The Children’s Aid Society of Ottawa v. S.D. and J.L., 2020 ONSC 7662

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 Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

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

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

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

COURT FILE NO.: FC-19-CP53

DATE: 2020/12/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of Ottawa

Applicant

– and –

S.D.

Respondent

J.L.

Co-Respondent

Deborah Souder for the Applicant

Kristen Robins for the Respondent

Cedric Nahum for the Co-Respondent

HEARD in Ottawa, November 16-27, 2020

CORRIGENDUM TO reasons for decision

This is an amendment to the Reasons for Decision released on December 11, 2020. The amendments occur to paragraphs 52, 54, 55 and 56 and the description of the amendments is appended.

o’bonsawin J.

Background

[1] The family consists of the mother Respondent, S.D., the father Co-Respondent, J.L., and their child, B.L. (“child”), born on […], 2019. The child was apprehended pursuant to a warrant by the Society at birth. The Children’s Aid Society of Ottawa (“Society”) seeks an Order that the child be placed in extended society care.

[2] On the first day of trial, Minutes of Settlement and Agreed Facts as they relate to S.D. were filed as per the parties’ request. S.D. is not presenting a plan to care for the child. She seeks an Order for access with the child. As per the Minutes, S.D. takes no position with regard to the ultimate disposition, except as it relates to her access with the child.

[3] J.L. seeks the placement of the child in his care with no restrictions.

[4] The trial began on November 15, 2020 and the Society presented its evidence through seven witnesses: Ms. Stéphanie Bélanger, a child protection worker; Dr. Jonathan Gray, a forensic psychiatrist; Ms. Beverly Clarkson, a child protection worker; Ms. Karen Carkner, a child and youth counsellor; Mr. Jeff Bondy, the coordinator of New Directions and facilitator of Caring Dads; Ms. Karen Milner, a child and youth counsellor; and Ms. Julie Wiggins, a child protection worker. The Society completed its case on November 19, 2020. J.L. did not present his evidence. Instead, on November 20, 2020, counsel for J.L. made an oral motion for a non-suit. On November 24, 2020, I dismissed J.L.’s motion and concluded in the adjudicative stage that the child is in need of protection. J.L. presented his evidence through five witnesses: J.L.; Mr. Steven Griffin, a worker from the Ottawa-Carleton Association for Persons with Developmental Disabilities (“OCAP”); W.L., J.L.’s father; J.C., J.L.’s step-mother; and Mr. Shawn Ferron, Mr. Nahum’s articling student. This is my decision at the dispositional stage in which I must determine if any of the Orders listed in ss. 101 and 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) should be made in the child’s best interests.

[5] Based on the reasons that follow, I find that the child must be placed in extended society care.

Position of the Parties

[6] For most part, the parties make the same arguments as noted in my Decision of November 24, 2020.

[7] The Society argues that J.L. is Indigenous and therefore the child is a First Nation’s child. The Society has attempted throughout its involvement with the child and J.L. to encourage J.L. to obtain information about his background to potentially identify a Band or Community or to provide information that would assist in exposing the child to his culture. J.L. did not co-operate with these efforts. He was referred to the Wabano Centre for Aboriginal Health for assistance and was encouraged to speak to his family to obtain more information but did not take either of these steps. In addition, the Society highlights that J.L.’s family members did not put forward any family plans, although J.L. indicated that his uncle might put forward a plan or that his mother would put forward a plan. No plans were presented at trial. J.L.’s uncle and mother did not testify at trial.

[8] The Society submits that J.L. has had lifelong struggles including significant periods of incarceration. He has managed over the last two years to largely avoid criminal activity and is able to live independently with support. He loves his son and wants to care for him. However, as sympathetic as the Court may be to J.L. and his life experiences, those feelings must be put aside and the focus shifted to only one consideration: what is in the best interests of the child, who is currently sixteen months old.

[9] The Society seeks an Order pursuant to section 101(1)3 of the CYFSA placing the child in the Extended Care of the Society without access for the purposes of adoption. However, if the court determines that an access Order is in the child’s best interests, the Society argues that the child should be the access holder with the right of access to J.L. and with access to S.D. as agreed to in the Minutes of Settlement. Access to J.L. would be at the discretion of the Society.

[10] For his part, J.L. seeks a return of the child to his care or, in the alternative, generous, liberal and unsupervised access with the child. He argues that the child was not brought to a place of safety from his care but from the care of the mother.

[11] J.L. further submits that the CYFSA warns many times of the danger of removing a First Nations child from his/her community and placing him/her in non-Indigenous foster family and/or of adoption by a non-Indigenous family. The Society has not presented a plan to safeguard against this issue.

[12] Lastly, it is J.L.’s position that every time parents take home a newborn, it is an experiment. It is unpredictable. The court must look at factors to see whether or not the risk of placing the child with J.L. is a risk worth taking. J.L. highlights that he has done a very good job of turning his life around in dealing with his disability, his ADHD and his impulsivity, and that he has established stability in his life. The child must be placed with J.L.

Issues

[13] There are two issues to be determined:

a) What dispositional Order is in the child’s best interests?

b) If an Order is made placing the child in extended care, what access Orders are in his best interests, including who should be an access holder and who should be an access recipient?

