Family & Children’s Services v. B.S., 2019 ONSC 6577

minicounsel

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.

AVIS

Il s'agit d'un cas en vertu de la Loi de 2017 sur les services à l'enfance, à la jeunesse et à la famille et sous réserve des paragraphes 87(8) et 87(9) de la Loi. Ces paragraphes et le paragraphe 142(3) de la Loi de 2017 sur l'enfance, la jeunesse et les services, qui traitent des conséquences de la non-conformité, se lisent comme suit:

87(8) Interdiction : identification d’un enfant — Nul ne doit publier, ni rendre publics des renseignements ayant pour effet d’identifier un enfant qui témoigne, qui participe à une audience ou qui fait l’objet d’une instance, ou un parent ou un parent de famille d’accueil de cet enfant ou un membre de la famille de cet enfant.

(9) Interdiction : identification d’une personne accusée — Le tribunal peut rendre une ordonnance interdisant la publication de renseignements ayant pour effet d’identifier une personne accusée d’une infraction à la présente partie.

142(3) Infraction : publication — Quiconque contrevient au paragraphe 87(8) ou 134(11) (publication de renseignements identificatoires) ou à une ordonnance de non-publication rendue en vertu de l’alinéa 87(7) c) ou du paragraphe 87(9) et l’administrateur, le dirigeant ou l’employé d’une personne morale qui autorise ou permet cette contravention ou y participe sont coupables d’une infraction et passibles, sur déclaration de culpabilité, d’une amende d’au plus 10 000 $ et d’un emprisonnement d’au plus trois ans, ou d’une seule de ces peines.

COURT FILE NO.: FC 147/17
DATE: 2019-11-15

BETWEEN:

Family & Children’s Services of St. Thomas and Elgin

Applicant

and -

B.S.
R.T.

Respondents

COUNSEL:

Dana Haklander, counsel for the Applicant
Katherine Orkin, counsel for B.S.
Greg S. Parrack, counsel for R.T.

HEARD: September 30, October 1, 2019

REASONS FOR JUDGMENT

TRANQUILLI J.

1This trial concerns what access, if any, should continue between the respondent parents and their child, who is in extended society care.

2The Family & Children’s Services of St. Thomas and Elgin (“the Society”) brought a motion for summary judgment placing the child, C.S., born […], 2017 (“the child”), into extended society care with no access by either her mother, B.S. or her father, R.T. The respondent parents opposed the Society’s motion. Each sought an order placing the child in her or his care subject to Society supervision.

3For oral reasons and by final order dated May 17, 2019, Donald J. found the child to be in need of protection pursuant to s. 74(2)(b) and (h) of the Child, Youth and Family Services Act and placed her in extended society care. However, Donald J. concluded that access was a genuine issue requiring trial. He adjourned the issue of access by her mother B.S. (“the Mother”) and Father R.T. (“the Father”) to this hearing.

The Parties

4The Society presented its case mainly through affidavit evidence by Society workers S. Savage, J. Oldham, B. Vaughan, J. Blackwell and S. Jacques. The Society also called the child’s maternal grandmother M.S. and the foster parent father. All Society witnesses were cross-examined by both respondents.

5The respondent mother, B.S. (“the Mother”), testified on her own behalf. The respondent father, R.T. (“the Father”), testified on his own behalf and also called the paternal grandmother. The respondents and the paternal grandmother were cross-examined.

Positions of the Parties

6The Society originally sought a no access order for both respondents on the motion. It amended its position on access since the motion. It amended its position and acknowledges that some limited access between the child and each parent is appropriate. It proposes the following orders:

The Mother shall have access to the child at the discretion of the Society and/or the foster caregivers with respect to frequency, location, duration, need and level of supervision. Access shall occur a minimum of twice per year for face to face contact as well as on holidays or special occasions. Access shall also include email updates with photographs a minimum of twice per year. Additional email exchanges can be organized between the Society and/or the foster caregiver and the Mother if the Mother initiates the email exchange.
The Father shall have indirect access through an exchange of pictures and letters (including photographs) as arranged by the Society and/or the foster caregivers a minimum of twice per year. The Father is permitted to provide the Society and/or the foster caregiver with information, cultural teachings, rituals, etc. with respect to the child’s First Nation heritage as part of this exchange of information. Additional email exchanges can be organized between the Society and/or the foster caregiver and the Father if the Father initiates the email exchange.

