WARNING RESTRICTION ON PUBLICATION

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsection 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:

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.

(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.

Court File and Parties

COURT FILE NO.: C860/10 Ext. 4 DATE: 2019/07/31

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Children’s Aid Society of London and Middlesex Applicant

Joseph Belecky, for the Applicant

• and -

M.R., S.P., M.P.R. Respondents

Donald Kilpatrick, for the Respondent, M.R. David Winninger, for the Respondent, S.P. Holly Watson, for the Respondent, M.P.R. Barbara Hoover, for the children represented, E.P. and M.P.

HEARD: June 3, 4, 5, 6, 7, 2019

Tranquilli J.

Endorsement

[1] This is a status review application of the final order of Madam Justice McSorley dated October 13, 2016 concerning the children, E.P., born in October 2007 and M.P. born in June 2009.

[2] E.P. and M.P. have been in temporary Society care since apprehension from their maternal grandmother’s care on January 30, 2018. Before that apprehension, they were in Society care on at least four other occasions between December 2009 and June 2016. Their total time in Society care to date is estimated at 1100 days, far in excess of the statutory limitation. The Society seeks an order placing E.P. and M.P. in extended Society care with a plan for either adoption together or long-term specialized foster care. In either event, the Society proposes to continue access to the respondents in accordance with the children’s wishes and preferences.

The Parties

[3] The Society is the applicant in this proceeding. The respondents are E.P.’s and M.P.’s mother, M.R. (“mother”), their father, S.P. (“father”) and their maternal grandmother, M.P.R. (“grandmother”). The children’s views and preferences were presented by the Office of the Children’s Lawyer (“Children’s Lawyer”).

[4] The Society presented its application through the evidence of two Society child protection workers (one worker by a combination of affidavit and viva voce testimony), a child protection supervisor and a former child protection worker with the Chatham Kent Children’s Aid Society, who was briefly involved when the children lived with their maternal grandmother.

[5] The mother testified on her own behalf and was permitted to re-open her case to call evidence from one of her counselors. The father testified in support of his position. The maternal grandmother testified, filed two reports outlining her participation in rehabilitation and also called evidence from a Society child protection worker. Each respondent filed a plan of care in response to the Society’s application. All of the witnesses were cross-examined.

The Parties’ Positions

[6] The respondents each oppose the Society’s application. The mother seeks an order returning E.P. and M.P. to her care subject to Society supervision. The grandmother seeks an order returning E.P. and M.P. to her care subject to Society supervision. The father supports the mother’s position; however, in the alternative proposes that his sons be returned to his care subject to Society supervision if the mother’s plan of care is not accepted. In the further alternative he supports the grandmother’s plan of care. In the alternative, the respondents seek to maintain access with the children.

[7] The Children’s Lawyer advises that the children’s preference is to reside with their mother. If their mother’s plan of care is not accepted, the Children’s Lawyer is of the reluctant view that extended society care is the only option in the circumstances.

[8] I appreciate the assistance of all counsel and the cooperation of the witnesses. I am mindful of the significant imbalance between the respondents and the Society, even when represented by counsel. [1]

Legal Principles

[9] The Society initiated this status review application in February 2017 (amended in February 2018), to seek extended society care of both children. The Child and Family Services Act, (CFSA) [2] was in effect at the time of the initial application. Pursuant to O. Reg. 157/18, this hearing continues as a proceeding under Part V of the Child, Youth and Family Services Act (CYFSA). [3]

[10] A status review proceeds in two-stages:

1. Determine whether the child continues to be in need of protection, and, as a consequence, requires a court order for his or her protection; and
2. If the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the child. [4]

UNDISPUTED EVIDENCE

Overview of Society Involvement

[11] M.R. and S.P. are the parents of E.P., born in October 2007 and M.P. born in June 2009. The parents had a longstanding but tumultuous relationship and have not lived together since approximately 2009, although they maintain cordial relations.

[12] The Society was first involved with the family shortly after the birth of E.P. in 2007, due to reports of domestic violence between the mother and father. The mother moved to a women’s shelter shortly before the birth of their second son, M.P. The mother had addiction issues which escalated such that her sons were last in her care in 2010.

[13] The series of placements of the children since the Society’s involvement over these approximate nine years are such that a precise chronology of all instances could not be agreed upon by the parties at trial; however, the following overview was undisputed.

[14] Over the past nine years, the children have been in 14 different placements including within their family. The Society apprehended the boys from family on approximately five occasions throughout this time due to concerns about mental stability and substance abuse by their caregivers.

[15] On December 17, 2009 the mother voluntarily placed the children into Society care under a temporary agreement. In circumstances that were not clarified, the boys briefly resided with their grandmother for several months. However, the children were removed from her care and placed with their father after his release from detention on a domestic assault conviction involving the mother.

[16] The children were placed with their father between March and September 2010 subject to Society supervision. The Society apprehended the boys on September 23, 2010 and placed the children back into foster care. By order of Henderson J. dated December 16, 2010 the children were placed with their grandmother subject to Society supervision. The boys were next placed back into their father’s care subject to Society supervision between March 2012 and November 2014.

[17] In November 2014, the Society proposed that the boys remain in their father’s care pursuant to a further supervision order. However, Marshman J. was not satisfied that the children’s safety while in their father’s care could be ensured through supervision and ordered them back into Society care. The boys were briefly returned to their father’s care subject to Society supervision in August 2015 but were again apprehended by the Society and placed into foster care in October 2015.

