Children’s Aid Society of London and Middlesex v. A.L.

Court File and Parties

COURT FILE NO.: C1239/16 DATE: December 3, 2018

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

BETWEEN:

Children’s Aid Society of London and Middlesex Joseph F.L. Belecky for the Society Applicant

- and -

A.L. J.G. F.L.L. R.F.L.A. D.J.M. Marnelle Dragila for A.L. J.G. not appearing Holly Watson for F.L.L. Hamoody Hassan for R.F.L.A. Hamoody Hassan for D.J.M. Respondents

D.T. S.C. Participant Foster Parents Julie Lee for D.T. Julie Lee for S.C.

HEARD: September 17, 20, 21, 24, 25, 26, 27, 28, 2018; October 2, 3, 4, 5, 19, 2018

TOBIN J.

[1] This is a child protection case heard under Part V of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “Act”). It concerns the child, L.T.R.G., born ... 2017 (the “child”).

The Parties

[2] The respondent, A.L., is the child’s mother (the “mother”).

[3] The mother and the respondent, F.L., are married and are the parents of four children (sometimes referred to herein as the “siblings”), all of whom reside with him under an order for custody. These four children are not the subject of this child protection case, however, as siblings of the child, inter-sibling access was raised as an issue and it will be considered.

[4] The respondent, J.G., is the child’s father (the “father”). He did not present a plan, nor did he participate in this hearing.

[5] The respondent, D.M., is the child’s maternal great aunt. The respondent, R.A., is D.M.’s spouse. Collectively, they will be referred to as “the kin.”

[6] The child’s foster parents, D.T. and S.C., also participated in this proceeding as provided for in s. 79(3) of the Act. Collectively, they will be referred to as “the foster parents.” By order of Korpan J. dated April 13, 2018, the foster parents’ motion to be added as parties was dismissed, but with leave to request enhanced participation rights from the trial judge. Though not parties, they gave evidence as witnesses called by the Society. On the consent of the parties, the foster parents were not subject to cross-examination by their counsel, Ms. Lee. However, their counsel was given the opportunity to conduct a further direct examination of them to address matters not raised by Society counsel. Ms. Lee was not permitted to cross-examine witnesses called by the parties.

[7] The kin were also called as witnesses by the Society. Their counsel, Mr. Hassan, was not permitted to cross-examine them but, like counsel for the foster parents, could conduct a further direct examination on matters not addressed by the Society counsel in his direct examination of them. As they were parties added pursuant to the order of Vogelsang J. dated August 13, 2018, Mr. Hassan was able to cross-examine witnesses called by those who were adverse in interest to the kin.

Position of the Parties

[8] The parties agree that the child should be found in need of protection pursuant to s. 74(2)(b)(i) of the Act. A statement of agreed facts upon which the finding could be made was filed. This issue will be dealt with further in these reasons.

[9] The central dispute in this proceeding was the appropriate disposition to be made for the child, having regard to her best interests.

[10] The Children's Aid Society of London and Middlesex (“Society”) sought an order placing the child with the kin subject to a supervision order for a period of six months with access to the other respondents and the foster parents.

[11] The kin requested an order granting them custody of the child with access to the mother, and the siblings.

[12] The mother, F.L. and foster parents jointly proposed a plan whereby the child would be placed in extended Society care for the purpose of adoption by the foster parents. Their plan also requested that there be an order for access to the child by the mother, F.L. and the siblings.

The Issues

[13] In this case, the court is called upon to decide the following issues:

a) on what basis is the child to be found in need of protection; b) what disposition order is in the child’s best interests; and c) depending upon the disposition order what, if any, access should be granted to the mother, F.L., the siblings, the kin and foster parents?

Statutory Findings

[14] As required by s. 90(2) of the Act, the court makes the following statutory findings:

a) the child’s name and age: L.T.R.G., born ... 2017; b) the child is not a First Nations, Inuk or Métis child; and c) the child was brought to a place of safety before the hearing from within the County of Middlesex.

Finding the Child to be in Need of Protection

Facts

[15] The mother has a longstanding history of drug abuse and addiction. She started using drugs at the age of 9 and, by the age of 13, was using cocaine. She has continued to use drugs for most of her adult life, though she has had periods of abstinence. Her drug use and associated behaviour led to her estrangement from her mother and extended family.

[16] In 2010, the mother and F.L. met. They married on May 24, 2013. Together they have four children: M.1, age 7; M.2, age 5; and twins, L. and J., age 3. Their relationship was buffeted by her drug use and his problem with alcohol.

[17] In April 2016, the mother and F.L. separated due to an incident of alleged domestic violence by F.L. upon the mother. He had started drinking again.

[18] At this hearing, F.L. denied the incident of domestic violence and the mother minimized it. [1]

[19] After the separation, the mother remained at home with the four children and was their primary caregiver. While acting as caregiver, the mother relapsed. She began using crack cocaine again.

[20] As a result of the mother’s drug use, the Society intervened with the family and by order of Korpan J. dated October 7, 2016 the four children were placed in the temporary care and custody of F.L. subject to terms of supervision. The mother was granted access, with the Society having the discretion to determine whether it be supervised.

[21] The child protection proceeding concerning the four children ended with the order of Henderson J. dated February 1, 2018, which granted F.L. custody of them and the mother reasonable access to them supervised at the discretion of F.L.

