Middlesex v. B.C. and A.L., 2022 ONSC 3825
COURT FILE NO.: C536/18-04
DATE: July 4, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
BETWEEN:
The Children's Aid Society of London and Middlesex Applicant
– and –
B.C. A.L. Respondents
S. Welch, for the Society
B.C., acting in person
HEARD: June 6, 7, 8, 9, 10 & 13, 2022
TOBIN, J.:
[1] This is a status review application brought under Part V of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “Act”).
The Parties
[2] In this status review application, The Children's Aid Society of London and Middlesex (the Society) asks that the child, A.L.-C., be found to remain in need of protection. It also asks that the child be placed in extended society care with limited access to the mother.
[3] The mother, who was self-represented at the hearing, asks that the child be returned to her care without any ongoing Society involvement.
[4] The father did not file an answer although he appeared as a witness for the Society. He did not ask for any relief.
The Issues
[5] The issues to be addressed in this case are:
(a) Does the child remain in need of protection? This will require a consideration of the gains, if any, the mother has made since the child was found to be in need of protection as well as any subsequent risks that may have arisen;
(b) If the child is found to remain in need of protection, what disposition order would be in the child’s best interests? Will it be in the child’s best interests to return to the care of the mother without Society involvement, with Society involvement, or would her best interests be met by placing her in extended society care; and,
(c) If the child is placed in extended society care, what access order will be in the child’s best interests?
Background Facts
A.L.-C. is found to be in need of protection
[6] The respondent, B.C., is the mother of A.L.-C., born […], 2019, (“the child”).
[7] The child, who is now almost three years old, was brought to a place of safety under a warrant the day after her birth. She has remained in the same foster home since.
[8] The respondent, A.L., is the child’s father. He has been incarcerated throughout the child’s life. The only time he saw the child was one day when he was in Court and the child was a newborn. He has no plan for the child.
[9] On February 6, 2020, Mitrow J. found the child to be in need of protection, (“the Mitrow J. order”), under subclauses 74(2)(b)(i) and (ii) of the Act.
[10] The finding that the child was in need of protection was based on a Statement of Agreed Facts (“SAF”) signed by the Society worker and the mother.
[11] At para. 4 of the SAF, the parties agreed that the Court should make a finding that the child was in need of protection because:
The mother has a history of mental health, transience and substance abuse issues, such that she does not have any of her children in her care. The mother has recently obtained independent housing and has reported that she continues to address her mental health.
[12] At para. 5 (a) of the SAF, the mother agreed that it was in the child’s best interests that she be placed in interim society care for three months based on the following:
The mother has a history of substance abuse, mental health issues and general instability such that she does not have any of her children in her care. The mother has continued to co-operate with the Society and has participated in some programming and services; however, the Society requires more time to assess her ability to maintain a period of stability while exercising increasing access to the child.
[13] Under the Mitrow J. order, the mother’s access was subject to the following terms:
[B.C.] shall not use or be under the influence of any illicit substances or marijuana while in a caregiving rule, which includes while your child is sleeping.
[B.C.] shall not have marijuana, illicit substances or drug paraphernalia in her home while A.L.-C. is attending access visits, unless safely stored out of sight and reach of children.
[B.C.] shall not use or allow others to use illicit substances, including marijuana, in your home at any time, before, during or after access with A.L.-C.
[B.C.] shall not have any third parties in your home during access visits, unless prior written approval from the Society.
[B.C.] is expected to fully cooperate with unannounced worker visits during access visits to ensure compliance.
[14] At para. 5 of the Plan of Care accepted by the Court, the Society’s expectations of the mother before “it would feel that supervision or society care of the child is no longer needed” were as follows:
The mother will have demonstrated an increased ability to stabilize her situation and make healthy lifestyle choices such that she is able to ensure the provision of a safe, stable, violence free, consistent environment in which she is able to adequately meet the child’s physical, social and emotional needs on a consistent basis over time as evidenced by,
Consistent cooperation with the Society and all other service providers.
Attendance at and active participation in any and all recommended parenting education and demonstrated ability to integrate the skills and knowledge learned into her interactions with the child.
Consistent attendance at and positive age-appropriate interactions with the child during all access visits.
Attendance at and active participation in any and all recommended counselling/programs and demonstrated willingness and ability to comply with all recommendations arising therefrom.