7Although the child has an established bond with her Mother, the Society notes the Mother’s history of inconsistency in access visits. This pattern has continued since the motion. It argues the minimum number of two direct access visits per year for the Mother is reasonable as part of a long-term permanency plan for adoption. If Mother is consistent and demonstrates stability, there is the prospect that there could be more than the minimum number of visits. Access on these terms will not impair the adoption planning, although the Society appeared to caution that the court should be mindful of the Mother’s conduct and the criteria that may militate against access when considering the impact of access on adoption.

8The foster caregivers intend to adopt the child. The foster parent father advised the court that they are in support of continued access, but not at the current frequency. The foster-to-adopt parents and Society would also look to the maternal grandmother to facilitate supervised access for the Mother. The foster caregiver did not expressly oppose ongoing direct access by the Father to the child. However, it was his view that the child’s time alone with her Father was still a challenge.

9The Society supports only indirect access for the Father due disruption in his access due to two periods of detention. The Society claims the Father’s conduct and attitude does not favour continued direct access. Unlike the Mother, he has not had a right of access pursuant to interim court order. He does not have an approved supervisor to oversee community access visits. Indirect access will maintain a connection and allow for the child to learn more of her indigenous heritage.

10The Mother initially sought to continue weekly access, although in closing, also proposed an alternating Saturday access schedule to be shared with the Father, or to have access when the maternal grandmother has access. The Mother rejects the Society’s proposal as “absurd”, as it will not foster a meaningful bond. She argued that the purpose of access is to maintain and build that bond and the child’s understanding of herself and her place in the family. The Society’s proposed minimum is more likely than not to become the status quo and will disrupt the bond.

11The Father urged that direct access with him is in the child’s best interests. Even if she is initially hesitant, she quickly settles with him during the visits and there is an established bond. He submitted that a weekly direct access schedule would be ideal; however, recognized this was unlikely. He accepts the extended society care disposition and his reduced role in the child’s life. He proposes direct access with the child at a minimum of once per month, for a duration no shorter than two hours.

The Issues

12The issues for this court to determine are:

a) Are orders for access between the child and her Mother and Father in the child’s best interests?

b) If so, what access orders are in the child’s best interests?

c) If an access order is made, who should be the access holders and who should be the access recipients?

Evidence from the Disposition Hearing

13The following summary of the respondents’ history with the Society arises from Donald J.’s oral Reasons for Judgment delivered May 17, 2019 and sets out the essential facts and findings made by Donald J. which led to the disposition and adjournment of the access issue to this hearing.

14The Society became involved with after a phone call from a physician on […], 2017, the day before the child’s birth. The physician was concerned about the Mother’s mental health, substance abuse, choice of intimate partners and a lack of prenatal care. The Mother was generally uncooperative with the Society. The Society attempted to engage with the Mother over the next several weeks. It was unsuccessful. She admitted to Oxycontin abuse. She was noncompliant with her Methadone program and revoked her consent for the Society to monitor her drug testing. The mother missed several Society and medical appointments following the birth of the child. She refused to identify the child’s father. She refused to sign a voluntary service agreement. The Society was also concerned about her lack of stable housing and the circumstances that led to the removal of another child from her care several years earlier.

15The Society brought an application for a supervision order in August 2017 and had considerable difficulty in locating the Mother to serve the application. On September 27, 2017, the Society removed the child from the Mother’s care pursuant to a warrant. The Society placed the child with foster caregivers, with whom she has lived to date.

16The Mother continually failed to attend access with the child as well as meetings with the Society worker. Donald J. noted “this atrocious pattern of non-attendance continued” throughout 2018 and “merited significant scrutiny.” She could not make attendances at the Society a priority even where the child had been removed from her care.

17However, Donald J. concluded the evidence from the Mother’s access visits also clearly established that with rare exception, she was a loving and able mother. He concluded that the reasons for her missing so many access visits and Society meetings were her mental health and addiction issues, which presented as a significant risk to the child. A supervision order was inappropriate due to the depth of her issues and lack of cooperation with the Society. No kin placement was available, and the child was in need of permanency.

18In December 2017, the Mother identified the Father to the Society. He became involved with the Society in January 2018, describing that he had had a “close connection” with the child before her apprehension in September 2017. Donald J. observed that the Father did not offer any explanation for his absence from the child’s life for approximately four months. He inferred that the Father had other priorities which overwhelmed his ability to take any proactive step for the child during that time.

