Children’s Aid Society of Hamilton v. B.C. (mother) and D.C. (father), 2019 ONSC 4229

COURT FILE NO.: 1621-12

DATE: 2019-07-11

(i) WARNING

(a) This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

(b) 87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(c) (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Children’s Aid Society of Hamilton, Applicant

AND:

B.C., Mother, Respondent

D.C., Father, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Mr. John Bland, Counsel for the Applicant

Mr. Olayemi Ayoola, Counsel for the Respondent

HEARD: January 16, 17, 18, 21, 22, 24, 25, 29, 30, 31, February 6, 8, March 4, 5, 7, 26, 28, May 1, 2, 3, June 7 and 21, 2019

JUDGMENT

A. INTRODUCTION

Brief Background

[1] This is a Status Review Application pursuant to section 113 of the Child, Youth, and Family Services Act (the “CYFSA” or the “new Act”).

[2] On September 11, 2017, under the final order of Justice Pazaratz, the children, J.-M.C., born September 13, 2012 and X.C., born November 7, 2014 (“the children”) were found to be not Catholic, not Native or Indian, and in need of protection under section 37(2)(b)(i), (b)(ii), and (g) of the Child and Family Services Act (the “CFSA” or the “old Act”).

[3] The Children’s Aid Society of Hamilton [“the society,” or “the CAS”] now seeks a final order for extended society care without access to the parents, in order to place the two children for adoption. For ease of reading, I will refer to the parents as “the mother” and “the father” respectively, and to the children as “Jane” and “John” respectively. C.C., the children’s maternal grandmother, is referred to herein as “the maternal grandmother.”

[4] The mother seeks to have the children placed in her care, with or without a supervision order, or in the alternative, that the children be placed in the care of her and the maternal grandmother jointly.

[5] The father has filed a plan of care in which he supports the position of the society. He did not participate in the trial.

[6] The children have been in care since April 28, 2017, now almost 27 months ago.

Issues

[7] The court has been asked to decide the following issues:

a. whether the children are First Nations, Inuk or Métis, and if so of what band or community;

b. whether the children remain in need of protection;

c. what disposition is in the children’s best interests;

d. whether access is in the children’s best interests; and if so,

e. what the access should be.

[8] For the reasons that follow, this court finds that:

a. the children, J.-M.C., born September 13, 2012 and X.C., born November 7, 2014, are First Nations children;

b. there is no identified band or community at this time;

c. the children continue to be in need of protection;

d. the children shall be placed in extended society care pursuant to section 101(1)(3) of the CYFSA until the order is terminated under section 116 or expires under section 123; and

e. there shall be no access.

Previous Orders

[9] The following previous orders have been made in this matter:

a. the final order of Justice Pazaratz dated December 21, 2016, placing the children in the care of the mother subject to the supervision of the society;

b. the temporary temporary without prejudice order of Justice Pazaratz dated April 28, 2017 placing the children in the care of the society with access to the mother in the discretion of the society and supervised in the discretion of the society;

c. the final order of Justice Pazaratz dated September 11, 2017 finding the children to be in need of protection pursuant to sections 37(2)(b)(i), (b)(ii) and (g), of the CFSA and placing the children in the care of the society for six months with access to the mother in the discretion of the society, supervised in the society’s discretion [the “final order”]; and

d. the order of Justice Pazaratz dated September 21, 2018 for police records from the Hamilton Police Service, in relation to the mother.

Positions of the Parties

CAS

[10] The CAS seeks a finding that the children continue to be in need of protection, and an order that they be placed in extended society care without access. The society argues that the children continue to be in need of protection due to the mother’s transience; ongoing untreated mental health issues; instability and extreme, disruptive behaviour; repeated police involvement; conflictual relationships; and lack of follow through with respect to programming. The society’s position is that the children cannot be safely placed in the mother’s care, that there are no viable kin options, and that the least disruptive alternative for the children is to be placed in extended society care.

[11] The society argues that it has proceeded cautiously, starting with a supervision order, and then a six month society wardship order. Over time, the society argues, it has become clear that the only option in light of the risk to the children and given the time they have now been in care, is extended society care.

[12] The society further asserts that access by the children to their mother is not in their best interests and so advocates that there be an order for no access. The society also argues that there should be no access to the children’s maternal grandmother. There is no claim for access by the maternal grandmother formally before the court.

[13] The society takes no position on whether the children are First Nations, Inuit, or Métis, but argues that the evidence does not support such a finding.

Mother

[14] The mother seeks an order that the children be returned to her care whether with or without a supervision order. In the alternative she argues that the children should be returned to her and the maternal grandmother to jointly parent the children. The mother argues that the children are not in need of protection from her, but rather from the society. She says that while the children were with her, they flourished, and there was no evidence of malnourishment, abuse, neglect, or harm to the children. She argues that from April 2017, when the children were apprehended, to the present, the children experienced health and medical issues, as well as trauma at the hands of the society. Further, she argues that the society did little, if anything, to assist her during its involvement, and did not assist with access arrangements.

[15] The mother states that she is Mohawk of Six Nations, and argues that a finding should be made in that regard. She argues that the society has failed in its obligations arising from that fact. She states that the society did not conduct a thorough investigation, and that once she identified as First Nations, her band should have been named as a party and afforded the opportunity to participate in the proceedings. She argues that if the court now makes a finding that the children are First Nations, Inuit, or Métis, the court must not reach a final disposition without formal notice to her band.

[16] Finally the mother argues that if an order for extended society care were to be made, it is in the best interests of the children that an order for access be made to her and to the maternal grandmother.

Father

[17] The father did not participate in the trial and did not testify. However in his Answer and Plan of Care he supported the society’s position that the children should be in extended society care and that there should be no access. He stated that he was unable to care for the children or to present a separate plan.

Witnesses and Procedure

The society’s witnesses

[18] The Society called the following witnesses. Their evidence will be commented on below:

Sarah Guhl, Child Protection Worker, Hamilton Children’s Aid Society

Gina – foster mother

Annette Santos, Children’s Services Worker, Hamilton Children’s Aid Society

Police Constable Candace Nzeakor, Hamilton Police Services

Police Constable Bradi Wall, Hamilton Police Services

Police Constable Dominic Dicienzo, Hamilton Police Services

Police Constable Robert Booker, Hamilton Police Services

Constable Patrick Kobylka, Hamilton Police Services

Karen Barkovic, Kinship Services Worker

Susan Camera, Children’s Aid Society After-Hours Worker

Rebecca Delaney-McGlinchy, Child Protection Worker, Brant Children’s Aid Society (former Child Protection Worker for Hamilton Children’s Aid Society)

“Roy,” volunteer driver

Kayla Chandler, Family Visit Worker, Hamilton Children’s Aid Society

Dr. Bassam Al-Anee, Physician at Barton Medical Centre, Hamilton

Marelle Parkin, Child Protection Worker, Hamilton Children’s Aid Society

Jason Dyck, Social Worker, Bridge to Recovery Program, St. Joseph’s Healthcare Centre, Hamilton

Whitney Sabourin, Child Protection Worker, Family and Children’s Services of Guelph and Wellington County

Lana Livingston, Family Visit Worker, Hamilton Children’s Aid Society

Marina Mitrovic, Family Visit Worker, Hamilton Children’s Aid Society

Police Constable Jamie Lynch, Hamilton Police Services

Police Constable Mark O’Connell, Hamilton Police Services

Adrienne Gimlet, Family Visit Worker, Hamilton Children’s Aid Society

Megan Scott, Parent Support Worker, Hamilton Children’s Aid Society

Elaine O’Connor, Parent Support Worker, Hamilton Children’s Aid Society

Terri Winder-Sholer, Hamilton Children’s Aid Society

Police Constable David White, Hamilton Police Services

Makela Peneloza, Family Visit Worker, Hamilton Children’s Aid Society

Veronica Bennett-Shaw, Family Service Supervisor, Hamilton Children’s Aid Society

Milka Muhwati, Family Service Worker, Hamilton Children’s Aid Society

General comments about the credibility of the society’s witnesses

[19] I make the following general comments about the credibility of the witnesses called by the Children’s Aid Society and make more specific comments where relevant below.

[20] In general, I found the testimony of the workers called by the society to be credible and believable. While the mother’s counsel argued in closing submissions that the workers “colluded” in their evidence and that they testified as a “team” intent on “victory”, I do not accept that submission.

[21] Overall, the workers testified in a straightforward manner, to the best of their recollection, consulting their notes where unsure (except in reply evidence when not all brought their notes with them). Except as noted herein, I found the workers’ testimony was balanced, not only identifying concerns but also confirming that the mother could be loving and appropriate on visits and that visits could be positive.

[22] Having said that, I noted that family visit worker Kayla Chandler, who supervised a number of visits, had difficulty acknowledging that from a child-centred perspective, the agency cancelling visits when a parent is late might not be in their best interests. This suggested a reluctance to say anything “against” the agency.

[23] I also agree with counsel for the mother that Elaine O’Connor, clearly a dedicated worker who had extensive involvement supervising many visits by the mother and grandmother, appeared to become more reticent and less able to acknowledge the mother’s strengths when she testified in reply in May, 2019.

[24] Sarah Guhl, a child protection worker for the society, gave the most extensive evidence in the trial. She worked with the mother from May of 2017 until the trial. I found her evidence to be even-handed and balanced. She candidly acknowledged, for example, that some of the mother’s concerns regarding the children’s health in care were valid, such as when the child Jane lost her front teeth at the foster home. She was also able to acknowledge that some of the services arranged by the society for the children, such as counselling, had also been suggested by the mother. I found Ms. Guhl’s evidence to be that of a worker who tried consistently to engage with the mother.

[25] The court also heard substantial evidence from Annette Santos, the children’s worker, who was involved with the children from May 2017 until trial. Like Ms. Guhl, Ms. Santos gave her evidence in a balanced manner. She was knowledgeable about both children and also able to recognize the ongoing health challenges of the children while in care.

[26] The mother’s counsel suggested that the testimony of the volunteer driver, “Roy”, was “tainted” as was that of Dr. Al-Anee. He also suggested that Dr. Al-Anee had “points to score.” These were both neutral third parties who would have no reason to misstate their evidence. I found both of their evidence to be credible.

[27] The court found the testimony of the eight police witnesses credible. Each officer attended with his or her notes, providing his or her best recollection of their interaction with the mother or the maternal grandmother.

[28] The court had no difficulty accepting the testimony of social worker, Jason Dyck, who testified as to his meetings with the mother and what she told him about her mental health and treatment goals. While the mother’s counsel emphasized that Mr. Dyck did not testify as to seeing cuts or lacerations on the mother arising from self-harm, the mother herself told him that she had self-harmed three times since her miscarriage in December 2017.

The mother’s witnesses

[29] As set out below, the mother testified briefly. She also called C.C, the maternal grandmother, to testify. The evidence of these witnesses will be commented on below.

General comments about the credibility of the mother and her witness, the maternal grandmother

[30] The maternal grandmother testified and was cross examined. It was clear that she loves the mother and her grandchildren and that she wants what she believes is best for them.

[31] She candidly and tearfully told the court about the struggles faced by the mother, including incidents leading to police involvement. She was open about the fact that there was conflict between herself and the mother and that she hoped that the mother would get help for her mental health issues. The maternal grandmother also acknowledged her own mental health challenges following the death of her husband and that she had at times been very escalated.

[32] The maternal grandmother was questioned about her involvement with the Catholic Children’s Aid Society [“CCAS”] and the CAS, as a parent, since approximately 1999. She disagreed with how the society characterized the basis for the involvement and could not recall the dates and details of each alleged involvement. She acknowledged that the mother was made a Crown Ward in 2006, and that the mother’s sibling had also subsequently been made a Crown Ward.

