Highland Shores Children’s Aid Society v. J.G. and R.D.F., 2019 ONSC 5476

WARNING

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:

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.

BELLEVILLE COURT FILE NO.: 166/14

DATE: 20190920

ONTARIO

SUPERIOR COURT OF JUSTICE

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

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF A.D.T.D.F. (DOB […], 2018)

BETWEEN:

Highland Shores Children’s Aid Society

Applicant

– and –

J.G. and

R.D.F.

Respondents

Ms. Cynthia Law, for the Applicant Society

Mr. I. Isak Feuer, for the Respondent J.G.

Mr. Jeffrey Van de Kleut, for the Respondent R.D.F.

HEARD: June 17, 18, 19, 20 and 21, 2019

REASONS FOR JUDGMENT

TROUSDALE J.

[1] This matter came before me for a five day trial as to whether there should be an order that the 16 ½ month old child be placed in extended society care without access for the purpose of adoption or whether the child should be returned to the care of the parents or another person subject to the supervision of Highland Shores Children’s Aid Society (herein “the Society”).

[2] At the opening of trial, the parties filed an Agreed Statement of Facts and a Joint Trial Affidavits Brief and a Joint Documents Brief, all of which were very helpful.

BACKGROUND

[3] The child whom I will refer to as “A.” is the biological child of J.G. (herein “the mother”) and R.D.F. (herein “the father”), both of whom are referred to collectively herein as “the parents”. The mother is 24 years of age. The father is 21 years of age. The child was born on […], 2018.

[4] The mother had given birth to twin boys in […], 2013. They were apprehended from the mother and her former partner when the twins were 5 months old. The twins had both suffered unexplained bruising while in the care of the mother and her former partner which injuries were found to be non-accidental. Those children became Crown Wards and were adopted. The mother and her former partner were placed on the Child Abuse Registry. The mother still remained on the Child Abuse Registry at the date of trial. The mother does have an openness arrangement with the adoptive parents regarding these children.

[5] The mother is the biological parent of a daughter born in […], 2016. This child was apprehended by the Society at birth and placed in the care of the Society. The mother subsequently consented to a custody order being granted to other persons. At the present time the mother is not seeing this child, although she would like to.

[6] The father is a first-time parent, having had no children prior to the birth of A.

[7] The parents have resided in their current apartment since October, 2017. They have an appropriately furnished bedroom for the child there. They have maintained the apartment in a tidy sanitary fashion. The paternal grandfather and his partner reside in an apartment down the hall from the parents’ apartment.

[8] When the Society had become aware of the mother’s pregnancy with A. the Society attempted to meet with the mother and the father, but the Society was unable to locate and meet with them until December 21, 2017.

[9] The Society apprehended the child A. at birth and the child has remained in the care of the Society since that time.

[10] The mother had a tubal ligation after the birth of A.

[11] The mother is not employed outside the home. The father is employed Monday to Friday from 3:00 p.m. to 11:00 p.m.

[12] The mother and the father have access to A. for a period of time every day from Monday to Friday of varying durations and taking place in their home or at play groups, the library and at swimming lessons.

[13] Access has primarily been supervised although there have been very short periods of unsupervised time in the community. The parents consistently attend the access visits subject to occasional visits being cancelled due to illness.

[14] On April 23, 2018, the court made an order for a Section 98 (formerly Section 54) assessment and report. This report dated September 19, 2018 was prepared and filed by Ms. P. Gray, the assessor, who testified at the trial.

[15] On June 4, 2018, the mother and the father were each convicted of eight counts of animal cruelty to their dog. As a result, neither of the parents can lawfully own a dog for five years after conviction. They each received a fine and each of them are subject to an order for probation for five years with conditions.

[16] The child is not a First Nations, Inuit, or Métis person.

[17] The child is meeting her milestones and does not appear to have special needs.

[18] On February 19, 2019, the parents consented to a Final Order that the child be found to be a child in need of protection pursuant to Section 74(2)(b)(ii) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (herein “the Act”).

[19] All parties agree that the child is highly adoptable.

[20] The Society has considered a number of the child’s extended family for placement.

[21] The Society does not approve of the paternal grandfather and his partner as a kin placement.

[22] The Society will continue to seek a kin placement for the child.

POSITIONS OF THE PARTIES

[23] All parties agree that the time limits under the Act have been exhausted. All parties agree that the court has only two options available for the child being:

(a) The child being placed into the care of a parent or another person subject to the supervision of the Society; or

(b) The child being placed into the extended care of the Society for the purposes of adoption.

[24] The Society’s position is that although the parents love the child A. a great deal, and there have been improvements in the parents’ ability to care for the child as observed by Society workers at access visits, the Society does not believe that it can mitigate the existing protection concerns even with a supervision order with conditions. The protection concerns of the Society are as follows:

(a) The past parenting history of the mother regarding her previous three children who have all been removed from the mother’s care;

(b) The convictions against the mother and the father regarding their care of their dog;

(d) The mental health of the father, including anxiety and depression;

(e) Conflict between the mother and the father;

(f) Conflict between one or both parents with other community members;

(g) Significant difficulty on the part of the parents in problem-solving which negatively affects their decision-making.

(h) The instability of the relationship between the mother and the father resulting in brief separations and reconciliations.

(i) Substance use.

[25] The mother’s and the father’s position is that the child should be placed in the care of the mother and the father subject to 6 months supervision by the Society. The mother argues that she has tried to follow through with the services recommended by the parenting capacity assessor, but in some cases, there were lengthy waiting lists or pre-requisites, some of which she has completed. The parents argue that they have been in a relationship of over two years in spite of very stressful times, including their child A. being in care, supervised access where everything is closely watched and recorded, and the charges regarding their dog. They have overcome the instability of their housing that existed prior to A.’s birth.