19The Society encountered difficulties in meeting with the Father throughout 2018. The Society referred him to the “Caring Dads” program; however, he failed to attend on two opportunities in early 2018 and then missed the October 2018 program as he was in jail. The Society offered both parents the Circle of Security Program. Their spotty attendance meant it took them nearly six months to complete the eight-week program. Donald J. concluded that poor attendance and repeated lateness indicated that the Father did not fully engage in the program.

20In October 2018, the Father advised the Society that he was in jail as a result of an allegation of selling drugs to an undercover officer. He said he sold the officer Tylenol instead of Fentanyl. Although he denied substance abuse to the Society worker, he also asserted that he began a Methadone program while in custody and was interested in a residential treatment program as it would “look good” in court. Donald J. concluded that the Father was either lying about the state of his addiction or was prepared to manipulate an outcome in court.

21The court concluded that the Father presented with specific risks to the child, including his association with a drug use lifestyle, as more than a mere user. His inability to follow through on programming made a supervision order impossible.

22The respondents’ relationship was in a constant state of flux, with evidence of hostility and volatility. The court was concerned about placing the child into that situation.

23However, Donald J. was unconvinced that the Society discharged its burden as it related to access. He noted the amendments to the Act, the implications of Kawartha-Haliburton Children’s Aid Society v. M.W¹ and commented that the motion evidence made a no access order unlikely. Despite the missed visits and missed programming, the access visits that did occur went well. On the Society’s version of events there was cogent evidence of a connection between the child and the respondents. Access was unlikely to impair adoption. The court also had to consider the child’s First Nation heritage through her Father, who identifies as Penobscot First Nation.

24Donald J. commented that thought ought to be given to resolving the issue in favour of access. He had these words of caution for the Mother and Father, (although neither was present for the oral judgment, for reasons not adequately explained at this hearing):

The parents have been put on notice of the Society’s ultimate direction. These reasons themselves should put the parents, which I’d hoped they had been here to hear them, on notice that the continued inconsistent access will at some stage undoubtedly cause harm for the child in such a way that the Society could bring the matter back and have that issue revisited by a court. Indeed, access will also be revisited at a stage where there is an application for adoption, the very path that I’m told this matter is on.

Access: The Statutory Pathway

25The statutory pathway for an access determination that applies to this proceeding is as follows [emphasis added]:

a. In making an access order, the court may, in the child’s best interests, make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate;²

b. Where the court makes an order that a child be in extended society care, any order for access with respect to the child is terminated;³

c. A court shall not make or vary an access order with respect to a child in extended society care unless the court is satisfied that the order or variation would be in the child’s best interests;⁴

d. As part of determining whether an order or variation of an access order would be in the child’s best interests, the court shall consider whether the relationship between the person and the child is beneficial and meaningful to the child and, if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption;⁵

e. The court shall also specify every person who has been granted a right of access (access holder) and every person with respect to whom access has been granted (access recipient).⁶

Access Since the Disposition Order

Undisputed Evidence

26The Mother is 35 years of age. She lived in a number of different locations since the Society’s involvement. The Mother and Father had another child in […] 2019, who is currently in the temporary care of the Society. Most recently, the Mother was living with the maternal grandmother for an unspecified period of time. Shortly before this trial she moved with the Father to live together in a rental unit in London, where they rent from another tenant. The Father testified this move was necessary to make a fresh start and get some distance from negative influences. Unfortunately, this limits their transportation options to St. Thomas for their access visits.

27The Father is 39 years of age. In addition to having two children with the Mother, he has two older children from prior relationships. The Father was in detention twice for a total of 52 days since the Society’s involvement in 2017: between approximately September and November 2018 and then in May 2019, at about the time of Donald J.’s disposition decision.

28The nature of the Mother’s and Father’s relationship varies. The Father testified they have known each other for about 20 years. As of June 2019, following the disposition hearing, the Father told the Society they were no longer in a relationship. However, at trial, they each testified they recently began living together again in London.

29Mother and Father continued access visits at the Society after the disposition motion, although the frequency and terms changed for reasons disputed between the Society and the respondents. The Father has only ever had access at the Society’s discretion through the Society access centre. At the time of the disposition hearing, the Mother had two access visits per week through the Society access centre and one community access visit per week supervised by the maternal grandmother. (The maternal grandmother has informal access to the child, with visits on Tuesdays and Saturdays. This was informally agreed to between the maternal grandmother and the foster caregivers, as well as any adjustments to accommodate changes in their respective schedules.)