[33] The maternal grandmother overstated to some extent her involvement in access. While initially testifying that she attended access almost all of the time, in cross examination it became clear that initially her attendance was occasional and it became more frequent from the fall of 2018 onwards.

[34] Overall, I found that the maternal grandmother was forthcoming about her daughter’s difficulties and I accept her testimony in that regard.

[35] As noted, the mother testified briefly and was not cross examined. In many respects I found her to be an articulate and thoughtful witness and a mother who cares about her children. She testified in direct examination about her mental health issues, in particular for the last 12 months or so.

[36] In hearing the mother’s testimony, I understand why she was concerned about health issues encountered by the children while in the care of the society, which are discussed below, although as is also discussed, her reactions were extreme. It was also evident that access became difficult when the children were in Hamilton and the mother was residing in Guelph. The mother also testified candidly about her frustrations with access cancellations when she was late, particularly when from her perspective, it was only by a few minutes. She showed some insight when stating that she knew she didn’t always react in the most appropriate way.

[37] At the same time, it was clear from the mother’s brief testimony that she did not work with the society to address the society’s concerns.

[38] It is regrettable that the mother chose not to complete her testimony in chief or to attend to be cross examined.

[39] The mother’s failure to attend most of the trial, notwithstanding the many adjournments to enable her to do so (as is discussed more fully below), is consistent with the testimony of a number of CAS workers who indicated that they had difficulty engaging the mother and having her follow through with them.

[40] Further, as is also described more fully below, the multiple reasons put forward in support of adjournment requests, followed by later information to the contrary, raises significant credibility concerns regarding the mother.

Affidavit and other documentary materials

[41] The court received and marked as exhibits eleven detailed affidavits sworn by Children’s Aid Society witnesses. The author of each affidavit testified and was made available for cross examination.

[42] In addition, the court admitted documentary evidence including police occurrence reports from the Hamilton and Guelph Police Services and Minutes of Settlement upon which the final order dated September 11, 2017 (providing for six-month interim society care) was based. The court also received in evidence copies of communication with the Six Nations Council.

Updating evidence

[43] Regrettably, this trial took place over many months, and there were numerous adjournments to facilitate and encourage the mother’s participation. The first day of trial was January 16, 2019 and evidence was tendered until February 8, 2019. This was followed by a series of adjournments until May 2, 2019.

[44] When the trial resumed on May 2, 2019, the court requested updating evidence, given the passage of time since the most recent evidence before the court. The court also permitted limited reply evidence to be called by the society.

The mother’s attendance at trial and weight, if any, to be given to her testimony

[45] The mother attended the trial only briefly on day 1 and day 12 of the 22 days of the trial. She gave partial evidence in chief, and did not attend court to be cross examined. I set out her participation, and the efforts of the court to enable that participation, below.

[46] When the parties attended on the first day of trial, January 16, 2019, they had an opportunity to discuss settlement options with another judge. No settlement was reached. The mother left the court and did not return the next day, or for the following eleven days of trial.

[47] Each day the court enquired as to whether the mother would be attending. Adjournments were not requested. The society called its witnesses. The mother’s counsel cross examined them without the benefit of the mother to provide him with instruction.

[48] The mother was anticipated to attend trial on January 31, 2019, on Day 10 of the trial, which was to be the first day of evidence in her case. She was not present at 10:00 a.m. Her counsel requested a delayed start until 11:30 a.m. to see whether the mother would attend. She did not. Counsel instead called the maternal grandmother to testify that day.

[49] Testimony of the maternal grandmother continued on February 6, 2019, Day 11, notwithstanding inclement weather. Counsel for the mother advised that he expected his client to attend as well. She did not attend. The matter was put over until February 8, 2019.

[50] The mother attended court on the 12th day of trial, February 8, 2019, arriving at court at 12:30 p.m. At that time the mother completed part of her examination in chief. When court adjourned for the day the examination in chief was not complete and it was expected that her testimony would continue when the court was to resume on March 4, 2019. Despite numerous adjournments listed below, the mother did not attend the balance of the trial, did not complete her examination in chief, and did not make herself available for cross examination.

[51] The following adjournments took place after the mother’s attendance at court of February 8, 2019:

a. March 4, 2019 (Day 13): The mother did not attend. The court was advised that the mother was in hospital (North York General Hospital) in Toronto. The trial was adjourned to March 5, 2019;

b. March 5, 2019 (Day 14): The mother did not attend. The court was advised that the mother was still in hospital in Toronto. The court heard that the worker, Sarah Guhl, had called North York General Hospital as well as five other Toronto hospitals, and the mother was not there. This was later elicited as testimony under oath. The trial was adjourned to March 7, 2019.

c. March 7, 2019 (Day 15): The mother did not attend. The court was advised that the mother had gone to the Go-Station in Toronto, felt unwell, and went back to the hospital. Her counsel advised that she was in “Respiratory West 8” and that she required “8 days of rest.” The court stated that the mother should be given the benefit of the doubt, and adjourned the trial to March 26, 2019. The court requested that the mother attend with a medical note on March 26, 2019.

d. March 26, 2019 (Day 16): The mother did not attend. Counsel requested that the court delay the resumption of the trial until noon, at which time if the mother were not present, according to her counsel, this would be sufficient for the court to assume that she did not want to participate in the trial. The mother was not present at noon. Counsel stated that the mother was aware of the implications of her absence and stated that this would conclude the respondent’s evidence. The court enquired further, and was advised that the mother had made some reference to having sustained a concussion. Out of an abundance of caution, the court adjourned the trial further to March 28, 2019.

e. March 28, 2019 (Day 17): The mother did not attend. Counsel advised that the mother had “sustained an attack” four days prior, and suffered bruises and a concussion. Counsel requested a 30-day adjournment. Photos were provided to the court purporting to show bruises, medication, and an IV drip. The photos were not date-stamped and it was impossible to determine when they were taken. The court was advised that the mother’s physician was Dr. Gullane. Again out of an abundance of caution, given the gravity of the relief sought, the court adjourned to May 1, 2019. In granting this adjournment, the court ordered that the mother file a medical report from her physician setting out her name and contact information, the diagnosis and prognosis, the length of the mother’s hospital stay, and at which hospital she was admitted after she was attacked, and whether the mother was able to testify at trial.

f. May 1, 2019 (Day 18): The mother did not attend. No medical report was filed. The court was provided with a letter from Dr. Gullane indicating that the mother was not her patient and that she had not met with the mother. The mother’s counsel requested a further adjournment to the following day. After hearing argument on the issue, the court declined to grant the further adjournment.

g. The trial continued on May 2 and May 3, 2019, with submissions being heard June 7 and 21, 2019. The mother did not attend any of these further dates.

[52] As can be seen, the court gave the mother every opportunity to attend and to fully participate in this trial.

[53] The court heard argument on what weight, if any, to give to the mother’s evidence, given her failure to complete her examination in chief or attend to be cross-examined.

[54] The society initially argued that the mother’s evidence should be struck or discounted entirely on the basis that she did not complete her evidence and the court thus had no opportunity to see her under scrutiny. At the conclusion of trial, the society argued that the mother’s failure to be subject to cross examination should simply go to the question of the weight to be given to her evidence in chief.

[55] The society cited a criminal case, R. v. Cameron, 2006 CarswellOnt 2987 (Ontario Court of Appeal), in which an expert was unable to be cross examined due to illness. In that case, the Ontario Court of Appeal applied Justice Cromwell’s reasoning in R. v. Hart, 1999 CarswellNS 54, leave to appeal to S.C.C. refused, 2000 CarswellNS 259, stating that a trial judge must consider (1) the importance of the evidence to the case; (2) any satisfactory basis upon which a trier of fact can evaluate the evidence; (3) the extent and effect of the cross examination that has been conducted; and (4) the likely impact that a complete cross examination would have had on the trial. (See para 32). Ultimately how to approach such evidence is within the discretion of the trial judge.

[56] The mother’s counsel also cited R. v. Cameron, emphasizing, however, that Cameron was decided in the criminal context where the burden of proof is higher. Counsel for the mother urged this court to be mindful that in assessing this issue, it is the society and not the parent who bears the burden of proof, and that this may impact how to address the mother’s untested evidence. The mother’s counsel submitted that the mother’s evidence should be allowed to stand but that the court could have regard to the failure to make herself available for cross examination in determining how much weight to give to her evidence.

[57] The society also cited Justice Pazaratz in C.C.A.S. of Hamilton v. J.T., 2012 CarswellOnt 8986 in which a father in a child protection case did not give evidence at all. He walked out of the court, stayed away for several days of trial and was not present to hear the evidence of other witnesses. In that case, Justice Pazaratz stated:

[864] Courts must always be mindful of how stressful the litigation process can be, particularly in family court -- and perhaps most particularly when a parent testifies in a trial in which the society is seeking Crown Wardship with no access. The stakes could not be higher. The pressure could not be more intense.

[865] But by the same token, parents presenting a plan in a child protection proceeding have an obligation to explain that plan and be subject to scrutiny. This is particularly so where the society’s list of concerns and allegations is detailed and serious. A parent’s professed fear of the witness stand cannot be allowed to subvert the court’s entitlement – and obligation – to consider all relevant evidence, where children’s lives are at stake.

[866] R.B.’s abrupt departure and absence from the trial process – his decision not to testify and his apparent inability to sit still in the courtroom – are fundamentally related to the society’s expressed concerns about his volatile, unpredictable, and impulsive nature. Even if he was afraid to be questioned, at the very least he could have been present in court when J.T. gave evidence about their joint plan.

[867] Quite simply, R.B.’s absence cannot be overlooked or explained away.

[58] I decline to strike the evidence of the mother. In my view, the mother’s failure to complete her evidence in chief and to make herself available for cross-examination goes to the weight to be given to that evidence. In an extended society care case such as this, where, as Justice Pazaratz stated, the stakes could not be higher, a parent’s voice, however imperfectly, inconsistently, and hesitantly before the court, should not be silenced. To make a fully informed, sensitive, and nuanced decision about the long term arrangements in the best interests of these two children requires considering the limited testimony of their mother, albeit with caution, given the lack of scrutiny through cross examination.

[59] I note that as in C.C.A.S. of Hamilton v. J.T, cited above, the mother’s failure to complete her examination in chief or to make herself available for cross examination are “fundamentally related to the society’s expressed concerns,” in particular regarding her failure to engage with the society to address the protection issues. Similarly, her repeated failure to attend court while assuring the court through counsel that she would be present, gives the court some insight into the challenges testified by to by workers who sought to work with the mother throughout the society’s involvement.

B. FINDING REGARDING FIRST NATIONS, INUK, OR MÉTIS IDENTIFICATION

[60] Under section 90(2)(b) of the CYFSA, when an application is made, as soon as practicable and in any event before determining whether a child or children are in need of protection, the court shall determine whether a child is a First Nations, Inuk, or Métis child and if so, the child’s bands and First Nations, Inuit, or Métis communities [“FNIM finding”].

[61] The question of the children’s identification was not a live issue in this case until October 18, 2018. At that time, with the anticipated start of the trial to be only five weeks later on November 25, 2018, the mother advised the worker, Sarah Guhl, that her late father was a First Nations individual.

[62] The mother’s information leads to two separate issues to be determined herein:

a. first, whether the children are in fact First Nations children, which determination is required by section 90(2)(b) of the CYFSA; and

b. second, if so, what the appropriate next steps would be at this time, when the children have been in the care of the society for almost 27 months.

[63] As will be seen below, it is relevant that this is a transitional case – that is, a case commenced but not concluded under the old Act, the CFSA.