Evidence

[14] The Agreed Facts relating to S.D. state as follows:

• S.D. suffers from mental health issues and cognitive limitations and does not presently have any supports in place to mitigate these issues.
• S.D. is presently homeless.
• S.D. has an older child who has been in the care of the maternal grandmother since birth.
• S.D.’s access with the child has consisted of supervised visits at the Society’s location.
• S.D. has struggled to attend access consistently.
• When S.D. has attended access, her interactions with the child have been appropriate.
• S.D. is gentle, loving and affectionate towards the child. She has been able to meet the child’s basic needs during access (for example, changing his diaper, feeding him and playing with him).
• S.D. asks appropriate questions and accepts suggestions.
• S.D.’s interactions with Society staff and the child’s foster mother have been appropriate.
• The parties agree that it is in the child’s best interests to have access with his mother and to allow him to maintain a connection with her.

[15] Seven exhibits were filed with the court. They consist of text messages, photographs and Mr. Bondy’s New Directions Report dated April 1, 2019. I provided an extensive summary of the Society’s evidence in my Decision dated November 24, 2020. Consequently, I need not repeat it. I will summarize the evidence provided by J.L.’s five witnesses. J.L. testified as follows:

• Background: J.L. lived with his mother and father. When he was about five years old, he had issues and he was placed in a group home and lived there for approximately twelve years. During that time, he had on-and-off contact with his family. His parents also separated. At times, J.L.’s mother would tell him she would pick him up for the weekend and did not show up. This hurt him deeply and made him feel unwanted. J.L. describes his mother as someone who drank alcohol a lot and this impacted him negatively. As he got older, he had less and less contact with his mother and only recently reconnected with her again through Facebook. However, they are no longer on speaking terms at the moment.
• For most of his adult life, J.L. has lived in group home settings. When he resided in a group home in Brockville, he was charged with a sexual offence. He was approximately nineteen or twenty years old at the time. He denies attempting to force another male of the same age to have sexual relations with him. In fact, he was the victim not the other way around. He was charged because the staff at the group home refused to testify and it was a misunderstanding. Even though he was not guilty of sexual assault, J.L. pled guilty to the charge because he was misled by his lawyer. Consequently, J.L.’s information was registered on the database as per the Sex Offender Information Registration Act, S.C. 2004, c. 10. J.L. does not remember how long he was placed on the registration list.
• J.L. has a good relationship with his father, W.L. When J.L. lived at home with his parents, his father worked a lot. When he lived in the group home, his dad visited him and picked him up when his mother did not show up for their visits. He later moved in with his father and step-mother. W.L. and J.C. have been dating for over twenty years. He calls J.C. “Mom”. J.L. currently sees his father at least a couple of times per month, they talk to each other numerous times per week on the telephone and they try to meet up on Wednesdays when his father is off work. J.L. relies on J.C. if he needs to go shopping and he discusses life issues with her.
• J.L. has two sisters, C. and D. C is two years older than J.L and D. is eleven months older than him. D. was involved in the foster care system. When he was in the group home, C. would go see him and called him. She continued to do so when J.L. moved back in with his father. His sisters chose to live with his mother. He does not get along with D. because she does not have a good lifestyle: she drinks and she both sells and does drugs. In late 2011, D. reported to police that J.L. had breached his court Order. Due to D.’s false report, J.L. went to jail but he later “beat the charges”.
• J.L. is Indigenous through his mother’s side. She indicated to him that they are Cree. He did not have a unique connection with his culture growing up. He finds that it is hard to get connected to his Indigenous heritage because he does not have a status card. J.L. worked with the Odawa Bail Program for his bail. J.L. hopes to be able to attend the Wabano Centre for Aboriginal Health with his son but they are not taking any new patients at this time. Recently, his mother told him they are from Victoria Island (also known as Turtle Island) and he attends there for smudges, pow wows, sweats, dancing and cook outs. It is important for him that the child be connected to his Indigenous heritage.
• J.L. has developmental delays and he attended special education when he was in school. When he moved to Brockville with his father and step-mother, he received services similar to OCAP for two to three years. His disability impacts his ability to read at times and his understanding. He also has ADHD and it impacted him a lot at a young age with his decision-making; however, it has improved with age. In the past, he made poor decisions and did not live an appropriate lifestyle. He was in and out of jail. He does not recall being charged as a young offender even though it appears on his criminal record. He agrees that he has had a lot of convictions for breaching court Orders but this is in the past.[^1] On March 22, 2018, he was convicted of failure to comply with a probation Order and impersonating a police officer.
• When he worked with Dr. Gray, J.L. took Ritalin to help with his ADHD. He did not continue to take his Ritalin and does not take any other prescribed medication to treat his ADHD.
• J.L.’s criminal record: J.L. recalls that he was convicted of assaults and a lot of breaches and failure to comply. He does not remember the dates and the details. His last conviction was about two and a half years ago. J.L’s last criminal charge was on February 16, 2017 in Cornwall for criminally harassing his ex-girlfriend and failing to comply with his probation Order. As a condition related to this charge, J.L. had to complete the New Directions program. His ex-girlfriend was upset that he was no longer with her. This program helped him to identify and deal with his triggers. He has learnt that when he is upset, he needs time to relax. He now tries to take time to think about and discuss what is bothering him. At times, these processes take the form of multiple texts.
• Mr. Griffin helped J.L. get his apartment through Ottawa Community Housing. He currently has a one-bedroom apartment but if the child is placed with him, J.L. will request a two-bedroom apartment.
• J.L.’s children: J.L. has three other children: A., J., and M. A. and J. reside with their mother, S.S. At one point, he lived with S.S. for approximately six months. At that time, J. was two years old and S.S. was pregnant with A. Due to S.S.’s use of drugs, J.L. had to take care of the children. He lied to the Society and told the worker that he was not living with S.S. because she blackmailed him. If he did not lie, S.S. would not let him visit the children. He did not tell the Society that S.S. was blackmailing him. He ended up in jail and S.S. would not let him see his children unless he gave her money. He had a couple of access visits with the children at the Society’s offices and Ms. Milne supervised his visits. He no longer sees them. He knows that S.S. is a good mom and that she could take care of their children even though she used drugs and at one point J.L. had to provide all of the primary caregiving to the children. In the end, S.S.’s mother was helping her when J.L. left the relationship. Afterwards, J.L. had a one-night stand with J.D. and M. was born. J.L. felt that he could not care for M. and it was decided that he should be put up for adoption. At that time, J.L. was on the run from the police for having breached his conditions. He wanted to get everything lined up for court before he turned himself in. In J.L.’s view, the child comes before his other children.