[18] At that time, the Society did not approve kin placement with the grandmother due to concerns regarding addiction, being in an abusive relationship and having unstable housing. The grandmother addressed these issues to the Society’s satisfaction and beginning June 30, 2016, the children were placed in her care subject to Society supervision.

[19] By order of McSorley J. dated October 13, 2016, each child was found to be in need of protection pursuant to section 37(2)(b)(i) of the then Child and Family Services Act (CFSA). [5]

[20] The Society initially brought this status review application in February 2017, seeking an order that the children remain placed with their maternal grandmother subject to supervision for a further period of six months. Unfortunately, subsequent events caused the Society to amend its application to seek an order for extended society care.

[21] The Society apprehended the boys from their grandmother’s care on January 30, 2018 due to concerns of substance abuse by the grandmother. They were initially placed in foster care in London, Ontario; however, were moved in December 2018 due to concerns about improper disciplinary methods used by the foster parents. The Society determined the boys needed a therapeutic foster home in order to manage the boys’ behavioural and educational challenges. They were briefly placed with another family in the London area; however, had to be moved as those foster parents were not able to make a long-term commitment. They were placed in a therapeutic foster home in Welland, Ontario in December 2018 where they continued to reside at the time of trial in June 2019.

The Children

[22] E.P. is 11 years of age. M.P. is 10 years of age. They are described as active, loving and engaging. Both children have behavioural issues and are academically behind their peers. Both E.P. and M.P. have been diagnosed with Attention Deficit Hyperactivity Disorder. E.P. has also been diagnosed with Oppositional Defiance Disorder. Both are on medication and are followed by a physician at the Society.

[23] E.P. is in grade six but performs at a grade one level. M.P. is in grade four and performs at a grade or two behind, depending on the subject. Both are on Individual Education Plans. In their current foster home placement, each boy receives 20 hours per month of one-to-one support from a worker as well as weekly therapy. Both recently underwent psychological testing to assist in identifying any learning disability or developmental delay.

[24] E.P. and M.P. have lived together throughout all of their placements to date. They have a close bond complicated by conflict which all caregivers have found challenging. The mother, father and grandmother all acknowledged that the children can exhibit defiant and aggressive behaviour.

[25] The Society acknowledged that the boys’ distance from London is a concern and that preserving their relationships with their family is important to the boys. However, there were limited options and resources available for placing the boys in a therapeutic foster home that would meet their needs. They had resided in the Welland foster home for approximately six months at the time of trial.

[26] M.P. has made an attachment to his foster mother; however, E.P. has been challenging with his behaviours. M.P. is exhibiting anxiety as he is concerned that E.P.’s behaviour will trigger another move.

The Respondents

[27] Each of the respondents was candid about their personal struggles with past trauma, mental health and/or addiction issues that gave rise to the protection concerns in this proceeding. There is no dispute that they each love E.P. and M.P. and that the boys are attached to the respondents. The respondents’ grief about the boys’ circumstances was palpable.

M.R. – Mother

[28] The mother is 32 years of age and is unemployed. She had a traumatic childhood and herself spent time in Society care. In addition to alcohol abuse, she developed an addiction to opiates and crystal methamphetamine. She was largely homeless after the boys left her care in 2010 and was unstable for the next five to six years. She admitted that she was heavily using drugs during this time. She was hospitalized in 2012 for a drug-induced psychosis. She started a methadone program in approximately 2012 but acknowledged at trial that she only began to take the program seriously when she found out she was pregnant by another partner in or about January 2017. Her son J.A. was born in August 2017 and was approximately 22 months old at the time of trial.

[29] The Society opened a protection file regarding J.A. but has not sought to apprehend him or commence a protection proceeding. The mother lived with her partner and their infant son J.A. and continued to work on maintaining sobriety and mental stability, including working with a number of community agencies. However, she left her partner in August 2018 due to domestic violence and substance abuse concerns and moved into a women’s shelter with her infant son. In October 2018 she disclosed to her community support workers that she had a relapse while living at the shelter. She arranged for her former partner to care for their son briefly while she focused on re-establishing a sober lifestyle with the help of community supports and agencies, including the Society, London Cares and Street Level Women at Risk. She obtained stable housing and has been living there alone with her youngest son since December 2018. A community organization subsidizes her rent. She is expecting her fourth child in August 2019. The pregnancy was unplanned, and she has not identified the father. She acknowledged that between the relapse and this pregnancy she is overwhelmed and has not been doing as much work on her stability and mental health as she had been. She agreed to the Society’s proposal that she place J.A. in daycare.

[30] She is considering placing the newborn for adoption as she is concerned about having four children and her two youngest being so close in age. Whether E.P. and M.P. are returned to her care is one of the factors in that decision. She noted that her situation was “very complicated”.

[31] Despite these stresses, she has successfully continued with the methadone program since her relapse and is making plans to resume using her supports. However, she feels she is not ready for counselling to address her abuse trauma. Her worker from Street Level Women at Risk testified that M.R. was very diligent in reaching out for support. Her support network is encouraging her to continue to work on her mental health and to set goals to strengthen her parenting skills, return to school and learn to manage her household and finances.