[22] In the spring of 2017, F.L. and the four children were living in Woodstock. The Society’s supervision of F.L. and the four children was being attended to by the Children’s Aid Society of Oxford County.

[23] Mr. Bruce Fleming, a family support worker with the Society, was assigned to take carriage of this matter in March 2017. He first met with the mother on April 15, 2017. She was pregnant with the child at that time. She was observed by the social worker to be thin, tired and not well. She had an open sore on her chin. At this time, the mother was living a transient lifestyle. She had no fixed address. She reported to the social worker that she was in a less than ideal relationship with the father, who she subsequently identified as the child’s father.

[24] Prior to the child’s birth, the social worker was able to meet only occasionally with the mother. She told the social worker that she was participating in trauma and addiction counselling but offered no details. The social worker contacted one treatment provider pursuant to a consent provided by the mother, only to learn she had not been participating in its services in recent years.

[25] In May 2017, the mother was involved as an accused in the criminal justice system in Woodstock.

[26] When the child was born (... 2017), the mother was homeless and had no solid plan for the care of the child.

[27] The father did not suggest a viable plan either.

[28] Because of these circumstances, the Society sought and was granted a warrant to apprehend the child. It did so. On June 24, 2017, the child was placed in the home of the foster parents.

[29] By order of Aston J. dated June 26, 2017, the child was placed in the temporary care and custody of the Society on a without prejudice basis. The order also provided that toxicology screening was to be completed on the child. A meconium test was undertaken and it was positive for cocaine. [2] The order also provided that the mother and father were to have “interim reasonable access” to the child, subject to the Society’s discretion with respect to the level of supervision, if any.

[30] The mother and father began attending access together, which was supervised at the Society premises. On some occasions, the mother came alone.

[31] During the next few months, attendances at access by the mother and father trailed off. The mother reported to the social worker that she missed her October 12, 2017 visit because she had been arrested for a breach of conditions.

[32] On October 30, 2017, the social worker met with the mother and father at the Society’s offices to try and have them reengage in access. They were observed by the social worker to be bickering. The father did not think the access being offered was adequate and that they need not be babysat. He eventually left the meeting and has not attended at access since. On the same day, the mother told the social worker she was living “under a bridge.”

[33] The mother’s last visit with the child was at the end of November 2017.

[34] The mother’s plan, both before and after the birth of the child, was to live with the child at Rotholme or at an apartment in London. The mother gave the social worker addresses of two apartments where she could live. The social worker tried to inspect or investigate these apartments. Neither address given by the mother existed. The mother and father gave the social worker a third location, stating that is where they lived. When the social worker attended, he discovered that that was not the case. They did not live there.

[35] Neither the mother, nor father, has put forward a plan for the care of the child by themselves either individually or together.

[36] The mother has been in jail since May 27, 2018 and is scheduled to be released on November 24, 2018. Upon her release from jail, the mother intends to begin a four to six months rehabilitation program.

Legal Considerations – Risk of Physical Harm

[37] The Society must prove that the risk of physical harm may be caused by an act, omission or a pattern of behaviour. It is not necessary for the Society to prove intention: Jewish Family and Children Services v. K.R., 2008 ONCJ 774, affirmed 2009 ONCA 903, 2009 CarswellOnt 7908 (Ont. C.A.).

[38] The risk must be real and likely, not speculative: Children’s Aid Society of Niagara Region v. P.T. (2003), 35 R.F.L. (5th) 290 (Ont. S.C.J.), at paras. 60-65.

Application of Legal Considerations

[39] I find that the child is in need of protection pursuant to s. 74(2)(b)(i) (risk of physical harm) based upon the following:

a) The mother has a past parenting history that resulted in four of her children being removed from her care because of her drug use. This risk continues. The mother has not overcome her addiction. It is noteworthy and to her credit that the mother plans to attend a four to six month rehabilitation program following her release from jail. b) The mother and father have not put forward a viable or meaningful plan whereby either or both of them could care for and raise the child. c) The mother engaged in criminal activity – theft – to support her drug use. The mother has been in custody since May 2018 after pleading guilty to a number of charges. She is not able to care for the child. She has no plan to care for the child after her release from custody in November 2018. d) Just prior to the birth of the child, the mother was not in a position to care for the child in a stable or safe residence. e) Following the birth of the child, the mother did not present a viable plan to care for the child in a stable and safe residence. f) The mother’s substance abuse resulted in the child being born with evidence of cocaine in her body. g) The mother has not demonstrated (and she recognizes) that she has not sufficiently addressed her substance abuse problem, which adversely affects her ability to care for the child and the siblings. h) The mother and father have not attended at access. They have not demonstrated a desire or an ability to meet the needs of the child. i) The mother has not engaged with the social worker by participating in regular meetings with him, nor has the father, to work on a plan that would allow them to safely care for the child.

[40] The pattern of the mother’s and father’s behaviour in being unable to care for the child, including not planning for or attempting to develop a relationship with her, supports a finding of risk as contemplated in s. 74(2)(b)(i) that is real and likely.

Disposition

Legal Considerations

[41] The Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] mandated the court follow a statutory pathway when determining the appropriate disposition in a child protection case: L.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] O.J. No. 119 (O.C.J. G.D.) and Children’s Aid Society of Toronto v. L.(T.), 2010 ONSC 1376, [2010] O.J. No. 942 (S.C.J.).