• J.L.’s relationship with S.D.: J.L. started dating S.D. on September 10, 2018. S.D. has autism and is bi-polar. When J.L. first met S.D., she was on her medication and they had a positive relationship. When she became pregnant with the child, she went off her medication and it went downhill from there. S.D. told J.L. that she cheated on him, she got physical with him and she called and texted him numerous times. He tried to stay with S.D. for the child’s safety but realized that it was not a healthy relationship and left. In June 2019, he was charged with assaulting S.D. At that time, he was sill living with S.D. Her mother contacted police and told them that he had kicked S.D. in the leg when in fact she had slipped when it was raining and her leg got scratched. The police came and talked to S.D. and she left with them in the police cruiser. S.D. had a tendency to make up stuff. He later attended a baseball game and a security guard advised him that they were told by S.D.’s sister that he was wanted by police for pulling a gun on S.D. J.L. called the police; he was told he was charged and he went down to the police station and he was charged. He did not have a gun. He was released on bail and went to live with his father. The charges were later withdrawn and he received a s. 810 of the Criminal Code keep the peace Order. When S.D. got physical with him, she would hit him, pull out a knife, swing at him, throw objects and stop him from leaving. He called the police one time and she was charged. She received a s. 810 keep the peace Order afterwards and breached her Order a couple of times.
• When J.L. and S.D. were living together before the incident in June, he got S.D. a cell phone under his name. She was under his family plan. They accessed each other’s photographs. J.L. found out that the child was born when S.D. contacted him through Facebook and sent him a photograph of the child. He did not reply to her message. He then spoke to W.L. and to Mr. Nahum about it. He also testified that the Society advised him about the child’s apprehension.
• He really wanted to see his son and get to know him. J.L. and S.D. picked out the child’s name. The first time that he saw the child at the Society’s office, it was very emotional for him. It was the first time that he really knew what love was.
• J.L.’s living situation has stabilized: J.L. is more stable now: he has an apartment, financial support and family support. He has bettered his life and he can now take care of the child. His life is now very different from when he had his other children. J.L. lived in his own apartment for approximately three to five months ten years ago. Furthermore, S.D. does not live with him and he does not feel that he wants to be in a relationship with her.
• The OCAP worker meets with J.L. once per week, helps him with housing, attends doctors’ appointments with him and advocates on his behalf. The OCAP worker attends J.L.’s appointments to ensure that he understands what they are talking about. J.L., however, sets up his own appointments to see the doctor and the dentist. The worker attended most of J.L.’s appointment with Dr. Gray. In addition, at this time, Mr. Griffin receives J.L.’s ODSP cheque and he pays for J.L.’s rent. J.L. then decides how to spend the rest of his monthly income: he pays for groceries, a buss pass, his phone, etc. He currently receives $725 per month: $125 goes towards his rent and he is left with $600 for the month. If he gets the care of the child, his monthly ODSP will be increased to $1,300. J.L. has worked with Mr. Griffin for the past three years. They have a great working relationship. Mr. Griffin is very open with him and blunt. J.L. has spoken to Mr. Griffin about finding appropriate daycare for the child and finding a dentist for him. Since COVID-19, they mostly speak over the phone.
• J.L. has purchased all the equipment necessary for the child to move into his home and he has converted his bedroom into a bedroom for the child.
• J.L.’s relationship with Society Workers: J.L. does not feel that Ms. Bélanger ever kept an open mind about him. She did not trust him. Ms. Bélanger focused on his charges for having assaulted S.D. She wanted J.L. to attend the Circle of Care but he refused. J.L. thought it would be a waste of the Circle of Care’s time since he would be using their resources, which were not necessary for him, and he did not know about his Indigenous history. Furthermore, he did not want to attend the New Directions program again because he had already done so. J.L. was not able to attend Caring Dads at the Catholic Services because S.D. had access and was attending classes at the same location. As part of his bail conditions, he was not permitted to attend areas where S.D. attended, frequented and lived. When J.L. was annoyed at Ms. Bélanger for looking at his Facebook page, he posted on Facebook that the Society was a “piece of shit”. He was not referring to Ms. Bélanger. He did not explain to her how the photographs got onto his Facebook page. J.L. does not recall calling Ms. Bélanger a “stupid bitch”.
• On three occasions, Ms. Bélanger parked outside his residence early in the morning. J.L.’s apartment is located on the fifth floor. His apartment looks off the back of the building, the side that does not face Regina Street. J.L. smokes outside on his balcony and he could tell that it was Ms. Bélanger’s vehicle parked in a visitor spot. He recognized her vehicle from previous interactions with her. He did not go down to see her. On September 27, 2019, Ms. Bélanger was outside his apartment building. At that time, S.D. was outside his apartment building. J.L. ran into her and he was about to call the police when Ms. Bélanger pulled up. He was not walking towards the bus stop with S.D. Furthermore, S.D. tried to see him on multiple occasions, and she was charged for breaching her Order. He has not been charged for breaching his Order after he was charged with assaulting S.D. J.L. went to the cheese festival with S.D. J.L. does not recall the time in the middle of October 2020 when Ms. Wiggins and Ms. Milne attended his home and they saw S.D. leaving his apartment building. J.L. recently saw S.D. at the mall. S.D. was visiting her aunt who works at the Walmart. S.D. asked him about the child’s surgery and then they went their separate ways. He went to the bank to pay his phone bill and then left to go into the bathroom. He did not go into a clothing store.
• J.L. set up two appointments with Pam at Wabano. The first was cancelled because she had a family emergency and the second was cancelled due to a miscommunication.
