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-18-CP121-2
DATE: October 3, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
C.V. and J.H.
Respondents
Lois Boateng Amirikah, for the Applicant
Dominque Smith, for the Respondent C.V.
HEARD: June 21, 2021, June 22, 2021, June 23,2021, June 24,2021, June 25, 2021, June 28, 2021, June 29, 2021, July 2, 2021, September 20, 2021, September 21, 2021, September 22, 2021, September 23, 2021, September 24, 2021, and April 25, 2022, April 26, 2022, April 27, 2022, April 28, 2022, and April 29, 2022.
The Honourable Justice M. Fraser
reasons for judgment
[1] The matter before me is a status review application brought by the Children’s Aid Society of Ottawa (the “Society”). It is the second status review application for this family. The Society seeks a finding that the child K. born September 2017, continues to be a child in need of protection and asks that K. be placed in Extended Society Care. It proposes terms that K. have access to his mother at the discretion of the Society but subject to a minimum of three times per week. In that event, it also asks that K. be identified as the “access holder” and his mother as the “access recipient.”
[2] C.V. is K.’s mother. She was born in March 1994. At the time of trial, K. was her only child. By the conclusion of trial, C.V. was pregnant with her second child. C.V. asks for an order returning K. to her care subject to terms of supervision by the Society.
[3] J.H. is K.’s father. He has never been involved in K.’s care since birth. He was noted in default in these proceedings by Audet J. on September 15, 2020.
[4] K. is not a First Nations, Inuk or Metis child.
Background history of proceedings:
[5] K. was first brought into the Society’s care in October 2018. He was then returned to C.V.’s care by order of Audet J. on June 26, 2019. A final supervision order was granted on July 29, 2019. On that date, K. was found to be a child in need of protection pursuant to section 74(2)(b)(i) of the Child, Youth and Family Services Act (CYFSA).
[6] K. was removed again from C.V.’s care on August 16, 2019. He has remained in the Society’s care ever since. A final order was made in that status review application on October 24, 2019. That order placed K. in Interim Society care for a period of three months with access to C.V. at the Society’s discretion.
[7] The present status review application was commenced on January 2, 2020. At the opening of this trial, K. had been in the Society’s care for 899 days. K. is now four years old, turning five in September 2022.
[8] This trial was held over eighteen days spanning over the course of a year.
[9] While as part of her Plan of Care, C.V. asks that K. be returned to her subject to Society supervision. C.V. alternatively presented her friend M.L. as a possible kinship placement for K. On September 24, 2021, M.L. testified in court that she was prepared to care for K. if he was not returned to C.V. In November 2021, the trial was scheduled to continue. However, the parties adjourned the trial continuation in order to integrate K. into M.L.’s care on a trial basis.
[10] In January 2022, M.L. advised the Society that she was withdrawing her plan to care for K. C.V. and M.L. are no longer on good terms.
[11] C.V. has not put forward an alternative kinship plan.
Issues for Determination:
[12] The issues for determination are as follows:
I. Does K. continue to be a child in need of protection, and if so, does he require a court order for his protection?
II. What final disposition is in K.’s best interests?
a. Is it in K.’s best interests to be placed in the care of his mother pursuant to a supervision order or placed in Extended Society Care?
b. If a Supervision Order is not appropriate for the protection of the child, is there another less intrusive protection order, notably placement with extended family or other members of the child’s community, that can be made to ensure K.’s safety?
III. Has the Society made efforts to assist the child before intervention under section 101 of the CYFSA?
IV. If K. is placed in Extended Society Care, is it in the child’s best interests for an access order to be made between the child and his mother? Furthermore, if access between K. and C.V. would be meaningful and beneficial and if the court deems it relevant, would it impair K.’s future opportunities for adoption?
Analysis:
[13] Prior to addressing these issues, I will review the relevant history and make determinations of fact based on the evidence provided during the status review hearing.
[14] Two previous court decisions in this matter provide a starting point for understanding the current protection worries. On January 15, 2019, Shelston J. released his decision on the temporary care and custody motion brought by the Society. At paragraph 63, Shelston J. indicated that his main concern was C.V.’s use of cocaine and noted that “both the Society and the mother agree that there is a risk to the child if he is returned to his mother because of the evidence of her use of drugs, specifically, cocaine.”
