.) (2007), 83 O.R. (3d) 561, [2007] O.J. No. 2, 2007 ONCA 2 recognizes that the court can exercise this jurisdiction only in the following situations:

(a) Where there is an unintentional legislative gap: see, e.g., A. (A.) v. B. (B.), supra, at para. 27. This gap can be direct or indirect: see, e.g., D. (M.) v. L. (L.), 2008 9374 (ON SC), [2008] O.J. No 907 (S.C.J.); [page438]

(b) Where the child is in danger: see, e.g., A. (A.) v. B. (B.), at para. 27; R. v. J.N., [2008] O.J. No. 3638 (S.C.J.);

(c) In a judicial review of the exercise of statutory power by an administrative authority: see, e.g., Beson v. Newfoundland (Director of Child Welfare), 1982 32 (SCC), [1982] 2 S.C.R. 716 (S.C.C.); or

(d) Where it is necessary to achieve the paramount objective of the applicable legislation: see, e.g., A. (A.) v. B. (B.), at para. 40.

[79] Valoris' argument that the parens patriae jurisdiction cannot be exercised in this case is based on G. (C.) v. Catholic Children's Aid Society of Hamilton-Wentworth (1998), 1998 3391 (ON CA), 40 O.R. (3d) 334, [1998] O.J. No. 2546 (C.A.) and Children's Aid Society of the County of Renfrew v. D. (J.), [2011] O.J. No. 413, 2011 ONSC 744 (S.C.J.).

[80] In G. (C.) v. Catholic Children's Aid Society of Hamilton-Wentworth, the foster parents had taken in Crown wards for a period of ten years. The foster father had sexually assaulted his wife's eldest daughter. The foster parents did not attend the counselling sessions or provide the information required by the society. Moreover, there was evidence that excessive force was used with one of the wards in their care. The society ended its relationship with the respondents. The respondents filed an application for the custody of the wards under the Children's Law Reform Act, R.S.O. 1990, c. C.12. The Court of Appeal confirmed the society's discretionary authority. However, the facts were very different from the facts in this case.

[81] However, in A. (A.) v. B. (B.) and G. (C.), the Court of Appeal confirmed that the court can rely on the parens patriae jurisdictionif it is the only way to achieve the Act's paramount objective. Rosenberg J. states, at para. 40:

One final note. In R. (C) v. Children's Aid Society of Hamilton, 2004 58384 (ON SC), [2004] O.J. No 3301 (S.C.J.) at para. 125, Czutrin J. held that the exercise of the parents patriae jurisdiction does not depend upon a legislative gap if the exercise of that jurisdiction is the only way to meet the paramount objective of legislation. I should not be taken as foreclosing that possibility. Since I have found a gap, I have not found it necessary to decide whether the same result could be achieved in the way suggested by Czutrin J.

[82] In R. (C.) v. Children's Aid Society of Hamilton, 2004 58384 (ON SC), [2004] O.J. No. 3301, [2004] 4 C.N.L.R. 1 (S.C.J.), Czutrin J. made an adoption order that placed the children in the foster parents' care for adoption and allowed the foster parents to immediately take the measures necessary to initiate the adoption process. He made this decision based on his "parens patriae" jurisdiction, because he determined that the child's best interests required that the child remain in the foster parents' care, considering the significant [page439] emotional ties that the child had made with the foster parents and the risks for that child of rupturing those ties.

[83] Czutrin J. reviewed the reasons of the Rosenberg J. on appeal in G. (C.) and Catholic Children's Aid Society of Hamilton-Wentworth v. G. (M.), [2005] O.J. No. 3616 (S.C.J.) and he states [at paras. 125 and 126]:

I think it is far too narrow reading of the recent Court of Appeal decisions to suggest that the only method by which parens patriae jurisdiction can be exercised is by way of legislative gap.

I appreciate the Children's Aid Society's concern about any precedent that opens wide the possibility of a review outside the parameters of the provisions of the Child and Family Services Act. Yet, at the same time, I find, with respect, that the Ontario Court of Appeal in C.G. and M.G. v. Catholic Children's Aid Society of Hamilton-Wentworth, supra, did not absolutely foreclose the exercise of parens patriae jurisdiction by a Superior Court, especially if it is the only way to meet the paramount objective of the Act.

[84] Czutrin J. relies on the decision by the Supreme Court in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), [1994] 2 S.C.R. 165, [1994] S.C.J. No. 37. The issue in that case was weighing the child's attachment to the foster parents against the biological mother's right have her child returned. The lower court had determined that the mother could take the child back into her care. L'Heureux-Dubé J. decided that it was in the child's best interests to remain with the foster parents, even if an important objective of the Act is to preserve the family unit and to limit the state's intervention [at para. 15].