• J.L. does not recall his visits being increased to twice per week in October 2019. He does not recall the reason for his missed visits in November 2019. With regards to the phone check in that was implemented by the Society, he had a problem with it because he did not have a cell phone all of the time and had switched to a new provider. He did not advise the Society of this since he was embarrassed to tell them and they would have used it against him. His video visits with the child got easier over time because at first, the child was very attached to his foster mother. He missed quite a few visits in August 2020 because at that time, the Society was not texting him and not returning his telephone calls. On two occasions, J.L. also missed his access visits because the Society did not allow him to enter the building. J.L. does not recall that the Society had asked him to provide medical notes for his missed visits nor has he offered to provide them. The one-hour check in before his access visits was implemented because he missed visits with the child. When Ms. Wiggins testified that he missed a visit in August because he had chemotherapy, she was incorrect. He told her he had a lump inside his leg which was removed.
• J.L. gets along well with the foster mother. He has discussed his concerns about her with the Society. With respect to the cancellation of his visit with the child on July 2, 2020, even though he did not know if the foster parents drank, he assumed that they were hungover because the previous day was Canada Day.
• J.L. was referred to Ms. Presse with the Society’s Family Finding team. He was open to working with her at first until she went behind his back and started asking his family members for information through Facebook. She approached about twenty of his friends and family members. He never signed a consent for this. J.L. was concerned because he did not know what she wanted to find out and what she was telling the people she approached. Many people asked him who Ms. Presse was and why she was reaching out to them. Ms. Presse provided them with the child’s name and told them how the child was doing. He refused to work with Ms. Presse afterwards.
• J.L. never threatened a Society worker. Once, when he was at the courthouse, he was approached by a man with a lot of tattoos who wore shorts and a t-shirt and J.L. asked him “who the hell are you?” because he did not look like a Society staff member and had no identification on him.
• When J.L. gets upset with the Society workers, he needs time to relax. When he is level-headed, he texts them. When he sends them many texts and tells them not to contact him and to erase his email address, he is really telling them to give him some space to relax.
• J.L. disagrees that when he has a disagreement with the Society’s workers, he gets upset, revokes his consents and stops attending his access visits with the child.
• J.L.’s disability does not impact his memory. He just never writes things down. He does, however, have a calendar on which he writes his visits with the child and his important appointments. Sometimes he marks down his scheduled meetings with the Society. If he missed meetings, he may have forgotten to write them down on his calendar or to ask the Society for a reminder the day before because he gets distracted.
• J.L. asked for a change in the child protection worker because Ms. Wiggins was not cooperating with him. At one point, she refused to return any of his calls and texts. J.L. does not recall why he missed the transfer meeting in August 2019.
• When the Society tried to limit their contact with J.L. to a joint email address, he told them it was a problem because he did not have unlimited data on his cell phone and he only had internet at his residence.
• J.L. does not recall having a discussion with Ms. Bélanger about drawing up adoption papers for the child to be adopted. He has never felt like giving up on the child. When Ms. Wiggins testified that J.L. asked him about adoption, she was incorrect. Ms. Wiggins brought up the topic of adoption during a conversation and he told her that he did not want to put the child up for adoption. He only asked if the foster mother would put forward a plan. He was not really upset at Ms. Wiggins; instead, he was disappointed. J.L. said that Ms. Wiggins was a liar and wanted a new worker.
• J.L. has a history with Ms. Milne and it has not been positive. When Ms. Milne had concerns, she did not share them with him. Instead, he read about her concerns in reports. This does not upset him, but it disappoints him. In April 2020, J.L. did not want to meet with both Ms. Wiggins and Ms. Milne because he did not want Ms. Milne to influence Ms. Wiggins. Since then, his relationship with Ms. Milne has improved. J.L. disagrees that they made numerous attempts to schedule and access review meeting with him to discuss their concerns. He did not avoid those meetings. On one occasion, J.L. had to answer “yes” to a COVID-19 screening question. He had a hard time breathing because of his asthma and this led to a cancellation of a meeting. He tried to explain this to Ms. Milne, but she cancelled the meeting anyway.
• J.L. attends the child’s medical appointments because he wants to be a part of his life. He could not attend the child’s appointment with the geneticist because he was told that S.D. would attend.
• If the child moves in with J.L., the latter intends to continue to take the child to his medical appointments. W.L. and J.C. will assist him if he needs their help to attend appointments and to go grocery shopping. He will also ask them for advice. J.L. wants the child to have a relationship with his family.
• Most of J.L.’s interactions with Ms. Clarkson have been positive.
• J.L. started the parenting programs in February 2020. He has learnt how to deal with his child’s needs. He never meant anything by saying “some of the things [the child] does are so cute I can’t get mad at him”. It is like saying “it is a face only a mother could love”. He does not recall the reason for missing the class aimed at children who are one to two years old. After the program was cut short because of COVID-19, he told Ms. Milne that he wanted to finish the program and make up the class that he had missed.
• At this time, J.L. attends the Circle of Care, Caring Dads and the Circle of Security programs. He has learned how babies’ brains work and how to look for signs they are happy and sad. This has been helpful during his visits with the child. His Caring Dads classes bring up triggers and issues related to his relationship with S.D.
• Even though Mr. Bondy indicated in his report for New Directions that J.L. would benefit from further programming, he did not indicate that to J.L. Mr. Bondy lied when he testified that he told him the child was living with him half of the time and the other half with W.L. J.L. missed the last week of his class with Mr. Bondy because he wanted them to have space from each other and he told Mr. Bondy about his reasoning.
• With respect to the issue of the child wearing a pink outfit when he attended an access visit with J.L. and his parents in November 2019, J.L. thinks that it was inappropriate that the Society called him and his father “homophobes”. He and his father indicated that the boys wear blue and the girls wear pink. J.L. was concerned that the foster mother was dressing the child in “girl outfits” every time he was seeing him.
• There is nothing in J.L.’s life that prevents him from having the child reside with him. He is capable of taking care of the child. J.L. has a lot of support and he knows that he would be a great father to the child. If the Society remains involved, the workers can do surprise visits at his home.
• On November 25, 2020, J.L. was not aware that a Society worker was downstairs to give him a copy of the registration Order as per the Sex Offender Information Registration Act.