Whether the children are First Nations children for the purpose of the CYFSA

[64] The CYFSA has broadened considerably who is recognized as an indigenous child, as compared to under the CFSA. As stated by Justice Benotto in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 CarswellOnt 9710 at para 56:

After the judicial determination of unconstitutionality in G.H. [C.C.A.S. of Hamilton v. G.H., T.V, and Eastern Woodlands Métis of Nova Scotia, 2016 ONSC 6287], the CYFSA broadened the definition of who is recognized as an indigenous child. Any child who identifies as First Nations, Métis, or Inuit, has a family member who so identifies or if there is a connection between the child and a band, is now recognized as First Nations, Métis or Inuit. The new legislation reflects a commitment to ensuring that these children are connected to their culture.

[65] Several regulations bear on the interpretation of CYFSA section 90(2)(b) as relevant to this case:

a. Under section 12 of Ontario Regulation 157/18, the obligation to make the determination under the new Act exists despite any determination under the old Act;

b. Under section 1 of Ontario Regulation 155/18, a child is a First Nations, Inuk, or Métis child if (a) the child identifies or a parent identifies the child as such; (b), the child is a member of or identifies with one or more bands or First Nations, Inuit, or Métis communities; or (c), it cannot be determined under clause (a) or (b), but there is there is “information” that (i) a relative or sibling identifies, or (ii) there is a “connection” between a child and a band or a First Nations, Inuit, or Métis community.

c. Under section 21 of Ontario Regulation 156/18, the bands or First Nations, Inuit or Métis communities with which a child identifies are 1) the band or community with which the child identifies; or 2) if the children’s views cannot be ascertained, then the band or community with which the parent indicates that the children identify.

[66] Under the CYFSA, it is possible for a child to identify or be identified as First Nations and not to be a member of a band or First Nations community.

[67] The evidentiary threshold regarding identification is low. The regulations do not require “proof” per se of identification. A broad approach should be taken to interpreting whether a child is a First Nations, Inuk or Métis child. See C.C.A.S. of Toronto v. S.T., 2019 CarswellOnt 10620 at paras. 37 and 38, per Justice Sherr.

[68] Having said that, there is an expectation of some “connection.” As Justice Hardman stated in Bruce Grey Child and Family Services v. A.B., 2018 ONCJ 516, 2018 CarswellOnt 12548 at paras. 34 and 36:

This finding ensures that a First Nations, Inuit, or Métis community with connection to the child is recognized as a party and participant in the decision-making around the child. With the recognition comes the expectation that the community may be able to help the society, parents, and court make a plan addressing the best interests of that child.

Given the fact that the finding is made to ensure the right interested parties are served, there appears to be an underlying expectation that there be some identifiable connection between the child or his or her family and that particular community.

[69] See also Justice Sherr’s comments in C.C.A.S. of Toronto v. S.T., cited above, at para. 35 where he stated as follows:

The court agrees with the court in Bruce-Grey, supra, that there must be sufficient evidence or information to make a finding that a child is a First Nations, Inuk or Métis child. To say that just anyone, no matter how incredulous their claim may be can put up their hand and have this claim accepted without question would be an open invitation to persons to abuse the administration of justice. It could cause considerable harm to children by delaying decisions affecting them and it would be disrespectful to the First Nations, Inuit and Métis persons the Act is intended to include. The underpinning of any self-identification right is that it must be made in good faith.

[70] The onus is on the society to conduct the investigation on the issue of heritage. As Justice Kukurin stated in C.A.S. of Algoma v. A.B., 2018 CarswellOnt 11378 at paras. 38 and 39:

The society is the logical party to be tasked with providing the court with the information that the court requires to fulfill its mandate under section 90(2)(b) of the CYFSA.

The onus is on the society first, and the respondent parents second, to provide the information to the court to enable it to do its job.

[71] For the following reasons I conclude that the children, Jane, and John, are First Nations children within the meaning of section 1(a) of the CYFSA Regulations, O.Reg. 155/18. If I am wrong in this determination, then I find in the alternative that they are First Nations children within the meaning of section 1(c) of that Regulation:

a. It is not relevant that the mother consented to a finding in previous Minutes of Settlement that the children were “not Indian and not Native.” The test was entirely different under the previous legislation. While this consent may have given the society a false sense of assurance that identification was not a live issue in this proceeding, the tests under the old Act and the new Act are distinct.

b. Similarly, it is not relevant that the mother did not raise the issue in her Answer and Plan of Care. That document was signed on March 28, 2018 before the entry into force of the new Act.

c. While the issue should have been raised at the very least in the Trial Scheduling Endorsement Form, which was completed August 27, 2018, four months after the entry into force of the new Act, the failure to raise the issue at that time does not prevent a finding at this time.

d. The maternal grandmother testified. She stated under oath that the mother’s biological father was V.M. and that he was “native”. Her testimony on this point was consistent with that of the mother. She stated that V.M. had passed away two or three years ago. The maternal grandmother did not know what community or band the father was a part of. While the society argued that it did not seem plausible that the maternal grandmother did not know the maternal grandfather’s band, she was not cross examined on this point. Whether she would know his band would likely depend on the nature and duration of that relationship and there was no evidence on that issue.

e. The mother testified with clarity and specificity that her father’s name was V.D.M, and that he passed away in 2015. She stated that he was “Mohawk of Six Nations.” Later she stated that he died on May 24, 2015 and was cremated and then buried on the Six Nations Reserve outside Hagersville, Caledonia. She stated that she attended his funeral, which she said the community considers a celebration of life. The mother also testified that her father moved from Six Nations to Winnipeg when he was about 40 years of age, and that his body was then brought back to Ontario for the funeral. The mother also stated that there is an aunt on the reserve, H.M. While I have concerns about other aspects of the mother’s testimony, as I will discuss below, I found the mother’s testimony about this issue to be specific and detailed.

f. The mother also showed the court a tattoo on her neck which she stated was a Mohawk symbol for happiness and peace.

g. While the agency states that the issue of the mother’s heritage only arose in October 2018 in response to a question put to her by the worker Sarah Guhl, in fact, according to Ms. Guhl’s affidavit, the issue of paternal family was discussed on July 12, 2018. At that time, the mother referred to V.M. having passed away three years prior, and of having an older sibling in Winnipeg (where she said her father had resided before his death) as well as two other paternal siblings. Although the worker’s affidavit referred to V.M. as the maternal grandmother, it appears, given the balance of the evidence on this, that this was a reference by the mother to the maternal grandfather, and that the worker misunderstood. Had further exploration been done at this time, the identification may have taken place earlier.

h. The mother testified that she told numerous workers that she was “half native.” Specifically she stated that she told Rebecca Delaney-McGlinchy, Marelle Parkin, Sarah Guhl, Veronica Bennett-Shaw, and Annette Santos at various points in the society’s involvement. Each of these individuals was called to testify in reply and denied that the mother had told them of her First Nations identification. The court has no reason to disbelieve the various witnesses called by the society in this regard and all five of them testified credibly about this. However, even if the mother did not tell these individuals about her father’s First Nations identity, I nevertheless find that the mother and grandmother’s evidence meets the “low” threshold required for identification, even late in the process.

i. Ms. Guhl testified that on November 18, 2018, one month after the issue was discussed with the mother and she clearly stated she was “one half native” and that the children were “one quarter native” (thereby identifying the children as First Nations children), she contacted Six Nations. After some back and forth, Ms. Guhl was advised by letter from the Six Nations Council that there were no results from the membership search. There was further follow up by letter and email during the trial, which also did not yield results. However, Ms. Guhl acknowledged that she did not advise Six Nations about the new information about V.D.M., in particular that he had been buried on the reserve, and the date of death, both of which had been testified to by the mother during the trial, or the fact that there had been a celebration of life on the reserve. No request was sent to the mother’s counsel asking for more specifics, such as the maternal grandfather’s date of birth or any other information which would assist in the identification process. The society did not call any representative of Six Nations as a witness in the trial.

j. Finally, worker Marelle Parkin testified that on March 20, 2017, she received a voicemail from the mother stating that she had been evicted and was staying at the Native Women’s Shelter in Hamilton. The society called evidence to show that one need not be of “native” heritage to be able to stay at that shelter which is accessible to all women. However, there was no evidence that the mother was referred there by the agency; rather it appears that she chose to go there. Considered in the context of the balance of the evidence, this may reflect how the mother identifies herself.

[72] In arriving at the conclusion that the children are First Nations children, I am cognizant of the comments of Justice Sherr in the recent decision of CCAS of Toronto v. C.T., cited above, in which he pointed out that the lack of registration with a specific band need not preclude a finding under the new Act. He stated at paragraph 36:

The reality is that due to the Sixties Scoop, many aboriginal persons now have fractured memories of the connections with their bands and First Nations, Inuit, or Métis communities… Evidence or information will often come from memories of discussions with relatives. It is likely that it will often lack detail. Many will not be registered with any First Nations band… In many cases, neither will their parents. This does not necessarily preclude a court from making a finding that the child is a First Nations, Inuk or Métis child. The new legislative provisions are an opportunity for these children to reignite lost connections with their culture and heritage.

[73] Justice Sherr continued at paragraph 43:

Clause 90(2)(b) of the Act requires the court to determine if the child is a First Nations, Inuk, or Métis child and if so, to determine the child’s bands and First Nations, Inuit, or Métis communities. The inability to name a child’s bands and First Nations communities does not negate the initial determination that the child is a First Nations, Inuk, or Métis child. The court can then make the statutory finding that the child has no bands, First Nations, Inuit or Métis communities.

[74] As seen above, based on incomplete information, there were no membership results when the society contacted Six Nations regarding the children and their maternal grandfather. It may be that with further information Six Nations does find results for the grandfather and/or the children as members or as eligible for membership. However, on the evidence, no identification of a band can be made at this time.

[75] The society will have a continuing obligation to take steps to assist in identifying the band.

What are the appropriate next steps:

[76] Having found that the children are First Nations, the question then becomes how to move forward at this late stage with that fact.

[77] Section 79(1)(4) of the CYFSA provides that where a child has been found to be First Nations, Inuk, or Métis, a representative of the child’s community or band is a party to the proceeding. Section 79(1) reads:

79(1) The following are parties to a proceeding under this Part:

1. The Applicant.

2. The society having jurisdiction in this matter.

3. The child’s parent.

4. In the case of a First Nations, Inuk, or Métis child, the persons described in paragraphs 1, 2, and 3 and a representative chosen by each of the child’s bands or First Nations, Inuit, or Métis communities.

[78] As a party, a representative of the child’s First Nations, Inuit or Métis band or community is entitled to have notice of the proceeding, have the right to be present, file pleadings, make submissions and fully participate in the proceeding.

[79] However, the legislature anticipated that in cases such as this, which were commenced under the prior legislation, it may be contrary to children’s best interests to name a First Nations respondent so late in the process. Ontario Regulation 157/18 provides at section 11 as follows:

11(1) A proceeding commenced under Part III of the old Act but not concluded before the day this section comes into force is continued as a proceeding commenced under Part V of the Act.

(2) Despite subsection (1), in the case of a First Nations, Inuk, or Métis child, paragraph (4) of subsection 79(1) of the Act does not apply if the court is satisfied that it would not be in the child’s best interests for that section to apply and makes an order stating that the parties to the proceeding are those who were parties immediately before this section comes into force. [emphasis added]

[80] The society argues that it would not be in the children’s best interests for this matter to be further delayed, particularly as there are numerous provisions in the legislation which would serve to engage the children’s community even if this court grants the order placing the children in extended society care.