Demonstrated ability to obtain and maintain safe, stable, consistent housing over time and maintain that housing at an acceptable level of cleanliness and free from safety hazards at all times.
Demonstrated ability to manage their finances such that they are able to ensure adequate, food, clothing, shelter and the timely payment of necessary bills.
No further reports or evidence of their involvement in drug use.
No reports or evidence of any violence between the parents.
No reports or evidence of their violent/aggressive behaviour towards any other person.
Demonstrated ability to develop and implement age-appropriate child management techniques.
Demonstrated ability to develop and implement age-appropriate structure and routines for the child on a consistent basis over time.
The child’s siblings
[15] The mother is also the mother of S.A.C, born 2010, and P.C., born 2015.
[16] On March 26, 2018, both S.A.C and P.C. were found to be in need of protection. P.C. was placed in the care of her father. He eventually obtained custody of her. S.A.C. was placed in the care of the maternal grandmother on January 30, 2019, under a supervision order.
[17] In the status review application concerning these children, the mother signed a Statement of Agreed Facts on May 7, 2021. She acknowledged the following about events that took place after the final order regarding P.C. and S.A.C. was granted on January 30, 2020:
(a) Since July 2020, the mother refused to co-operate and engage with the Society. She refused in-home and in-person contact and was often disrespectful and inappropriate over the phone and in text messages.
(b) The mother refused to discuss concerns with the Society worker, threatens the worker and the Society in general, blames others for her anger issues, and refuses to acknowledge the concerns identified;
(c) The mother was no longer attending psychiatric appointments but did continue to take her medication as prescribed.
(d) The mother attended anger management sessions over the phone with The John Howard Society.
(e) The mother was charged on April 21, 2020, after she was found driving a stolen vehicle with a suspended driver’s licence. She admitted to operating the vehicle with no licence. On January 15, 2021, the mother received a probation order of 18 months after pleading guilty to possession of property obtained by a crime no greater than $5,000.
(f) There were ongoing concerns with respect to the mother’s angry outbursts which have occurred in the presence of the children.
(g) The mother was not willing to have a meaningful conversation about these concerns.
(h) The mother was involved in non-healthy relationships. The mother reported that she was in a relationship with J.K., a person with a lengthy history of criminal charges and substance use concerns. Subsequently she was in a relationship with D.B. D.B. was arrested at the mother’s apartment on multiple warrants.
Legal considerations on a Status Review Application
[18] The Court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a Court order for their protection. If it is determined that a child is still in need of protection, the Court must determine which of the available range of orders is in the best interests of the child.
[19] In determining what order is required to meet the child’s best interests, the Court must consider the degree to which the risk concerns that prompted the original order still exist. This must be examined from the child’s perspective. The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which may have arisen since that time: Catholic Children’s Aid Society of Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165.
[20] In all proceedings under the Act, the Court must consider its paramount purpose which is to promote the best interests, protection and well-being of children (ss. 1(1)).
[21] The Court must also take into account the other purposes of the Act so long as they are consistent with the child’s best interests, protection and well-being. In this case, the other purposes to consider are giving support to the autonomy and integrity of the family unit (s. 1(2) 1.) and consider the least disruptive course of action that is available and appropriate to help the child: (s. 1(2) 2.).
Does the child remain in need of protection?
Application of legal considerations
[22] The mother has taken some steps to reduce the previously identified risks of harm to the child.
[23] When the child was born, the mother was living in a rooming house. This was identified as being an unsuitable residence for the child. The mother addressed this by moving to an apartment where she has lived since October 2019. However, her ability to remain in this residence is at risk. She has not paid rent to her landlord since February 2022. Proceedings to terminate her tenancy have been started by the landlord. This is the second attempt by the landlord to terminate the mother’s tenancy for non-payment of rent. The first attempt resulted in the mother being allowed to remain if she paid the arrears owing. This she did at the end of January 2022.
[24] Another expectation of the mother was that she demonstrate appropriate child management techniques. To some extent, she has done this. During access visits the mother was observed to have positive visits with the child. She was seen to be attentive, caring, loving, nurturing and child-focused. One supervisor stated that the mother, in the controlled environment of supervised access, did well for periods. It was also observed that the child responded affectionately to the mother.
[25] It was expected that there be no observations of violence between the parents. With the father incarcerated, this is not a present concern.