[16] I summarize Mr. Griffin’s evidence as follows:

• Mr. Griffin assists J.L. with tasks for daily living. The OCAP is a voluntary service. Mr. Griffin has helped J.L. get stable housing, get ODSP, manage his finances and ensure his rent is paid.
• Mr. Griffin has noticed that J.L. has some impulse control issues at times. However, J.L. is a highly functional individual. J.L. is able to do his own groceries and laundry, keep his apartment clean, cook, handle his money, advocate for himself in some instances and attend meetings and appointments.
• Mr. Griffin does not have any safety concerns regarding J.L. Over the past four to six months, he and J.L. have mostly kept in contact by cell phone and by texts. J.L. has quite a few questions over the week but at other times his contact is infrequent. J.L. has contacted Mr. Griffin regarding his access visits and his frustration with the Society.
• At times, J.L. sends Mr. Griffin numerous texts and phone calls if he is upset. He can be impatient when he has to wait for a response.
• If J.L. gets the care of the child, Mr. Griffin will assist J.L. in finding a daycare provider as well as respite care if that is needed, review how to get the child into school, direct him to services he requires, attend medical appointments with him if he chooses and assist him with the child’s needs. At times, Mr. Griffin provides J.L. with advice.
• Over the time that Mr. Griffin has worked with J.L., he has noticed that J.L. thinks more about his actions and that his impulsivity is going down a bit. J.L. is getting better at controlling his responses to others. There has been a great change in J.L. since he has received stable housing. He is more relaxed.
• On two occasions, Mr. Griffin has seen J.L.’s interactions with the child and they seemed to go well. J.L. is loving and caring with the child.
• Mr. Griffin has not had any difficulties communicating with Mr. Wiggins.

[17] I summarize W.L’s evidence as follows:

• When J.L. was young, W.L. worked a lot and J.L.’s mother stayed home to care for him. J.L. had learning disabilities and it was difficult for them to understand and to deal with him. J.L. was put into a group home when he was about eight or ten years old. This service was provided by the government. J.L. then went to live with W.L. Later, W.L., J.C. and J.L. moved to Brockville. At that time, J.L. had anger problems and was frustrated. J.L. lived with them for five to six years. J.L. stopped living with them when he was charged for sexually assaulting someone at the campground when he was a junior counsellor. However, W.L. is not aware of the specifics of what happened when J.L. was charged for sexually assaulting someone in the group home.
• W.L. finds that J.L. has matured a lot and has kept out of trouble. J.L. has his own apartment and he is keeping it clean, paying his bills and acting like a grown up.
• The communication between W.L. and J.L. has been good for the last four to five years. W.L. does not see J.L. much but talks to him every couple of days. W.L. works a lot. J.L. tells him about how things are going with the child and sends him videos quite often. J.L. contacts W.L. for advice in general and about the child and when he gets frustrated with the Society.
• W.L. has seen the child twice at the Society office with J.L. during his access visits. He has not been able to see the child more because of work. J.L. is fantastic with the child and always tries to do his best.
• If the child lives with J.L., W.L. will assist with taking the child to appointments and babysitting when he is not working. J.C. could assist when he is not available.

[18] I summarize J.C.’s evidence as follows:

• J.C. has a good relationship with J.L. and he listens to her. J.L. got in trouble with the law when he was sixteen years old. W.L. acted as J.L.’s surety for the first time he went to jail. Afterwards, J.L. moved into group homes because he argued with W.L.
• J.C. talks to J.L. on the phone and watches the videos he sends of the child. She only rarely goes to see him when J.L. wants cigarettes or money. When she drops by, J.L. stands outside her car and they talk. She has been inside his apartment a couple of times and it is very clean.
• J.L. has grown up a lot in the past five years and has been doing fantastically well. She thinks he is going to be a lovable and very good dad. She has no concerns about the child living with J.L.
• J.C. has seen J.L. and the child together twice at the Society’s office. A worker was present during the thirty to forty-five-minute visits. J.C. also sees the videos of the child which J.L. posts all of the time on Facebook.
• If the child resides with J.L., J.C. will assist the latter with doctor appointments and grocery shopping. If the child is sick, she will go over to see what is wrong with him and help J.L. as much as she can. She can only help J.L. with babysitting during the daytime and is not available in the evenings. J.C. agrees that the child can go over to their house as long as the dog does not get jealous since he is very protective of her.
• J.C. did not know that from January 2015 to March 2018, J.L. was convicted of seventeen criminal offences.