[15] In a subsequent decision dated August 23, 2019, Laliberte J. found that “the risk of emotional and physical harm to the child is rooted in the mother’s significant issues which revolve around substance abuse, mental health and the individuals with whom she associates.” Laliberte J. noted that “such an environment does not promote a safe and healthy environment for any child…the risks to the child goes beyond the consumption of cocaine; it is linked to a high risk environment and individuals.”
[16] C.V. does not dispute that the most significant basis for K. having come into care arose as a result of her use of and addiction to cocaine. C.V. acknowledges that her addiction to cocaine led to her leading an unhealthy lifestyle which resulted in her involvement with high-risk individuals and led to her making choices which were self-destructive and created an unsafe environment for a child.
[17] C.V. is presently 28 years old. She has a grade 9 education.
[18] She is presently employed with “Top to Bottom Cleaning Services.”
[19] C.V. spent most of her childhood in the care of the Society. Her mother suffered from severe alcoholism.
[20] C.V. lived for a period of time with her mother and grandfather. Her mother would often not come home. She reported that her grandfather, who had dementia, sexually assaulted and molested her.
[21] C.V. suffers with Fetal Alcohol Spectrum Disorder. She has a history of self-harming (cutting) and past suicide attempts.
[22] Over the course of approximately seven years, C.V. went from foster home to foster home. Each time she was returned to her mother, and the same difficulties would happen. She saw her mother on a bus several years ago. She had K. with her at the time. C.V. did not speak to her as it was apparent her mother was still “unwell.”
[23] The last time C.V. saw her biological father, he smashed a glass table over her mother’s head.
[24] Eventually, C.V. ended up in the care of J.V. and J.C. She was adopted by them and they were able to offer her a stable home for a time. She remained with them for approximately eight years.
[25] C.V. struggled in school.
[26] At the age of 15, C.V. was placed in a group home. Her adoptive parents were having difficulty managing her behaviours and this became untenable in a home environment in which they also had other adopted children.
[27] C.V. lived in different group homes until she was nineteen years of age. She began experimenting with drugs by the age of seventeen and she used illicit drugs such as ecstasy and mushrooms as a means to “escape.”
[28] By age nineteen, C.V. was using cocaine and became addicted to this substance. She admits to the deleterious effect it had on her relations with friends and family, how it negatively impacted her ability to maintain stable housing and her ability to afford to live, and she acknowledges how very destructive this addiction was. C.V. spoke of this addiction impacting her physical health, her judgment and her memory. She agreed that her addiction could have resulted in her losing her life. She admitted to using cocaine when pregnant.
[29] C.V. would engage in self-harming behaviour. She found that “cutting” felt good as a coping method and it became addictive. She admits she has scars all over her legs, arms, stomach and back. She admits she was self-harming when she was pregnant.
[30] When K. was born in September 2017, C.V. very briefly returned with K. to live with J. V. and J.C.
[31] In October 2017, C.V. moved into St. Mary’s Home with K. St. Mary’s Home provides community support services for young parents. It offered her a structured and supportive living environment. C.V. appeared to find a level of stability while there and she participated in many of the programs St. Mary’s Home offered such as the breast-feeding program. She also accessed counselling from Rideauwood Addiction Services, and she worked on developing healthy coping mechanisms and relapse prevention.
[32] In May 2018, C.V. moved to Emily Murphy Housing. This residence permitted a more independent and less structured living environment. C.V. readily admits to beginning to socialize with individuals who were not stable or healthy influences. From the outset there were allegations being made that she was hosting parties and that there were drugs in her home.
[33] The complaints of C.V.’s use of cocaine, having parties, issues with police attending at her home, and adult conflict in her home continued. As a result, K. was first brought into the Society’s care in October 2018.
[34] By June 2019, C.V. seemed to be working positively with the Society and K. was returned to C.V.’s care on June 26, 2019. There were ongoing concerns with respect to C.V.’s mental health and some concerns about her cutting herself. However, she was in a day program for her addiction.
[35] Sadly, K. was again removed from C.V.’s care and brought again to a place of safety in August 2019. Concerns had principally arisen that C.V. was again using cocaine.
[36] K. has remained in care since August 2019.
[37] C.V.’s cocaine use became frequent and by the summer and fall of 2019, C.V. was using cocaine daily. C.V. was unemployed and she spiralled downward with her addiction and unhealthy lifestyle. She had conflict with other residents in this housing complex and there were complaints against her made by other tenants, primarily related to excessive noise, partying, unruly guests, and for allowing her dog to defecate on her balcony.