[81] The mother’s counsel argued that the finding should be made and the band added as a party. He submitted that in considering the effect of section 79 of the new Act, the court must have regard to section 39(1)(4) of the old Act, which provided that where the child is an Indian or Native person, a representative of the band or native community is a party. On that basis he suggested that the band should now be made a party, and once made a party, the case should “stop”, for the band to now become involved. Further, he asserted that section 122, which imposes time limits on how long children may be in care is not engaged, or if it is, that time should nevertheless be extended. I address the issue with respect to section 122 more fully below in considering the appropriate disposition.

[82] I do not accept this interpretation, which would render section 79(4) of the new Act of no effect, or the outcome that would result on that argument. In this case, the parties to the proceeding when the new Act came into force, as seen on the Status Review Application returnable February 28, 2018, were the society, the father, and the mother. These were also the parties to the prior proceeding, the Amended Child Protection Proceeding originally returnable April 27, 2017. No band or First Nation was a party when the new Act came into force.

[83] This court finds that in all of the circumstances, the band should not now be added as a party to these proceedings. In so doing, I follow the careful analysis set out by Justice Caroline Brown in C.A.S. v. J.B. et al., 2018 ONSC 3316 (unreported, released May 30, 2018, Hamilton) at paragraph 46:

a. The issue of the children’s identification was raised very late in the court process, on the eve of what was anticipated to be the start of the trial. While I agree with the mother’s counsel that the society could and should have explored the issue of paternal family earlier, particularly when it was raised in July of 2018, it was not until October 2018 that the mother clearly stated that she identifies as a First Nations individual. While for the reasons set out above the court accepts that she identifies in that manner and that she identified the children as First Nations as well, I do not find her statements that she told five society staff about her identification, in light of each worker’s clear and credible testimony to the contrary;

b. The children have been in the care of the society for almost 27 months at this time. The timeline under section 122(1) of the CYFSA with respect to the youngest child (John) expired more than 14 months ago, and has also expired with respect to the older child (Jane). Contrary to the submissions of the mother’s counsel, no extension of time is possible under section 122(5) for the younger child and an extension of time with respect to the older child is not in her best interests. (See also paragraphs 156 - 160 herein on this point.)

c. The children require permanence. In this regard I am conscious of the admonition of the Ontario Court of Appeal in M.(C.). v. Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612, 2015 CarswellOnt 13733, in which the court stated “it is imperative that judges, court administrators, counsel (particularly Children’s Aid Societies) and assessors take responsibility for adhering to statutorily required timelines.” See para 31. While that case was decided under the old Act, I cannot but conclude that the statutory timelines remain a matter of significant priority even under the new Act.

d. The new Act places important requirements on the society when a finding is made, including where the disposition is extended society care. For example:

i. under section 109(2)(d), where the children are First Nations and an order is made for extended society care, the society is obligated to choose a placement with another First Nations family, if possible;

ii. under section 112(3) of the CYFSA, where a First Nations child is placed in extended society care, the society has an obligation to make all reasonable efforts to ensure that the child has a positive, secure, and enduring relationship within a family through a plan for customary care, adoption, or a custody order under section 116(1);

iii. Sections 3 – 6 of Ontario Regulation 156/18 sets out specific requirements on child protection agencies for servicing of the child, including offering culturally appropriate services. Service providers must take into account the child’s culture, heritage, connection to community and the concept of extended family. Section 6 in particular sets out service requirements for First Nations, Inuit, or Métis children.

iv. section 186 of the CYFSA also provides that the society may not place the children for adoption with another person until 60 days have elapsed from notice to the band and, if the band submits a plan of care for the children, until the society has considered that plan. This means that even if extended society care is granted, the band would have the opportunity to participate; and,

v. section 187 of the CYFSA provides that the society must consider the importance of developing or maintaining the children’s connection to their band or First Nation and shall consider the benefits of an openness agreement in respect of the children and a member of the band or First Nation, or of an openness order.

[84] For all of the reasons set out above, I find that it is not in the children’s best interests to apply section 79(1)(4) of the CYFSA in this case. The parties shall be those who were parties immediately before the CYFSA came into force. As in C.A.S v. J.B. et al., cited above, it is simply “too late” in this proceeding to add another party. The parties to this proceeding are therefore the society, the mother, and the father.

[85] I note that the mother’s counsel raised the issue of the FNIM finding under section 90(2)(b) of the CYFSA only on Day 10 of trial, that is, on January 31, 2019. Counsel’s cross examinations of relevant society witnesses did not explore issues related to identification, except when they testified in reply in May 2019. The issue arose for the first time, and then only very briefly, in his examination of the maternal grandmother.

[86] On Day 12 of trial, counsel for the mother argued that the court should use its power under section 92 of the CYFSA to summons witnesses and call its own evidence on the issue of the FNIM finding. He argued that the court should summons a representative of Six Nations, as well as a representative of the CCAS of Hamilton. For reasons given during trial, which included that the issue was premature as the evidence of the CAS was not complete and the mother’s case had not started, the court declined to summons witnesses at that time. The issue was not renewed by the mother’s counsel when the evidence of the parties was complete.

[87] My decision on the consequences of identifying the children as First Nations children would have been no different if the determination had been made when the issue was raised on January 31, 2019. While the older child would have been in care 21 months at that time rather than the almost 27 months she has now been in care, with technically three months until the timeline would have expired, I find that it would still not have been in her best interests to apply section 79(1)(4) of the CYFSA to the case. For the younger child, timelines had already been well exceeded in January of 2019.

[88] On the basis of the forgoing, I make the following findings:

a. The children, J.-M. C, born September 13, 2012 and X.C., born November 7, 2014 are First Nations, children within the meaning of the Child, Youth, and Family Services Act.

b. The children have no bands and First Nations, Inuit, or Métis communities at this time.

C. DO THE CHILDREN REMAIN IN NEED OF PROTECTION?

Legal Considerations

[89] This is a Status Review Application. Protection findings were previously made under the Child and Family Services Act.

[90] This status review was first returnable on February 28, 2018. As seen above, new legislation, the Child, Youth, and Family Services Act came into force on April 30, 2018. Pursuant to section 11(1) of Ontario Regulation 157/18, a proceeding commenced under Part III of the CFSA, but not concluded prior to the entry into force of the Child Youth and Family Services Act shall continue under Part V of the CYFSA.

[91] The court’s decision on a Status Review Application must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children. This takes precedence over all other considerations.

[92] Section 114 of the CYFSA provides that where an application is made for review of a child’s status under section 113, the court may, in the child’s best interests:

a. vary or terminate the original order made under subsection 101(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 101; or

d. make an order under section 102.

[93] The test on a Status Review Application is as follows:

a. the original order is presumed to be correct. This is not a rehearing of the previous order that was made;

b. the court must first determine whether the child continues to be in need of protection and whether as a consequence the child requires a court order for his or her protection;

c. the court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and

d. secondly, the court must consider the best interests of the child. This analysis must be conducted from the child’s perspective.

See Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371, 2018 CarswellOnt 11906 at para. 43; Catholic Children’s Aid Society of Hamilton v. S. (B.L.), 2014 CarswellOnt 12921 at para. 83; and Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.).

Background to Current Proceedings

[94] I set out below certain background to assist in understanding the context of the current case. The final supervision order of Justice Pazaratz dated December 21, 2016 and the final society wardship order made September 11, 2017 were made on consent, and without the benefit of a “Statement of Agreed Facts” in either case. The background set out here does not constitute “findings of fact,” but is included, based on the evidence heard in the trial, to provide the background to the circumstances since the making of the final order on September 11, 2017.

[95] The mother is 26 years old. As a child, the mother was exposed to neglect, inadequate supervision and other protection concerns which resulted in her becoming a Crown Ward in 2006. This is relevant because the maternal grandmother, who had care of the mother for much of her childhood, is part of the mother’s plan of care.

[96] The child, Jane, was apprehended at birth in 2012 by the CCAS of Hamilton due to alleged concerns regarding the mother’s drug use at the time and conditions in the home. The mother worked with the CCAS to address the concerns and Jane was returned home. However, the mother became involved with the CCAS again, due to concerns including a lack of prenatal care during her second pregnancy. She signed a voluntary service agreement for the period October 2014 – June 2015. The file was closed as the mother showed an ability to care for the children and provide for their needs.

Circumstances leading to the temporary order dated December 2, 2016

[97] The Hamilton CAS became involved in July 2016 following a call to the society by a community member. The reported concerns related to the mother’s alleged treatment of the children, including yelling and swearing at them, and concerns about the condition of the home. There was also an allegation that the mother had poured water on Jane’s head as a form of discipline.

[98] The society made efforts to work with the mother voluntarily from July to December 2016. Over the course of the fall, the intake worker, Rebecca Delaney-McGinchey, made repeated attempts to meet with the mother at her home. There were significant difficulties with cancellations, appointments needing to be rescheduled, and missed appointments. On at least two occasions, once in August 2016 and once in November 2016, the worker attended the home, the mother and the children were home, but the mother would not allow the worker access to her home.

[99] An after-hours worker, Susan Camera, attended the home on August 6 and 7, 2016, in response to a call about the condition of the home. When the worker attended on the 6th, the home was in a state of disarray, smelled of urine, and the children’s beds were not assembled. A safety plan was put in place for the mother to take the children elsewhere overnight. When Ms. Camera returned the following day she learned that the mother had not followed the safety plan, choosing instead to stay overnight in the apartment with the children.

[100] During the six month period between July and December 2016, the mother cared for the children in several different locations: her home on Kensington Avenue North, in Hamilton, from which she was evicted in August 2016; two different shelter locations in Hamilton (Martha House and Inasmuch Shelter), and a residence on Gage Street North, in Hamilton.

[101] The agency commenced proceedings on December 20, 2016, seeking a six month supervision order. On December 21, 2016, Justice Pazaratz made a temporary temporary without prejudice supervision order. That order set out terms of supervision including the following:

a. that the mother cooperate with the society to have access to the children in the home on a scheduled and unscheduled basis;

b. that the mother ensure that Jane be enrolled in school and John be enrolled in daycare and that they attend on a regular basis;

c. that the mother advise the society immediately if the police attend the home;

d. that the mother follow the direction of the society worker and attend services reasonably recommended; and

e. that the mother cooperate and follow through with the services of the society parent support worker to address parenting issues and child management strategies.

Circumstances leading to the apprehension on April 28, 2017

[102] Following the temporary temporary supervision order, the evidence was that the mother’s cooperation with the society did not improve.

[103] The intake worker transferred the matter to child protection worker Marelle Parkin in November 2017.

[104] Ms. Parkin made repeated efforts to meet with the mother through the spring of 2017. Many meetings were arranged. On five occasions, the mother cancelled because she said she or the children were ill. On one occasion, the mother cancelled because her cat went into labour. On other occasions, the mother cancelled without providing a reason, or was simply not present at the scheduled time.

[105] Between December 21, 2016 and April 28, 2017, Ms. Parkin met with the mother on four occasions in three different locations: December 23, 2017 and January 13, 2018 at the mother’s home on Gage Street North, Hamilton; on March 29, 2018 at the home of a family member in Stoney Creek; and on April 25, 2018, at a residence in Guelph.

[106] On December 23, 2016 and January 13, 2017, Ms. Parkin observed that the mother’s home smelled of feces and urine. On March 29, 2017, when the worker met with the mother at the home of a relative in Stoney Creek, the worker did not observe concerns regarding the home.

[107] On April 18, 2017, the mother advised Ms. Parkin by text that she was now living on Harris Street in Guelph with the children.