[19] I summarize Mr. Ferron’s evidence as follows:

• Mr. Ferron looked at Mr. Nahum’s cell phone text messages and advised that there were text messages from J.L. to Mr. Nahum dated Thursday, August 6, 2020 at 8:09 a.m. In the messages of that morning, Mr. Ferron confirmed that they are identical to Exhibit 6, the text messages from J.L. to Ms. Wiggins.
• Mr. Ferron looked at Mr. Nahum’s cell phone text messages and advised that there were text messages from J.L. to Mr. Nahum dated Thursday, August 6, 2020 at 8:09 a.m. In the messages of that morning, Mr. Ferron confirmed that they are identical to Exhibit 8, the text messages from J.L. to Ms. Milne. They were received at 8:48 a.m.
• Mr. Ferron agrees that he saw screenshots from J.L. on Mr. Nahum’s cell phone and he has no idea if they were altered.

Analysis

[20] In keeping with the paramount purpose of the CYFSA, the additional purposes of the legislation indicate, among other things, that courts should consider what the least disruptive course of action would be as well as whether it is possible to provide services within the family or community: s. 1(2).

[21] The Ontario legislature enacted the CYFSA in 2017 and part of this legislation responds to the Truth and Reconciliation Commission of Canada’s (“TRC”) report. This is highlighted in the CYFSA’s preamble, which states:

In furtherance of these principles, the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child.

With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:

The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

[22] Most of the changes brought about by the CYFSA highlight the results of the TRC report and emphasize the importance of keeping children in the homes of their families and communities.

[23] Section 74 of the CYFSA deals with the best interests of child. It states as follows:

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

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

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

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

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

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

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

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

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

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

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

[24] According to s. 101(1) of the CYFSA, where a court makes a finding that the child is in need of protection, it must be satisfied that the intervention through a court Order is necessary to protect the child in the future. The court can make four Orders: 1) a supervision Order; 2) an interim society care Order; 3) an extended society care Order; or 4) consecutive Orders of interim society care and supervision.

[25] According to s. 102(1) of the CYFSA, a court can make an Order under this section instead of s. 101(1) if it is in the child’s best interests to grant “custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons”.

[26] Section 104 of the CYFSA sets out the court’s powers regarding access. It reads as follows:

104 (1) The court may, in the child’s best interests,

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

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

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

[27] Section 105(4) of the CYFSA stipulates that where a court makes an Order that the child be placed in extended society care, any Order for access is terminated.

[28] Section 105(5) of the CYFSA states that in considering the issue of access to a child in extended society care, the best interests of the child is the test. The court cannot order access to the child unless it is satisfied that the Order would be in the best interests of the child.

[29] Section 105(6) stipulates additional factors to be considered in determining whether an access Order would be in the best interests of the child in extended society care. These factors are whether the relationship 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.

[30] Lastly, s. 105(7) of the CYFSA notes that the court must specify access holders and access recipients when a child is in extended society care.

[31] In Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, [2018] 4 C.N.L.R. 31, leave to appeal refused [2018] S.C.C.A. No. 51, the Court of Appeal for Ontario discussed the need for a factual foundation with regards to a child’s First Nation’s heritage: at para. 56. At para. 58, the Court of Appeal for Ontario stated as follows:

I recognize that Indigenous membership has expanded to include self-identification. However, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to her. The appeal judge erred by ordering access based on nothing but the parents’ self-identification with Indigenous heritage in the absence of any evidence on this issue specific to this child.

[32] The Society referred me to one case: Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489. J.L. did not refer to any caselaw. Y.M. is a child protection trial decision that dealt with two children. In particular, I will focus on M.M. who was an eighteen-month old child and was apprehended five days after her birth. The Society sought an Order that M.M. was a child in need of protection and sought a dispositional Order that she be placed in extended society care. Justice Sherr found M.M. in need of protection and placed her in extended society care with access to the mother and father with four supervised visits each year for a minimum of one hour each. Justice Sherr also determined that the child was the access holder and the mother and father were the access recipients.

[33] Justice Sherr noted that when the court considers access to children placed in extended society care, it must do so in the scope of the best interests test. “Whether the child’s relationship with a parent is meaningful and whether access would impair the child’s opportunities for adoption while important, are only two of many factors to consider”: Y.M., at para 306. Justice Sherr also quoted extensively from Children’s Aid Society of Toronto v. J.G., 2019 ONCJ 333, at paras. 81-88, rev’d in part 2020 ONSC 1135, 36 R.F.L. (8th) 445, aff’d 2020 ONCA 415, 151 O.R. (3d) 320. I summarize this as follows:

• When a court considers a child’s best interests, it should consider all relevant factors including past, present or future considerations.
• The new access test as per the CYFSA should not be considered in a vacuum. There is an increase in the availability of openness Orders for families.
• The severance of a parent-child relationship is not always appropriate and often not in a child’s best interests.
• Access Orders will sometimes change to openness Orders.
• A court can also consider the potential benefits of an access Order that may or may not transition into an openness Order in determining the child’s best interests.
• At any openness hearing, the best interests of the child will be the primary consideration.
• The onus is on the parent to satisfy the court that an access Order is in the child’s best interests but there is no longer a presumption against access.