[38] By the fall of 2019, C.V. was really struggling as a result of her cocaine addiction. She was regularly engaging in self-harming. She was not cooperative at this time with the Society. She reacted emotionally at meetings with the workers and her mental health seemed to have deteriorated. C.V. tried to commit suicide. She ended up in the Montfort Hospital for two weeks.
[39] By late 2019 and into the beginning of 2020, C.V. stopped attending access visits with K. altogether. She readily testified that K. did not deserve to see her in her condition.
[40] In February 2020, shortly after the commencement of the current Status Review Application C.V. attended the Assessment and Stabilization Unit (Detox Unit) at the Royal Ottawa Hospital (ROH) for treatment. However, she was caught “using” while in “detox” and she testified that the ROH was going to discharge her. In reaction, she engaged in self-harming behaviour. As a result, she was moved to the mood disorders clinic.
[41] C.V. began to be treated by Dr. J.P. Grymala as a result of this admission. His initial diagnosis were: cocaine use disorder, marijuana use disorder, alcohol use disorder, post-traumatic stress disorder and query borderline personality disorder and traits. He prescribed a number of medications for C.V.
[42] C.V. was discharged from hospital on March 4, 2020.
[43] Dr. Grymala has been meeting with C.V. by telephone since her discharge from hospital in March 2020. C.V. has been consistent in making her appointments and taking her medications.
[44] C.V. asserts that she has not used cocaine since March 2020. She has been submitting to drug screens since then and all have been negative for cocaine.
[45] C.V. continues to drink alcohol and she uses marijuana. Her blood work, according to Dr. Grymala, has been consistent with controlled drinking of alcohol and more recently with no consumption of alcohol.
[46] Dr. Grymala testified that he no longer has concerns with respect to C.V.’s alcohol or marijuana use. Dr. Grymala views C.V.’s progress as very positive. He is of the opinion that her prognosis is excellent if she continues to do what she is doing.
[47] Dr. Grymala is attempting to get C.V. admitted to the Concurrent Disorders Program available through the Royal Ottawa Mental Health Clinic. He is of the opinion that this program would offer the best support for C.V. moving forward.
[48] C.V.’s asserts that she has not engaged in further self-harming behaviours since March 2020. There was no evidence led at trial which would suggest this is not the case.
[49] C.V. has also regularly attended counselling through Rideauwood Addiction Services.
[50] C.V. initiated a resumption of her access with K. in March 2020. However, due to Covid-19, C.V.’s access visits did not immediately resume in person but rather by zoom. Nonetheless, C.V. has very apparently exercised what access has been allowed to her, with very few exceptions.
[51] With respect to the three access visits C.V. has with K. weekly, two occur at the Society’s offices and one at St. Mary’s Home. For some of these scheduled visits, C.V. has been permitted to bring K. for community outings ie. the mall or to the park. C.V. has also had several community visits in addition to the regularly scheduled visits. These visits have been partially supervised by a Society worker and have been two to four hours in duration.
[52] The Society does not raise any concerns or issues with C.V.’s ongoing access visits with K. It confirms that their interactions are positive and that K. looks forward to his visits with C.V.
[53] Since March 2020, she has requested that the Society agree to her exercising home visits with K. but this has not been met with approval.
[54] The Society remains concerned with respect to C.V.’s alcohol and marijuana use, her mental health and coping and interpersonal skills, her ability to respect rules and set appropriate boundaries, her choice of friends and partners (and the danger some of the partners pose to her health and the safety of any child exposed to that environment) and her history of making bad decisions.
[55] C.V.’s adoptive parents were initially approved by the Society as kin care providers for K. However, they are unprepared to offer a long-term placement for K. They have been limited in the support they have been prepared to provide C.V. J.C. testified. He does not support K.’s return to C.V. He described C.V. as having “low intellectual functioning” and described his experience with her behaviour starting around the time she entered high school. He has watched her struggle with her cocaine addiction. J.C. has had limited involvement or contact with C.V. since the spring of 2020.
[56] In June 2020, the police were called to C.V.’s residence. C.V. on that occasion had been drinking with H.M. (who she was in a relationship with at the time). There was an altercation between them. H.M. was found “passed out” in a car in the parking lot the next day. Emily Murphy housing issued a “No Trespass” order against H.M. in June 2020.
[57] In September 2020, C.V. and H.M. were reported to have had another verbal altercation outside her unit. It was reported that they both were drinking and that H.M. was drunk and that C.V. threw a cage at his vehicle.