[108] The society subsequently received a report that the mother had been evicted from the Guelph home. She and Guelph CAS child protection worker Whitney Sabourin attended the home on Harris Street on April 25, 2017. Ms. Parkin and Ms. Sabourin observed that the mother, the children, the mother’s then-boyfriend, and at least one pet were staying in a single room. The workers observed the child John to be naked; both children to be dirty; no bedding on the mattress and futon in the mother’s room; and that the mother’s room smelled like urine and feces.

[109] The workers instructed the mother to take the children to a shelter in Guelph, “the Dwelling Place,” which she did.

[110] On April 27, 2017, the society brought an urgent motion in Hamilton Family Court, which was adjourned to April 28, 2017 to hear from the Guelph agency with respect to its position. On April 28, 2017, Justice Pazaratz made a temporary temporary without prejudice order that the children be apprehended, following which the children were brought into society care. The society amended its Application, now seeking an order for six month society wardship.

Circumstances between April 28, 2017 (the apprehension) and the final order dated September 11, 2017

[111] Between April 28 and September 11, 2017 the evidence was that there was little improvement in the mother’s circumstances.

[112] The mother was not able to secure stable accommodation. She resided at addresses including the following: Harris Street in Guelph, Wyndham House (a youth shelter) in Guelph, and with a couple on York Road in Guelph for a number of days.

[113] The mother expressed to Ms. Guhl in June 2017 that she was having difficulties accessing services in Guelph. After a formal request by the Hamilton CAS on June 16, 2018, Guelph worker Whitney Sabourin attempted to reach out to the mother to connect her with services in the Guelph area. Despite numerous messages being left for the mother and text exchanges back and forth, the mother and the worker did not meet between the apprehension on April 28, 2017 and the September 11, 2017 order.

[114] The formal request by Hamilton CAS for the assistance of the Guelph agency regarding services was not made until seven weeks after the apprehension. Ms. Sabourin, the Guelph child protection worker, confirmed that she knew that the mother was again residing at the Harris Street location, but did not attempt to meet with the mother by attending at that location.

[115] Access to the children was arranged to be in Hamilton, twice per week. The mother expressed how difficult it was for her to travel from Guelph to Hamilton for access visits, but did not move to Hamilton during this time to be closer to the children. The mother made efforts to attend access but missed some visits. By July 24, 2017, she had missed four consecutive visits. By September 2017, the agency reduced access visits to once per week. Although Ms. Guhl testified that by September the agency was starting to look into access possibilities in Guelph, Ms. Sabourin, of the Guelph agency, did not recall any requests for access to take place in Guelph.

[116] During this time, the mother’s interactions with the Hamilton agency were difficult at best. She expressed significant anger with the agency, threatening, for example, to sue. She told Ms. Guhl that growing up as a child with the maternal grandmother was “horrible” and that the agency did nothing to help her. The child protection worker, Ms. Guhl, found that the mother spoke negatively about society workers in front of the children and presented as frantic, escalating easily. In response to a question about her mental health, she told Ms. Guhl that if they had been in the wild, she would have ripped Ms. Guhl with her teeth.

[117] On September 11, 2017, pursuant to Minutes of Settlement which the mother signed with the assistance of counsel, the parties entered into a final order for six month society wardship with access to the mother, including supervision, in the society’s discretion. In those Minutes the mother consented to a finding that she was “not Native, not Indian.”.

Circumstances since the final order dated September 11, 2017:

[118] The court makes the following findings of fact with respect to the circumstances since the making of the final order of Justice Pazaratz on September 11, 2017.

[119] The first return of this status review was February 28, 2018.

[120] The society alleges that since the final order of September 11, 2017, the protection concerns which lead to the final order of September 11, 2017 have not been alleviated, and that serious concerns remain. In particular, the society alleges that the mother has continued to be transient; that she has mental health issues; that she has been convicted of a serious criminal offence; that there has been extensive police involvement; that she has shown an inability and unwillingness to cooperate with the society; that she has a highly conflictual relationship with her mother and with others; that she has not followed through on services or recommendations by the society; and that her access attendance has been poor.

[121] The evidence supports many of the continued child protection concerns advanced by the society, as is set out below.

[122] At the same time, the mother loves her children and has some positive parenting qualities, which are also set out below. She has had concerns about the children’s time in care and some of those concerns, particularly regarding the children’s health, have been valid. Her reactions, however, have been extreme and excessive.

[123] By way of overview, the evidence is that since the final order was made, the mother has continued to have difficulty establishing stable housing, having stayed in multiple locations in Hamilton and Guelph including a shelter location. Her relationship with the maternal grandmother has been crisis-ridden and volatile, resulting in numerous police calls. She has been involved in conflict with her doctor and with shelter staff. While she has reached out for support relating to mental health issues, she has regrettably not followed through.

a. Strengths

[124] The mother has made efforts to attend access even when this has been difficult. While numerous visits have been missed, she has also attended many visits over the course of the CAS involvement, both while she was staying in Guelph, as well as while she has been in Hamilton. She loves the children and she wants what she believes is best for them. She is attentive to the children’s health issues. The court sees clearly that it has been very difficult for the mother to be separated from the children. In August 2017, the mother told Ms. Guhl that she felt like half her soul is missing and her heart feels empty without them.

[125] The workers who have supervised visits have noted that the mother is often appropriate with the children, and is often able to redirect them where necessary. For example, Elaine O’Connor, a family visit worker who supervised many visits in 2018, and Adrienne Gimlet and Terri Winder-Sholer, who each supervised several visits in 2017, all testified that they observed loving interactions between the mother and the children on access visits. This is consistent with the testimony of Lana Livingston who supervised a few visits in the fall of 2018, noting that the mother was attentive to the children, affectionate, and brought food and activities for the children. Family visit worker Marina Mitrovic testified that the children showed happiness during visits.

[126] The mother has been very attentive to health issues affecting the children. Over the course of the CAS involvement she has frequently encouraged the children’s services worker to have the foster mother ensure that the children are seen by their physician and/or pediatrician. It was reasonable for the mother to be concerned about the children’s health. For example, while in care, one or both of the children have had pink eye, foot and mouth disease, tonsillitis, pneumonia, bronchitis, and impetigo. At one point Jane lost her two front teeth in her foster home, with two other teeth being pushed in. It is reasonable for a parent to be worried about these health issues. However, the mother’s reactions and interactions with workers about health issues were extreme and excessive.

[127] The mother took some steps to address her acknowledged mental health concerns, and to address her grief arising from a miscarriage of twins at 19 weeks in December 2017. She sought out counselling and she was prescribed medication. She pursued some counselling with a social worker named Tim Gordon in the fall of 2018, although a full assessment of her mental health was not completed. Social worker Jason Dyck also testified that the mother attended two meetings at the Bridge to Recovery Program through St. Joseph’s Healthcare in Hamilton. Bridge to Recovery provides dialectical behavioural therapy for individuals who experience intense emotions and have difficulty managing those emotions. These were each positive steps. Unfortunately, the mother did not follow through and the evidence does not support a finding that the mother’s mental health is stable.

b. Transience

[128] On the evidence, I find that the mother has been “transient” as alleged by the society, from the date of the final order, September 11, 2017 until at least the date of the mother’s testimony on February 8, 2019. The evidence confirms that during that period she has not been able to establish a stable home. Since 2017, she has stayed in Hamilton with the maternal grandmother intermittently; at Wyndham House, a youth shelter in Guelph; with a friend in Hamilton; on Grange Street in Guelph; and at Inasmuch Shelter in Hamilton. Most recently she has been staying in Toronto. In early January 2019, she told the child protection worker Ms. Guhl that she was in York, Scarborough and downtown, and that her plan is Hamilton, or wherever she is. When updates were provided to the court on May 2 and 3, 2019, the mother was commuting from Toronto to attend access in Hamilton.

[129] Although at times the mother has been able to reside with the maternal grandmother, this has not been consistent. In April 2018 the mother told the children on an access visit that she is no longer living with the maternal grandmother because she was not “nice” to her. In July 2018, the mother told the children that they would be moving to the maternal grandmother’s home.

[130] As the mother chose not to attend the trial after February 8, 2019, the court heard no evidence about whether she was able to secure accommodation in the spring of 2019. The evidence before the court to February 2019 was that she was transient.

[131] At trial the maternal grandmother testified that there was no plan for her and the mother to reside together and that it was better for the mother to have her own home. She stated that the “need to live separately” in their respective homes.

c. Police Involvement

[132] The agency alleges, and the evidence supports a finding that the mother has had extensive police involvement.

[133] Since the September 11, 2017 final order, the police were called numerous times in relation to the mother’s behaviour and interactions with the maternal grandmother. For example:

a. Constable Jamie Lynch of the Hamilton Police Services testified that on February 28, 2018, the maternal grandmother called police alleging that the mother was suicidal and in possession of a knife. The officer testified that the mother was very sad, and crying uncontrollably. Later the same day the police attended the home again in relation to another argument, the maternal grandmother alleging that the mother had thrown her laptop across the room and the mother stating she accidentally knocked it over.

b. Officer Nzeakor of the Hamilton Police Services testified that on March 26, 2018, the maternal grandmother called the police alleging that the mother had cut herself, and the mother told the officer that she had become upset and punched a mirror.

c. Constable Dicienzo of the Hamilton Police Services testified that on April 16, 2018, the maternal grandmother called the police saying that the mother had threatened her with a knife. The maternal grandmother wanted the mother apprehended under the Mental Health Act. The maternal grandmother’s evidence confirmed that the mother was having an “emotional breakdown”, and had locked herself in the bathroom with a knife. The mother, who was very emotional, told the officer that the women had had a fight and that she was grieving the stillbirth of her twins.

d. Constable Booker of the Hamilton Police Services testified that on September 10, 2018, the maternal grandmother called the police wanting the mother assessed and alleging that the mother had pulled a knife on her. The maternal grandmother confirmed in her evidence that the mother had said she wished the maternal grandmother would die and that the mother had been walking around with a knife.

e. Constable Kobylka of the Hamilton Police Services testified that later the same day the maternal grandmother called the police alleging that the mother had held up scissors and was threatening to kill her. When the officer attended the home the mother was very confrontational.

f. I found the evidence of these police officers credible and trustworthy. They each testified clearly and directly and had no reason to embellish or exaggerate their evidence. Their evidence was largely consistent with that of the maternal grandmother.

[134] The repeated police involvement highlights the extensive conflict between the mother and the children’s maternal grandmother. Exposure to extensive adult conflict presents a risk of emotional harm.

d. Mental health challenges and high conflict behaviour

[135] The society alleges that the mother suffers from mental health issues. The society refers to her behaviour as evidence, arguing that the behaviour has been “conflictual, aggressive, unpredictable, and erratic,” not just with the society’s staff but with police officers, a volunteer driver, a doctor at the Barton Clinic, and with the maternal grandmother.

[136] The mother’s counsel argued that there was no confirmation that the mother had mental health issues because there was no mental health assessment. On the evidence, the court cannot accept that argument. The mother’s own evidence confirms her mental health struggles and how difficult things have been for her. She stated that she has not been “mentally OK” for the last year due to the issues she has been facing, and confirmed in her limited testimony that her mental health has “gone down”.

[137] In addition, Dr. Al-Anee of the Barton Medical Clinic in Hamilton testified that the mother had received a diagnosis of anxiety and depression for which she was prescribed Clonazepam and Zoloft. Further, the mother told Constable Booker on September 10, 2018 that she also suffered from Post-Traumatic Stress Syndrome (PTSD). In addition, she told social worker Jason Dyck that she was concerned about her rapid shifts in emotions, her grief arising from her miscarriage, her self-harming behaviours since the miscarriage, and her escalating behaviour with her mother.