[34] Justice Sherr also quoted from Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, at paras. 166-169, to review the attributes of a parent that would impair a child’s future opportunities for adoption. I summarize them as follows:

• The first attribute is a difficulty with aggression, anger or impulse control.
• The second attribute is a lack of support for an alternate caregiver of the child.
• The third attribute is dishonesty and secrecy.
• The fourth attribute is a propensity to be litigious.

Issue a: What dispositional Order is in the child’s best interests?

[35] I turn to an analysis of the evidence with respect to the child’s best interests. It is clear that J.L. loves the child and wants to be a good father. It is not contested that he is loving and affectionate with the child. He takes interest and joy in the child’s development.

[36] However, the risks of returning the child to J.L. remains too high. The evidence supports that J.L. has not been able to put the child’s needs over his own by arranging access. On many occasions, he has missed access visits due to his own personal circumstances. He has consistently been confrontational with the Society’s workers and difficult to work with. When they try to implement a system in order to facilitate communication between J.L. and the workers, he either refuses to communicate or is just very difficult to deal with. This speaks highly of his inability to regulate his emotions in difficult circumstances. J.L. has not shown that he is interested in working with the Society to create a good access plan. He does not actively participate in plan of care meetings. Although J.L. testified that he believes he has a good relationship with the foster mother, he has complained to the Society about her actions and has made a false allegation that she missed an access visit because she was hungover. What is most telling, however, is J.L.’s lack of consistency with his access visits to the child. While it may be true that the month prior to the trial J.L. was more consistent, his overall record over the last sixteen months can only be described as poor. In order to counter the Society’s evidence about his poor attendance, J.L. submitted two exhibits of texts between him and Society workers regarding his missed access visit on August 6, 2020. This is insufficient evidence to rebuke his overall poor access record.

[37] In addition, it is clear from the evidence that J.L. and S.D. cannot stay away from each other. They have been seen together by different Society workers since the child’s birth and as recently as October 2020. There is evidence that they have volatile relationship. In addition, J.L. has self-reported a history of some forms of abuse in his relationships. He also self-reported that he has triggers. There is insufficient evidence to support that his behaviour has improved to an acceptable level.

[38] With regard to programming, the evidence demonstrates that he has taken some steps to improve his parenting skills. However, these steps were taken only in early fall 2020 despite numerous attempts by the Society to assist him to access a variety of different programs.

[39] I also find it very concerning that J.L. felt comfortable leaving J. and A. in S.S.’s care. He testified that when he lived with her, due to S.S.’s drug consumption, he had to provide all of the primary caregiving to the children. That he left in this way leads me to question his insight into protection concerns.

[40] This child needs parents who will exercise good judgment. Both of his parents have developmental delays and other medical issues. The child may have similar issues to those of his parents in the future. The evidence supports that on many occasions when dealing with Society workers, J.L. does not exercise good judgment. For example, he texts and calls them often when he does not get his way and he revokes his consents for them to talk to any third party. I agree with the Society’s concern regarding how J.L. will be able to deal with various service providers and the school authorities when there may be issues with the child. He remains impulsive.

[41] I agree with the Society that J.L. struggles to control himself and his emotions. J.L. had impulsivity issues from 2006-2015 when he was Dr. Gray’s patient and these issues remain today. The evidence supports that when he does not get his way with the Society, he either calls or texts the workers incessantly; at times, he acts aggressively towards the workers; he does not attend his access visits with the child; he withdraws his consent as he has done on numerous occasions; and he stonewalls the Society’s attempts to communicate with him and others.

[42] There is evidence regarding J.L.’s past parenting capabilities. It is noteworthy that his children are not in his care. M. has been adopted and A. and J. are in their mother’s care. J.L. does not have an access relationship with them.

[43] As I noted in my last Decision, the evidence supports that J.L. has issues with lying. This issue dates back to when he was Dr. Gray’s patient. Dr. Gray testified that he questioned J.L.’s self-reporting. The evidence regarding his Facebook account is also difficult to believe. What is most concerning is that J.L. lied very recently to Mr. Bondy about having the child in his care half of the time. Furthermore, I question some of the excuses that he provided for missing his access visits.

[44] Lastly, with respect to J.L.’s plan, it is weak. It is true that he has the support of Mr. Griffin, W.L. and J.C. While Mr. Griffin can continue to provide assisted living support, his support for the child is rather limited. With regard to W.L. and J.C.’s support, this is also limited. W.L. testified that he works a lot. J.C. can assist J.L. with the child during the day, but there are limits related to her jealous dog and her ability to assist in the evenings. I also find it concerning that J.C. was shocked to learn when it was put to her that from January 2015 to March 2018, J.L. was convicted of seventeen criminal offences. This indicates that she is not fully knowledgeable about J.L.’s life.

[45] Specifically with regard to the best interests considerations for this child, I find as follows:

• given the age of the child, his views and wishes cannot be ascertained;
• since the child has an Indigenous heritage, although J.L. has provided very little information regarding this issue, the foster family (a) has put in place things like reading and listening to an Indigenous song as provided by J.L. and (b) is prepared to bring him to First Nations events in order to preserve the child’s cultural identity and connection to community;
• the child’s physical, mental and emotional needs and development cannot be appropriately met by J.L.;
• the child has a very limited relationship with J.L’s extended family and members of his Indigenous community;
• it is important for there to remain a continuity in the child’s care, and the child may be negatively affected by a disruption of that continuity if he were to reside with J.L.;
• by way of a plan, the Society proposes the status quo at this time and that the child remain with his foster family until adoption, and this is in contrast with J.L.’s weak plan as noted above;
• given the age of the child, a delay in the disposition of the case could negatively impact the child; and
• the high degree of risk that justified the court’s finding that the child was in need of protection.