30In May 2019, the Mother and maternal grandmother argued during a community access visit. The maternal grandmother wanted to get the child ready to return to the foster caregivers; however, the Mother wanted to spend more time writing some concerns about the child’s care in the communication book. The maternal grandmother was upset that she was late in returning the child to the foster caregivers. The maternal grandmother testified that she agreed with the Society worker that it was appropriate to have a “cooling off period”. Society worker Ms. Savage testified her understanding from speaking with the maternal grandmother at the time was that she was terminating access supervision. The Mother testified it was a small disagreement, that access should not have been stopped and that the maternal grandmother was willing to resume access.

31In any event of the parties’ intentions or understanding, the Society wrote to the Mother on May 17, 2019 to ask for a meeting to review Donald J.’s decision and to advise that “all visits will be moved to the agency as your mother is unable to support visits in her home at this time.” The Mother did not contact the Society in response to the letter and did not meet with the worker to review access.

32The maternal grandmother took no steps with the Society to resume supervision; however, at trial, she testified she was willing to resume supervising Mother’s access. The Society worker testified she was unaware of this change of heart until the trial. Irrespective of minor discrepancies as to the circumstances in ending the community access, I accept the maternal grandmother’s evidence that she is prepared to resume access supervision. The Mother acknowledged her relationship with the maternal grandmother was strained in the past; however, she understands her mother is her most important support.

33Mother’s access centre visits are on Tuesdays and Thursdays. She shares Tuesday access with the Father and has sole access on Thursdays. The evidence from the Society workers established that since the disposition order, the Mother has regularly missed Thursday visits. Tuesday visits were occasionally missed or cancelled. The access supervisor has been involved in visits over the last two years. In her view, Mother’s consistency had not improved since the disposition order.

34The Mother testified that she was unable to attend access on Thursdays due to court appearances either in connection with the Society or a criminal matter. In her view, the Society knew of her scheduling conflicts: she should not have to explain the issue and the Society ought to have been more accommodating. The Society worker testified that the Mother never explained her difficulty or followed up to request a change in the schedule. The worker testified that at one point the Mother said she could not attend on Thursdays because of a continuing education course. The worker asked for a letter confirming the education course, which the Mother did not provide. The Mother testified she intended to go to an information session about the course. When the worker asked for proof, the Mother decided not to attend the information session or take this course. Even accepting this is true, it does not answer the issue that the Mother did not otherwise attend access on Thursdays.

35After the disposition order, the Society reduced the Father’s access to once per week at the Society access centre, with that time being shared with the Mother. The Society’s rationale included that the Father had no order granting him access, access was disrupted by his detention and permanency planning for adoption. The paternal grandmother has had some involvement with access but only on an informal basis and only at the access centre. She previously started a kinship assessment with the Society but withdrew from the process after a significant health event.

Disputed Evidence

Credibility of Parties

36It was clear from their testimony that the respondents each love and are attached to the child and are deeply affected by the consequences of the extended society care disposition. The Father’s grief was of particular note when he described his appreciation of the importance of the child’s needs being given priority and his desire to put a new focus on his family’s needs.

37However, there were issues in dispute as to the consistency of access, communications with the Society and the stability of each respondent.

38They had difficulty in attending court on a timely basis. The Mother did not attend after completing her testimony, for reasons not explained other than the Father’s explanation that she was indisposed. Apart from being late on occasion, the Father attended for the entirety of the hearing. While neither party was under an obligation to attend, it again highlighted the question as to the ability of the respondents to put a priority on the child’s interests. I acknowledge that their economic vulnerability makes it challenging to attend either court or access in St. Thomas when they reside in London.

39The Mother was combative in her evidence about the Society’s involvement, blaming some of the Society workers for a lack of support. She disputed the Society’s statistics on the number of times she missed or was late for access; however, could only explain a few of those occasions. She tended to minimize the Society’s concerns about her inconsistent or late attendances or gave vague explanations and refused to acknowledge personal responsibility for remaining in contact with the Society. The Society’s concerns about the Mother’s mental health and substance abuse and her stability also remained unaddressed by the Mother in her testimony.

40From a factual perspective, where there was a different view of events as between the Mother and the Society, unless otherwise addressed in these reasons, I preferred the Society’s evidence as it related to the access history.