[58] On October 29, 2020, C.V.’s home was flooded. She was upset and advised that she was wanting to kill herself.
[59] On November 9, 2020, C.V. was charged with driving while under the influence of alcohol. She maintains this arose as a result of her ex-partner showing up intoxicated at her apartment and his demanding that she drive him home. She claims that when she initially refused, he got angry and punched her in the back of the head.
[60] Ms. Gardner, the assigned child protection worker with the Society testified that the last time she spoke with C.V. about her Plan of Care for K. was on February 24, 2021. She has made numerous attempts to speak with her about her intentions but she has found it to be very difficult. Her observation is that C.V. is willing to speak about the positive things, ie. her access with K., but when asked to talk about protection concerns, she gets easily upset.
[61] On March 8, 2021, C.V. advised she wished to kill herself after having a disagreeable exchange with individuals over Facebook.
[62] On March 11, 2021, C.V. told Ms. Bergeret, a worker at Emily Murphy Housing, that she was feeling suicidal due to all of the stress in her life.
[63] In March 2021, there was another incident in which an altercation happened in C.V.’s home between two men, one of whom was C.V.’s boyfriend, S.J. C.V. denies it was a physical altercation. Ms. Bergeret believed it was. Whether the altercation turned physical or not is of little import. The bottom line is that there were invitees to C.V.’s home, excessive drinking, and conflict ensued.
[64] In March 2021, C.V. was issued an N5 letter from Emily Murphy Housing due to noise complaints. An N5 letter is the first step in the eviction process at Emily Murphy Housing. When C.V. received the document, she began to yell in the parking lot that she would kill herself.
[65] In April 2021, police attended C.V.’s home as there were allegations that C.V. stole an individual’s cat.
[66] In April 2021, a “No Trespass” order was issued by Emily Murphy Housing against C.V.’s boyfriend, S.J.
[67] In April 2021, C.V. was issued another N5 letter.
[68] In June 2021, C.V. agreed to move from Emily Murphy Housing. She did so voluntarily but it was clear that Emily Murphy Housing would otherwise pursue eviction proceedings. C.V. had had a significant number of complaints compared to other residents at Emily Murphy Housing. While the recent complaints did not suggest she was continuing to use cocaine, they nonetheless involved disruptive behaviour, noise, parties, alcohol use and difficulties with fellow residents.
[69] Also, C.V. was allowing her dogs to urinate and defecate on her unit’s balcony, and this was another basis for requesting that she leave.
[70] In total there had been a minimum of 39 formal complaints made against C.V. while she was resident at Emily Murphy Housing. While C.V. would suggest that other residents were “targeting” her, many of the incidents which gave rise to the complaints were acknowledged by her as having occurred.
[71] C.V. was provided with temporary housing at the Ottawa Inn starting June 30, 2021. She remained there until January 2022. No incidents were reported from her residency at the Ottawa Inn.
[72] C.V. secured independent housing in January 2022. The photos entered into evidence of her present residence would suggest that it provides a clean, safe, appropriately appointed environment.
[73] K. continues to be healthy. However, K. is behind in his language development. The reason for this is unknown although there are concerns he may be on the spectrum. An assessment has been requested for K.
[74] C.V. has remained employed over the past year.
[75] C.V. has continued to access programs at St. Mary’s Home in addition to exercising some access visits with K. there. It has been a supportive, positive environment for her. Unfortunately, C.V. and K. will not be able to access their resources much longer given its age requirements.
[76] The staff at St. Mary’s Home who have watched C.V.’s growth in the past year are very supportive of C.V.’s progress and they are supportive of her being provided the opportunity to parent K. They have observed their positive interactions and the obvious bond between them.
[77] In April 2022, shortly prior to the final week of trial, C.V. acquired a new seven-week-old puppy. She now has two dogs living with her.
[78] At the resumption of the trial in April 2022, the court was also informed that C.V. was pregnant with her second child. She identifies J. H. as the biological father of her unborn baby. He is the same individual who is the father of K.
[79] For this pregnancy, C.V. is working with a public health nurse as part of the Ottawa Public Health’s Healthy Growth and Development program. This is a home visiting program where the nurse discusses with C.V. topics such as child developmental milestones, nutrition and community supports.
I. Does K. continue to be a child in need of protection, and if so, does he require a court order for his protection?
[80] The Society submits that the evidence tendered throughout the proceeding supports the finding that K. continues to be a child in need of protection based on three main areas of concern:
The mother’s ongoing struggles with substance abuse;
The instability of her mental health and residence; and
The mother’s poor choice of partners and friends who engage in conflict in C.V.’s home.