[46] It would be irresponsible for me to return the child to J.L. The court must choose the least disruptive disposition consistent with the child’s best interests. For the reasons noted above, I find that the risk concerns remain far too high to be adequately addressed with a supervision Order. This is also supported by the fact that J.L.’s actions have demonstrated that he is not good at following court Orders. I do not have any confidence that J.L. would consistently cooperate with a supervision Order. Consequently, I grant the Order placing the child in extended Society care.

Issue b: If an Order is made placing the child in extended care, what access Orders are in his best interests, including who should be an access holder and who should be an access recipient?

[47] I turn to a consideration of access between the child and his parents. S.D. took the position that should the court place the child in the extended care of the Society, she should have a right of access to the child who would be the access holder. The Society submits that there should be no access for the purposes of adoption. However, if the court determines that an access Order is in the child’s best interests, the Society argues that the child should be the access holder with the right of access to J.L. and with access to S.D. as agreed to in the Minutes of Settlement. Access to J.L. would be at the discretion of the Society.

[48] In paragraph 45 of this Decision, I note my findings with respect to the child’s best interests. I find that access will benefit the child as follows:

• access permits him to maintain a connection with his biological parents;
• access to J.L. may permit him to better understand his Indigenous heritage;
• he will have two more people in his life who will care about him and love him; and
• access could mean that the child’s medical information and family history will be more readily available for him. This is important given the significant medical and health issues that both parents have.

[49] The court was not provided with any evidence from an adoption worker and whether the foster family is interested in adopting the child. Therefore, it is not possible for this court to assess the Society’s adoption plan for the child. That is unfortunate and frankly, not very helpful to the court.

[50] With regard to the possible impairment of the child’s future opportunities for adoption and in considering the parents’ attributes as discussed in Children’s Aid Society of Toronto v. A.F., I find as follows:

• There are concerns with regard to both parents’ aggression and issues with regard to J.L.’s impulse control.
• Given the evidence about adoption, J.L. has flip flopped about this issue and he will likely not support an adoptive placement.
• S.D. and J.L. have been civil and appropriate with the foster mother. However, J.L. complains about her to the Society.
• I have found that J.L. has been dishonest.
• J.L. is likely to be very litigious given his impulse-control issues. This is not in the child’s best interests as the prospect of litigation is likely to dissuade adoptive parents from coming forward and it will delay permanency planning for the child.

[51] I would have concerns if J.L. was the access holder. I do not have these concerns regarding S.D. J.L. clearly does not cooperate well with the Society. He is very difficult to deal with. I find that there is an unacceptable risk that the list of potential adoptive families might be impacted because of their being worried about engaging in openness issues with J.L. given the evidence that I have highlighted above. This could result in an undue delay in the child being adopted and placed in a secure and permanent home. This is not in the child’s best interests.

[52] Consequently, I find that it is in the child’s best interests to order access between the child and S.D. and J.L. and to make S.D. and the child the access holders and J.L. the access recipient. It may be that once the notice of intent to place the child for adoption is served, the Office of the Children’s Lawyer or counsel for S.D. could bring an openness application and negotiate an openness Order.

[53] With regard to an appropriate access Order which is in the child’s best interests, I must balance the benefits to him of maintaining a connection with S.D. and J.L. while having the security of a permanent placement.

[54] As a result, I have considered the following:

• the Minutes of Settlement signed by the parties on November 13, 2020;
• the quality of the child’s access and relationship with S.D. and J.L. as described above;
• the risk factors posed by J.L. as noted above;
• the importance of the child’s routine and of a permanent placement not being disrupted by the obligations to S.D. and J.L.; and
• the risk of J.L.’s impairing the child’s future opportunities for adoption.

[55] I order that S.D. shall have a right of access to the child. Access shall be one time every two weeks for a period of one hour with the Society having the discretion to determine the location of the visits and the level of supervision required for the visits. Once the child is placed on adoption probation, access shall be at the sole discretion of the Society, subject to any further Order of the court.

[56] I order that J.L. will have a minimum of six supervised access visits each year for a minimum of one hour. These should occur every two months. Should J.L. not exercise his access visits with the child, his access visits will revert to the discretion of the Society. I also order that photos of the child be provided to S.D. and J.L. at least six times per year.

Justice M. O’Bonsawin

Released: December 14, 2020

COURT FILE NO.: FC-19-CP53

DATE: 2020/12/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of Ottawa

Applicant

– and –

S.D. and J.L.

Respondents

CORRIGENDUM TO REASONS FOR DECISION

O’Bonsawin J.

Released: December 14, 2020

APPENDIX

December 14, 2020: amendment to paragraph 52 - “S.D. and”, “J.L.” and “or counsel for S.D could.”

December 14, 2020: amendment to paragraph 54 - “the Minutes of Settlement signed by the parties on November 13, 2020”.

December 14, 2020: amendment to paragraph 55 - “I order that S.D. shall have a right of access to the child. Access shall be one time every two weeks for a period of one hour with the Society having the discretion to determine the location of the visits and the level of supervision required for the visits. Once the child is placed on adoption probation, access shall be at the sole discretion of the Society, subject to any further Order of the court”.

December 14, 2020: amendment to paragraph 56 - removal of “S.D.” and amended “their” to “his”.

[^1]: J.L. received one conviction in 2008, two in 2010, one in 2011, one in 2012, one in 2014, six in 2014, four in 2015, one in 2016, five in 2017 and one in 2018.