[26] The mother and the father love each other and want to stay in their relationship and to jointly parent A. They believe that they have demonstrated through frequent and consistent supervised access that they have the skills to do so. They point to the Society workers’ evidence that there has been improvement and progress in the parents’ skills.

[27] The parents love their child A. very much and A. has developed a strong bond with each of the parents. The mother and the father have co-operated with the Society workers and the parents submit that they are amenable and able to be supervised by the Society. The parents also state that they have a positive relationship with the paternal grandfather and his partner whom they see a number of times per week as they live just down the hall. The paternal grandfather and his partner are able to assist them when needed.

ISSUES

[28] The issues in this case are as follows:

(1) Should the child A. be placed in the care of the mother and the father subject to the supervision of the Society under terms and conditions, or should the child A. be placed in extended society care for the purpose of adoption?

(2) If an order is made that the child be placed in the care of the parents subject to terms and conditions, what should those terms and conditions be?

(3) If an order is made that the child be placed in extended society care, is an order for access between the mother and the child and between the father and the child in the child’s best interests?

(4) If an order is made that the child be placed in extended society care, subject to access by the parents, what should the terms of access be and who should be named as an access holder and who should be named as an access recipient?

ANALYSIS

POSITIVE ASPECTS

[29] The Society workers and the parents provided evidence of a number of positive aspects noted during visits between the parents and A. since A.’s birth in […], 2018.

[30] Those positive aspects included the following:

(1) The parents love A. and A. loves them. The workers have seen a bond develop between the child and each of the parents.

(2) The parents come regularly to the access visits.

(3) The access was expanded for daytime access up to 5 days per week.

(4) The parents’ home is well-kept and the parents usually had all the necessary diaper and feeding supplies for A.

(5) The parents are willing to work with the Society.

(6) The parents are respectful and co-operative with the Society workers. Even when things are tense between the parents during visits, the parents try to be co-operative.

(7) Although the parents didn’t always agree with suggestions made by the Society workers regarding the care of the child, the parents were still generally respectful.

(8) Sometimes access with A. and the parents go very well, although sometimes it does not.

(9) The parents have been observed mutually supporting each other or working together as a team in caring for A. during some visits.

(10) The father has no prior parenting history with the Society.

(11) The father is a first-time father with no parenting experience. He was initially anxious about caring for A. However, he gained confidence in his parenting skills over time.

(12) The overall parenting skills of the parents in diapering, feeding and looking after A.’s physical needs have improved a fair bit since the birth of A.

(13) The mother is much more affectionate with A. than the father is, and the mother demonstrated on a number of occasions her ability to be nurturing and loving towards A. But during many visits there was tension between the parents and sharp words between them occasionally. The mother has sometimes done better caring for A. without the father being there. The father has sometimes done better caring for A. without the mother being there.

(14) The mother attended a 6 week program for women called Life Encouraged And Directed. The mother also completed the Managing Powerful Emotions program.

(15) The father completed the 24/7 Dad program.

(16) The parents have an open and positive communication with the foster mother.

PROTECTION CONCERNS OF THE SOCIETY

The past parenting history of the mother

[31] The mother’s twin children were removed from her care when they were 5 months old and ultimately became Crown Wards. The mother’s evidence is that she did not abuse the twins. She testified that any abuse of the twins was caused by her partner who was also abusive towards her. The mother stated that she was the primary caregiver of the twins and that she did not allow the twins to be abused and she did not know that they had been abused. Both the mother and her partner were placed on the Child Abuse Registry.

[32] The mother’s evidence as to whether or not she was aware of the abuse of the twins was conflicting. She said she was not aware of any abuse of the twins. Then at other times in her evidence she seemed to be saying she could not report the abuse as she was in a situation of domestic abuse against herself.

[33] With respect to the mother’s third child, the mother acknowledged that she was unable to care for that child and she consented to the child being adopted.

The mother’s mental health

[34] Ms. Gray, the assessor, was provided with information from the mother’s family physician who has been seeing her since 2010.

[35] This doctor provided to Ms. Gray a copy of a psychological assessment conducted by a psychologist dated May 11, 2015. At that time the psychologist stated that the mother’s presentation was consistent with Post Traumatic Stress Disorder (PTSD) and that it was secondary to repeated sexual assaults throughout her childhood and early adolescence. The psychologist concluded that the mother had depression which he believed began as a result of childhood sexual abuse that had evolved into a significant psychological disorder. He also noted that the mother’s history is indicative of prior self-medicating behaviour with cocaine but was in remission. He stated that the mother had a number of features of Borderline Personality disorder with symptoms of patterns of instability in interpersonal relationships, self-image and marked impulsivity

[36] The psychologist stated that the mother showed significant cognitive and academic deficits and numerous psychological struggles and limitations. The Psychologist noted that without mental health intervention, the mother will continue to be significantly limited in her ability to function in any respect outside her home.

[37] The mother stated to Ms. Gray that she recently referred herself to YouthHab for individual counselling but was frustrated as she was placed on a five month wait list. The mother reported to Dr. Gray that she has struggled with her mental health since she was 13 years old, with incidents of self-cutting, anxiety attacks, and alcohol and drug use. The mother stated the following to Ms. Gray about her mental health as set out at page 17 of Ms. Gray’s report:

Ms. G. [the mother] expressed her desire to get help for mental health and a need to “focus on getting better” and does not want her mental health to impact her relationship with Mr. F. [the father] or impede her ability to be a good parent to A. She also expressed wanting to “function properly” and she is worried that her untreated mental health issues will prevent her from “being there” for A. She described “going into spells, zoning out” and not knowing if she will “snap out of it.” She further reported that “at any moment, I can drift off into my own world, I will have flash backs and distance myself.” While she reported having “good sleeps” and being aware of her surroundings since taking Trazadone, she described times where she “feels blank, numb” and disassociated. She further described sleep disruptions during which she has done dishes in the middle of the night.