[26] However, a number of expectations have not been met.
[27] The mother has not dealt with her difficulties with anger management and emotional regulation sufficiently. She continued her association with persons involved in criminal activity. She engaged in criminal activity.
[28] The witnesses who testified for the Society and who had contact with her saw the mother’s angry outbursts and inability to control her emotions. These outbursts would happen in front of the child.
[29] During this hearing, the mother had difficulty controlling her anger and emotions. She had many outbursts that interrupted the hearing. Time was provided for the mother to regain her composure, which she often did but for brief periods. The mother had great difficulty hearing negative evidence about her.
[30] While assigned to this family, the Society worker was treated with disrespect by the mother. Eventually he stopped meeting the mother alone or going to her residence out of safety concerns for himself. The worker/parent relationship was not conducive to the worker being able to effectively support the mother. The mother was not able to work co-operatively with the Society worker whose task it was to support her in accessing services. Another manifestation of her lack of co-operation with the Society was her refusal or inability to comply with access rules put in place during the Covid 19 pandemic.
[31] The mother did not follow-up with a referral to CMHA until recently. She is now on a waiting list for a referral. However, she did participate in psychotherapy as requested by her and facilitated by her probation officer. The mother has been a willing participant in that counselling, but it will end when her term of probation does in July 2022. The therapist provided a report that was admitted into evidence on consent and without requiring her to testify in person. The therapist identified some areas where the mother made progress such as understanding the techniques she can use to manage her emotions. The therapist suggested that the mother may benefit from dialectical behavioural therapy (DBT) as a primary treatment choice. The mother will attempt to obtain a therapist through CMHA at some time in the future.
[32] The mother is to be commended for the work she has done so far to understand and address her anger and emotional issues. She has much more work to do. At present these unresolved concerns continue to present risk of harm to the child, both physical and emotional.
[33] Another risk to the child arises from the mother’s ongoing involvement with police and the criminal justice system. The latest incident was when D.B. was arrested at her home on an outstanding warrant.
[34] Risk arises from the mother’s willingness to ignore basic safety rules. The mother’s driver’s licence has been suspended. Yet she has been observed driving.
[35] The Court must consider the risk of emotional harm to the child if removed from the foster home. The child has been in the same foster home since the day after her birth. The foster parents have become her psychological parents. In CCAS v. M. (C.), at para. 37, the Court adopted with approval the following statement made at the Court of Appeal:
A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the care givers, whom the child regards as her psychological parents is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing.
[36] When taking all these factors into account, I find that the child remains in need of protection and a further order is required.
[37] There has been incomplete engagement by the mother with the Society and other service providers to address the identified concerns. While the mother has tried to overcome her challenges over the past almost three years, the child became integrated into the foster family. As well, despite her efforts, the mother has not yet sufficiently benefitted from counselling services to mitigate the risk of harm to this young and vulnerable child. The expectations previously identified have not all been met.
What disposition order is in the child’s best interests?
Legal Considerations
[38] On a status review application, where it is determined a child remains in need of protection, the Court must determine which of the available orders provided for in s. 114 of the Act is in the child’s best interests.
[39] In this case, the available orders are:
(a) Returning the child to the mother with or without a supervision order; or
(b) An extended society care order.
[40] The Court does not have the option of making an interim society care order. This is the case as the child is younger than six and has been in Society care for more than 12 months: s. 122(1).
[41] Also, in this case, the Court does not have the option of a custody order under s. 102 or placement with a third party out of Society care. This is the case as no family or community member has come forward or been found who offered a plan for the care of the child: s. 101(4).
[42] In determining the child’s best interests, the Court is to consider the factors set out in s. 74(3) of the Act which is formulated as follows:
(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. 2017, c. 14, Sched. 1, s. 74 (3).