41The Father was more forthright in his evidence. He acknowledged his past criminal history and the disruption on his access. However, he disputed Donald J.’s findings as to his more recent involvement in the drug culture. He testified he last had addiction treatment about 10 years earlier. As this is not an appeal of the disposition finding, I am not prepared to revisit Donald J.’s factual conclusions. In any event, on the whole, I find that the Father’s bald denial is contradicted by the evidentiary record before this court and Justice Donald. This included the uncontroverted evidence that the Father told the Society as recently as in June 2019 that he had been “clean and sober” for several days. He also had little to say to either refute or explain a heated exchange between the respondents overheard by Society staff in June 2019 concerning a Carfentanyl overdose. It was undisputed that when Ms. Savage asked the respondents about the argument, the Father told her it was about him.

42Therefore, where his evidence was in conflict with the Society’s evidence, I preferred the evidence of the Society.

43Justice Donald’s warning about the potential impact of continued absences on access did not appear to result in a demonstrable improvement in the consistency of access, particularly as it relates to Mother. The Father’s access was disrupted largely due to his detention. The Mother testified she had not read the decision beyond understanding that her child was placed into extended society care. The Father agreed that he did have notice of Donald J.’s concerns. I accept that the respondents have good intentions; however, I find that concerns about the respondents’ stability and consistency persist at present.

44The Society workers were each forthright in their testimony. Despite their concerns about the respondents’ consistency, cooperation and parenting ability, each witness conceded the child’s attachment to her birth parents and enjoyment of her visits.

45That said, while the workers were fair in their testimony about the child’s attachment to the respondents, I think it necessary to comment upon a patronizing attitude that seemed to be held by some Society representatives. Such an attitude may not have been helpful in encouraging a cooperative relationship with the respondents. Although there was evidence of the Society’s efforts to support the family, such as through referrals to education programs, I did not hear evidence which demonstrated the Society’s appreciation of the respondents’ vulnerabilities and marginalization and how that may impact on the respondents’ abilities to meet the Society’s expectations, particularly as it related to scheduling and attending access. One such example is the respondents’ lack of access to transportation and telephone and considering how that would affect the access schedule and communications with the agency. Another example is the Society’s reliance on the respondents’ criminal records as evidence of a protection concern without regard to any specific evidence or facts. This was highlighted by Justice Donald in his reasons on summary judgment, where he commented that better evidence would be required to establish criminality as a protection concern and observed that “not all criminals are bad parents.”

46I find that Mother could be more proactive and transparent with the Society, particularly as she cannot be easily contacted and does not respond to letters. I accept that this means the Society’s only option is to try to speak with Mother when she attended the agency for access; and that Mother mostly refused to speak with them as she said she wanted to focus on access. The Mother testified about difficulties in contacting the Society and that she did not like to read Society correspondence as it is always negative news. Mother now understands the extent to which Society holds authority.

47I was also perplexed as to how temporary access by the Father was never formalized before the extended society care order. I appreciate that his delayed involvement and then detention disrupted communications with the Society; however, no evidence was led to establish that the Father was made aware of his rights and responsibilities, beyond the expectation that he complete a parenting course.

48My misgivings or questions about the Society’s attitude toward the respondents does not relieve the respondents from their obligations. Both the Mother and Father need to understand that timely co-operation with the Society and acceptance of responsibility is in their interests. This may be more successful if the Society shows more sensitivity to the power imbalance in their relationship with the respondents.

Analysis

Is Access in the Child’s Best Interests?

49In Kawartha-Haliburton Children’s Aid Society v. M.W., the Court of Appeal confirmed that the law for access to children in extended society care changed significantly with the proclamation of the Act and replacement of the old regime under the Child and Family Services Act.⁷ The court shall 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.⁸

50The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. It is also no longer the case that a parent who puts forward no evidence will not gain access.⁹ While any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests.¹⁰ The court should reference the “best interests” considerations in s.74(3) of the Act in making its decision.¹¹ Importantly, the Court of Appeal reminds us that fairness in the child protection context demands recognition of the fact that poverty and other forms of marginalization are part of the experience of many parents involved in child protection proceedings. Even when the parents are represented by counsel, the parents can be “simply overpowered”.¹²

Best Interests Analysis

51The court considered the factors set out in s. 74(3) of the Act when determining whether access with each respondent is in the child’s best interests. The Act lists of number of factors to be considered in determining the “best interests”. These include the child’s views and wishes (if they can be ascertained), the importance of First Nations, Inuit and Metis cultures, heritages and traditions and preserving the child’s cultural identity and connection to community. The court is also to consider any other circumstance of the case considered relevant, including the child’s physical, mental and emotional needs and level of development, cultural and linguistic heritage, the importance for the child’s development of a positive relationship with a parent and secure place as a member of a family, the child’s relationships and emotional ties to a parent and extended family, the importance of continuity in the child’s care, the merits of a Society’s plan, including a proposal for adoption, and the degree of risk, if any, that justified the finding that the child is in need of protection.