[38] Dr. Farrell, a Registered Clinical/Forensic Psychologist, prepared a report based on the psychological testing done in conjunction with preparation of Ms. Gray’s report. Dr. Farrell noted that parenting measures for the mother yielded a profile significant for abuse, and indicating a “High risk for child physical abuse”. Dr. Farrell described the mother as having a sense of hopelessness and loss of control of her life circumstances.

[39] The mother’s family doctor referred the mother to a local Psychiatric Clinic. On July 6, 2018, a resident and a psychiatrist saw the mother in the clinic and prepared a report to the mother’s family doctor.

[40] The assessment that day was that the mother suffers from the following conditions:

(1) Long time major depressive disorder which is helped somewhat by her current medication but she still suffers from depressive symptoms;

(2) Borderline personality disorder where the mother admits to emotional lability, inability to regulate emotions, challenges in impulse control, challenges in anger management, and unstable and intense relationships.

(3) Unspecified eating disorder including restricted diet and purging.

(4) Likely attention deficit hyperactivity disorder which was diagnosed in the past, but no treatment since age 13. The mother was not formally assessed that day at the clinic for this.

(5) Post-traumatic stress disorder including flashbacks and nightmares from her previous traumatic experience.

(6) Cannabis use disorder; The mother admits to using cannabis on a daily basis and the report stated that it is likely this is contributing to her psychological wellbeing.

[41] The mother stated to the doctors at the Psychiatric Clinic that she has been depressed since she was about 8 years old. The mother reported that she is very emotionally labile and often lashes out at friends and loved ones. The mother said that medication had helped recently but had not fully resolved her depression. The mother stated that she does not sleep well and as a result she has poor energy during the day and she is exhausted constantly. Her concentration is poor.

[42] The mother has a long history of self-harm and two previous attempts at taking her life (age 15 and age 18). She has a history of cutting and frequently flicking herself with rubber bands to the point that she bleeds. The mother’s evidence at trial is that she has not self-harmed for almost 3 years.

[43] The mother stated that little things set her off emotionally and that when she does get emotional and angry, it takes her a long time to calm herself down.

[44] The mother was sexually abused for a sustained period of time by family members, and was physically abused by an ex-partner. This trauma causes the mother to have frequent flashbacks and nightmares.

[45] The psychiatrist and the resident made a number of recommendations which included recommended medication, and the Managing Powerful Emotions Program, which program the mother subsequently attended and completed.

The father’s mental health

[46] Ms. Gray reported that the father states that he is easily distracted and prone to losing focus during conversations. She also noted that he has difficulty following instructions and is easily distracted by bright lights and sounds.

[47] The father was initially reserved, but became more out-spoken and engaging over the course of the assessment.

[48] The father acknowledges that he has difficulty in communicating and talking about his emotions. He initially had trouble making eye contact with A. and in engaging verbally with A. Often he would be totally silent with A. even when holding her. The father frequently focused on his cell phone rather than on A. or the mother. He had difficulty vocalizing how he was feeling.

[49] The father attended Belleville General Hospital in May, 2018 after having a panic attack when he and the mother were separated but living in the same apartment. He told Ms. Gray it was because A. was in the care of the Society and he was worried that they might lose custody of A. He and the mother were also having financial problems. Although he found the counsellor that day to be helpful, he does not believe that he needs counselling on a regular basis.

[50] Dr. Farrell did a report on the psychological testing of the father done during the course of the assessment. Dr. Farrell describes the father as someone who has suffered from anxiety since childhood and is easily upset and has troubles relaxing. Dr. Farrell testified at the trial that the father perceives problems with others as his source of life’s difficulties. The father’s parenting measures were noted as “non-significant for abuse”. However, the father had increased scores for unhappiness and problems with others. Dr. Farrell testified that the father’s constant use of his cell phone may be a coping mechanism for the father.

[51] On June 11, 2019 the mother called the police as she was afraid that the father might do harm to himself. The police came to where the parties were and talked with the father who was feeling overwhelmed about the possibility of losing A. and his relationship with the mother as this trial was coming up in the next week. Afterwards the parties went home together.

Convictions for animal cruelty

[52] In June, 2017, the parents moved into shared accommodation with two friends in Belleville. The house was in disrepair and there was garbage piled up. There was no hydro or refrigerator which made food storage very difficult. The mother was pregnant and she found the environment was making her sick. The parents were paying rent to their friends. The police came and told the parents and the friends that they were squatters and would have to move out which the parents did immediately.

[53] The parents moved temporarily to the home of the paternal grandfather and his partner. They could not bring the father’s dog there and left the dog with their two friends at their former accommodation. The parents left dog food and money for the dog with their friends.

[54] Unfortunately, the friends did not care appropriately for the dog. The father states that he tried without success to contact the friends to check on the dog. Ultimately, the parents and the two friends were each charged with 8 charges of animal cruelty.

[55] The transcript of the guilty pleas of the parents was filed as an exhibit. The dog had flea infestation, skin irritation and a body score scale of one out of five which is the lowest score on the scale used to determine the condition of a dog.