[43] In Children’s Aid Society of Niagara Region v. S.S. and T.F., 2022 ONSC 744, at para. 79, Justice Madsen set out the following principles for the Court to consider in determining whether a supervision order would be appropriate:
a. For a final supervision Order to be an effective instrument of risk management the court should consider the following: the parent must meet a minimum threshold of co-operation and reliability; there needs to be a trusting relationship between the parent and the Society; there needs to be clear and accurate information exchanged between the parties; there should be demonstrable evidence that the parent would be compliant with the terms; there needs to be evidence that the Society could monitor a parent’s compliance; and a supervision Order should not be imposed if a parent is ungovernable.
b. The issue for the court is whether the parenting that could be provided with a return of the children is below the minimum standard tolerated by the community, not whether the children will be “better off” with parents other than their own.
c. Courts must recognize that families living in poverty may face challenges. Parents are not to be judged by a “middle class yardstick… provided that the standard used is not contrary to the child’s best interests.”
d. “A supervision Order requires some element of confidence that the parent being supervised shows awareness of the alleged problems and a real commitment to cooperate and ensure that problems do not re-occur… The likelihood of a supervision Order adequately addressing concerns about a parent must be considered in the context of that parent’s past and present behaviours.” [Citations omitted]
[44] The significance of the child-centered approach is that good intentions are not enough. The test is not whether a parent has “seen the light” and intends to change, but whether they have in fact changed and are now able to give the child the care that is in their best interests. There is not to be experimentation with a child's life with the result that, in giving a parent another chance, the child would have one less chance: see Children's Aid Society of Winnipeg (City) v. R. (1980), 1980 CanLII 3654 (MB CA), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that a parent is able to parent the child without unreasonably endangering the child's safety: see Children's Aid Society of Brockville Leeds & Grenville v. C., 2001 CarswellOnt 1504 (Ont. S.C.J.).
[45] In this case the Society seeks an extended society care order. Courts have long recognized that the order requested is probably the most profound order that a Court can make. To take a person’s child from them is a power a Court must exercise only with the highest degree of caution and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies: see Children’s Aid Society of Toronto v. N.G., 2022 ONCJ 235, at para. 64.
Application of Legal Considerations
The Mother’s Plan of Care
[46] The mother’s plan is to have the child returned to her care without Society involvement. For the reasons that the child remains in need of protection, it is not in the child’s best interests that the mother’s request be granted.
[47] I will consider whether the child can be returned to the mother’s care subject to terms of supervision.
[48] There are some positive aspects to this plan.
It is clear that the mother loves the child.
At access, the mother is mostly appropriate with the child.
The mother has demonstrated the extent of her commitment by regularly attending at access.
The mother has been able to remain in the same home for over two years. However, as stated above, her tenure at this location is at risk due to her non-payment of rent.
The mother recognizes that she needs counselling or therapy and has started psychotherapy. She suggests that it has started to help repair her relationship with her mother (the maternal grandmother).
The mother is taking steps to complete her high school education with the goal of going to college and having a career.
[49] I must also consider the challenges to the mother’s plan.
Terms of Supervision
[50] Terms of supervision would not likely be adhered to by the mother. She has a conflicted relationship with the Society worker. He is not the only one. She has had difficulty working with other workers in the past. While Covid restrictions were in place, she struggled to comply with them such that her access was adversely affected. It is also of concern that the mother was not forthcoming about the status of her driver’s licence and whether she was driving without a valid one.
[51] A likely term of supervision would be that she not associate with persons involved in criminal behaviour. But as recently as February 2021, D.B. was arrested while in her home.
[52] There is not the level of trust and reliability between the mother and the Society necessary for a supervision order to be effective.
Anger Management and Emotional Outbursts
[53] The mother’s inability to control her anger and emotional outbursts is long-standing. Despite attempts to address these issues through counselling and other services, they remain problems. She refused to contact CMHA for help until just before the trial. Her ire is not reserved for Society workers only. A number of people with whom she dealt with experienced her anger and emotional outbursts. The mother has not been able to restrain herself even in the presence of the child. It is not clear that the mother is able to appreciate the risks to the child when exposed to violence in any form.
[54] The mother’s behaviour during the trial demonstrated that she was unable to control her anger and emotional outbursts. Many accommodations had to be made during the trial because of her behaviour. The mother was allowed to participate by way of video conference from the comfort of her home. This was not sufficient. When an online outburst occurred, the Registrar would mute the mother’s connection. The mother immediately would unmute and continue sharing her anger. After some period of an adjournment, the trial could resume.
Residence
[55] While the mother has been able to maintain her home since the fall of 2019, she describes it in the most negative of terms. She detailed many problems with the premises including her ceiling “caving in”. It is because of these problems she withheld her rent. She stated that it was “not a place to have a child”. In her evidence, the mother stated she was looking for a new place. She may move closer to her mother’s residence which is “somewhere between Stratford and St. Marys.”