[81] Subsections 74 (2) (a) and (b) of the Child, Youth and Family Services Act (the “Act”) sets out the circumstances in which a child is in need of protection. It reads as follows:
74 (2)(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.
[82] The Society has the onus, on a balance of probabilities, to establish that the child continues to be at risk of harm.
[83] The risk of harm under clause 74 (2) (b) of the CYFSA must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.).
[84] A child can be at risk of harm even if the conduct is not specifically directed at the child. See: Catholic Children’s Aid Society of Metropolitan Toronto v. O(LM), 1995 CanLII 6216 (OCJ), aff’d on appeal 1996 CanLII 7271 (ONSC). A risk of harm can include harm that is caused by neglect or an error in judgement. See: Children’s Aid Society of the Niagara Region v. TP 2003 CanLII 2397 (ON SC), [2003] OJ No 412 (ONSC). A risk of physical harm can be founded upon a parent’s engagement in relationships with “unsavoury individuals” who caused physical harm. See: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6.
[85] In many child protection matters, the risk that is identified at the outset may change as the application progresses. The initial risk may be under control or resolved as the protection application proceeds. The risk may return or different risks appear. Multiple factors may be responsible to the creation of the risk. It all depends on the facts.
[86] There is no dispute that the most concerning risk for K. at the commencement of this application arose as a result of C.V. cocaine addiction. Her addiction to cocaine was significant and destructive and it created an environment and lifestyle which did not promote a safe and healthy environment for any child.
[87] I accept C.V.’s evidence that she has not used cocaine since March 2020.
[88] However, the risks to K. go beyond C.V.’s abuse of cocaine. It is also linked, among other things, to C.V.’s choices. Those choices have resulted in C.V. living in a high-risk environment with individuals who are leading unhealthy, high risk, dysfunctional lifestyles.
[89] The protection issues in this matter also concern C.V.’s mental health, her coping skills, her difficulties with stress management, and her judgment.
[90] While C.V. is taking steps to make the needed changes to address her addiction and mental health issues, her challenges are ongoing and a work in progress.
[91] Despite the positive changes C.V. has made to date, given the nature and severity of her addiction and the ongoing challenges C.V. has with her mental health, coping with stress, making healthy choices, and exercising good judgment generally, I conclude that K. continues to be a child in need of protection.
[92] Further, I am satisfied that an Order pursuant to Sections 101(1) or 102 of the CYFSA is necessary to protect K. in the future.
What is the final disposition that is in K.’s best interests?
[93] Given I have determined that K. continues to be a child in need of protection that requires a court order, I next consider the disposition that is in K.’s best interests.
[94] Where an Application for review of a child’s status is made under section 113 of the CYFSA, the court may, in the child’s best interests (a) vary or terminate the original order (b) order that the order terminate on a specified future date; (c) make a further order or orders under section 101; or (d) make an order under section 102.
[95] Subsection 101 (1) or section 102 of the CYFSA reads as follows:
Order where child in need of protection
101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:
Supervision order
- That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
Interim society care
- That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care
- That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
Consecutive orders of interim society care and supervision
- That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.
102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting 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.
[96] Subsection 101 (2) of the CYFSA also requires that I determine what efforts the society or another agency or person made to assist the children before the Society’s intervention.
[97] Subsection 101 (3) of the CYFSA requires that I look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless those alternatives would be inadequate to protect K.
[98] Paragraph 2 of subsection 1 (2) of the CYFSA also requires me to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help K., provided that it is consistent with the best interests, protection and well-being of K.
[99] Subsection 101 (4) of the CYFSA requires I look at community placements, including family members, before deciding to place a child in care.
[100] In determining the appropriate disposition, I must decide what is in K.’s best interests. This includes a consideration of the criteria set out in subsection 74 (3) of the CYFSA in making this determination. This subsection reads as follows:
Best interests of child
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.
[101] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernible from a parent’s evidence that they face some better prospects than what existed at the time of the society’s removal of the child from their care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H. 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.).
[102] In Children’s Aid Society of Toronto v. S.B., 2014 ONCJ 518 the court discussed the importance of a parent providing a child with a safe, stable and secure home as follows:
The major protection issue is the mother’s ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.