[56] The Society is concerned about the parents’ lack of judgment in leaving the dog with friends whom they knew from living with them were not responsible people.

Confrontations with others in the community

[57] Since A. was born, the evidence of the Society workers is that there have been several confrontations between one or other or both of the parents and other members of the public.

[58] The father had run-ins at his different places of employment on at least a couple of occasions. One such incident involved a confrontation with another employee who put the father’s bike outside where it got stolen. The father got fired from another job for calling in sick. The Society’s evidence is that both parents have had fairly frequent complaints of upset stomach and general malaise which has caused some missed access visits and cancellation of some appointments with helping professionals or programs.

[59] In June, 2018, the father broke his hand after punching a wall during a verbal exchange with one of his neighbours about the cruelty to animal charges.

[60] On another occasion, the father got into a confrontation regarding an item which the mother had given to a neighbour and of which the father was demanding the return. This caused the mother to fear at the time for their safety in their current home and to consider looking for another home.

[61] The mother quarreled with her best friend which led to difficulties and the end of their relationship.

[62] Relationships with various other family members have been up and down.

The mother and the father’s drug use

[63] The mother reported to Ms. Gray, the assessor, that she smokes 5 mg. of marijuana daily in the evenings to help her with sleep and increase her appetite. In prior years she had used cocaine, ecstasy, MDMA, Molly, Speed and marijuana.

[64] The father reported to Ms. Gray that he smokes 1 mg. of marijuana every day for sleep, appetite and to “get out” of his head and relieve stress.

[65] The evidence is that most times there is a smell of marijuana in the apartment and that at times the smell of marijuana is overwhelming. On most occasions the Society workers were not convinced that marijuana affected the parenting ability of the parents. However on two occasions a Society worker believed that the father was impaired by marijuana and was not in a condition to parent the child on those occasions. The father denies he was impaired on those occasions.

Relationship stability and conflict between the mother and the father

[66] The mother and the father met in 2016 and quickly moved in together. About 6 months later, they separated as the father was partying, hanging around with the wrong people, doing drugs, and was unfaithful. They subsequently reconciled on conditions regarding the father’s behaviour in that regard.

[67] The mother states that she and the father took a short break in their relationship in May, 2018 although they remained in the same home.

[68] Ms. Gray observed that there was a clear imbalance of power in the relationship. The mother regularly dominated discussions but would then express frustration when the father did not contribute to conversations. The mother presented as more dominant while the father assumes a more passive role. At times, the father is passive-aggressive. The parents state they are engaged. They have been together for more than 2 years.

[69] At times the mother states to others that she is “done” or that she is “going to snap” but the mother says this only means she is taking a break from the situation and does not mean she is leaving the relationship.

[70] The mother complained about the lack of communication between them, and the division of responsibilities as she felt she was required to carry more of the responsibilities. The mother also complained about the father’s procrastination in a number of areas of his life, including retaining a lawyer for these proceedings and looking for employment.

[71] The mother and the father do acknowledge that they bicker a lot.

[72] The mother and the father state that they intend to stay together and are engaged.

Report of Ms. P. Gray, Assessor

[73] Ms. P. Gray, assessor, submitted a report dated September 19, 2018. She had been requested to do a report regarding each of the parents. She was requested as well to assess the paternal grandfather and his partner as to what role they may play, be it on a permanent basis or in a supportive role.

[74] Ms. Gray was concerned that the mother and father’s level of cognitive functioning, memory, focus and reasoning skills hinder their capability to effectively parent A. Ms. Gray noted that both parents have worked hard to make changes and to learn parenting skills, but this does not mitigate the significant risk to A. if she were placed in their care. Ms. Gray acknowledged that some positive interactions have been noted by the Society and herself during access visits by the parents with A., but irritability, inattention, and conflict are still present. Ms. Gray was also concerned that the parents were not fully receptive to guidance and direction from the Society or from the father’s parents which suggests that the parents would isolate and withdraw from seeking out appropriate supports for A. and for the family as a whole.

[75] Ms. Gray was concerned that the relationship between the parents is still relatively new and they briefly separated during the assessment. Ms. Gray stated that the parents’ lack of insight and failure to take full responsibility for the abuse of their dog, suggests poor judgment and decision making on their part and suggests an increased likelihood of other forms of abuse in terms of providing consistent and appropriate care for A.

[76] Ms. Gray noted that the mother and the father have poorly managed mental health issues and do not have adequate mental health supports to better manage their symptoms. Ms. Gray noted that both parents regularly use marijuana to self-medicate and to cope with their emotions and life stressors. Ms. Gray is concerned about the impact of this frequent use of marijuana on the parenting capacity of the mother and the father. Ms. Gray states that the father appears to lack insight into the extent and complexities of the mother’s emotional instability as well as his own struggles with anxiety and depression. Both parents tended to see external factors and other people as being responsible for their difficulties.

[77] The mother was noted by Ms. Gray as presenting as anxious, easily frustrated and subject to rapid mood changes which she was unable to regulate. Ms. Gray states that this reflects ongoing chaotic mental instability. Ms. Gray stated that the father adopted a passive, avoidance approach to problem solving, but did not follow through on opportunities that had the potential to improve the situation of the parents. Ms. Gray stated that she anticipated both parents would be unable to meet A.’s emotional and safety needs.

[78] Ms. Gray’s opinion was that neither the paternal grandfather nor the paternal grandfather’s partner has the ability to parent A. Both the paternal grandfather and his partner have a significant prior history with child welfare agencies and their respective children (one of the grandfather’s children being the father in this case), including substance abuse, neglect, and lack of supervision. Ms. Gray’s opinion was also that the paternal grandfather and his partner would not be able to share in the caregiving of A. with the parents as there was already significant conflicts between the parents and the paternal grandfather and his partner, regarding the care of A. and the role that the grandparents would play, such that the environment would be highly conflictual for A.