S.P. - Father

[32] The father is 32 years of age and is unemployed. His heritage is Trinidadian. He has previous criminal convictions for domestic assault in 2010 involving M.R. and theft under $5,000 for which he completed 18 months’ probation earlier this year.

[33] The boys were placed with their father on three occasions since they were first taken into temporary Society care. The second placement was fairly significant in duration, of almost two years. The third placement quickly deteriorated due to his mental health issues.

[34] The father was cooperative with the Society and attended parenting courses offered through Merrymount Family Support and Crisis Centre. However, the placements ended with the children being apprehended due to concerns regarding the father’s mental health stability, parenting, neglect of the boys and issues with the boys’ school attendance. There were also concerns about his compliance with the terms of Society supervision, including exposing the children to his brother, who had a criminal history.

[35] The father was diagnosed with a psychosis, (unspecified for the purpose of this proceeding). His symptoms initially stabilized in response to medication; however, he stopped taking the prescription. He now receives his medication through injection pursuant to a Community Treatment Order under the Mental Health Act. He attends weekly sessions with the Prevention and Early Intervention Program for Psychoses through the London Health Sciences Centre.

[36] He relies on social assistance through the Ontario Disability Support Plan. He resides in a single bedroom apartment in public housing in London.

M.P.R. – Maternal Grandmother

[37] The grandmother is 59 years of age. She is unemployed and receives social assistance through Ontario Works. She was last employed in or about 2009 and stated she resigned in order to look after the boys when she first had them in her care.

[38] Like her daughter, the grandmother also had time in Society care during her childhood. The grandmother testified that she has struggled with alcoholism since she was 14 years old. She engaged in residential treatment on previous occasions in the past but would relapse. A Percocet prescription for back pain led to opioid addiction. She started addiction treatment for opioids in 2012 with methadone. She also has a prescription for Lorazepam as needed.

[39] The boys were last placed in the grandmother’s care under Society supervision beginning in June 2016. They initially lived in London; however, were evicted due to the disruption caused by the boys’ behavioural issues. Her grandsons’ behaviours were challenging for her to manage; however, she was cooperative with the Society and the boys’ school and was diligent in attempting to access services to address the boys’ behavioural issues.

[40] In March 2017, following their eviction, the grandmother and children moved to a new residence in a town in the Municipality of Chatham-Kent. Chatham-Kent Children’s Services monitored the children’s placement on behalf of the Society. The grandmother’s former brother-in-law was her landlord, with whom the grandmother testified she had a complicated relationship.

[41] On or about January 28, 2018, Chatham-Kent Children’s Services received a report of a domestic disturbance at the grandmother’s residence. A child protection worker attended the residence the next day. The worker testified at trial that he observed that the grandmother’s speech was slurred and that she was stumbling over various items in the home. He was concerned that she was under the influence of substances. The landlord agreed to stay the night at the residence in order to care for the children. The worker returned to the residence the next day, January 30, 2018. The worker observed liquor bottles. The grandmother again appeared intoxicated and the room was in further disarray. The worker arranged for emergency services to attend the home as he was concerned for her safety. Although initially upset, she cooperated with the worker and emergency services and was taken to the hospital. The boys were apprehended, immediately returned to London and placed in foster care.

[42] The grandmother returned to London a few months after the boys were removed from her care in order to try and find a new residence with a plan for resuming care of her grandsons. During this time, she was permitted to have community access under the supervision of her other daughter, C.R., at C.R.’s residence. On one access visit in 2018, she took the boys to a friend’s apartment, in breach of a term of her supervision order. She consumed alcohol with friends while there and the boys left the apartment to play in a nearby park. Their aunt was contacted to pick them up. The grandmother later admitted that this was a mistake.

[43] At the time of trial in June 2019, she had been homeless for approximately the past 18 months. She is on a waiting list for housing but is a low priority as a single older woman.

[44] She admitted to a brief relapse in her drug addiction in 2018. Following that episode, she switched to suboxone treatment in November 2018 and is also using Antabuse (Disulfiram) to maintain sobriety. She attends counselling at Addiction Services of Thames Valley. The Society would like her to attend a residential treatment centre; however, the grandmother did not think this necessary.

Access

[45] The frequency and nature of the children’s access with the respondents has varied depending on the respondents’ personal circumstances and the boys’ location.

[46] The mother had not participated in visits with her sons since about August 2016 due to her addiction and mental health issues. She was inconsistent in access before then. She re-established access with her sons in the fall 2017 after she successfully engaged in treatment following her third pregnancy. She saw them every second Saturday at her apartment on a day visit. Following her relapse and loss of housing in October 2018, the Society moved her access back to supervised visits at the Society.

[47] The Society suspended the father’s access in 2016 due to his inconsistency in attending scheduled visits. He missed access with his sons for two years while he recovered from his acute mental health issues. In October 2018, he contacted the Society to restart access.

[48] The grandmother obtained community access supervised by her other daughter after the boys were apprehended from her care in January 2018. However, the Society changed her access in December 2018 to supervised visits at the Society due to concerns about her sobriety and alcohol use during access visits. Her access recently changed to supervised community access.

[49] At the time of trial, the boys’ access schedule followed a three-week cycle. On the first weekend, a volunteer driver from the Society takes the father from London to Welland to visit his sons. The Society provides the father with money to take the boys to the YMCA and to purchase a snack. On the second weekend, the boys are driven to London on Saturday to separately visit their mother and grandmother. Access with their mother is supervised at the Society office. Access to their grandmother is supervised at their aunt’s residence, where they stay overnight. The boys return to Welland on Sunday morning. There is no access on the third weekend so that the boys have time for their own activities in Welland.