[103] Over the course of this trial, it is clear to me that C.V. has made a real effort to create the stability in her life needed to resume the care of K. She has fought her addiction with cocaine and appears to have made great strides in conquering it. She needs to be commended for this.
[104] I also accept Dr. Grymala’s evidence that he is not concerned with her use of alcohol and marijuana presently.
[105] That stated, it is not an addiction to alcohol or marijuana in and by itself which appears to present ongoing obstacles to C.V. leading a stable and healthy lifestyle. The impact of the substance use must be seen in the context of her personal challenges, her inability to cope with stressors, and some of the judgments she has made as it pertains to who she surrounds herself with and how those interpersonal relationships have inevitably resulted in conflict and unhealthy living environments which would be wholly unsuitable for K. These issues have all combined to negatively affect C.V.’s ability to maintain a stable environment suitable for caring for K.
[106] C.V.’s ongoing use of alcohol and marijuana needs to be viewed in combination with where C.V. is at in her effort to address her addictions, her coping mechanisms, her mental health issues, and her lifestyle choices.
[107] C.V. has made some bad choices and unhealthy coping mechanisms in her young life, chosen to socialize with individuals who were not stable or healthy themselves. This has created a lack of stability in her life and this has resulted in her housing issues.
[108] C.V. submits that she turned her life around in March 2020 and that she has steadily worked to be a better person since that time.
[109] I believe this is true. However, the real question is, is it enough?
[110] At the time of writing this decision, K. will have turned 5 in September 2022. He has been in the care of the Society for most of his life. He remains in foster care with a family who are not proposed as adoptive parents.
[111] I recognize how far C.V. has come in turning around her life. I recognize the huge potential she has demonstrated through her efforts to combat her addiction issues, receive professional assistance for her mental health challenges, and the insight she has shown with respect to her past behaviour and choices. This has taken a great deal of courage and commitment on her part.
[112] The difficulty I am faced with is the fact that this change has been a long time coming. K. was first apprehended in October 2018 shortly after turning one years old. C.V. really only began to turn the corner in March 2020 when she finally began to address her cocaine addiction. Since that time, and over the course of this trial, it is clear she has demonstrated a tremendous growth in her maturity and a commitment to creating a healthier life for herself and hopefully for her children. However, that change is only starting to result in the positive stability needed to provide a healthy environment to raise a child.
[113] C.V. has regularly been present for her access visits with K. consistently for approximately one year. But that is where it is at. These daytime access visits span a few hours and occur in a semi-supervised setting.
[114] C.V. has been unable to propose an alternate kinship placement that might effectively provide her with more time to demonstrate her ability to assume the parenting of K. It is unfortunate but that is the sad reality. No family member or friend has stepped forward to support her. Her adoptive parents have limited contact with her. The one friend who was apparently prepared to offer a kinship placement was tried and that proposed plan broke down in a very short time frame. C.V. and that individual are no longer on good terms. It really does not matter why the placement broke down. The bottom line is that there are sadly no kin offering the court a further option which could effectively provide C.V. the necessary time to demonstrate that she has found the stability and supports necessary to satisfy a court that she is capable of taking on K.’s care on a full-time basis.
[115] It would be irresponsible for me to return K. to C.V.’s care when it has not yet been demonstrated that she could adequately parent K. without supervision for extended periods. This normally would be a lengthy process. Even in the best-case scenario, I could not place K. with C.V. without first testing whether she could adequately parent K., first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This process would need to take place over a period of months for the court to effectively evaluate whether a return of a child was viable.
[116] Aspects of C.V.’s coping skills and approach to stressors are only starting to be addressed by her. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child without supports on an extended basis. The time to attempt extended access in this manner has long passed. The test is not whether a parent loves a child and has good intentions. C.V. would clearly meet those requirements. Indeed, she has made good progress in attempting to address the protection concerns. However, the test is whether as a parent, she is presently in a position to provide the care for K. that is in his best interests.
[117] The prospect that C.V. will have a newborn child in her care (if at the time of the release of this decision she has not already had that child) adds to the potential challenges she proposes to take on. C.V. intends to parent her newborn baby. She has also added a young puppy to her responsibilities as well.
[118] I very much hope that with C.V. accessing the supports she is now connected with, be it Dr. Grymala or the programs at St. Mary’s Home, C.V. will continue to grow and become a positive contributing member of her community. I believe she has recently shown the potential to do so.