52The child is too young for the court to be able to ascertain her views and wishes at this time.

53I find that an access order is unlikely to interfere with the child’s physical, mental or emotional needs or level of development. The child was two years of age in June 2019. She continues to live with the same foster family with whom she was placed at approximately three months of age and who intend to adopt her. The foster parent testified that the child is developing well and is in good health, subject to a skin condition which is managed under a physician’s care. She is emotionally bonded to her foster caregivers. She refers to them as her mother and father.

54The child continues to enjoy access with the Mother and Father. Ms. Blackwell, a Society family visiting/access facilitator supervised the Mother’s access on two occasions after the disposition order in June 2019. Ms. Blackwell was also previously involved in supervising access since the child was an infant. She agreed on cross-examination that the child appears very happy when she sees her Mother and runs to her. She had not witnessed any interactions that gave her concerns about the Mother’s parenting at the centre. The Mother is attentive to the child’s needs and in Ms. Blackwell’s view, the bond between mother and child is obvious. Society worker Ms. Vaughn acknowledged that although Mother missed access visits after the disposition order, she had not witnessed any difference in the child’s reaction to her Mother. The child still appeared to be happy to see her on the next visit.

55Father’s access was disrupted by his detentions on two occasions. Ms. Blackwell acknowledged on cross-examination that although the child was initially shy or distressed around her Father after he resumed access visits, she now appears comfortable. The child goes voluntarily to the Father. He holds her and rocks her and sings to her. Ms. Vaughn agreed that the child was happy and playful with her Father before his detention. After his release and resumption of access, she saw times when the child would go to her Mother in preference to her Father; however, she also saw the child settle with the Father, showing laughter and affection.

56The foster-to-adopt parent testified that the child exhibited some distress following resumption of access, through being quiet when she returned home, reportedly stating her father made her “sad” and urinating her underwear. I am not prepared to give significant weight to these observations on a best interests consideration or to infer that this demonstrates that the child was distressed from her visits with her Father. They lack sufficient detail and context in order test and understand the statements and behaviour of a very young child. The observations of the workers at the access centre confirm that the child had some distress in initially resuming access, but that she settled and appeared to enjoy visits with her Father.

57Of possible concern as it relates to the child’s emotional development and development of a positive relationship with her prospective adoptive parents is the respondents’ reaction to the child’s attachment to her caregivers as her “mother” and “father”. She now calls her Mother by her first name and describes the respondents as “birth mother” and “birth father”. The respondents reacted negatively to this development and tried to redirect to child as to who were her parents. The Mother testified that she did not think the child should be encouraged to refer to the foster caregivers as parents until adoption. She later retracted that statement. The Father was initially upset at witnessing the child refer to the foster caregiver as her father at an access visit. This led to a heated discussed with a Society worker. The Society worker acknowledged that birth parents will react when learning of the child’s attachment to a foster caregiver; the concern was that the Father was angry and aggressive in front of the child. Both respondents testified that they have no resentment towards the foster caregivers. Both said they were either “grateful” or “thankful” for the foster caregivers’ involvement. In my view, the child’s enjoyment of her visits with each respondent and her understanding of their identity as birth parents mitigate concerns about a possible disruption or undermining of her understanding of her identity and place in her foster-to-adopt family. The evidence indicates that the child is a secure member of her foster family. Concern about compromising that emotional security can also be addressed through a modest access order.

58An access order will support the child in maintaining her cultural heritage. Although the court previously determined she is not a First Nations child, there is still clear evidence of her indigenous heritage through her Father. He has First Nations heritage through his mother, with the Penobscot Nation. Neither the Father nor paternal grandmother hold First Nation status, although they each testified to an affinity with their heritage and cultural traditions. The Society indicated it would continue in its efforts to secure further information of the paternal family’s heritage so that this information is available to the child.

59There are concerns as to whether ongoing inconsistency in access could be disruptive and harmful to the child. In my view, this concern can be mitigated through a modest access order.