[50] At the time of trial there had been three access visits on this schedule with no significant concerns. The father missed one visit; however, this may have been due to a miscommunication with the volunteer driver. Assuming that the mother continues to demonstrate stability and gains in her rehabilitation, the Society proposes to expand her access over time to community access and then her own home. The Society is concerned about her ability to manage all of her children on the visits, particularly given E.P.’s and M.P.’s behavioural needs and the three boys’ competing demands for her attention. The Society is not prepared to further expand grandmother’s access until she has addressed her substance abuse to their satisfaction, starting with residential rehabilitation. The respondents would all like to see the frequency or ease of access increased; however, the number of access holders and the boys’ location in Welland makes this a challenge.

Evaluation of Credibility

[51] I found that each of the respondents were forthright in their evidence. The mother impressed as sincere, insightful and realistic in acknowledging her struggles with mental health and addiction and her desire to care for her sons now that she is on a path of recovery. The father was either vague at times or could not remember the timing of certain events; however, did not challenge the material facts. The grandmother readily acknowledged her struggle with alcohol addiction. She also accepted and regretted her mistakes while her grandsons were in her care. There was some acrimony or resentment by the mother towards the grandmother arising from their complicated history and the boys’ apprehension; however, all three parties appeared to remain focused on the welfare of the children.

[52] The Society’s evidence was also forthright. The Society witnesses accepted that their oversight of the boys’ well-being while in Society care has not been perfect. They acknowledge the children’s attachment with the respondents, the respondents’ love for the boys, the respondents’ efforts at stability and that it is in the children’s interests to support their bond with their parents and grandmother.

Finding whether child continues in need of protection

[53] McSorley J. found each child to be “in need of protection” pursuant to s. 37(2)(b)(i) of the CFSA pursuant to her order of October 13, 2016. This protection ground arises from a finding that there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child. This ground concords with s. 74(2)(b)(i) of the CYFSA.

[54] This order is presumed to be correct. This is not a re-hearing or re-trial of the order previously made. However, the Society must justify ongoing state intervention in the life of the family by proving that a court order continues to be necessary to protect the child in the future. [6]

[55] The Society must prove that the risk of physical harm may be caused by an act, omission or a pattern of behaviour. It is not necessary for the Society to prove intention. [7] The risk must be real and likely, not speculative. [8] The court may consider the past conduct of a person toward a child if that person may care for or have access to the child who is the subject of the proceeding. [9]

[56] None of the respondents challenged whether either child continued to be in need of protection. This is also evidenced by their plans of care which each propose placement subject to Society supervision.

[57] It is undisputed that each respondent continues to deal with addiction and/or mental health issues and require ongoing treatment, rehabilitation and support. Those addiction and mental health issues previously put the children’s health and safety at risk during the time(s) that each respondent was responsible for their care and which led to the protection concerns and Society intervention. This is particularly true for the grandmother, with whom the children were most recently placed pursuant to the order that is under status review and from whose care the children were apprehended.

[58] I therefore find that E.P. and M.P. each continue to be in need of protection pursuant to s. 74(2)(b)(i) of the CYFSA.

DISPOSITION

Legal Considerations

[59] Section 114 of the CYFSA sets out the disposition options that the court may order on a Status Review, 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 s. 101; or (d) make an order under s. 102.

[60] My options on disposition is to consider whether an order is necessary to protect each child. [10] If I find that no order is necessary to protect each child, the child is to be returned, in this case, to the grandmother. [11]

[61] If I find that an order is necessary to protect each child, the order is to be made in the child’s best interests and in accordance with the options set out in s. 101(1) and 102 of the CYFSA.

[62] In determining which order to make under s. 101(1) or s. 102, the court is required to:

a) ask the parties what efforts the society or another person or entity has made to assist the child before intervention under the CYFSA (s. 101(2)); b) examine less disruptive alternatives than removing a child from the care of the person who had charge of the child immediately before the intervention, unless it determines that these alternatives would be inadequate to protect the child (s. 101(3)); c) consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child (s. 1(2)); and d) consider the options for community placements of the child, including family members, before deciding the place a child in care (s. 101(4)).

[63] The “best interests of the child” is the governing principle for determining placement of a child. [12] Section 74(3) of CYFSA sets out the criteria to be considered by the court in determining the child’s “best interests”. These criteria include consideration of the child’s views and wishes, the child’s physical, mental and emotional needs and the appropriate treatment to meet those needs; the child’s level of development, cultural background; the child’s relationships and emotional ties to parent and family and the importance of the child’s development of a positive relationship with a parent and a secure place as a member of a family, the effects on the child of delay in the disposition of the case and 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.

[64] The court must take into account all relevant circumstances in determining the child’s best interests, including those specifically listed in s. 74(3). [13] In applying the best interest criteria set out in s. 74(3), the court must maintain a child-centred focus, reflecting the paramount purpose of the CYFSA as set out in s. 1; to promote the best interests, protection and well-being of children. Additional purposes include recognizing the autonomy of the family unit and providing help for them, exercising the least disruptive course of action that is available.