[79] Ms. Gray was concerned with her observations of the lack of structure, rules and responsibilities provided to the grandfather’s partner’s two children in the home as well as the poor condition of the home, including considerable garbage, clothes and debris throughout the home. She was also concerned with the paternal grandfather and his partner’s respective marijuana use and their mental health issues.

[80] The paternal grandfather has in the last year or so been diagnosed with agoraphobia, cocaine remission, (he states he has not used cocaine since 2011) and angeria (low energy) and that he has a previous diagnosis of anxiety and depression. He smokes 2 to 3 grams of non-medically prescribed marijuana each day to deal with these issues.

[81] The paternal grandfather’s partner had a motor vehicle accident in June, 2017 and had a serious injury to the muscles and tendons of her left calf. She suffers from significant pain and mobility issues. She is now in a wheelchair.

[82] The paternal grandfather’s partner uses marijuana daily and estimates that she uses 3 grams per week. More recently, she states she was prescribed CBD and THC oil as well as a dried flower form of marijuana which she now uses rather smoking it.

[83] Initially, the paternal grandfather and his partner were putting forward a plan to care for A. if the parents’ plan to care for A. was not acceptable. However, on July 19, 2018, the paternal grandfather advised Ms. Gray that he was overwhelmed with his own health issues and that he was withdrawing the plan. The paternal grandfather’s partner was devastated by his withdrawal of the plan as she felt that she was able to care for A. and that A. would be the daughter she had never had. Ms. Gray was concerned that the paternal grandfather’s partner was attempting to fulfill her own emotional needs by putting forward a plan for their care of A. which would not be healthy for A.’s development and which has already caused conflict between the parents and the paternal grandfather and his partner.

Paternal grandfather and spouse as assistance

[84] The parents have put forward the position that the paternal grandfather and his partner could assist them if needed as they just live down the hall.

[85] The mother expressed to Dr. Gray that she and the father have significantly different parenting views to those of the paternal grandfather and his partner. The mother reported that there have been disagreements regarding the child’s clothing, teething, feeding and education. The mother stated to Ms. Gray that while she appreciates the support of the paternal grandfather’s partner, the grandfather’s partner often interferes with the mother and the father’s parenting of A.

Recommendation of the Assessor

[86] The assessor’s impression was that the parents are genuinely working hard with the Society to have A. returned to their care. However, Ms. Gray was concerned particularly regarding the mother’s poorly managed mental health concerns, her significant history with the Society, her registration on the Child Abuse Registry, and her inability to parent her other three children.

[87] Ms. Gray stated at page 24 of her report:

Ms. G. [the mother] and Mr. F. [the father] both disclosed daily use of marijuana, which they use to copy with mental health symptoms and life stressors. Given both reported difficulties in focus and memory, I am particularly concerned with the couple’s functioning and the potential impact this has on their ability to care for A. Dr. Farrell noted Ms. G.’s overall cognitive functioning within average range, however further referenced Dr. L.’s psychological assessment of Ms. G. in 2015, where she scored well below average range and indicated that memory issues were of concern. Dr. Farrell further noted that Mr. F.’s cognitive scores are consistent with deficits in “fluid reasoning abilities” and that further and more comprehensive testing is warranted. Ms. G. and Mr. F.’s ability to parent A. on a permanent basis appears significantly impaired due to their mental health challenges, cognitive issues, marijuana use and dysfunctional childhoods.

[88] It is Ms. Gray’s opinion and recommendation that neither the mother nor the father have the capacity to parent A. either separately or as a couple. In coming to that conclusion, she noted that the mother continues to experience significant difficulty regulating her emotions. She is prone to impatience, anger, irritability and self-harming behaviours. Ms. Gray also pointed to the mother’s significant child protection history which resulted in the permanent removal of her other three children. Ms. Gray’s recommendation is that A. should be placed in extended society care (formerly Crown Wardship).

[89] Ms. Gray did not recommend the paternal grandfather and his partner to be a kin placement for A. nor did she recommend them as effective assistance for the parents.

Services Provided by the Society

[90] The Society became aware in November, 2017 that the mother was pregnant. They attempted to contact the mother to start planning and through the worker’s diligent efforts contact was made with the parents. The Society has engaged with the parents through meetings with them and other family members to discuss planning. The Society suggested to the mother a program called Managing Powerful Emotions to try to help the mother to deal with the problems she was having in regulating her emotions. The Society persisted over a period of time in encouraging the mother to self-refer to the program which was required. The mother was having difficulty following through with this but the mother ultimately did register and take the program.

[91] The Society recommended to the mother that she attempt to take an intensive program available for persons with Borderline Personality Disorder. The program required the mother to take some pre-requisite programs. Unfortunately, there are long waiting lists about which neither the mother not the Society could do anything about. The mother is still on a waiting list due to shortages of mental health services.

[92] The worker recommended that the mother attend the LEAD program which is Life Encouraged And Directed. The mother did so and decided to attend the program a second time as well.

[93] The worker arranged for both parties to attend Parenting Classes in March, 2018 which they did. As a result of this contact, the father was also referred to a 24/7 Dad program which he attended with the encouragement of the worker. The father completed the program in the spring of 2018.

[94] The parents were provided by the Society with extensive opportunities for access to A. approximately 5 days per week. Most of the access was supervised, but there were some opportunities for short periods of unsupervised access at play groups and a library group. The workers and supervisors worked with the parents by modelling appropriate parenting skills, reading A.’s cues and responding to them, and engagement by the parents with A.