60Any concern of risk of harm to the child can be met through supervised access at this time. The Mother and Father are each subject to supervised access at the Society. The Society supports supervised access continuing for the Mother. The maternal grandmother is willing to supervise this access. The Society questioned how continued access would work for the Father, as he has never had supervised community access and has not had an approved supervisor. The paternal grandmother has had some involvement with access but only on an informal basis and only at the access centre. She began an assessment for a kin placement before the disposition hearing; however, a significant health event prevented her from going further in the process. She testified that her health is currently stable and that she would be prepared to provide supervision for the Father’s access and would submit the necessary police background checks. She acts as caregiver to another grandchild on a regular basis. The Father also testified that he expected he could participate in the access visits with the Mother, supervised by the maternal grandmother.

61An access order should not unduly delay permanency planning for the child. The Society is pursuing adoption planning and the foster family intends to adopt the child.

Beneficial and Meaningful Analysis

62The “beneficial and meaningful” test under the Child and Family Services Act required the relationship with the parent to be significantly advantageous to a child. Future benefits to a child and the prospect of an openness order could not be considered. There has been much discussion as to how this interpretation of the “beneficial and meaningful” test under the CFSA is to be reconciled with the emphasis on the child’s “best interests” under the new access principles. This tension was recently summarized by Sherr J. in Children’s Aid Society of Toronto v. J.G.¹³

63I support Justice Sherr’s conclusion that there cannot be a hard and fast rule as to how much weight a court must give any one factor including whether the relationship between the party seeking access and the child is “beneficial and meaningful” to the child. That must be determined on a case by case basis, by weighing all the relevant factors against the particular needs of the child before the court.¹⁴ The new access test permits the court to conduct a more holistic and comprehensive analysis of what is best for a child and should consider all relevant factors, whether they be past, present or future considerations.¹⁵

64In my view that approach is consistent with Justice Zisman’s interpretation of the “beneficial and meaningful”: given that these criteria are not more important than the other criteria in s. 74(3) of the Act, an interpretation of access being “positive” and “important” is more consistent with the overall balance of the best interests considerations.¹⁶

65The same evidence reviewed in the best interests analysis demonstrates that access is positive and important to the child.

66Despite the protection concerns and the respondents’ personal struggles, the child’s visits with both Mother and Father are positive. Each parent is attentive and affectionate and meets the child’s basic needs during the visit. The child enjoys the visits, although she seems more readily attached to the Mother than the Father. However, I do not find that this leads to a conclusion that the Father’s access is any less important or positive to the child.

67I also agree with Justice Zisman recent observation that when considering access to young toddlers, courts have generally considered that over time, the visits could become important to the child as a connection to her birth parent, helping her understand her roots, having another person in her life that loves her and the possibility of obtaining more medical and family history. While one can argue that this is a speculative exercise, it is consistent with legislation and Kawartha that if a child can maintain a connection with its biological roots without jeopardizing the security of a permanent placement, that is an option the court should consider.¹⁷

68Balancing all of these considerations, the court finds that it is in the child’s best interests to order access between the child and each of the Mother and the Father.

Impairment of Future Opportunities for Adoption

69If considered relevant, the court is to consider whether access will impair the child’s future opportunities for adoption.

70The foster-to-adopt parent testified the plan is for he and his partner to adopt the child into their family. They support ongoing access between the child and Mother; however, not at the current frequency. In his view, the child has not demonstrated any negative change in her emotional well-being as a result of seeing her Mother less frequently. If the maternal grandmother is prepared and able to supervise access, the foster-to-adopt family supports access.

71Their position regarding direct access by the Father was ambiguous. The foster parent testified it was his view that access to the Father was “challenging” for the child. This does not translate into an impairment to adoption. In any event, in light of the issues raised by the prospective adoptive family, I will consider the issue of potential impairment to adoption opportunities. I agree that the following attributes of the potential access parent are appropriate criteria for consideration:¹⁸

Difficulty with aggression, anger or impulse control. This may threaten the physical or emotional security of the adoptive parents and their family;
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;
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;
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; and
Mental health condition, substance abuse issues, transience or chaotic lifestyle. Persons with this background may be difficult to deal with. Their personal issues may result in difficulty in making arrangements with them for contact and as a result dissuade adoptive parents.

72Both parents have had instances where they have been confrontational or angry with Society workers during meetings and access visits. They have arguably demonstrated a lack of support for the foster caregivers with a possible risk of undermining an adoptive placement by challenging the child’s attachment to the foster parents as “mother” and “father”. Their unstable housing and substance abuse issues are also relevant. Both parents were vague about their personal circumstances and reasons for inconsistencies in access and lack of participation in support programs.