[65] In summary, my options for each child are to return him to the care of his grandmother, place him with one of the respondents, subject to Society supervision or place him in extended society care.

[66] As with the protection finding, none of the respondents disputed whether or not a court order was necessary to protect the children. Similarly, although each respondent advocates for the children to be placed in his or her care, each plan provides for Society supervision. In particular, the grandmother, who last had care of the children before Society intervention, continues in her addiction recovery and ability to make choices in the children’s best interests. Given the history of the addiction, mental health and stability issues relating to each of the respondents as reviewed when I held that each child continues to be in need of protection, I similarly find that a court order is necessary to protect each child in the future.

[67] I must therefore consider the remaining disposition options.

[68] E.P. and M.P were in care 1100 days at the time of trial. This far exceeds the time limits for the children to remain in temporary care, even including any extension pursuant to s. 122(5) of CYFSA. As I find that they continue to be in need of protection, and that intervention through a court order is necessary to protect the children in the future, the options for disposition under 101(1) are:

1. Place E.P. and M.P. in the care and custody of their mother, father or grandmother subject to the supervision of the society for a period of at least three months and not more than 12 months (s.101(1).1); or
2. Place E.P. and M.P. in extended society care until the order is terminated on status review or when the order expires when he turns 18 (or marries, whichever comes first) (s.101(1).3).

[69] This consideration entails review and analysis of the parties’ plans of care and weighing those plans against the best interests of each child.

PLANS OF CARE & PARTIES’ POSITIONS

Society’s Plan of Care

[70] The Society seeks an order placing E.P. and M.P. in extended Society care with access by the respondents. The Society intends to seek an adoption placement for the children together, with individuals trained and equipped to provide for the boys’ needs. Adoption would be pursued on the basis of openness. The Society intends to support the children continuing to live together so long as it in each of their best interests.

[71] The Society intends to maintain the current placement in the Welland therapeutic foster home given the extensive supports that each child requires and the lack of a similarly suitable therapeutic placement in or closer to London. The Society discussed the potential for a long-term placement with the current foster parents. The foster parents did not testify or attend the trial. According to the Society, the foster parents are “somewhat satisfied” with the placement; however, it is too early to consider adoption. Although M.P. is attached and loving, the foster mother is concerned about E.P.’s behaviours.

[72] The respondents are critical of the Society’s plan of care as there are other less intrusive and reasonable options that would reunite the boys with family. They note the current foster home placement is not without concern about a risk of disruption due to E.P.’s behaviours and M.P.’s anxiety about his brother’s behaviour disrupting the placement. The respondents assign some responsibility for the boys’ behaviours to the Society due to the number of foster home placements and the trauma the boys experienced in one of those placements in 2018. The respondents question the likelihood of adoption given the boys’ ages and behavioural issues. They argue the Society does not have a permanency plan of any kind and that there is a risk they will simply end up being “warehoused” in foster care.

[73] The Children’s Lawyer does not “support warmly” the Society’s plan; however, advises that if the court does not accept the mother’s plan of care, then the Society’s plan is the only option. The Children’s Lawyer raised concerns regarding whether the children’s current foster home placement is in jeopardy, along an additional risk of whether the boys may be separated while in care.

Mother’s Plan of Care

[74] The mother proposes that E.P. and M.P. be placed in her care under Society supervision for a period of 12 months. She is open to the terms of supervision including regular drug testing, continuing her community supports, taking parenting courses and allowing the Society to visit her home.

[75] Having experienced the child welfare system, she testified that she is worried they are at risk of repeating the intergenerational cycle in her family. She believes it would be in her sons’ best interests to be with family. The boys have repeatedly asked her if she was going to “fight for them.” They have seen her transform her life. She has demonstrated her capacity to parent her youngest son, J.A.

[76] She currently resides in a two-bedroom home with her youngest son. E.P. and M.P. would need to share a bedroom with her youngest son temporarily, but she would apply for a three-bedroom unit. She acknowledged E.P. and M.P.’s behaviours and needs. She believes she can manage the boys’ behaviours through structure and routine and would investigate the educational supports available at the nearby school.

[77] The Society acknowledges the work that M.R. has done on her recovery; however, is concerned that she is at a stage in her recovery where she is still at a significant risk of relapse or inability to cope with the demands of three and perhaps four children, particularly where E.P. and M.P. have significant behavioural issues and are demanding in competition with her younger son during supervised access visits. E.P. and M.P. have not been in her care in the past nine years. She has little support available outside of the formal resources. She requires these supports as she cares for one son and expects the birth of her fourth child. Even with a wealth of support following the birth of her third son she relapsed. She has not demonstrated the capacity to safely care for and raise three or even four children. The Society argues that placement of the boys back into M.R.’s care risks her losing care of all of all of her children.

[78] The father supports the mother’s plan of care. He points to her rehabilitation and her care of her youngest son as evidence of her capacity to parent successfully. The grandmother neither opposed nor supported mother’s plan of care; however, urged that with placement with one of the respondents, each of the family caregivers might be able to cooperate to ensure the boys are appropriately supported and cared for. The Children’s Lawyer supports mother’s plan of care as it is consistent with their wishes, so long as the plan also includes access to their father and maternal grandmother subject to the views and preferences of the children.

Father’s Plan of Care

[79] The father primarily supports the mother’s plan of care. In the alternative, he proposes that they be placed either with him or their grandmother under 12 month’s supervision.