[95] The Society worker provided a binder to the parents with information about ages and stages of development of infants with activities that could be done with a child at certain stages. The worker would talk about the information as A. was developing. The parents often did not read the binder nor follow through with the suggested activities.

[96] The workers also assisted the parents with teaching regarding budgeting, chore/household task completion while parenting, and meal planning.

[97] The parents were referred to couples counselling by the Society which was prepared to pay for the counselling. Counselling was started, but the parents cancelled the first appointment the morning of the appointment, attended the second appointment but were 30 minutes late, and cancelled the third appointment. Due to some lack of follow-through by the parents and in the midst of a change in worker, the couples counselling did not really get off the ground.

[98] The parents were referred by the Society to a program called Circle of Safety which deals with learning to read the child’s emotional needs and supporting and strengthening secure child-parent relationships. The parents were told that attendance was mandatory as each session builds upon the previous session. The parents were terminated from that program due to being 45 minutes late for the first session and subsequently missing a session due to alleged food poisoning. The parents have subsequently re-enrolled in the program when it started up again, but it was not starting again until May 28, 2019.

[99] The worker attempted to encourage and assist the father for more than a year to take the necessary steps to retain a lawyer for these proceedings. The father finally took the necessary steps to do so.

[100] The workers assisted the parents to apply for OW, and employment opportunities for the father. The workers provided information regarding obtaining a “Y” membership and other recreational activities in the community.

[101] On the evidence I find that the Society workers have made great efforts to assist the parents to deal with the protection concerns so that the parents might have A. ultimately placed in the care of the mother and father, if at all possible.

Availability of Kin or Community Placement

[102] The parents originally presented the paternal grandfather and his partner as an option for a kin placement. This placement is not recommended by the assessor, Ms. G. nor is the Society in favour of this placement.

[103] I find that the paternal grandfather and his partner love A. and wish to be of assistance to the mother and the father as best they can. However, I find on the evidence that it is not in A.’s best interest to be placed in their care because of the concerns regarding their significant health issues, mental health issues, daily use of marijuana, the condition of their home, and their past involvement with child welfare authorities regarding their own respective children.

[104] The Society has explored with the mother and with the father, the possibility of other kin placements or community placements. No other family member or community member has come forward with a plan for placement of the children with them. On the evidence, I find that there is no other kin or community placement available for the children.

DISPOSITION

[105] Due to the age of the child and the timelines set out in the Act, the only options for disposition available in this matter are the child A. being placed in extended society care or the child being returned to the care of the parents or one of them, with or without the supervision of the Society.

[106] On the evidence, I find that the mother and the father both love the child A. very much and that A. recognizes the mother and the father and that she loves them. I find that the parents are sincere in their wish to have the child A. placed in their care. They have been regular with their access visits and the evidence is that their parenting skills and focus on the child have improved quite a bit since the birth of the child. There have been many visits or parts thereof that have been very positive.

[107] However on the evidence before me, I find that the parenting skills of the parents, their behaviour, and their engagement with and supervision of the child have not been consistent at the visits. There have been a number of times where the parents have become annoyed, frustrated and at times quite agitated while caring for A. They become upset when A. is difficult to settle or when tasks such as diaper changing are challenging. Particularly when the parents have engaged in conflict between themselves or with other persons, or are pre-occupied primarily with their cell-phones, or distracted by other stresses in their lives, I find that they have put their needs first over the needs of A. resulting in them not being able to meet A.’s needs at such times, nor to attend to or supervise A. in an appropriate manner at such times. When this happens, the Society worker or access supervisor has had to step in and attend to A.’s needs as the parents are not doing so.

[108] Parenting is a 24 hour per day, 7 day per week responsibility. The parents have had significant difficulty in consistently providing appropriate care for A. for much shorter periods of time even with a great deal of support from the Society.

[109] The parents have never had the child with them overnight. The evidence is that the father is working Monday through Friday from 3:00 p.m. to 11:00 p.m. The child would be in the sole care of the mother for over 8 hours each evening plus the father’s return travel time. On the evidence, I find that the mother has on a number of occasions had difficulty in controlling her emotions, and has become very upset while caring for the child. When this has happened in the presence of a Society worker or access supervisor, they have found the mother’s behaviour very concerning. At such times, I find on the evidence of the workers and of Ms. Gray, the assessor, that the mother’s movements in caring for the child became rough and abrupt when she is upset or stressed.

[110] The mother’s past parenting history is also of great concern. The mother blames the bruising on the twins on their face and ears as being caused by her former partner and as being unknown to her. However, her evidence is that she was the primary caregiver for the twins. It seems unlikely that the mother would not be aware of the bruising and her evidence was conflicting on that point.

[111] It is also of concern that after overnight access was started between the mother and her daughter born in 2016, the mother began cancelling more visits. The mother reported to the Society after every overnight that the child was fussy and that the mother was awake all night and on edge. In contrast to this, the foster mother reported that that child slept through the night at the foster home.

[112] I find that the mother and the father both have mental health issues which have not been adequately addressed by them. The mother has unfortunately suffered terrible trauma during her childhood which has understandably negatively affected her mental health. The mother has not received treatment for this. The mother also has other mental health diagnoses which affect her day to day well-being. Unfortunately, there is a lengthy waiting list for treatment.

[113] The father has had anxiety and depression issues since he was a child. The father often copes with this by focusing on his cellphone. Even when he has been asked by the Society worker or the mother to get off his phone and focus on the child and the visit, he has been unable to do so.