Family Support
[56] The mother has no family support in London. She did not provide any evidence of community support that she has. It is not clear what, if any, support the maternal grandmother can or would provide. The maternal grandmother currently has the mother’s child, S.A.C., in her care. The maternal grandmother did not testify.
Access
[57] At times, all three of the mother’s children were allowed with her at access. While this access was observed to be positive for the most part, there were occasions that the mother missed some of a child’s cues and at times the mother lacked a child-focused approach to her parenting. The Society supported the mother in having access with the child and to have her returned to her home. But access times reduced and became more restricted because of the mother’s behaviour as described in these reasons.
The Child
[58] The Court must also consider the child’s circumstances in assessing best interests.
[59] The child, now almost three, needs a stable, safe and loving home. I have no doubt that the mother would provide the child with love, but she has not demonstrated an ability to provide a consistently stable and safe environment for the child. The mother does not seem to appreciate that who she associates with affects her ability to provide safety and stability. Throughout the trial she challenged the Society to explain why her personal life had anything to do with her parenting ability.
[60] Counsel for the Society submits that a child often presses their parents’ patience. They demand their needs be met. This is a reasonable submission. It is not evident that the mother can consistently and safely do this as she does not have the ability to control her anger and emotions. No terms of supervision can protect against this.
[61] The child has been in the same foster home since the second day of her life. What started out as an expected short-term placement has turned into a long-term one. The child is integrated into the foster family’s household. She attends and enjoys daycare two days a week. The foster mother described the child as “a fun little girl… who loves to sing and dance… and have fun…”. The child gets along and is bonded with the other children living in the home. The others treat her like a sister. The child is attached to the foster father. The child and the foster mother have a special bond now. They spend most days together. The foster mother described the child and her as “sidekicks to each other”. I conclude that the foster parents have become the child’s psychological parents. The foster mother and her husband are prepared to make a permanent plan for the child. While in their home, the child’s needs are being met.
[62] Under the mother’s plan, there is risk of emotional harm to the child if removed from the foster home: see CCAS v. M. (C.), at para. 37.
Best Interests Factors
[63] The Court is required to consider the factors as set out in s. 74(3) when making an order or determination in the best interests of a child.
[64] In this case, I find:
(a) The child is not old enough to express her views and wishes. However, there is evidence of the child’s bond with her foster family members and that access visits with the mother have been mostly positive.
(b) The mother’s ability to meet the child’s physical, mental and emotional needs are much compromised by her inability to accept Society’s supports, her anger and emotional outbursts, risks of housing instability, lack of family support, and occasional involvement in criminal behaviour.
(c) If placed in the care of the mother, the child would have the opportunity to develop a relationship with her maternal grandmother.
(d) For the same reasons discussed above, there is considerable doubt that the mother could provide a sufficiently stable homelife that would allow the child to develop a positive and secure relationship with her. There was no evidence of sustained relationships between the mother and others.
(e) At present the child has occasional contact with her half-siblings through access as arranged by the Society. There is no evidence of the child having relationships with any other members of her extended family.
(f) Placing the child in the care of the mother would end the long-standing continuity of care the child has had with her foster family. This family is willing to make a long-term commitment to the child’s care.
(g) It is uncertain that the mother could provide or sustain a secure and stable placement for the child. Placement with the mother in these circumstances would risk emotional harm to the child if removed from the foster home and further delay permanency planning for the child.
(h) The risks that led the child coming into Society care and subsequent risks that developed have not been adequately addressed by the mother nor can they adequately be addressed through terms of supervision. The mother has expressed her desire not to have any ongoing involvement with the Society.
[65] Taking into account all of these factors and circumstances including the basis upon which the child is found to remain in need of protection, I find that it is not in the child’s best interests to be placed in the care of the mother subject to terms of supervision.
[66] As no alternative plans were put before the Court, the only option open is for the child to be placed in extended society care as requested by the Society.
[67] The Society’s plan will best address the needs of the child and ensure they are met. It allows for permanency planning.
Access
Legal Considerations
[68] When a child is placed in extended society care any existing order for access made under Part V of the Act is terminated: s. 105(4).