[80] The father pointed to the fact that he cared for his sons for extended periods in the past and that he has now addressed the concerns that ended those placements. His mental health issues are addressed through the Community Treatment Order and evidences some stability in his life. He testified he would not expose his sons to his brothers, which contributed to one of the previous apprehensions. Although he currently resides in a one-bedroom apartment, he could apply for a housing transfer in order to accommodate his sons.

[81] Neither the mother nor grandmother directly addressed the father’s plan of care, although I refer to grandmother’s position that the family might be able to cooperate to care for the boys in any event of with which family member they may be placed.

[82] The Society opposes placement of the boys with their father given the failure of the previous reunification efforts with him. The Children’s Lawyer applauds the father’s position in placing the mother’s position ahead of his own. However, she questioned whether his plan of care was clear enough and whether he had the capacity to care for his sons on an ongoing basis.

Maternal Grandmother’s Plan of Care

[83] The grandmother proposes that her grandsons be placed with her subject to Society supervision for 12 months. Although she is currently homeless, she testified she would qualify for housing on an emergency basis if the court places her grandsons with her.

[84] The mother preferred not to answer whether she supported the grandmother’s plan of care. The father supports placement with the grandmother only if the court will not place his sons with either the mother or him.

[85] The Society argues that the grandmother has not sufficiently dealt with her addiction issues and is homeless. She used alcohol and had a drug use relapse after the boys were removed from her care and when she knew of the concerns. The fact she could access housing if she has care of the boys is not reasonable or child-centred. Similarly, the Children’s Lawyer does not support the grandmother’s plan as her addiction, rehabilitation status and homelessness indicates she is not currently healthy enough to care for her grandsons.

Children’s Views & Wishes

[86] Both boys expressed the wish to live with their mother. The Society reports that the boys said they are content to remain in foster care if they cannot live with their mother; however, they acknowledged that the boys also asked whether they could live with their father or grandmother instead.

[87] The Children’s Lawyer supports the mother’s plan of care, subject to adding terms that provide each child with access to his father and maternal grandmother, subject to each child’s views and preferences.

Analysis of Disposition Options

Society’s Efforts

[88] I find that the Society took efforts to preserve the children’s placement with family and to promote access while minimizing the risk of harm to the children. The record demonstrates several attempts by the Society to place the children with family and to support those family caregivers. These placements were unsuccessful due to the caregivers’ addiction, compliance and/or mental health issues.

[89] The Society completed a kinship assessment with the grandmother and supported her throughout her time as caregiver. This included accommodating her relocation out of London to find stable housing. The Society supported the father in working with him through three placements of his sons and access to parenting education. Although she had not been in contact with her sons for a period of time, the Society facilitated access between the mother and her sons once she had started to deal with her mental health and addiction issues in 2017. Her relapse in October 2018 set back the progress of that access; however, the Society continues to work with her and the other respondents to facilitate access. The placement of the boys in Welland is not optimal and limits the options for the children and respondents to arrange for access. However, I am satisfied on the evidence that it was the best option available to the Society given the boys’ behavioural and educational needs and the importance of keeping them together. I note the move to Welland only occurred after eight years of the Society’s efforts to promote placement of the boys with family.

Least Disruptive Alternatives

[90] The Society’s request for extended care is the most intrusive order a court can make in child protection proceedings. The court should only grant this relief with the highest degree of caution, only on the basis of compelling evidence, and after a careful examination of possible alternative remedies. [14]

[91] I am satisfied on the evidence that the Society exhausted less intrusive options to extended society care, with placement of the children with their father and maternal grandmother under supervision on multiple occasions. Those previous placements under supervision were unsuccessful. No other kin have come forward. The boys’ maternal aunt currently facilitates supervised access for the grandmother; however, is otherwise unable to offer placement.

Analysis Plans of Care

[92] The strength of the Society’s plan arises from the focus on a therapeutic foster home placement with experienced caregivers along with additional worker and therapy support, as well as education support coordinated with the local school. All parties agree that each child has high needs regarding their education and behaviour. Each child has suffered from the continual disruption in their young lives. I acknowledge that their Society placements have not always been stable; however, crucially, the family have not been able to sustain a safe home for the children almost from the time of their births. A stable placement that can address the boys’ developmental needs is in their best interests. The length of their time in temporary Society care cries out for permanency planning. Although the children are placed in Welland, the Society directly monitors the placement, which also promotes consistency.

[93] However, this placement was only about six months old at the time of trial and there were signs that the placement is at risk of disruption. Although M.P. has settled and shows signs of wanting to bond with his foster family, E.P. has struggled with defiant behaviour and the foster mother expressed concern about his placement. The distance between Welland and London is a barrier to expanding access and does not promote the children’s attachment to their family and wish to live with their mother. The prospect of adoption is in question given the boys’ ages, behavioural challenges and their expressed wishes to live with their mother.

[94] The respondents’ plans of care each have the benefit of placement with family and allow for ongoing Society oversight. I therefore considered whether supervision is sufficient to address the protection concerns short of an order for extended society care and in the best interests of each child.