[42] The Act requires the court to do the same.

[43] Once a child has been found to be in need of protection, the court is to determine whether an order is necessary to protect the child: s. 101(1).

[44] If no order is necessary to protect the child, the child is to be returned – in this case – to the mother and father: s. 101(8).

[45] If an order is necessary, the order that can be made in the child’s best interests are those set out in s. 101(2) ¶ 1-4 and 102: s. 101(1).

[46] The ability to make an interim society care order is constrained by the time limits set out in s. 122(1) and (5): s. 122.

[47] The court is required to ask what efforts have been made to assist the child before intervention under Part V of the Act: s. 101(2).

[48] As the disposition order must be made in the child’s best interests, it is necessary for the court to consider the circumstances enumerated in s. 74(3) which is formulated as follows:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(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,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(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 adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) 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, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[49] A child is not to be removed from the care of the person who had charge of the child immediately before intervention under Part V unless less disruptive to the child alternatives have been considered: s. 101(3).

[50] If the child must be removed from – in this case the mother and the father – the court must, before making an interim or extended society care order consider whether placement with a relative, neighbor or other community member is, with their consent, possible: s. 101(4).

[51] Relative is defined in the Act to include a great-aunt or great-uncle, including through a spousal relationship: s. 2(1) “relative.”

[52] If the court finds that a custody order, instead of an order under s. 101(1) ¶ 1-4 is in the child’s best interests, the court may do so to one or more persons, other than a foster parent of the child: s. 102(1).

[53] In L.(R.) v. Children's Aid Society of Metropolitan Toronto, supra, Walsh J. held, at para. 36, as follows:

36 It is to be observed that the statute mandates and prioritizes the pathway to be followed in keeping with its recognition of the importance of keeping a family unit together as a means of fostering the best interests of children. Any deviation from this pathway that does not carefully and properly examine and consider the less restrictive alternatives preferred by s. 57(3) and the extended family or community placements possible under s. 57(4) prior to any consideration of Crown wardship must be fatal to such application.

Application of Legal Considerations

[54] I am satisfied that an order is needed to protect the child, for the same reasons she was found to be in need of protection. Neither parent is in a position to care for this child.

[55] As the child was apprehended almost immediately following her birth, the Society was not able to assist her before intervention under Part V of the Act. I accept the evidence that, while pregnant with the child, the mother was offered assistance. The Society worker did investigate the mother’s plan for the child but found it wanting. After the child’s birth, the mother and father were offered access and information about services.

[56] In this case, the disposition orders available are: (a) a supervision order placing the child in the care of the kin subject to terms of supervision with access; (b) a custody order placing the child in the care of the kin with access; or (c) an extended society wardship order.

[57] The unusual feature of this case is that the most intrusive order of extended society care is asked for by the mother. It is the Society that is asking for a much less intrusive order.

[58] The rationale for the mother’s request is that with an extended society care order, her expectation is that the child would be placed for adoption with the foster parents. As the mother has a good relationship with the foster parents, she believes she will more readily be allowed access to or contact with the child, more so than she would with the kin. What appears to animate the mother’s plan is the lack of a relationship now or the likelihood in the future of her having a positive or supportive relationship with the kin.

[59] As the Act requires the court to “properly examine and consider less restrictive alternatives,” [3] the first plans to consider are those offered by the Society and kin. If those plans do not meet the best interests of the child, the mother’s plan, which is supported by F.L. and the foster parents, must be considered.

The Plan of the Society

Facts: Kin Express a Desire to Put Forward a Plan

[60] Shortly after the child was born, the Society worker referred the matter to the Society’s kinship department. The responsibility of this department was to find kin who may be able to care for the child.

[61] The first two plans explored by the Society did not work out.

[62] At some point, the child’s maternal grandmother, T.C., suggested to the Society that the kin were potential caregivers. On October 1, 2017, D.M. received a call from a Society kinship worker asking if the kin wanted to become a kin placement for the child. She did not immediately say yes. She wanted to discuss this with her family. That night, the kin and their children had a family meeting to discuss the Society’s request. They decided that evening to accept and offer a plan to care for the child.

[63] The next day, D.M. called the kinship worker and advised that it was their intention to put forward a plan for the care of the child.

[64] As the kin lived outside of the jurisdiction of the Society, an investigation of the kin and their plan was referred to the Simcoe Muskoka Child, Youth and Family Services (“Simcoe CAS”).

[65] There was a delay in referring and then investigating the kin plan. The Simcoe CAS received the referral on October 30, 2017. The referral was not assigned to a Simcoe CAS worker until December 8, 2017. The reason for the delay was explained by the worker as follows: the Simcoe CAS gives priority to assessments regarding children who are already in kin homes. This was not the case here as the child was in the care of the foster parents.

[66] A Kinship Services Initial Screening Assessment was completed by Lenore Morris on January 30, 2018 and approved by a supervisor on February 12, 2018. This initial assessment concluded that:

This kinship living arrangement is very realistic, safe and viable. There are no concerns noted at this time ...

[67] The Society in London was subsequently notified of this conclusion.