[119] However, I do not believe she is at that point where she can assume the parenting of K., particularly in her circumstances. As already stated, the risk concerns that exist do not simply arise as a result of C.V.’s cocaine addiction. C.V. has had difficulty making good, healthy choices. C.V. has had difficulty coping with stress. C.V. has exercised questionable judgment at times and has allowed the wrong individuals into her life. As such, C.V.’s positive parenting skills do not translate into being a parent who can protect K.
[120] The statutory time period to be able to keep K. in care has expired and it is necessary to plan for his long-term future now. I believe that the risks are such that K. could not be adequately protected by a supervision order. The complex challenges which C.V. has had to face will take time to overcome and these parenting inadequacies must be balanced against K.’s right to appropriate development within a realistic time frame. As such I conclude there is no less intrusive option available than an order for Extended Society Care. It is in his best interests to be placed in Extended Society Care so that he can move on with his life.
[121] I am aware that this decision will be difficult for C.V. to accept. This decision has been a difficult one and I recognize that C.V. has worked very hard to be given the opportunity to parent K. who she very clearly loves. C.V. has come a long way and I truly hope that she will continue to work on the challenges she has struggled with as I believe she is capable of leading a productive life which will hopefully include positively contributing toward the life of a child. Unfortunately, this will take time. In the case of K., the need for permanency planning is overdue and his best interests dictate that he be placed in Extended Society Care.
Has the Society made efforts to assist the child before intervention under section 101 of the CYFSA?
[122] I am satisfied, based upon the evidence before me, that the Society made appropriate efforts to assist the child before intervention under section 101 of the CYFSA. The Society’s involvement was initially by way of a Voluntary Service Agreement and there was ongoing contact in an effort to address the protection by way of a safety plan. C.V. was subsequently referred to a number of services in an effort to support C.V. through less intrusive means.
Access
[123] Having concluded that K. should be placed in Extended Society Care, I next consider whether to make an order for access and if so, upon what terms.
[124] Section 104 of the CYFSA sets out the court’s powers in relation to access. It reads as follows:
104 (1) – Access order
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.
[125] Subsection 105 (4) of the CYFSA states that where the court makes an order that a child be in Extended Society Care, any existing order for access is terminated.
[126] Subsection 105 (5) then provides that in considering the issue of access to a child in Extended Society Care, I may not order access to such a child unless I am satisfied that the order would be in the child’s best interests.
[127] Subsection 105 (6) of the CYFSA sets out additional factors to be considered in determining whether an access order would be in the best interests of a child in Extended Society Care. These are:
a) Whether the relationship is beneficial and meaningful to the child, and
b) If relevant, whether the ordered access will impair the child’s future opportunities for adoption.
[128] The Ontario Court of Appeal in Children’s Aid Society of Toronto v. J.G., 2020 ONCA, in dealing with the interpretation of beneficial and meaningful in subsection 105 (6) of the CYFSA. The court set out the following:
a) Pre-CYFSA case law that provided a rigid definition of beneficial and meaningful is no longer applicable. This includes the requirement that access must be “significantly advantageous” for the child.
b) In considering whether a relationship is beneficial and meaningful the court can consider any factor, whether past, present or future. This would include the prospect of an openness order.
c) The child’s best interests clearly are not static. This is confirmed by the wording of s. 74(3) which requires the court to consider: (i) any other circumstance of the case; (ii) the child’s development of a positive relationship; (iii) continuity in the child’s care and the possible effect on the child of disruption of that continuity; (iv) 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.
d) The underlined words all demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future.
e) The “beneficial and meaningful” test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child’s best interests.
f) The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.
g) A child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies.
[129] The court concluded with these comments:
The CYFSA requires a new approach to determining access. I note too that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes.
[130] In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, based on the evidence of the society’s adoption worker, the court found the following to be general benefits for a child to making an access order after an order for extended society care:
a) It is very important for children to know their story, their history and where they come from.
b) Many children will want to search out their birth parents at adolescence if they have no contact. It can help them remove any fantasy about their birth parents and have a more realistic understanding of who they are.
c) It can help build a child’s identity – to know who they are.
d) It can help a child be more secure in where they’ve come from and where they are going. It might provide the child with a greater sense of security moving forward.
e) It helps the child understand their roots, heritage, culture and religion – about foods and events that are important in their culture.
f) It helps the child understand why decisions were made about them and why they live where they live. It can inform them that they were and are loved by the birth parent.
g) It promotes self-esteem and can help meet the emotional needs of the child.
h) It can provide the child with readier access to medical information. This can be very important if genetic concerns develop. This is also important information for the adoptive family to have.
i) It allows the adoptive family to reinforce the child’s ability to understand their story and their history.