[95] The grandmother previously demonstrated her ability to care for her grandsons over an extended period of time to the Society’s satisfaction. Although the boys had significant behavioural issues, she cooperated with their school and the Society in managing the concerns. However, I cannot overlook the circumstances in which her care ended due to her alcohol use. She allowed that this lapse was as a result of the stress of her situation, where she depended on the landlord for housing. My concern is heightened by the fact that with knowledge of the reasons why she recently lost care of her grandsons, she nevertheless used alcohol in their presence on at least one access visit and later had a relapse in drug use. I commend her for her efforts reinstating her treatment; however, in my view she still needs to work on her own well-being and basic needs before she can be entrusted with her grandsons’ care.

[96] The grandmother’s plan is also contingent on housing. She requires placement of the boys with her in order to obtain that housing. I do not find this to be a child-centred approach where she has been unable to demonstrate material gains in her stability since the boys were removed from her care. I have no doubt of her love for her grandsons and her good intentions; however, the past events indicate that she needs more than good intentions in order for the court to conclude it is safe for the boys to be in her care at present. I therefore conclude that it is not in either child’s best interests to be placed with their grandmother.

[97] The father had the boys in his care for an extended period of time during the Society’s supervision. These placements were unsuccessful due to his non-compliance, care and mental health issues. His mental health appears to be reasonably stable as a result of the Community Treatment Order and counselling, although he indicated he did not think he needed the medication. He did not appear to have any other supports that would promote his regular parenting of the children. I agree with the submission that his plan is vague and not responsive to the boys’ behavioural and educational needs. I expect that this is likely in part to his primary position that the children should be returned to their mother’s care. His current single-bedroom residence is not fatal to his plan; however, the lack of detail and explanation as to how, when and where he could obtain suitable housing is problematic. I therefore conclude that it is not in either child’s best interests to be placed with their father.

[98] Of the three respondents, the mother’s plan is specific, practical and consistent with her sons’ wishes: she has housing, room for the boys and community support. She impressed the court as one who has taken concrete steps to address her rehabilitation and the protection concerns. She appeared motivated to ensure that her plan of care for her sons succeed. I also find she was realistic in acknowledging her limitations and the uncertainty posed by integrating her three sons and perhaps her fourth expected child into a stable family unit.

[99] However, I have concern about the mother’s current situation and ability to manage the demands of caring for herself and a young family. E.P. and M.P. have not been in her care since 2010. They each have significant behavioural and educational needs. The mother had a relapse in October 2018 due to stresses arising from her living conditions. I commend her for her diligence in restoring her rehabilitation and in making a responsible and mature decision to place her youngest son in the care of his father while she stabilized and found housing. However, I find that this incident indicates her recovery is at a fragile stage. The evidence from her own support worker is that the mother still needs to strengthen a number of her life skills. Her pregnancy with her fourth child and stress over whether she will keep or adopt the newborn is a factor. I assure the mother that her ultimate decision regarding the placement of her unborn child does not affect the court’s analysis: the issue is the stress and demands upon her associated with the fourth child. She has also not yet regained the freedom of community access with her sons and so her ability to cope with three and perhaps up to four young children in her care is unknown.

[100] While there are many factors in favour of mother’ plan of care, I find that concerns about the stage of her recovery, her responsibility for her younger child and possibly another child, the length of time during which E.P. and M.P. have not been in her care and the stage of her access with her sons weigh against placement of the children with her under supervision as not in their best interests.

[101] I am mindful of each child’s preference to live with their mother and the importance for them to develop a secure place as a member in their family where they have a sibling in their mother’s care. However, I also weigh that preference with their tumultuous placement history over the last nine years, their significant behavioural and educational needs and the need for permanency. While their foster home placement cannot compare to the bond of living with family, there has been no sustained success in living with family to date and their mother has only relatively recently been able to take meaningful steps towards stability and reunification with her sons.

[102] I am mindful of the concerns about the stability of the foster home placement; however, on evaluation, none of the plans of care guarantee stability. The foster home placement provides the opportunity for stability, consistency, therapy and supports for E.P.’s and M.P.’s physical, emotional, educational and behavioural needs. Although their mother shows great promise in her rehabilitation and her commitment to caring for her sons, given the amount of time the boys have been in temporary Society care, there is no time left to wait for a family member to demonstrate an ability to provide safe and appropriate care.

Disposition

[103] The only available disposition in the best interests of E.P. and M.P. at this time is a final order of extended care with the Society. I find it is in the best interests of each child that he be placed in the extended care of the Society. In particular, I have considered the evidence as it relates to the best interests criteria set out in ss. 74(3)(a)(c)(i),(ii), (v), (vi),(vii),(ix) and (x). Finally, with regard to the paramount purpose of the CYFSA, notwithstanding the boys’ wishes to live with mother, and the merits of the respondents’ plans of care, the Society’s plan of care is the only one before the court that best addresses their interests, protection and well-being.

ACCESS

[104] Section 105(5) of the CYFSA states the court shall not make an access order unless it is satisfied that it is in the best interests of the child. 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 this assessment and only where relevant. [15]

[105] The Society proposed that access with each respondent should continue at the Society’s discretion, including the frequency, duration and level of supervision, if necessary.

[106] Although the Society will pursue permanency pursuant to its statutory obligations, [16] it does not seek to limit or end access on the basis of a possible and heretofore unknown adoption opportunity. The Society child protection supervisor testified that if there was an order for extended society care, then adoption would be pursued pursuant to its obligations; however, that at this time, it would be done on the basis of the children being adopted together and on terms of openness. As the reality of a prospective adoption was not in evidence at trial and in light of the Society’s position on access, I find that future adoption opportunities are not relevant to considering access at this time.