[138] The maternal grandmother’s evidence also confirmed the mother’s significant mental health struggles, and she stated that she would like her daughter to have help. The maternal grandmother testified that while her daughter is not a criminal and is a good person, she can’t handle what is going on, and is “exploding,” and having temper tantrums. She acknowledged that her daughter needs psychiatric help. In April 2018, the maternal grandmother herself obtained an order compelling a psychiatric evaluation of the mother. The maternal grandmother’s evidence was that an evaluation was conducted and the mother was released. The maternal grandmother thought that the assessors would have recommended therapy. She testified that if her daughter had help, everything would be ok.

[139] As noted above, the mother has been forthcoming about her diagnoses of anxiety, depression, and PTSD. She told Sarah Guhl in early 2018 that she was taking Zoloft to address PTSD as well as Clonazepam for panic attacks.

[140] The mother has taken some steps to address her mental health issues. However, the evidence is that she did not follow through with counselling with Tim Gordon, and that after attending two meetings in connection with the Bridge to Recovery Program at St. Joseph’s healthcare in the fall of 2018, she did not continue. Jason Dyck, social worker at the Bridge to Recovery Program, testified that he met with the mother on October 11, 2018 for an intake meeting and then again on October 26, 2018 for orientation session. Several additional sessions were scheduled at that time, but the mother did not attend. After three missed sessions, her file was closed.

[141] While there was no formal mental health assessment completed in this case, there was a great deal of evidence in the trial regarding the mother’s behaviour with third parties which can indeed be described as “conflictual, aggressive, unpredictable, and erratic” as alleged by the CAS.

[142] Dr. Bassam Al-Anee testified that on August 31, 2018, the mother became angry and insulting to him during a medical appointment. She had presented wanting a “doppler study” before any confirmation of pregnancy. Dr. Al-Annee explained that before a doppler study could be conducted, he would need to confirm pregnancy through a urine test and blood test and she would need to be more than 12 weeks into her pregnancy. The mother became irate, called him foul names, and told him he had to do what she said. He found her behaviour so concerning that he reported it to the police later that day. Dr. Al-Annee testified in a straightforward and believable manner.

[143] “Roy,” a volunteer driver, testified that on March 27, 2018, both the mother and the grandmother were very hostile when he attended to pick up the children to return them to the foster parent at the conclusion of access at the maternal grandmother’s home. When he said he had knocked earlier but there was no answer at the door, he testified that they went from “zero to sixty”, screaming that he was a liar. He said the anger seemed to come out of nowhere. He was so concerned that he declined to transport the children, and went home right away to write a summary of what had happened. He immediately reported it to the agency. The court had no difficulty with the evidence of “Roy,” and saw no evidence that he was “tainted” as alleged by the mother’s counsel in argument.

[144] As noted above, the mother has been very concerned about the children’s health while in care. While concern for one’s children’s health can be a strength as discussed above, in this case the mother’s concern became excessive and led to unnecessarily and significantly adversarial interactions with society staff. For example:

a. the mother was very concerned that the child John did not immediately have his 15 and 18 month vaccinations when he came into care, although those vaccinations were already late when the children were apprehended;

b. in March 2018, Ms. Santos told the mother that the children had a viral infection that was being monitored by the foster parents. She advised that the children did not have a fever and did not have diarrhea. The mother was so upset that the threatened to call the police if the children were not taken to the doctor by 4:30 pm that day;

c. the mother alleged that John’s tooth was “black” when she saw him for an access visit, but neither the children’s services worker, Ms. Santos, nor the parent support worker, Ms. Megan Scott, saw anything unusual about the tooth. When the child was seen by the dentist, the dentist was not concerned;

d. on at least two occasions, according to the police evidence, the mother has called the police to report that the foster mother was neglecting the children. For example, Officer David White of the Hamilton Police Services testified that on April 12, 2018, he was dispatched to the maternal grandmother’s home, where the mother made a report regarding the treatment of the children in the foster home. There was no evidence in the trial that the concerns were substantiated. The mother’s own testimony suggested that she had called the police “on the CAS” “five or six times;” and.

e. the mother repeatedly stated that the children needed to be seen medically, not just for more significant issues, but for minor issues experienced by school-aged children.

[145] The mother showed great difficulty managing her emotions on access visits and, on occasion, significantly escalated in the presence of the children. For example, on December 28, 2017, Makela Peneloza, the family visit worker, told the mother that the children were very late leaving and that on the next visit the mother would need to prepare the children to leave earlier. The mother became very upset and followed the worker in close proximity. A receptionist observing the incident called a “Code White”, which, the court was advised, is a technique designed to deescalate a situation when issues arise at the agency on access visits. The mother’s behaviour was so inappropriate that it was determined access could no longer take place in a group setting. Access was moved to another location at the agency, on a one-on-one basis, so that the mother’s behaviour would not affect other children and parents attending for access.

e. Criminal conviction

[146] The mother has a criminal conviction for assault causing bodily harm arising from an altercation in 2011 and remains subject to a ten year firearms restriction. Her criminal record was tendered as evidence in the trial. This is a serious conviction. Having said that, this substantially predates the final order.

f. Inability and unwillingness to cooperate with the society, including a failure to access and follow through with services

[147] The society alleges that the mother has demonstrated an unwillingness and inability to cooperate with the society and that this poses risk to the children. In the same vein, they argue that she has not been willing to access services recommended to her by the agency. On the evidence, I find that the mother has been reluctant to work with the society to address the protection concerns, at times evading workers. Examples include the following:

a. after September 11, 2017, when the final interim society wardship order was made, the mother made preliminary efforts to access some services but did not follow through. Ms. Guhl testified that when she would recommend services the mother would tell her that she already had her own counsellor, and that she did not need additional services. Regrettably, on the evidence, the mother did not follow through on the services she did herself identify. For example, she left Ms. Guhl a message on November 9, 2017 providing a list of services she planned to attend, including Parenting with Love, 1-2-3-Magic, Coping with Behaviour for children aged 3 – 12, and others. However, no evidence was tendered that the mother completed the programs, despite the fact that she was aware that they would be beneficial. On December 22, 2017, Ms. Guhl advised the mother that the most important issue for her to address to have the children returned was her emotional stability. On January 4, 2018, the mother provided Ms. Guhl with a list confirming registration in a number of programs, but again there was no evidence in the trial that those programs were completed; and

b. it appears that the mother’s pattern of going back and forth between Guelph and Hamilton and her inability to secure stable housing was partly responsible for not following through on services. For example, between May and August 2018, it was unclear whether the mother was staying in Guelph or Hamilton. On June 1, 2018 she told the children that she obtained housing in Guelph. Ms. Guhl’s evidence was that on August 2, 2018 she completed an interagency request for assistance with services in Guelph. On the same day, the mother told Ms. Guhl that she was now working at Tim Hortons in Hamilton and was looking for places to live in both cities. Ms. Guhl put the interagency request on hold. In September, 2018, she spent time at Inasmuch Shelter in Hamilton.

g. Conflictual relationship between the mother and the maternal grandmother

[148] The society alleges that the mother has a highly conflictual relationship with the maternal grandmother. The society points to the police involvement discussed above, and inconsistency regarding whether the mother was welcome at the maternal grandmother’s home or not, which shifted over time. The evidence supports a finding that the mother’s relationship with her maternal grandmother is highly conflicted. This, as noted above, creates a risk to the children of exposure to adult conflict.

[149] The maternal grandmother testified that it was not that she and her daughter have a difficult relationship, but that the times have been difficult. She testified that when the mother was younger, there were significant pressures on the maternal grandmother to maintain work and a place to live for the children and that it was not easy. More recently, she has lost her husband to cancer, and this has understandably been difficult. The children have been in care and this has been very stressful for the mother. The maternal grandmother testified that it was these pressures, in combination, which resulted in the fights and arguments leading to the police calls set out above.

[150] The court accepts and recognizes that the pressures identified by the maternal grandmother would make matters difficult for both women and that this may have contributed to some of the conflict they engaged in. However, from a child focused perspective, the mother’s inability to manage her emotions and reactions when with the maternal grandmother poses risk of emotional harm to the children.

h. Continued need of protection

[151] For all of the reasons set out above, I find that the children continue to be in need of protection and continue to require a court order for their protection. The risk concerns which formed the basis of the final order of September 11, 2017 still exist, in particular: the mother’s transience, her mental health issues, and repeated engagement with the police, and her conflictual relationships and interactions with others, most notably with the maternal grandmother.

D. DISPOSITION

Legal Considerations

[152] Sections 101 and 102 of the CYFSA enumerate the orders available to the court where a finding in need of protection has been made and where the court is satisfied that intervention through a court order is necessary to protect the child in the future. Section 101(1) sets out the following options:

1. Supervision Order

That the child be placed in the care and custody of another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

2. Interim Society Care

That the child be placed in interim society care and custody for a specified period not exceeding twelve months.

3. Extended Society Care

That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

4. Consecutive orders of Interim Society Care and Supervision

That the child be placed in interim society care and custody under paragraph 2 for a specified period and then returned to a parent or another person under paragraph 1, for a period or periods not exceeding a period of 12 months.

5. Custody Order

That one or more persons be granted custody of the child, with the consent of the person or persons.

[153] Under sections 101(2), 101(3), and 101(4), the court must consider other factors, including whether there are any less disruptive alternatives or possibilities for extended family placement. The court must also enquire with respect to the efforts of the society to assist the child or children before the intervention. Those sections read as follows:

101(2) Court to inquire

In determining which order to make under subsection (1) of section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

102(3) Less disruptive alternatives preferred

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

101(4) Community Placement to be considered

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

101(5) First Nations, Inuk, or Métis Child

Where the child referred to in subsection (4) is a First Nations, Inuk, or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible, or if it is not possible,

i. In the case of a First Nations child, another First Nations family.

ii. In the case of an Inuk child, another Inuit family.

iii. In the case of a Métis child, another Métis family.

[154] In Children’s Aid Society of Toronto v. L.(T.), 2010 ONSC 1376, 2010 CarswellOnt 1343 at para. 25, the court set out the statutory pathway to be followed when determining disposition. In light of the new legislation, that test should be reformulated as follows:

a. determine whether it is in the child’s best interests to return to a party, with or without supervision; if so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order; if not, determine whether the disposition that is in the child’s best interests is interim society care or extended society care;

b. if an interim society care would be in the child’s best interests, but the maximum time under section 122 of the Act has expired, determine whether an extension under section 122(5) is available and in the child’s best interests. If so, extend the time and make an order for interim society care. If not, make an order for extended society care;

c. if an extended society care order is to be made and a party has sought an access order, determine whether access is in the best interests of the child in view of the factors set out in section 74(3) and a consideration of whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. If the court deems appropriate, it may consider whether access would impair adoption. If access would not be in the best interests of the child, dismiss the claim for access; and

d. if access would be in the best interests of the child, make the access order containing appropriate terms and conditions.

[155] The governing factor when considering the placement of a child is the child’s best interests. Best interests are to be determined with reference to the following factors:

74(3) Best interests of the child

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.

[156] In determining which disposition is in the best interests of the children, the court must consider the stipulations in the CYFSA regarding the maximum total amount of time a child may be in the care of the society. Section 122 of the CYFSA establishes that the court shall not make an order which would result in a child being in the interim care of the society for a period exceeding twelve months if the child is younger than age 6 on the day the court makes the order, or twenty four months if the child is 6 or older on the day the court makes the order. Those timelines may be extended by up to six months if the court finds that it is in the best interests of the child to do so.