The Child’s Time with the Kin

[68] With the release of the assessment, the kin were anxious to begin having access with the child and frustrated by the delay in it starting. Their first visit with the child took place on February 2, 2018. They met at the Society’s office with the child and foster parents for approximately two hours.

[69] After the initial visit, access took place at approximately one time per week until April 2018. The child’s first overnight visit with the kin took place on April 21-22, 2018.

[70] The Kinship Service Comprehensive Assessment was completed on March 7, 2018 and it recommended the kin home. An unusual feature of the assessment was that the Simcoe CAS does not normally conduct Kinship Service Comprehensive Assessments unless the child is in the home of the kin. The assessment was completed on the basis of the kin’s stated expectations for how they would deal with the child.

[71] The time the child spent with the kin was briefly interrupted in May 2018 while the Society investigated an historical allegation made by the mother. It was not confirmed.

[72] Access resumed in June 2018.

[73] In July 2018, the child’s visits with the kin increased to every weekend from Friday until Sunday.

[74] In August 2018, the child spent two extended visits with the kin: one ten-day visit and the other an eight-day visit, ending September 5, 2018.

[75] The current schedule for the child is to spend Mondays to Thursdays with the kin and Thursdays to Mondays with the foster parents: roughly spending equal time with both.

The Child’s Behaviour

[76] The child’s behaviour at access exchanges was observed by the foster parents, kin and some Society workers.

[77] When the child was given over to kin by the foster parents, the child did experience some upset. S.C. described the child as gripping her, burying her head in her body and crying. On her return from the kin, S.C. observed the child to smile.

[78] The evidence of the kin, which I accept, is that the child’s upset upon going into their care lasts for only a few moments. They have been able, with the help of S.C., to distract the child quickly and she then becomes comfortable and happy in the care of the kin.

[79] While with the kin, the child sleeps through the night and, according to R.A., has a voracious appetite.

[80] The child is observed to be comfortable and happy in the care of the kin.

[81] The child was seen in the kin home at the end of August 2018 by a Simcoe CAS worker, Larissa Mazonas. She observed the child to be comfortable in the arms of R.A. There was mutual affection with the kin and the child. Both R.A. and D.M. responded appropriately to the child’s cues.

The Kin Home

[82] The kin plan is to live in Tottenham, where there are suitable amenities to meet all of the child’s needs, including schools, medical and recreational facilities. Their home is sufficiently large to accommodate the child having her own room. It is their plan to remain in that home.

[83] Also living with the kin is their daughter, S.A., who is 25 years of age, along with her one year old son, L. S.A. has been and will continue to be able to help the kin care for the child as needed. It was observed by the kin and S.A. that the child and L. already interact comfortably and as developmentally appropriate toddlers.

[84] In the care of the kin, the child will have contact with the extended family of the mother and kin, including her great grandparents, her grandmother and cousins.

[85] The child will have exposure to and be part of the mother’s cultural heritage.

[86] The kin will be financially able to provide for the child and plan to save for her post high school education expenses.

[87] I accept that the motivation for the kin wanting to care for this child is their moral and ethical responsibility within their family. It is important to them that the child have a sense of belonging to their family.

[88] D.M. is approaching retirement eligibility from her employment and will be able to parent the child. If placed in their care, D.M. would be able to take an immediate leave of absence from her work.

[89] The kin acknowledge that the foster parents have been very good caregivers to the child. R.A. recognizes that they have “done a great job.” The kin would like to foster an openness with the foster parents and the child.

[90] I accept that the kin are also supportive of the mother having a relationship with the child, despite the estrangement that currently exists. Their concern is to ensure that the mother is stable and that the contact with the child would be safe. They appear sensitive to the mother’s concern that the child know that she is her mother.

[91] I also accept D.M.’s evidence that she is supportive of the child having a relationship with her siblings who are in F.L.’s care.

The Mother’s Criticism of the Society and Kin Plans

[92] The mother, F.L. and foster parents argue that the Society’s and kin’s plans to place the child in the care of the kin is not in the child’s best interests because: (a) it will interrupt the child’s continuity of care she has enjoyed with the foster parents and impair her development; and (b) it is less likely that the mother and siblings would be able to develop and maintain a relationship with the child.

[93] The mother, F.L. and foster parents submit that if the child is placed with the kin the child will suffer from being taken away from her primary caregivers, the foster parents.

[94] They want to rely upon the expert opinion evidence of Dr. Richard S. Zayed, psychologist, who the foster parents sought to have admitted as an expert witness. The area in which he was sought to be qualified as an expert was with respect to attachment surrounding young children and, in particular, the impact on an infant where there would be a change or transfer of caregivers.

[95] The Society and kin argued that the opinion evidence should not be admitted.

The Voir Dire:

[96] A voir dire was held to determine whether the expert opinion of Dr. Zayed would be admitted in this hearing.

Legal Considerations

[97] The Gouge Report [4] emphasized the importance of judicial gatekeeping relative to expert testimony. The report urges judges to take a rigorous approach when examining the reliability of expert evidence. [5] If specialized knowledge will assist the court to understand the evidence or a fact in issue, a qualified expert may give opinion evidence. The expert must possess special knowledge and experience going beyond that of the trier of fact.