[114] I find that the parents have had numerous arguments regarding their relationship and regarding lack of communication from the father to the mother. They have stayed together in the relationship, but I find on the evidence that at times, the situation becomes very volatile. The parents bicker between themselves a lot, some of which takes place in the presence of the child. The parents and the paternal grandfather believe that if the child were placed in the care of the parents, this would dissipate much of their anxiety and relationship problems. However, I find that on the contrary, the full-time responsibility for the parents to care for the child with little outside support would likely result in increased conflicts between the parents and increased risk for the safety of the child during such conflicts.

[115] For the reasons set out herein, I find that the risks to the physical and emotional safety of A. are too great to place the child in the care of the mother and the father, or in the care of either of them individually, even with the supervision of the Society.

[116] The evidence is that the Society discussed with the father the possibility of separating from the mother and presenting a plan of his own. However, the father rejected that when discussing it with the assessor, as well as during his evidence. It was only at the very end of his testimony in re-direct by his counsel that the father said that if putting a plan forward on his own to care for A. were the only option he would take it.

[117] I find that the father is committed to the joint plan, but that he is not prepared nor committed to put forward a plan to care for the child on his own. Under these circumstances, I do not find that to be a viable option.

[118] I find that it is not in the best interests of A. to delay a permanent placement of A. any further. A. has been in a foster home since her birth over a year and a half ago. It is time that A. has a permanent home. A. cannot wait any longer for the parents to obtain treatment for their mental health issues and to deal with the other protection concerns. I find that it is in the best interests of A. that there be an order that A. be in extended society care for the purpose of adoption.

Access

[119] I must now consider whether there should be any order made for access by the mother or by the father to A.

[120] This court proceeding was commenced by the Society on February 1, 2018 under the Child and Family Services Act, R.S.O. 1990, c. c.11 (“CFSA”). On April 30, 2018, the CFSA was replaced with the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). A transitional regulation, O.Reg. 157/18, required that all cases not concluded at the date the CYFSA came into force would be continued as a proceeding commenced under the CYFSA rather than the CFSA. (See Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316.)

[121] Accordingly, the issue of access must be determined pursuant to the CYFSA. This is significant as the CYFSA provides for a new expanded test for access to children in extended society care. Justice Benotto of the Ontario Court of Appeal in the Kawartha case stated in paragraph 31:

Most importantly for this case, the new Act changed the criteria for access to children in extended care by removing the presumption against access, making the child’s “best interests” predominant in determining access, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to community.

[122] In the case before me, the child is not Indigenous so that is not a consideration. However, in considering whether either or both of the parents should have access to A. in extended society care, I must apply the expanded test for access provided for in the CYFSA.

[123] In the case of Children’s Aid Society of Toronto v. J.G. and T.H., 2019 ONCJ 333, Justice Sherr reviews the history of the various judicial interpretations of the test for access under the CFSA. He also reviews the principles set out in the Kawartha case. Justice Sherr then proceeds to carry out an analysis of whether access is beneficial and meaningful for the young child in that case and whether it would impair the child’s future opportunities for adoption. He also considered the best interest factors set out in subsection 74(3) of the Act. Having balanced all of these considerations, Justice Sherr found that it was in the best interest of the child to order access between the mother and the child in that case.

[124] Pursuant to subsection 105(4), where an order for extended society care is made, any existing access order is terminated. The legislation regarding access to a child in extended society care is dealt with in subsection 105(5), 105(6) and 105(7) of the CYFSA as follows:

105(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

(6) 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; and

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

(7) Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the court shall specify,

(a) every person who has been granted a right of access; and

(b) every person with respect to whom access has been granted.

[125] The position put forward by the Society was that if there were an order made for extended society care, there should be no order for access. Alternatively, the Society took the position that there could be an order made pursuant to Section 105(9) which states as follows:

If a society believes that contact or communication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) is in the best interests of the child and no openness order under Part VIII (Adoption and Adoption Licensing) or access order is in effect with respect to the person and the child, the society may permit contact or communication between the person and the child.

[126] The position of each of the parents at trial was for the child to be placed in their care subject to the supervision of the Society. Neither of the parents made any argument in closing with respect to the issue of access if an order for extended society care were made. However, both parents expressed fear of losing A. and not seeing A. in their evidence.

Access Analysis

[127] I must consider whether an access order is in the best interests of the child.

[128] Subsection 74(3) of the CYFSA sets out what should be considered in determining the best interests of the child as follows:

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

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

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

(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.

[129] I have considered the factors set out in subparagraph 74(3) as follows:

(a) The child A. is an infant and the views and wishes of A. cannot be ascertained at this time.

(b) The child’s physical, mental and emotional needs are being met and the child is not at this time in need of any treatment out of the ordinary.

(d) Access with the parents would permit the child to know the child’s biological parents and the child’s ancestry and cultural heritage.

(e) The child will likely be moving from the current foster home to an adoptive family. The mother’s eldest two children have been adopted and the mother has some access to them. There is no evidence that access with the mother has interfered with the security of those children in their adoptive home.

(f) The child knows the parents and has established a bond with them.

(g) It is unlikely that access by the parents will substantially delay permanency planning for the child.

(h) The degree of risk that justified the order can be handled by providing that access by the parents shall be supervised.

[130] In addition to considering the best interests of the child by considering the factors set out in Subsection 74(3), I must also consider the additional considerations for best interests test as set out in subparagraph 105(6).

Is the relationship a beneficial and meaningful relationship to the child?