[107] The children currently enjoy access with each respondent. I find that the boys’ relationships with each respondent are beneficial and meaningful to each and that the children would suffer harm through being kept away from the respondents. It is important to maintain and promote access for each child in light of their wishes, the duration of time they have been in care, the disrupted placements with family and foster homes, the disrupted contact with the respondents in the past and their restored contact with their mother during her rehabilitation. In light of their family attachment, their views and the gains made by the respondents, it is important that access be continued so that each child has the opportunity to continue to develop positive relationships with his parents and extended family and a secure place as a member of the family.

[108] The respondents seek greater freedom on the terms of access: both mother and grandmother are on differing levels of supervision and the father’s access is in the Welland community. The nature, frequency and quality of access is impeded by the distance of the boys from London and lack of independent transportation resources for the respondents. The number of access holders must also be balanced with the children’s need in having time to address their other needs and interests.

[109] With regard to section 74(3)(c)(iii) and (iv) of the CYFSA, I also find that it is important for each child to maintain access with their father given their multicultural heritage. Further, it will be important to facilitate access to the appropriate members of their father’s extended family, e.g. their paternal grandparents, to understand and appreciate their Trinidadian heritage. Although there was no evidence on this issue at trial, I highlight this factor for the Society’s consideration as access to their father and his extended family is addressed moving forward, along with each child’s development and expression of their wishes and preferences.

[110] I understand each respondent’s wish for more frequent or longer access and for greater freedom in terms of access. However, the court is limited to making an order based upon the evidence at trial. The respondents’ personal circumstances and the boys’ location are relevant to expanding access. So long as each respondent is consistent in attending access and in demonstrates their stability, I would expect that access terms would expand in response to their relative success and in accordance with each child’s wishes and best interests.

ORDERS

[111] For the reasons set out above, the court orders:

1. The child E.P. and the child M.P., continue to be in need of protection under s. 74(2)(b)(i) of the CYFSA.
2. The children, E.P. born in October 2007 and M.P. born in June 2009, shall be placed in the extended care of the Society;
3. The respondent mother, M.R., shall have reasonable access, as access holder, to the child, E.P. as access recipient. The Society shall have discretion with respect to the frequency and duration of such access and the level of supervision. Access and terms of access including frequency, duration and supervision shall be subject to the views and wishes of E.P.;
4. The respondent mother, M.R., shall have reasonable access, as access holder, to the child, M.P., as access recipient. The Society shall have discretion with respect to the frequency and duration of such access and the level of supervision. Access and terms of access including frequency, duration and supervision shall be subject to the views and wishes of M.P.;
5. The respondent father, S.P., shall have reasonable access, as access holder, to the child, E.P. as access recipient. The Society shall have discretion with respect to the frequency and duration of such access and the level of supervision. Access and terms of access including frequency, duration and supervision shall be subject to the views and wishes of E.P.;
6. The respondent S.P., shall have reasonable access, as access holder, to the child, M.P., as access recipient. The Society shall have discretion with respect to the frequency and duration of such access and the level of supervision. Access and terms of access including frequency, duration and supervision shall be subject to the views and wishes of M.P.;
7. The respondent grandmother, M.P.R., shall have reasonable access, as access holder, to the child, E.P. as access recipient. The Society shall have discretion with respect to the frequency and duration of such access and the level of supervision. Access and terms of access including frequency, duration and supervision shall be subject to the views and wishes of E.P.;
8. The respondent grandmother, M.P.R., shall have reasonable access, as access holder, to the child, M.P., as access recipient. The Society shall have discretion with respect to the frequency and duration of such access and the level of supervision. Access and terms of access including frequency, duration and supervision shall be subject to the views and wishes of M.P.
9. There shall be no order as to costs.

[112] I thank counsel for their advocacy and submissions.

“Justice K. Tranquilli” Justice K. Tranquilli

Released: July 31, 2019

Footnotes

[1] Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at 69. [2] *Child and Family Services Act*, R.S.O. 1990, c. C.11. [3] 2017, S.O. 2017 c. 14, Sch. 1; Kawartha-Haliburton, supra. [4] Children’s Aid Society of Oxford v. W.T.C., 2013 ONCA 491. [5] *Child and Family Services Act*, R.S.O. 1990, c. C.11. [6] Children’s Aid Society of Hamilton v. R.M. and N.M., 2015 ONSC 5101. [7] Jewish Family and Children Services v. K.R., 2008 ONCJ 774, aff’d 2009 ONCA 903, 2009 CarswellOnt 7908 (ONCA). [8] Children’s Aid Society of Niagara Region v. P.T., (2003), 35 R.F.L. (5th) 290 (Ont. S.C.J.) at paras. 60-65. [9] CYFSA, s. 93(1). [10] CYFSA, s. 101(1). [11] CYFSA, s. 101(8). [12] *Child, Youth & Family Services Act*, ss. 74(3), 101. [13] Children’s Aid Society of Toronto v. G.S., 2012 ONCA 283. [14] Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J), (1997), 23 R.F.L. (4th) 79 (On. Div. Ct.). [15] Kawartha-Haliburton, supra, at para 49. [16] CYFSA, supra, s. 112.