[98] The admissibility of expert opinion evidence requires the court to engage in a two-stage analysis: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

[99] In the first stage, the party requesting admission of the expert evidence must establish the threshold requirements of admissibility.

[100] In R. v. Mohan, [1994] 2 S.C.R. 9, the Supreme Court of Canada set out four threshold requirements or criteria to be applied to the determination of whether evidence would be admitted as expert evidence: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of an exclusionary rule; and (d) a properly qualified expert.

[101] Relevance requires the court to consider whether the evidence sought to be admitted tends to prove or disprove a fact in issue. It also requires the court to consider the facts upon which the opinion is founded. In short, does the evidence relate logically to the fact in issue? Can the court draw a line between the evidence and the fact for which it is offered?

[102] To be necessary, the evidence has to provide information that is likely to be outside the knowledge and expertise of the trier of fact. It must be more than helpful because “helpful sets too low a standard” (Mohan).

[103] No party suggested that there was an exclusionary rule that should prevent Dr. Zayed’s evidence from being admitted.

[104] A properly qualified expert is one who has special or particular knowledge of their subject and the subject matter of their expertise is a legitimate area of study and meets the criterion of threshold reliability. It also requires an expert to be impartial, independent and unbiased.

[105] In the second stage, the court is required to focus on its discretionary gatekeeper role. It does so by determining whether the benefits of admitting the evidence outweighs its potential risks. This determination requires the court to consider such factors as legal relevance, necessity, reliability and absence of bias: R. v. Abbey, 2017 ONCA 640, at paras. 46-49.

Application of Legal Principles

The Mohan Criteria:

Properly Qualified Expert

[106] The kin argued that Dr. Zayed does not have sufficient expertise in the area of attachment and infant development. With respect, I am satisfied that Dr. Zayed is a properly qualified expert in the area of attachment, including infants. He has experience in this area through his training and practice. Dr. Zayed testified, and I accept, that:

If you have attachment expertise, you understand attachment ... is cradle to grave and the fundamentals of attachment don’t change based on age. So what changes, are the subtle ... differences ... in attachment and the way attachments needs are expressed by people of different ages.

[107] Dr. Zayed also has expertise with attachment theory relative to toddlers, which he defines as approximately 12 months to 3 to 4 years of age.

[108] It was not suggested, and I do find, that he was impartial, independent and unbiased.

Relevance

[109] I am satisfied that a child’s attachment to caregivers and the effect of disruption of that attachment is relevant to the court’s determination in this case. The Act requires the court to consider in determining the best interests of the child the importance of continuity in the child’s care and the possible effects on a child of a disruption of that continuity: s. 74(3)(c)(i). A child’s attachment to a foster parent is not excluded from this consideration.

[110] As the parties have made the child’s relationship with the kin and foster parents an issue, the evidence sought to be admitted is logically relevant.

[111] The kin argue that the court cannot consider placing the child in the care of the foster parents unless the kin plan is rejected. I accept that is correct. However, as will be discussed later in these reasons, an assessment of the kin plan requires the court to weigh and balance the kin plan with the alternative of making an extended society care order: that is, an assessment of the kin plan requires, in this case, a consideration of the disruption of the child’s relationship with the foster parents. To that extent, evidence about attachment is relevant in this case.

Necessity

[112] In assessing the necessity of the proposed evidence, I take into account that Dr. Zayed did not assess the child. Even though his report is written on the basis that his opinion relates to the child, his evidence relates only to a generic child and what attachment theory suggests may occur if a generic child is removed from the home of a primary caregiver. His opinion, he states, is based upon two facts only: (a) the child has been in the care of foster parents “for essentially her whole life”; and (b) the foster parents have provided adequate care.

[113] I find that the evidence of attachment related to a generic child is at best helpful in this case. It does not rise to the level of necessity.

[114] The proposed expert evidence does not consider the possible consequences to this child should she be placed with the kin. This is revealed in the following evidence given by Dr. Zayed in cross-examination:

Q. So just to be clear then, the – so it wouldn’t matter to you, you wouldn’t shift your opinion at all if you knew that [the child]’s great aunt and uncle were enjoying care with her for approximately three-and-a-half to four days a week?

A. I wouldn’t shift my opinion, no. I’d be – well my opinion would be there are risks, so I would still be concerned about the risks.

Q. All right. But one understands that in all human affairs there are risks, right?

A. Yes.

Q. And some risks are a minor inconvenience that can be ameliorated, right?

A. Yes.

Q. So somewhere in a range of risks [the child] falls today?

A. Right.

Q. And you’re not offering any specific opinion about her?

A. That’s correct.

[115] Dr. Zayed’s report and proposed evidence was that he conducted a consultative review that was neither an assessment of the child nor a formal custody and access or parenting assessment. It was not intended to be an in-depth assessment of the foster parents’ capability to care for the child in contrast to that of the kin. The opinion is based on the two facts referred to above and literature. Dr. Zayed did not rely on further information or evidence in arriving at his opinion. His evidence does not address the potential risks to the child in relation to the facts that would mitigate the risk.

The Discretionary Gatekeeper Role

[116] In the second stage of the admissibility analysis, I find that the evidence of Dr. Zayed is not reliable. I say this not because the study of attachment theory is new and untested. I do so because his opinion and conclusions do not relate to the entirety of the evidence received about the child. Generic opinions that do not take into account all of the evidence would be unreliable in assessing the effect of placing the child in the care of the kin.