[131] The child A. is under two years old so it is difficult to measure whether the relationship with the mother or with the father is a beneficial and meaningful relationship for the child. I find that the child does recognize the mother and the father and that the child is happy to see them and is comfortable in spending time with them.

[132] If contact is kept up between the parents and A., this relationship may become even more meaningful to A. over time as A. will know her biological parents and her background.

[133] In considering the factors in favour of an access order to the parents, I have considered the factors set out earlier in this judgment under the heading POSITIVE ASPECTS.

[134] In considering the factors which would not be in favour of an access order to the parents, I have considered the information set out earlier in this judgment under the heading PROTECTION CONCERNS OF THE SOCIETY. I have also considered that the access will need to be supervised.

[135] In weighing the aforesaid factors, I find that the child’s relationship with the mother and with the father are beneficial to the child.

Will access impair the child’s future opportunities for adoption?

[136] As A. is less than two years old, the issue of whether an access order would impair A.’s future opportunities is very relevant. It is my understanding from the evidence that the current foster home may not be a long-term plan for adoption of A. Accordingly, the Society has a responsibility to look for an adoptive home for A.

[137] There is no evidence before me that there is any particular adoptive home being considered at this time. There is no evidence before me that an order for access to the mother and to the father would impair A.’s future opportunities for adoption. The prospective adoptive parent(s) are unknown at this time, and it is unknown whether contact with the biological mother and biological father would be a barrier to the child being adopted.

[138] At paragraph 98 of the Children’s Aid Society of Toronto v. J.G. and T.H. case, Justice Sherr reviewed the attributes of a parent that would impair a child’s future opportunities for adoption as set out in paragraphs 166 to 169 of Children’s Aid Society v. A.F., 2015 ONCJ 678 as follows:

[166] The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

[167] The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child’s sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child’s life.

[168] The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

[169] The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child’s life and are likely to engage in openness litigation.

[139] In reviewing the characteristics of the mother and of the father in the case before me, I find that the only concerning characteristic would be the first one, involving aggression, anger, impulse control and the tendency to be confrontational. The evidence in this case is that the mother and the father bicker frequently between themselves and have gotten into confrontations with other members of the community or with family members.

[140] On the other hand, the evidence is that the mother is successfully having access with her twin sons and she seems to have a good relationship with the adoptive parents of those children. In other words, there is no evidence that access by the mother to those children has interfered with the physical and emotional security of the adoptive parents and their family. The mother appears to have been willing to accept her reduced role in the life of the twins.

[141] The mother and the father have been willing to work with the Society workers and have been co-operative and respectful. The mother and the father have been able to get along in a respectful manner with the foster mother of A. and the parents have been appreciative of the foster mother’s efforts in caring for A.

[142] The parents have been relatively open with Society workers about what goes on in their lives.

[143] I am not satisfied on the evidence before me that an access order for the parents to A. will impair future opportunities for adoption.

[144] After considering and weighing all of the aforesaid factors and circumstances of this case, I find that it is in A.’s best interests to order access between the mother and the child, and between the father and the child.

[145] In accordance with subsection 105(7) of the CYFSA, the order shall specify that:

(a) the mother shall be granted a right of access to the child,

(b) the father shall be granted a right of access to the child,

(d) the child shall be granted the right of access to the father.

[146] The order shall also specify that:

(a) access to the child has been granted to the mother,

(b) access to the child has been granted to the father,

(d) access to the father has been granted to the child.

[147] I have made the parents and the child both the holders and the recipients of access. Like Justice Sherr in Children’s Aid Society of Toronto v. J.G. and T.H., I have concerns that if the parents were served with a notice of intention to place the child for adoption, they might not be able to bring an openness application within the timelines because of their cognitive issues, their mental health issues and their tendency to procrastinate. Therefore, the Office of the Children’s Lawyer would be able to bring an openness application on behalf of the child if deemed appropriate and in the child’s best interests.

What should the terms of access be?

[148] The caselaw regarding access after an order for extended society care (formerly Crown Wardship) sets out that there is a qualitative difference in the amount of access a parent will have with the child before an order for extended society care and after an order for extended Society care.

[149] In the case of Children’s Aid Society of the Region of Peel v. A.R., 2013 ONCJ 347, Justice Clay states:

The Court finds that an access order should be made in all of the circumstances of this matter. However the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother’s care. Part of the reason for access prior to a Crown Ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child.

[150] See also the case of Children’s Aid Society of Toronto v. J.G. and T.H.previously referred to herein, and Family and Children’s Services of Frontenac, Lennox and Addington v. K.S., [2017] O.J. No. 58.

[151] The parents in the case before me have had significant access to the child 5 days per week. Now that it has been determined that the child will not be placed in the care of the parents, it is not in the best interests of the child to have such a substantial amount of access to the parents.

[152] As the prospective adoptive parents are unknown, it is uncertain how long this access order will be in effect. Accordingly, I find that it is in the best interests of the child that the order for access by the mother and by the father shall be at the discretion of the Society regarding timing, frequency, and all other details including the level of supervision, subject to the proviso that access shall take place a minimum of once per month.

[153] I adopt the approach of Justice Minnema in paragraph 75 of the K.S. case and emphasize that the order I am making is an access order. This order does not deal with the issue of openness nor with what, if any, contact there should be post-adoption. As previously stated, it is unknown who the adoptive parent(s) will be and where the adoptive parent(s) reside. These issues will need to be considered at the appropriate time having regard to the best interests of the child at that time.

Order

[154] Final order to go that the child A. is placed in extended society care, for the purpose of adoption with access as set out above.

[155] I would like to thank all counsel for their assistance in this difficult case.

Madam Justice A.C. Trousdale

Released: September 20, 2019