[69] Once a child has been placed in extended society care, the test for access is best interests: s. 105(5). As part of the best interests determination, the Court must consider:
(a) whether the relationship between the person and the child is beneficial and meaningful for the child, and,
(b) if relevant, whether the ordered access will impair the child’s future opportunities for adoption: s. 105(6).
[70] In Children’s Aid Society of the Regional Municipality of Waterloo v. R-A.M. and J.C., 2021 ONSC 2828, at pp. 87-95, Justice Walters set out how the test for access is to be applied as follows:
[87] The Court of Appeal for Ontario has recently considered the issue of access in Children’s Aid Society of Toronto v. J. G., 2020 ONCA 415, 41 R.F.L. (8th) 1, which was released on June 25, 2020.
[88] In this decision, Benotto J.A. made it clear that when the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) was replaced with the CYFSA, one of the legislative aims was to import a broad best interests analysis into the determination of access: see para. 18. The previous test was replaced with a holistic consideration of the child’s best interests, as set out in ss. 105(5) and (6) of the CYFSA. These sections read as follows:
105(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) unless the court is satisfied that the order or variation would be in the child’s best interests.
105(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),
(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and
(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.
[89] Pursuant to s. 74(3) of the CYFSA, “best interests of a child” is a defined term that encompasses a very wide range of considerations. The provision lays out 15 enumerated factors and directs the court to “consider any other circumstance of the case that the person [deciding the case] considers relevant.”
[90] After setting out the new statutory test for access to the child in extended Society care, at para. 37, Benotto J.A. refers to her previous decision in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, where the following is stated at para. 49:
The 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. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive.
[91] Writing for a unanimous court, Benotto J.A. made it clear that the CYFSA has changed the criteria for access by removing the presumption against access and making the child’s best interests paramount. This change was not just semantics but represented a significant shift in the approach to access for children in extended care: see Children’s Aid Society of Toronto v. J. G., at para. 37.
[92] Benotto J.A. went on to state that the “beneficial and meaningful” test articulated in s. 101(6)(a) [should be 105(6)(a)] is not a separate precondition. Instead, it is a consideration within the context of the child’s best interests. A child’s best interests are not static, and the possibility of positive future relationships can be considered. As indicated at paras. 50-55, when a child has significant medical issues, the court may consider whether the child could benefit from access to their biological parents. Ultimately, a child’s best interests in connection with future access involves a delicate weighing and balancing of multiple factors: see para. 63. The court should consider all factors whether they be past, present or future, and this can include future medical issues.
[93] The Court of Appeal clarified that access can come in many forms that depart from in-person visits including the exchange of emails, gifts, video chats or phone calls: see para. 64.
[94] In J.S.R. v. Children’s Aid Society of Ottawa, the Divisional Court found that it was an error in law for the trial judge to delegate the exercise of its jurisdiction to determine access between the parent and child to the Society. At para. 38 of the decision, the court stated the following:
Section 104 of the CYFSA provides the court with jurisdiction to determine access in the child’s best interests. Section 104(1) provides that the court may “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.” Section 104 makes it clear that it is the court that makes an order respecting access, and it is the court that is to impose terms and conditions “as the court considers appropriate.”
[95] The court in J.S.R. v. Children’s Aid Society of Ottawa then canvassed how s. 105 of the CYFSA sets out the factors that a court must consider in making an access order based on the best interests of the child[ren]. At paras. 54 and 55 the court made the following comments:
We find that granting a Society the discretion to determine the type, frequency and duration of access, including whether access will take place at all, is an inappropriate delegation of the court’s role to determine access terms and conditions pursuant to section 104 and 105 of the CYFSA.
That said, it is important to distinguish between discretionary “visits” and the right of access resting in access holders. As the Court of Appeal held in Children’s Aid Society of Toronto v. D.P., 2005 CanLII 34560 (ON CA) at para. 12, a Society has “the right to control who may visit children and when,” as would a custodial parent. For example, if the access order stipulates in-person visits six times a year for an hour, a Society retains the discretion to grant additional visits, or to supplement in-person visits with additional written communication. In this sense, the right of access granted by a court may be supplemental by a Society’s discretionary decisions about visits. But the minimum rights of access must be established by the court. [Emphasis added.]
[71] A mother who cannot adequately provide primary care may still have a meaningful and beneficial relationship with her child such that access is warranted because it is in the child’s best interests.