Conclusion on Admissibility

[117] It is for these reasons: lack of necessity (stage 1) and lack of sufficient reliability (stage 2) that the evidence of Dr. Zayed is not admitted in evidence.

[118] If I am wrong and the evidence should be admitted, I would give Dr. Zayed’s opinion very little weight.

[119] I would rely upon and adopt the analysis of S.E.J. Paull J. as set out in Children's Aid Society of Oxford County v. C.V., 2018 ONCJ 389. Justice Paull dealt with a report offered by the same Dr. Zayed. In that decision, it appeared that Dr. Zayed offered opinion evidence that significantly mirrors what was offered in this case. Justice Paull admitted the evidence but assigned little weight to it. At paras. 58 and 59 of the decision, the court held:

58 Dr. Zayed acknowledges that this was not a comprehensive assessment, however stated that any further investigation or information would not have assisted him or impacted his conclusions. He did not observe R.R.V., the subject of the report, and his knowledge of the background was limited to two meetings with T.D. and a short synopsis. Further, the background facts he did outline in the report did not paint an accurate picture of the totality of the circumstances. I am not convinced that meaningful conclusions and recommendations specific to R.R.V. around her placement and access can be made on this basis. I do not accept that a thorough psychological report of the impact on R.R.V. of any disruption in her attachment with her primary caregiver can be undertaken solely on the three facts identified by Dr. Zayed, without meeting with the child, or other interested parties, and without a broader review of the facts and circumstances in R.R.V.'s life.

59 As such, his specific opinions regarding R.R.V. in the report ought to be assigned little weight in the circumstances. As already outlined, I have accepted his evidence regarding the disruption of childhood attachments generally.

[120] For the same reasons I would not admit Dr. Zayed’s evidence, I would not give it weight as it does not pertain to the child who is of concern to the parties and the court in this case. It is about a generic child. It does not take into account the full evidentiary record received in this hearing. Dr. Zayed did not meet with the child and the only source of information he had was from the foster parents. As Paull J. observed, “it was unclear why a more comprehensive assessment would ever be necessary ...” if this type of report was relied upon.

The Joint Family Plan

[121] The joint family plan asked for by the mother, F.L. and the foster parents asks for a two-part order.

[122] The first part requests an order placing the child in extended society care.

[123] The second part requests that the order placing the child in extended society care be for the purpose of adoption by the foster parents.

[124] In support of the joint family plan, it is argued that it is more in accord with the purposes of the Act than is the Society and kin plans.

[125] The basis of this argument is that the joint family plan supports the autonomy and integrity of the family unit because it gives effect to the mother’s decision or desire to have the child placed with the foster parents rather than with the kin. It is argued that the mother should be allowed to choose – exercise her autonomy – where the child should live.

[126] With respect, I disagree. The disposition order must be based on the child’s best interests. While the mother’s views are a consideration, they are not determinative. It is one consideration among many the court is to consider in determining what is in the child’s best interests.

[127] I would also add that just because this is the mother’s plan does not make it the least disruptive plan. It is not who is the proponent of a plan that determines whether it is the least disruptive, rather it is the plan itself that determines this question. I find that in the circumstances of this case the Society and kin plan is a less disruptive plan than the joint family plan.

[128] A significant problem with the joint family plan is that the court does not have the ability to give effect to the second part of the joint family plan, that is, placing the child in extended society care for the purpose of adoption by the foster parents. There is no statutory or other authority that allows the court to direct with whom the Society must place the child after an extended society care order is made.

[129] In this child protection case, the court can place the child in extended society care pursuant to s. 101(1) ¶ 3 if this disposition is in the child’s best interests. However, in this child protection proceeding, the court cannot add to the extended society care order that the child be placed with the foster parents for the purposes of adoption or direct that they be allowed to adopt the child. In short, this court cannot give effect to the second part of the order the mother seeks. Once a child is in extended society care, it is the Society (on behalf of the Crown) who has the rights and responsibilities of a parent for the purposes of the child’s care, custody and control: s. 111. There is no provision in the Act that allows the court to direct where a Society is to place a child after they are placed in extended Society care. The legislation leaves that up to the Society: s. 109(2). At best, the court can make a recommendation about placement. However, I find that any recommendation the court may make must take into account the statutory pathway mandated by the Act. In this case, that means before the court could recommend placement with the foster parents, I would need to determine that placement with the kin would not be in the child’s best interests.

[130] It is also argued that in support of the joint family plan, the Act, at s. 101(4) does not create a presumption in favour of a community or kin plan. The mother relies upon the decision of Aston J. in Children's Aid Society of London and Middlesex v. S.(L.), 2005 ONSC 7300, [2005] O.J. No. 5599. At paras 23 and 24 of that decision, Aston J. held that Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] s. 57(4) (now s. 101(4)) requires the court to first consider if it is possible to place the child with a “relative, neighbor or other member of the child’s community or extended family.” The appropriate test, wrote Aston J., is “to weigh and to balance the merits of placing” a child with a community member or “alternatively making a Crown wardship order without any starting presumption in favour of one or the other. The comparison is strictly limited to an examination of the advantages and disadvantages of those competing dispositions using the best interests of the child yardstick.”