[131] The challenge in making an access order for a child in extended society care is in finding the fine balance between what will preserve a relationship in the best interests of the child and, at the same time, in determining 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.
[132] The focus of the inquiry is the nature and quality of the relationship between the child and the parent at the time of trial. See: Catholic Children’s Aid Society of Hamilton v. V.C. et al., 2017 ONSC 5557 (SCJ).
[133] In this instance, the Society has conceded that an access order between C.V. and K. is in K.’s best interests. The relationship between the two is meaningful and beneficial. I agree.
[134] C.V. has been consistent in exercising what access visits were provided for her to have with K. from approximately March 2020 onward. The Society confirms that the access has been positive for K., that they acknowledge that the two have a loving relationship and that K. very much looks forward to his visits with C.V. The access has been positive and C.V. engages with K. in an age appropriate manner. It is clear that K. loves C.V. very much.
[135] The benefits of access to K. include:
a) K. has an established connection with C.V., and this would be permitted to continue.
b) K. has demonstrated that he looks forward to and enjoys his time with C.V.
c) This will ensure that K. not lose his contact with persons with whom he has a meaningful connection. Children of this age do not forget their birth families and often worry about how they are doing. C.V. is part of K.'s identity. Ongoing contact might even be a stabilizing factor for him.
d) Medical information and family history will likely be more readily available if K. maintains contact with C.V.
[136] I conclude that the relationship between C.V. and K. is both beneficial and meaningful to K. and that access between them would be in K.’s best interest.
[137] The Society has not suggested that access with C.V. would impair K.’s future opportunities for adoption and I do not make any finding to that effect.
Access holder clauses:
[138] The distinction between who has been granted an access order (the access holder) and who is the person with respect to whom an access order has been granted (the access recipient) has now become a critical consideration because only the access holder has the right to bring an openness application if served with a Notice of Intent to place a child for adoption. The access recipient only has the right to be given notice of the society’s Notice of Intent to place a child for adoption.
[139] The Society submits that any access order between C.V. and K. provide that C.V. is the access recipient while K. is the access holder.
[140] I agree that it would be appropriate to allow K. the right to be an access holder, when it is clear through his actions that K. has expressed a desire to maintain contact with C.V. This is a recognition of the importance of K.’s feelings and views.
[141] What this also effectively means is that the Office of the Children’s Lawyer (“OCL”) would receive the Notice of Intent to place for adoption, would represent K. in any openness application brought by another party and could bring any openness application it found to be in K.’s best interests.
[142] In considering whether C.V. ought to be made an access holder, I am aware that in making her an access holder, this could arguably diminish, reduce, jeopardize or interfere with K.’s opportunity for adoption. The primary concern in such instances is that continued litigation will jeopardize the adoption placement.
[143] In Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489 (Ont. C.J.), the court discussed factors to be considered in determining whether a parent should be an access holder:
The court’s preference is always, where it is in the child’s best interests to make the parents access holders. This gives them a say in the contact they will have with the child post-adoption and they don’t have to rely on the society or the Office of the Children’s Lawyer (if the child is made the access holder) to request the contact.
[144] I conclude that C.V. should be given the opportunity to bring an openness application. The OCL has not been involved in this trial and will not have had the benefit of seeing C.V.’s growth or hearing the perspective of the many individuals who support C.V.’s efforts to date.
[145] In my opinion both C.V. and K. should be access holders and access recipients.
Conclusion
[146] For all of the reasons set out above, final orders shall go on the following terms:
a) K. shall be placed in Extended Society Care pursuant to section 101(1) of the CYFSA;
b) C.V. shall have access with K. at the discretion of the Society in terms of location, level of supervision, frequency, and duration, but subject to a minimum of three (3) times per week. If C.V. misses three (3) or more visits within a two-week period, C.V.’s visits shall be suspended until she meets with the worker, and they agree upon a gradual resumption of access; and
c) Both C.V. and K. shall be access holders and access recipients.
[147] I wish to thank counsel for their excellent and sensitive presentation of this case.
Justice M. Fraser
Released: October 3, 2022
COURT FILE NO.: FC-18-CP121-2
DATE: October 3, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of Ottawa
V.
C.V. and J.H.
REASONS FOR JUDGMENT
Justice M. Fraser
Released: October 3, 2022