[157] Counsel for the mother cites two cases which he says stand for the proposition that where section 122 (formerly section 70 of the CFSA) is engaged, courts can extend time more than six months in total beyond the statutory limits provided for in section 122(2). In CAS of Manitoulin and Sudbury v. M.(P.), 2002 CanLII 46663, Justice Renaud stated that section 70(4) under the old Act might allow a court to make more than one order extending time periods provided that no single order exceeds six months, and that “such a reading may well be more consistent with the principles expressed in section 1 of the Act and with the best interests of a child in a particular case.” See para. 103. However, Justice Renaud did not make such an order in that case, finding that “nothing would be accomplished by delaying further a decision in respect of the child’s future.” See para. 107. He ordered what was then called crown wardship.

[158] Justice Renaud’s decision was cited in CAS of Ottawa-Carleton v. D.(B.), 2002 CanLII 61172, at para. 51. In that case, Justice Smith of this Court stated, “The interpretation that would make practical sense and that would give the court flexibility would be to allow the court the discretion to grant a further six-month extension… provided that the court finds it is in the child’s best interests…” See para 52. Again, while expressing that view, the Court did not grant a further extension in that case and proceeded to order crown wardship.

[159] I agree with the analysis of Justice Mitrow set out in a detailed decision in CAS of London and Middlesex v. O.(M.), 2014 CarswellOnt5412, where he stated as follows at paras. 25 and 26:

While admittedly there are two lines of authority on the issue of extension of society wardship pursuant to section 70(4), I am of the view, with deference to opinions to the contrary, that on a plain reading of section 70(4), the period of wardship referred to in section 70(1) can only be extended for six months. Section 70(4) cannot be considered in isolation. The maximum time limits are set out in section 70(1). Section 70(4) refers to extending “the period” permitted by s. 70(1). This creates an 18 month maximum for a child under the age of 6 and a 30 month maximum for a child 6 years of age or older.

In addition, and I say this respectfully, an interpretation of s. 70(4) that permits multiple extensions of up to six months each time, is not supported by the wording of the legislation.

[160] Counsel for the mother also argued that section 122 is not engaged at all because notice has not been served upon the band representatives as provided for in section 113 of the CYFSA. As set out above, this court has found, as permitted under section 11(2) of Regulation 157(18), that the parties to the proceeding are society, the mother, and the father. The court has determined that it is not in the children’s best interests to apply section 79(4) of the new Act to now add a party at this late stage of the process. Further, as seen above, the court does not – in any event – have sufficient evidence to identify the children’s band. Finally, in my view, section 122 speaks to how long children have physically been in care. It addresses their lived reality. An interpretation which seeks to “discount” time that they have physically been in the care of the society is not in keeping with the paramount purposes of the Act.

[161] An order for extended society care is perhaps the most profound order that a court can make. The power to make this order must be exercised with great caution, on the basis only of compelling evidence, and after a thorough consideration of alternative remedies. Catholic Children’s Aid Society of Hamilton v. M.(M.A.), 2003 CarswellOnt 1122 at para. 12; Catholic Children’s Aid Society of Toronto v. R.H., 2018 CarswellOnt 20591 at para. 7.

[162] The Court should give consideration as to whether the society has given the parent an opportunity to parent. Children & Family Services for York Region v. W.(A.), [2003] O.J. No. 996 (S.C.J.); CCAS of Toronto v. R.H., cited above, at para. 7.

[163] The issue for the court is whether the level of parenting being received by the children is below the minimum standard tolerated by the community, not whether the children will be “better off” with parents other than their own. Family and Children’s Services of St. Thomas and Elgin v. C.(A.), 2013 ONCJ 453, 2013 CarswellOnt 11701 at para. 158. Courts must recognize that families living in poverty may face challenges. Parents are not to be judged by a “middle class yardstick… provided that the standard used is not contrary to the child’s best interests.” Children’s Aid Society of London and Middlesex v. J.D., 2018 CarswellOnt 19221 at para. 79; see also Catholic Children’s Aid Society v. I. (J.), 2006 CanLII 19432 (ON SC), 2006 CarswellOnt 3510.

[164] In determining best interests, the court must consider the merits and demerits of each option before the court. The court must consider the risk a child may suffer by being in a parent’s care or another person’s care; and, the court must consider the risk of emotional harm each child may suffer being separated from their parent or other significant person. Children’s Aid Society of Toronto v. S.(G.), 2012 ONCA 783 at para. 18; Catholic Children’s Aid Society of Toronto v. R.H., 2018 CarswellOnt 854 at para. 7.

[165] An extended society care order may be justified where a parent lacks insight into issues including physical and emotional harm even where there may be other positive aspects of a parenting plan. CCAS of Hamilton v. V.C., 2017 ONSC 5557, Catholic Children’s Aid Society of Toronto v. R.H., 2018 CarswellOnt 20591 at para. 7.

[166] The court must focus on the child through all stages of the protection proceeding. Child protection legislation is “a child welfare statute not a parents’ rights statute.” Winnipeg Child and Family Services (Central Area) v. W.(K.L.), 2000 SCC 48, [2000] 2 S.C.R. 519 at para. 80.

Services Provided to the Family

[167] Both the Hamilton CAS and the Guelph CAS repeatedly reached out to the mother in an effort to connect her with services. As set out above, however, the mother did not work with the society and where she did take initial steps to avail herself of services, she did not follow through.

[168] While in my view, the Guelph agency should have made greater efforts to meet with the mother during the summer of 2017, before the final order, the court accepts Ms. Sabourin’s evidence that she tried repeatedly to make arrangements with the mother to meet her to connect her with services.

[169] The mother’s counsel submitted that the CAS should have done more to assist the mother in being able to attend access. The mother testified as to how difficult it was to maintain a job, and then travel by bus from Guelph to Hamilton to see the children over the summer of 2017. While the society could have done more to assist the mother in that regard, the mother did not take steps to assist herself. Although she moved back to Hamilton in the fall of 2017, which improved transportation to access, she then made the decision to relocate to Toronto, knowing that the children were in Hamilton and that this would again render transportation very challenging. The mother did not do her own part to ensure consistent access. I find, as in Children’s Aid Society of Sudbury and Manitoulin v. M.(P.), 2002 CanLII 46663, where the mother relocated away from the child, that it is “not inappropriate to draw an inference in respect of her commitment to the child[ren] absent some explanation.” In that case the court found that the mother must assume responsibility to the decision to reside a “considerable distance” away from the child.” See para. 122.

[170] The Hamilton CAS encouraged the mother to participate in programming to address her mental health issues, which Ms. Guhl told her were a significant priority. As seen above, the mother did not follow through. While the mother made initial contact with Bridge to Recovery and with social worker Mr. Gordon, she did not continue that programming to the point where it could have assisted in reducing the protection concerns.

[171] The court is unable to accept the submission of the mother’s counsel that the society did not act in good faith in extending supports to the mother. The evidence is that when the society made efforts to assist her, the mother did not engage or follow through.

[172] The mother’s own conduct in repeatedly failing to attend trial despite the numerous adjournments granted to assist her in doing so, illustrated clearly the challenges the society encountered in working with her.

Plans of Care:

The society’s proposed Plan of Care

[173] The society’s Plan of Care, dated January 25, 2018, provides that the children be placed in extended society care. The children are to receive the services of an extended society care worker, and an appropriate placement to address their needs. The plan provides that the children will also be provided with the services of an adoption worker to locate a suitable family to provide a permanent home. The society seeks an order for no access.

The mother’s Plan of Care

[174] The mother’s Answer and Plan of Care, dated March 28, 2018 sets out her plan for the children. The mother seeks an order that the children be placed with her, with or without supervision; or in the alternative, that the children be placed with her and the maternal grandmother jointly.

[175] The mother’s plan involves the following:

a. that she and the children reside with the maternal grandmother at the maternal grandmother’s home in Hamilton;

b. that the children attend school and daycare;

c. that the mother will work during the school day in a catering business to be opened with the maternal grandmother;

d. that the mother will continue therapy with her psychotherapist Tim Gordon; and

e. that the mother will have the support of her mother, two grandmothers, siblings and close friends.

[176] There are significant challenges with the mother’s plan of care:

a. Notably, the maternal grandmother testified that she and the mother cannot live together, and that they each need their own home. She also stated that her goal in testifying was to ask for access for herself and the maternal great grandmother. At the time of trial, she was not extending her home as a place for the children to live; nor did she indicate a willingness to be part of a joint parenting plan. She stated that she and the mother needed to live apart.

b. There is no evidence that the mother has obtained suitable or stable housing of her own. The most recent evidence is that she is in Toronto, variously staying in Scarborough, York, and downtown.

c. Further, as set out above, the evidence does not support a finding that the mother continued the planned therapy with her physiotherapist on a consistent basis after the Plan of Care was served, or that she is taking steps to address her mental health issues or her difficulties regulating her emotions;

d. Further, given the mother’s reluctance to work with the society to address the protection concerns, the evidence does not support a finding that she would cooperate with the terms of a supervision order.

The father’s Plan of Care

[177] The father served and filed an Answer and Plan of Care dated April 12, 2018, although he chose not to participate in the trial. In that document he expressed regret at being unable to put forward a plan for the children, and set out his support for the position of the CAS. In his Answer and Plan of Care he expressed concern about the mother’s inability to manage her emotions or to maintain a home appropriate to children.

The Children:

[178] A number of witnesses provided evidence about the child Jane, who is now six years old, and the child John, who is now four years old.

[179] Ms. Santos, the children’s services worker, has been meeting with Jane and John since May 2017.

[180] The evidence is that the child Jane is doing reasonably well. She enjoys her school, although she has some academic challenges. She has just completed Grade 1. While it was earlier thought that Jane has Attention Deficit Hyperactivity Disorder (ADHD), as at May 2, 2019, she had been taken off ADHD medication. She still shows a lack of focus and needs redirection. Since Jane came into care, her social skills have improved. Jane participated in resiliency counselling which had ended when the trial came to a close in June 2019. There was evidence that Jane sometimes has difficulties sleeping and has nightmares. Although Jane had resided with the same foster parent, Gina, from coming into care in April 2017 until the spring of 2019, unfortunately, when the trial resumed in May 2019, there had been a placement breakdown and was residing with a different foster family. She continued to have time with her brother through dance classes.

[181] The evidence is that John also enjoys school. He is a “good eater.” He appears to have issues with gross motor skills, and has been referred to a specialist to assist with this issue. He has had challenges in terms of appropriate social skills at school and he and Jane can be aggressive with one another. As at May 2019, John had also been referred to resiliency counselling and had participated in some sibling sessions. He was on a trial of Ritalin to treat suspected ADHD.

Reasons for Disposition with Summary of Findings:

[182] In determining the appropriate disposition in this case, having regard to the children’s best interests, I make the following findings:

a. The society’s plan of care, which provides for the children being placed in extended society care, will best meet these children’s physical, mental, and emotional needs. There is no other order which will adequately protect the children and be in their best interests.

b. The CAS of Hamilton and the CAS of Guelph and Wellington Counties both made reasonable efforts to extend services to the mother in an effort to help her address the serious child protection concerns in this case. She did not consistently work with the agencies to address the concerns.

c. There are no less disruptive alternatives that would adequately protect the children. As set out above, the evidence is that while the temporary order dated December 21, 2016 was in place, the mother did not cooperate with the society to address the concerns. The society apprehended and amended its protection application to seek a six month interim care order. At this time, the children have been in care for more than 26 months and no progress has been made in addressing the protection concerns. It is not in the children’s best interests to make a further interim care order (nor is that option for John given his age).

d. No viable family or community placements are available in this case. The maternal grandmother put forward a plan and was assessed. Her extensive child protection history as recently as 2017 (with respect to the mother’s sibling), the fact that both the mother and her sibling were made Crown Wards, and the maternal grandmother’s lack of recognition regarding the child protection issues when the CCAS were involved, resulted in her kin plan not being approved. In any event, as noted above, she testified that she is currently seeking access, not proposing a home for the children.

e. The plan proposed by the society recognizes the importance of permanence and stability for the children. The society’s plan will better allow for continuity of care for the children, and a long-term, stable plan.

f. The society’s plan better addresses the many risks that justified the finding that the children remain in need of protection.