[131] I accept that if the child cannot be returned to the parents in this case, placement with kin is not a presumption under the Act. However, placement with kin is to be considered in priority to an extended care order. This is what the statutory pathway requires.

[132] I recognize that this creates a risk to foster parents when assuming this important role. In this case, the foster parents have provided the child with a safe and loving home and she is attached to them. But their role as possible long-term caregivers cannot be considered unless the parent or kin plan is found wanting.

[133] In a letter sent to the foster parents by the Society very shortly after the child was placed in their care, these risks were described to them as follows:

As a reminder, CASLM plans for permanency for our children by striving for the least disruptions possible for children. The agency has shifted its philosophy and placement process to better meet the needs of our children. This process supports what is least disruptive to our children, and is permanency driven with the hope of providing more stability and permanency to our children sooner.

Remember as you fall in love with [the child], that we are still concurrently planning for her. Our first hope is that the birth parents can resume care, and if they cannot that kin will be able to care for them so they can grow up with biological family connections. One of these caregivers may be approved. I know that this is hard for you to hear, but please believe this is in the best interests of our children. If [the child] should become available for adoption, our expectation would be that you will become her permanent family.

We know that frequently families lose sight of this information when the time comes for a child to transition from their home. In the midst of your grief and loss, please remember that our focus is on birth family connections for our children if possible.

Also remember that if this child should leave your home, I will continue to support you during what will be a heart breaking time for your family. I will also work with you as you decide whether you wish to put forth your family for another child in the future.

[134] The information contained in this letter is consistent with reasons contained in the decision of the Ontario Court of Appeal in L.(R.) v. Children's Aid Society of Niagara Region, [2002] O.J. No. 4793 (Ont. C.A.).

[135] In that decision, the court held:

9 It follows from the above-noted process that the Act envisages that, if it is not possible to return a child to his or her parent, the possibility of placement with a member of the child's extended family will be explored expeditiously and determined prior to any hearing at which society or Crown wardship is sought. The Act does not envisage a contest between members of a child's family and a foster parent at a hearing to declare whether the child should be declared to be a society or Crown ward. However, foster parents may play a role in the child protection proceedings. As this court has stated in G.(C.) v. Catholic Children's Aid Society of Hamilton-Wentworth, "[t]he legislature has demonstrated sensitivity to the circumstances of foster parents who have had care of the same children for an extended period of time". Subsection s. 39(3) of the Act provides that foster parents who have cared for a child continuously during the six months immediately before the hearing are entitled to the same notice of the proceeding as a party, they are entitled to be present and represented by a solicitor at the hearing, and to make submissions to the court.

39 It is also clear from reading the Act as a whole, including the specific provision contained in s. 57(4) referred to earlier, that consideration of the family may go beyond the natural parents and others who had charge of the child immediately before apprehension and may extend to relatives and other members of the children's community.

40 The approach on an initial hearing is different than when a status review hearing is held after a child has been declared subject to the supervision of the Society or has been made a society ward. As Osborne J.A. held in ... Children's Aid Society of Peel (Region) v. W. (M.J.) (1995), 23 O.R. (3d) 174 (Ont. C.A.), at 189:

On a status review hearing under s. 65, once it is established that the child is in continued need of protection and court intervention continues to be necessary, the court is required to consider the least restrictive alternatives consistent with the child's best interests. This may or may not involve the potential for some form of familial care. I do not think that on as status review hearing, a plan proposed by "extended family" (s. 57(4)) is to be given a prima facie elevated status.

Values which the C.F.L.S.A. seeks to preserve through s. 57(3) and (4) come into play when the child is removed from the care of the person in charge of the child immediately before state intervention. It is at that point that relatives, neighbours, and extended family are given a sort of priority consideration. This is because these potential placements may be in a child's best interests because they tend to be less intrusive. When more permanent steps are in issue, as was the case here, once it is determined that the child is in continued need of protection and that the court intervention is required, the court is required to consider among other things, the least restrictive alternative (s. 65(3)(h)) consistent with the pervading principle of the child's best interests. That is not to say that a plan of care advanced by a relative, or extended family may not be the least restrictive alternative and be a plan consistent with the best interests if the child. Such a plan should, in my view, simply be considered with other viable options.

41 In this case, the appellants are known as "risk foster parents". As noted by the applications judge, this designation applies to foster parents who have expressed an interest in adopting a foster child who has been placed with them if that foster child is made a Crown ward. There is an inherent risk in such situations that the duration of foster parenting may be more than just temporary and that strong attachments would be formed. However, the special role that foster parents may end up playing in the children's lives by reason of these circumstances does not alter their status under the Act. The foster home is not intended to provide a comparative basis in the assessment of the plans of care, if any, that are presented by family members for consideration by the court at this stage of the proceedings. ... [emphasis added]

[136] On this basis, the court may not consider the joint family plan at this time. On this child protection application, it has not yet been determined whether the child should be placed in extended society care. I must first determine if the Society and kin plans are in the child’s best interests.