We agree that a children's aid society, as the representative of the state, must continue to justify its intervention by showing that a court order is necessary to protect a child in the future. We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the parent. A court order may also be necessary to protect the child from emotional harm, which would result, in the future, if the emotional tie to the caregivers, whom the child regards as her psychological parents, is severed. Such a factor is a well-recognized consideration in determining the best interests of the child, which, in our opinion, are not limited by the statute on a status review hearing. In her reasons for judgment, MacDonald J. correctly held that the trial judge was in error in holding that the best interests of the child were irrelevant in a status review hearing [reported at (1992) ,1992 8608 (ON SC), 99 D.L.R. (4th) 77]. She considered the best interests of the child . . . in the context of whether or not the child is in need of protection from his or her actual mother. She also failed to consider adequately whether a court order was necessary to protect . . . from the emotional harm she should suffer if she were removed from the case of her foster parents, with whom she had lived most of her life, and whom she regards as her psychological parents.

[Emphasis added] [page440]

[85] Czutrin J. also relied on the decision in Beson and Beson v. Director of Child Welfare for Newfoundland, supra. In Beson, the Supreme Court of Canada considered the parens patriae jurisdiction in the adoption context. In Beson, the child had been placed with the appellants for adoption. The director removed the child from the appellants' care before the probationary period ended. The statute did not confer any right to the appellants to challenge this decision. Wilson J., on behalf of the court, held as follows [at p. 724 S.C.R.]:

If the Besons had indeed no right of appeal under the statute from the Director's removal of Christopher from their home, then I believe there is a gap in the legislative scheme which the Newfoundland courts could have filled by an exercise of their parents patriae jurisdiction. Noel J., in other words, could have done more than recommend that the Director give Christopher the chance of the good home available with the Besons. He could have so ordered. It was not a matter of substituting his views for those of the Director. It was a matter of exercising his parens patriae jurisdiction in light of a deficiency in the statute. If it were not in Christopher's best interests that he be removed from the appellants' home, then in the absence of any statutory right of appeal through which his interests might be protected, Noel J. had an obligation to intervene.

[86] Similarly, in this case, the Act does not confer any right to the foster mother to challenge Valoris' decision to withdraw AN from her home and to place him in the aunts' custody under s. 57.12 of the Act.

[87] It is true that the foster mother could be designated as a party and participate in the hearing that will determine whether Valoris' proposed plan is in the child's best interests. Unfortunately, if Valoris is justified in saying, as it would appear to be the case, that the court cannot make any order other than the one sought by Valoris, AN's right to his best interest is illusory. The only way to ensure that the child's best interests are protected is for the court to exercise its parens patriae jurisdiction.

[88] Moreover, I note that subsection 65(1), which authorizes the court to make the orders listed in para. "D", i.e., the custody order sought by Valoris and the aunts, stipulates that "the court may in the child's best interests" make certain orders set out in paras. (a), (b), (c) and (d). The words "in the child's best interests" frame the court's authority and, accordingly, the court cannot make a decision that it considers is not in the child's best interests. Here, I find that the child's best interests require that AN not be removed from the foster mother's home. Therefore, the court cannot make any of the orders provided in the subsection 65(1). There is therefore a legislative gap that enables it to use the parens patriae jurisdiction. [page441]

[89] The only way that the court can make an order that protects AN's best interests and to satisfy the Act's paramount objective is to use its inherent parens patriae jurisdiction.

[90] Simply declaring that AN is a Crown ward will not ensure that his best interests are protected. Like Czutrin J., I am of the opinion that I have the authority, under my parens patriae jurisdiction, to make an order for AN's adoption by the foster mother. The evidence indicates, and there is no evidence to the contrary, that she has superior parenting skills and all of the qualifications required to adopt AN. She therefore meets all of the criteria that the director would require if the standard adoption process had been followed. The child has lived with her for 28 months, a probationary period longer than the one prescribed by the Act. AN was placed with her for adoption and she has already been subject to verifications and supervision, which were positive.

[91] For all of these reasons, I issue the following order:

(1) AN is still a child in need of protection. He is declared a Crown ward with the express purpose of being adopted by the foster mother.

(2) AN's bests interests require that he remain under the foster mother's care and that he be adopted by her.

(3) The foster mother must immediately complete all of the forms and steps required to obtain an adoption order.

(4) It is not necessary to obtain a statement from the director or to proceed with a homestudy of the foster mother's home.

(5) The adoption application, once it is completed, must be served on Valoris and on the Secrétariat des adoptions internationales with a copy of my order.

(6) AN must remain in the foster mother's care and custody until the adoption process is complete.

(7) The aunts have a right to access AN. The aunts and the foster mother will jointly determine the frequency and duration of the access.

Order accordingly.

[^1]: Vous trouverez la version française à la p. 442, post.