The mother’s argument that the children should be protected from the society and returned to her

[183] In closing submissions, the mother’s counsel argued that the evidence shows that the children need protection from the society, not from the mother. In particular, he pointed to health challenges that the children have faced while in care, arguing that the children previously thrived with the mother.

[184] It should be clear from the foregoing that there were significant protection concerns when the children were in the mother’s care, and that those protection concerns have not been addressed. Transiency, mental health issues, lack of follow through with services, continued police involvement – all remain significant concerns. Nevertheless, even if it were the case that the children were not well cared for in foster care or experienced more health issues in foster care than with the mother (and there is not enough evidence to make that finding), the question for the court once the protection finding has been made is what least disruptive outcome is in the child’s best interests. As Justice Gordon stated in C.A.S. of Hamilton v. E.O. and S.H., 2009 CanLII 72087 at para. 244:

In closing submissions, the mother’s counsel urged the court to hold the society accountable for their conduct in this case. The complaints are numerous. There is merit in the request; however, this is not the proper forum. In a child protection case, the ultimate test is the best interests of the child. Returning him to his parents’ care, as a result of mistakes made by the society, is not appropriate. As Fleury J. said in Children’s Aid Society of Hamilton-Wentworth v. E.D., [1999] O.J. No. 5779 (Ont. Gen. Div.), at para. 8:

To penalize the society by returning a child to a situation of danger would be the most ridiculous result I can imagine. It would bring the entire administration of justice into disrepute.

Conclusion regarding Disposition

[185] Having considered the paramount purposes of the CYFSA, the plans of care before the court, and the best interests considerations under section 74(3) of the Act, this court finds that it is in the best interests of the children to be placed in extended society care.

[186] I confirm that in considering the children’s best interests I have done so having regard to section 73(3)(b) which provides that the court shall, in the case of First Nations children, consider the importance of preserving the children’s cultural identity and connection to community, in addition to the balance of the clauses under section 74. In this case, I am satisfied that those objectives can be met through the obligations on the society following the extended society care order, as discussed in paragraph 83(c) above.

E. ACCESS

Legal Considerations

[187] Section 104 of the CYFSA sets out the test respecting access orders, and provides as follows:

The court may, in the child’s best interests,

(a) when making an order under this part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[188] Section 105(4) provides that where a court makes an order that a child be placed in extended society care, any order for access is terminated. Under section 105(5), a court shall not make or vary an access order under section 104 with respect to a child in extended society care unless the court is satisfied that the order or variation would be in the child’s best interests.

[189] Section 105(6) sets out additional considerations for the best interests test (set out in section 74(3), above) in respect of access as follows:

The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) Whether the relationship between the person and the child is beneficial and meaningful to the child.

(b) If the court considers it relevant, whether the access ordered will impair the child’s future opportunities for adoption.

[190] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 CarswellOnt 9710, the Ontario Court of Appeal recently held that with the changes to the child protection legislation, the onus no longer falls on the person requesting access to demonstrate that the relationship is meaningful and beneficial to the child and will in no way impair adoption opportunities. Rather, the court stated at paragraph 49:

The court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of that assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoption prospects if it is in her overall best interests. And, as shown in section 74(3) of the CYFSA, the best interests analysis is comprehensive.

[191] In Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371, 2018 CarswellOnt 11906 at para. 87, Justice Pazaratz summarized how courts have interpreted the concept of “beneficial and meaningful to the child:”

a. “beneficial” means “advantageous;”

b. “meaningful” means “significant;”

c. the person seeking access should be able to show that their relationship with the child brings significant positive advantage to the child, from the child’s perspective;

d. more than love or a display of love is required;

e. more than biological connection is required;

f. “Some” positive aspects to the relationship between parent and child will not suffice; there must be “significant” advantage to the child;

g. that some visits are positive will not suffice, particularly where the child has also had countervailing negative experiences;

h. it is the existing relationship that is considered, not a future, possible, relationship;

i. even if the relationship is beneficial and meaningful, the court must still weigh the benefits to the child of access versus no access; and

j. even if visits are generally enjoyable, the court must consider whether the beneficial aspects of visits outweigh the child’s need for continuity and care and a secure place as a member of a stable family.

Access Analysis

[192] The society seeks an order that there be no access.

[193] There is no doubt the mother loves the children. As set out above, there is also evidence that she can be appropriate with the children, and that she demonstrates love and affection on visits. As set out above, when she attends access she is often attentive and the children have shown happiness.

[194] However, in this case, having full regard to the principle that an access order shall not be made unless it is in the children’s best interests, this court finds that an order for access by the children to their mother is not in their best interests. This is so for the following reasons:

a. The mother’s record of attending access visits throughout the involvement of the CAS has been very inconsistent. While she has made efforts to attend, even while being otherwise transient, she has missed many visits while the children have been in care. For example:

i. The evidence of Ms. Guhl was that from May 8, 2017 until December 28, 2017, the mother missed upwards of 17 visits (one of which was cancelled by the society).

ii. Of approximately 38 visits to be supervised by Family Visit Worker Elaine O’Connor between February 22, 2018 and the date of the commencement of trial, the mother missed almost one third of the visits (12 visits in total).

iii. During the period covered by Ms. O’Connor’s updating evidence (January 30 – May 1, 2019), the mother attended no visits between February 1, 2019 and March 22, 2019 during which time there were 6 potential visits, and then attended 4 between March 29 and April 26, 2019. That is, of 10 possible access visits during this period, even while the trial was ongoing, the mother attended only 4 visits in total.

b. The evidence does not suggest that access would become more consistent in the future. It is not in the children’s best interests to anticipate access only to have it frequently not occur. This would cause repeated disappointment for the children and could prevent them from fully settling with a permanent family.

c. On numerous occasions, when the mother was unable to attend access, she did not cancel the visits in advance. The children were thus taken to the access centre expecting to see their mother, only to be disappointed and ultimately returned back to the foster home.

d. On access visits, the mother has shown that she is frequently unable to separate her own needs from those of the children. She has often made statements to them during visits which are highly inappropriate. For example, Elaine O’Connor’s evidence was that on a visit in July 2018, the mother told the children that they were moving to the maternal grandmother’s home in 31 days, when this was clearly not the case. On a visit in August 2018, the mother referred to the agency “kidnapping” the children, within earshot of the children. On a visit in November 2018, the mother showed the children a locket which she said contained the ashes of the children’s siblings (from the miscarriage). On a visit in October 2018, when the child John fell during access, the mother’s reaction was to scream and yell that the worker should not “rip my baby out of my arms” when there was no evidence of anyone trying to take the child from her.

e. The mother often engages in high conflict behaviour on access visits. As discussed above, she has been aggressive with family visit workers to the point that her access has had to be separated from the group access centre. This is behaviour that is demonstrated in front of the children.

f. On many occasions the mother prolongs the good-byes with the children rather than supporting them in their transition back to the foster home. Multiple family visit workers testified that they tried to have the mother ready the children on time and assist them in getting ready to go, but she would do the opposite. While it is understandable that the mother does not wish to see visits end, her behaviour in this regard has not been child centred. The issue from a best interests perspective is the failure to assist in making the transitions comfortable for the children.

g. The mother makes negative comments to the children about their foster parents and the workers. For example, on an access visit in April 2018, the mother told Jane that she would “kill” the foster mother if she tried to discipline her.

h. The mother has made numerous police calls regarding the children’s care by foster parents. The society tendered evidence about two calls to police about the foster parents, but the mother herself testified that she called the police “on the CAS” approximately 5 or 6 times. It is difficult to believe that the mother could participate in any access arrangement in which she would be cooperative with or respectful of the children’s permanent caregivers. This creates an unacceptable risk of the children being exposed to conflict between the mother and permanent caregivers which would not be in the children’s best interests.

[195] Turning specifically to the additional best interests factors to be considered under section 73(4):

a. Given the very young ages of the children, their consistent views and preferences are difficult to ascertain.

b. In this case, where the children are identified as First Nations, the court must consider the importance of preserving the child’s cultural identity and connection to community. As set out above, even following an order for extended society care the society will have considerable obligations to identify a placement which respects the children’s heritage.

c. The court finds that while the mother loves the children, she has been unable to prioritize their physical, mental, and emotional needs, demonstrated in part through her inconsistency with respect to attending access and her behaviour on some of those visits. Further, she has actively sought to undermine their sense of security in their foster placements, and telling the children they were coming home at a time when no plan for that had been made by the agency. This is destabilizing for children and not in their best interests.

[196] In this case, the court considers opportunities for adoption relevant, given the children’s young ages, their need to have a long term positive relationship with a parent, and their need to have a secure place as a member of a family. Given the mother’s inconsistency regarding access, her volatile behaviour in connection with many access visits, and her active steps to undermine their placements to date, the court finds it more likely than not that an access order would impair Jane and John’s opportunities for adoption. The mother has not shown that she is able to prioritize the children’s needs and best interests over her own.

[197] Based on the foregoing, this court finds that an order providing access for the children with their mother is not in their best interests. In reaching this conclusion, the court has considered all of the relevant subsections of section 74(3) of the CYFSA regarding best interests, whether access would be meaningful and beneficial for the children from the perspective of the children, and considers it probable that an access order in this case would impair adoption, which the court has found is relevant in this case.

Access by the maternal grandmother

[198] An issue arose in submissions with respect to potential access by the children to their maternal grandmother.

[199] Access to the maternal grandmother was not claimed in the mother’s Answer and Plan of Care. The society opposes the court making an order for access to the maternal grandmother.

[200] During the trial it became clear that from time to time, and more frequently in late 2018 and during the trial, if the mother could not attend access, the maternal grandmother would try to do so. Sometimes, the mother and the maternal grandmother would both be present. For example, in the late fall of 2018, it appears that the maternal grandmother attended access some 8 or 9 times. From February 1, 2019 until May 1, 2019, the maternal grandmother attended every access visit, four of them when the mother was there.

[201] It was clear from the maternal grandmother’s evidence that her primary focus in testifying was not to put forward a plan for the children but to maintain access. In her testimony she stated that she felt the foster family was treating the children well, and that they were thriving there. However, she wanted the children to have access.

[202] In this case, even if access to the maternal grandmother were claimed in the proceeding, this court would not grant that order. While the maternal grandmother has tried her best to maintain a connection to the children even when her daughter was not attending access, there is insufficient evidence that continued access by the children to the maternal grandmother is in their best interests. While the court has little doubt that access is no doubt meaningful and beneficial to the maternal grandmother, there is insufficient evidence to find that the same holds true for the children. As with the mother, the court is also concerned that an access order would impair adoption and therefore a long term, secure attachment to a family.

F. CONCLUSION AND ORDER

[203] For all of the reasons set out above, this court makes the following order:

1. the children, J.-M. C., born September 13, 2012 and X.C., born November 7, 2014 [“the children”], are First Nations children;

2. there is no identified band or community at this time;

3. in accordance with Ontario Regulation 156/18, section 11(2), the parties to this proceeding are those who were parties before the entry into force of the CYFSA, namely: the society, the mother, and the father;

4. the children continue to be in need of protection;

5. the children shall be placed in extended society care pursuant to section 101(1)(3) until the order is terminated under section 116 or expired under section 123; and

6. there shall be no access.

Madsen J.

Date: July 11, 2019