Subsection 74(3) Considerations

[137] When taking into account the best interest considerations as set out in s. 74(3), I find as follows:

1. The child’s views and preferences cannot be ascertained given her age. She is not able to express them verbally. What is clear on the evidence is that she has an attachment with the foster parents and the kin.
2. The kin are able to meet the child’s physical, mental and emotional needs. The kin are well able to understand and meet those needs.
3. The kin plan will allow the child to maintain her cultural heritage. She will have exposure to her extended family’s traditions.
4. The kin plan recognizes and allows the child to develop a positive relationship with them and their family. They propose a long-term plan that will allow the child to have a secure place as a member of their family.
5. The child will be able to maintain a relationship with her siblings. F.L. has been invited and gone to kin family events with the siblings. F.L. and the kin have expressed that this is important for the child that she be allowed to develop a relationship with her siblings.
6. The kin plan will of necessity disrupt the continuity of care the child has enjoyed with the foster parents. In concert with the foster parents, they have minimized the child’s anxious behaviour at exchanges. The evidence discloses that the child is happy, content and comfortable in the care of the kin. The evidence also discloses, and I accept, that the child has developed an attachment with the kin.
7. The Society’s plan to place the child with the kin has considerable merit. It is a comprehensive and long-term plan that will provide the child with stability and security with relatives who love her and are committed to her healthy development. They are also committed to the child knowing who her mother is and having a relationship with her in circumstances that are safe.
8. I find that the kin plan, whereby they ask for custody of the child, will best eliminate any effect of delay in achieving a permanency plan may have on the child. There is no evidence that the mother or father will be able to care for the child within the time limits imposed by s. 122, including s. 122(5). The child has been spending ever-increasing time with the kin such that a period of transition by way of a supervision order is not necessary.
9. In the care of the kin, the child is not in need of protection.

[138] Having regard to the s. 74(3) considerations, the plans before the court and the paramount and other purposes of the Act, I find that it is in the best interests of the child to be placed in the custody of the kin pursuant to s. 102(1).

[139] Had I found that placement of the child with the kin would not have been in the child’s best interests, I would have readily accepted the joint family plan (with the recommendation of placement for the purposes of adoption with the foster parents) as being in the child’s best interests. That would have been the only viable plan before the court.

Access

[140] The Act provides at s. 105(2) for access after a custody order is made as follows:

Access after custody order under s. 102

(2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests.

[141] I am satisfied that it would be in the best interests of the child for her to have access with the mother. The kin want the child to know her mother. The mother remains part of the kin’s extended family. There will be opportunity for the mother and child to attend and be part of family gatherings. The mother has expressed a desire to have a relationship with her daughter and for her to know that she is her mother.

[142] Any contact must take into account the struggle with drug addiction that the mother continues to try to overcome. Her access with the child should be supervised while the mother addresses those factors that gave rise to the child being found to be in need of protection. There must be flexibility in the degree, if any, of supervision and time the mother spends with the child as she successfully addresses those issues. Her access to the child should be described as reasonable and subject to reasonable supervision by persons designated by the kin.

[143] There is no evidence that it would be in the best interests of the child to have access with the father. He has not attempted in some time to have any relationship with the child.

[144] It is in the best interests of the child pursuant to s. 104(1) that she have access with her siblings. It does not need to be supervised. Access may be arranged through F.L. This access may include access at F.L.’s home or in the community.

[145] I also find that it would be in the best interests of the child to have ongoing contact with the foster parents. The child has an attachment to them. They provided the child with an excellent start to her life. The foster parents love this child and wish to maintain a relationship with her. The foster parents are mature and reasonable adults who have demonstrated an ability to put the child’s interests at the center of their decision-making. I am confident that the kin and foster parents can make arrangements for the foster parents to have reasonable access with the child.

Order

[146] An order will go as follows:

1. The statutory findings are as in paragraph 14 above.
2. The child is found to be in need of protection under s. 74(2)(b)(i).
3. The kin shall be granted custody of the child pursuant to s. 102 of the Act.
4. The mother shall have reasonable supervised access with the child pursuant to s. 105(2) of the Act. There shall be reasonable supervision of access by persons designated by the kin.
5. The child shall have reasonable access with the siblings as arranged by the kin and F.L.
6. The child shall have reasonable access with the foster parents as arranged by them and the kin.

[147] The child is most fortunate to have love and support from so many adults. I recognize that this decision based on the requirements of the Act will be most disappointing to the foster parents given the commitment they made to the child and their desire to have her as a part of their family. The decision made in this case is not a judgment about the care they provided the child.

[148] Finally, I want to commend and thank counsel for the professional and sensitive manner in which they presented this case.

“Justice Barry Tobin” Justice Barry Tobin Released: December 3, 2018

COURT FILE NO.: C1239/16 DATE: December 3, 2018 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: Children’s Aid Society of London and Middlesex Applicant - and - A.L., J.G., F.L.L., R.F.L.A. and D.J.M. Respondents D.T. and S.C. Participant Foster Parents REASONS FOR JUDGMENT TOBIN J. Released: December 3, 2018

[1] The criminal charges brought because of the allegations of domestic violence did not result in a conviction against F.L. The mother testified at the criminal trial that she did not know who pushed who first.

[2] No party objected to this evidence being given by the social worker.

[3] L.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] O.J. No. 119 (O.C.J. G.D.)

[4] The Inquiry into Pediatric Forensic Pathology in Ontario: Report (2008).

[5] Children’s Aid Society of London and Middlesex v. C.D.B., 2013 ONSC 2858, at paras. 20-21.