Application of Legal Principles
[72] The mother has consistently attended at her access visits with the child even as the frequency was reduced and the level of supervision increased. On some of the visits, the child’s siblings attended.
[73] Access supervisors observed positive interactions, for the most part, between the mother and child. The mother was observed to foster positive interactions with the child by being prepared and child-centred.
[74] In the Growing Together Program held while the child was an infant, the mother appeared intuitive, and the child would respond affectionately.
[75] When the child was older, the access supervisor Ms. S. observed the mother did very well for short periods of time in a controlled environment. The mother was observed to be kind, loving, attentive and child-focused. But even in the controlled environment of supervised access, the mother had difficulty controlling her anger and emotions when triggered.
[76] On this evidence, I find that access has allowed there to be relationships between (i) the child and the mother, and (ii) the child and her siblings. Access meets the child’s emotional need for a connection to her mother and siblings and to a limited extent, the mother was able to meet those needs. This suggests that the relationship between the mother and child is, and more likely than not, will be beneficial and meaningful for the child.
[77] In this case, the effect access will have on the child’s opportunity for adoption is relevant. The foster parents are willing to adopt the child. They are concerned about the mother attempting to sabotage the child’s relationship with them. This is a reasonable concern based on the evidence. The foster mother described how on some occasions the mother acted in a derogatory manner towards her access exchanges. The child was exposed to the mother’s escalating tone and profanity on these occasions.
[78] The mother had difficulty hearing this evidence and tried to interrupt the evidence being provided by the foster mother.
[79] Eventually, the mother became so upset, she left the hearing. The foster mother agreed to return the next day to answer any question the mother had of her.
[80] The foster mother would support ongoing access between the mother and the child if it did not interfere with the stability of the child in her home.
[81] I find that the mother has the potential to try to undermine the child’s placement and chance for permanency. This would not be in the child’s best interests.
[82] While the potential to undermine exists, at present, the relationship with the mother remains beneficial and meaningful for the child and to allow it to continue is in her best interests. Therefore, some access should be allowed to take place.
[83] The purpose of this access is to maintain a connection with her siblings and her mother.
[84] The child will have access with her siblings and those siblings will have access with their mother. Some access between the child and the mother is appropriate so she can have similar experiences to those of her siblings.
[85] The challenge in making an access order for a child in extended society care is finding the fine balance between what will preserve a relationship in the best interests of the child and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the child in their new adoptive home: see Children’s Aid Society of Ottawa v. J.B., 2017 ONSC 1194 at para 439.
[86] I find that it will be in the child’s best interests that the child, as access holder, shall have two in-person access visits with the mother, as access recipient, each year at times to be facilitated by the Society. These access visits are to be supervised and each shall be for a minimum of two hours in duration.
[87] The child and her siblings, all as access holders, shall have a minimum of four in-person access visits each year facilitated by the Society.
[88] I agree with Society counsel’s submission explaining why the mother is to be an access recipient and not an access holder:
“Due to the mistrust and volatility of the mother towards the Society and towards the foster mother and family, … the mother being an access holder is not in the child’s best interests due to risk of conflict, the risk of harm to the child and due to the risk of delay in permanency should a long drawn out period of litigation result from a disputed openness application.”
Order
[89] For these reasons, the following order shall issue:
The child, A.L.-C., born 2019, is found to remain in need of protection.
The child, A.L.-C., born 2019, shall be placed in extended society care with The Children’s Aid Society of London and Middlesex pursuant to s. 101(1) 3. of the Child, Youth and Family Services Act, 2017.
The child, A.L.-C., born 2019, as access holder, shall have two in-person access visits with the mother, as access recipient, each year at times to be facilitated by the Society. These access visits are to be supervised and each for a minimum of two hours in duration.
The child, A.L.-C., born 2019, and her siblings, P.C. and S.A.C., all as access holders, shall have a minimum of four in-person access visits each year, facilitated by the Society.
“Justice B. Tobin”
Justice B. Tobin
Released: July 4, 2022
Middlesex v. B.C. and A.L., 2022 ONSC 3825
COURT FILE NO.: C536/18-04
DATE: 2022-07-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children's Aid Society of London and Middlesex Applicant
– and –
B.C. and A.L. Respondents
REASONS FOR JUDGMENT
TOBIN, J.
Released: July 4, 2022