73However, they each accepted the adoption plan and acknowledged the importance of the prospective adoptive parents in the child’s life. In light of the benefits the child derives from access with the Mother and Father and that the foster caregivers did not oppose access altogether, I conclude that any concerns about the respondent’s conduct and potential impact on adoption can be addressed through terms of access, including frequency.

What Access Orders are in the Child’s Best Interests?

74The Society proposed a minimum of two direct access visits per year for the Mother and indirect access through correspondence with the Father. The respondents each seek more frequent direct access. There are qualitative differences between the nature of access before and after placing a child in extended society care. An order placing the child in extended society care means the end of any effort to return the child to a birth parent’s care. Part of the reason for access prior to an extended society care disposition is to encourage family reintegration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After an extended society care disposition, the purpose of an access order is simply to preserve a form of the relationship that is found to have shown a positive benefit for the child.¹⁹

75One therefore seeks to strike a balance between what will preserve a relationship in the best interests of the child and also promote the child’s mental and emotional transition to permanency in her adoptive home.²⁰ To that end, I consider the quality of the child’s access and relationship with each parent as well as the importance of her having a secure placement and routine with her permanent family that is not unduly disrupted by access obligations. I accept the foster parent’s testimony that the ongoing access schedule would be disruptive to the child and her adoptive family. I also consider some of the concerns that were raised regarding the respondents’ conduct and stability that could be a challenge to the security of that adoptive placement and the child’s best interests.

76The Society agrees that the child should have direct access with the Mother. I see no reason why the child should not have direct access with both the Mother and the Father. The Father has been attending access. The child is aware of the Father’s identity and she settles and enjoys her visits with him. In terms of supervision, if the maternal grandmother is not otherwise able to accommodate supervision of the Father’s access, the evidence is that the paternal grandmother is willing and able to provide that supervision, subject to the appropriate police/background check(s). I anticipate there are benefits to the child in having the ability of contact with her paternal grandmother, with regard to her indigenous heritage.

77To the extent that the Mother and Father remain in a stable and supportive relationship, I would anticipate that consideration be given to the respondents having access with the child at the same time, subject to the best interests of the child. This would follow the current routine for a portion of the weekly Society access centre visits and would minimize disruption to the child her adoptive family.

78I find that the respondents’ submissions in support of regular access, even at a monthly interval, is not reasonable or consistent with the purpose of access after the extended society care order. It is likely to be disruptive to the child’s best interests in promoting permanency in her adoptive family. There are imminent plans for adoption. It is time to start planning for the child’s transition.

Access Holders and Recipients

79I will make the child, Mother and Father access holders as I am concerned about the respondents’ social and economic situations and ability to respond to a notice of intention to place the child for adoption in a timely way, if at all. In this way, the Office of 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.

Order

80I therefore order access as follows:

The Mother and Father each have a minimum of 3 supervised direct access visits to the child per year at a minimum duration of two hours, with the frequency, duration, location and level of supervision otherwise at the discretion of the Society and/or the foster caregivers. The Mother and Father will have additional access to the child for special occasions, such as holiday and the child’s birthday celebration, with the frequency, scheduling, location, duration and level of supervision at the discretion of the Society and/or the foster caregivers. The issue of whether access by each of the Mother and Father shall be exercised individually or together at the same time will be at the discretion of the Society and/or the foster caregivers.
Access shall also include email updates to the Mother with photographs at a minimum of twice per year. Additional email exchanges can be organized between the Society and/or the foster caregiver and the Mother and the Society and/or the foster caregiver and if the Mother initiates the email exchange.
Access shall also include email updates to the Father with photographs at a minimum of twice per year. Additional email exchanges can be organized between the Society and/or the foster caregiver and the Father and the Society and/or the foster caregiver and if the Father initiates the email exchange. The Father is permitted to provide the Society and/or the foster caregiver with information, cultural teachings, rituals, etc. with respect to the child’s First Nation heritage as part of this exchange of information. Additional email exchanges can be organized between the Society and/or the foster caregiver and the Father if the Father initiates the email exchange.
The Mother, Father and child are the holders of access for the purposes of s. 105(7) of the Act.

81Final order to go regarding access in accordance with subparagraphs 1-4 of paragraph 80. There will be no order as to costs.

“Justice K. Tranquilli”

Justice K. Tranquilli

Released: November 15, 2019

COURT FILE NO.: FC 147/17
DATE: 2019-11-15

ONTARIO SUPERIOR COURT OF JUSTICE (FAMILY COURT)