) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) J. Squire, for the applicant society ) — v. —, 2011 ONCJ 712

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply with subsection 45(8), read as follows: 45.—

(8) 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. . . . 85.—

(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. Sault Ste. Marie Registry No. 11/2001 DATE: 2011·VIII·22 CITATION: Children’s Aid Society of Algoma v. L.P. , 2011 ONCJ 712 ONTARIO COURT OF JUSTICE IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c. C. 11 AND IN THE MATTER OF S. I. and C. I., children apparently in need of protection.

BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) J. Squire, for the applicant society ) — AND — ) ) L.P., R.I. and GARDEN RIVER FIRST NATION ) ) ) ) No one, for L.P. E. McCooeye, for the respondent father, R.I. L. Povey, for the band representative ) ) ) ) HEARD: 29-30 October 2009; 2-6 November 2009; 22-25 November 2010; 14 December 2010 & on written submissions [ 1 ] JUSTICE J. KUKURIN:— The main issue in this case is whether children can be returned to the care and custody of a drug dependent parent. background – the children [ 2 ] The two children in this case are S., age 13, and his sister, C., age 12.

The society’s involvement in this family goes back to 1999. The first protection order was made over ten years ago, in March 2001. At that time, a finding was made that the children were in need of protection. They were returned to their mother subject to a society supervision order. Since then, there has always been some kind of protection order in effect. [ 3 ] The care and custody of these two children has been anything but continuous in the past decade. A brief review discloses the following history: Pre-March 2001 - in care of mother March 2001 - apprehension, and placed into care of society;

May 2002 - finding in need of protection, placed with mother with six month supervision order; September 2003 - apprehension from mother, placed in care of society; December 2003 - interim care and custody to the father; January 2004 - apprehension from father, placed into care of society; February 2005 - interim care and custody to the mother; April 2005 - care and custody to the mother subject to 12 month supervision order; July 2005 - apprehension from mother, placed into care of society; July 2005 - interim care and custody to father; December 2005 - care and custody to father subject to seven months supervision order; July 2006 - care and custody to father subject to six months supervision order; November 2006 - apprehension from father, placed in care of society where children remain to date. [ 4 ] The children have now been in the same foster home since December 2006, a period of over four and a half years.

This was a therapeutic foster home placement believed, at the time, to be needed to address the multiple behavioural problems of both children. This placement has been nothing short of successful. It has provided stability, security and nurturance. The children have essentially become an integral part of the foster family, with mutual bonding. The conduct of the children has stabilized. There are no plans for adoption of these children. However, the foster parents are fully committed to caring for them for as long as needed, even to adulthood. background – the mother [ 5 ] It is the mother, Ms.

L.P., through whom these children acquire their Indian status. The mother had counsel in this case. She has filed an Answer. However, she has dropped out of sight insofar as participation in this case is concerned. Her counsel sought an order to be removed as her counsel of record, more than once. Ultimately, such order was made [1] , although not without some difficulty and significant delay to the holding of a hearing. The mother had attended, promising to be a responsible litigant, and then simply disappeared. She is still in the community.

It is an easy inference that although she loves these children, she acknowledges that she cannot be a custodial parental caregiver for them. [ 6 ] It is possible to embark on a narrative of why placement with their mother is not possible for these children. However, that is not necessary. Bluntness is sometimes desirable even though it may be unpleasant. The mother is a drug addict. She is an attractive prostitute whose career earnings, supplemented by social assistance, permit her to maintain her supply of drugs.

She has tried, in the past, to rid herself of this addiction, and to her credit, was successful for a time. In fact, she was entrusted with the care and custody of these children, albeit with a society supervision order in place. It was short lived. The children were taken away. She moved on to another relationship and had two more children. They became entangled in the child protection system as well and are not in her care and custody. The mother is a chronic and long-time drug user well established in the local drug subculture.

Short of a miraculous about-face in her lifestyle, her future is inevitable, and a tragic waste of a life. [ 7 ] Notwithstanding all of her deficiencies, the mother loves these children and they reciprocate. At their respective ages, they must surely realize that living with their mother is no more than a pipe dream at this point. However they want to see her and to spend time with her because she is their mother. That has happened in the context of supervised access. The impetus for the continuation of these maternal access visits is in the hands of the mother.

She has to take the initiative to request contact with her children and to be responsible and faithful in attending visits that are arranged. background – the father [ 8 ] The father, Mr. R.I., is non-native. He has fathered five children. He had two children with his first partner, Jennifer. He has little or no contact with either of them. He and Leanne, his second partner, are the parents of S. and C.. Following their separation in approximately 2000, Mr. R. I. entered into a third significant relationship. He had a fifth child, A., with his new partner R.. That relationship ended after four years.

A. lives with her mother. Mr. R. I. does have a relationship with A. as an access parent. [ 9 ] Mr. R.I. has had subsequent relationships but none that led to the birth of more children. He entered into a relationship with P., a woman he had known for many years, and they cohabited for just under a year. His most recent partner is a woman named R. who, by the end of the hearing of evidence in this case, was still living with him. [ 10 ] Mr. R.I.’s parents separated when he was a child. He lived with each of them, at times, until, at age 15, he began to live on his own. His mother is now deceased.

His father resides in the Iron Bridge area, one to two hours distance by car. Mr. R.I. has two biological siblings, his sisters B. and K., with whom he maintains regular contact and with whom he has fairly close relationships. [ 11 ] Mr. R.I.’s formal education stopped a few credits short of high school graduation. He worked, primarily in labour jobs, from his late teens. He suffered a workplace injury to his lower back when relatively young. He continued working, although irregularly,

for a number of years thereafter. By age 27, he was in receipt of WSIB and disability pension benefits. [2] He continues to have physical limitations related to his lower back injury. More significantly, he claims to experience chronic pain which he attributes to his injury. [ 12 ] It is the father’s drug use that presents the major issue in this case. From a historical point of view, the father admitted to using drugs starting at age 11. During his adolescent years, he was a regular and heavy user of marijuana. Based on the evidence, and on his own admissions, the father, Mr.

R.I., has continued to consume marijuana to date. He is now almost 43 years old. [ 13 ] Mr. R.I. was age 28 when he met Ms. L.P.. She was age 18. She became pregnant and they moved in together. This pregnancy ended in a stillbirth. Mr. R.I. reported that his first use of cocaine was following this event. Based on simple arithmetic, this would have been in about the year 1997. [ 14 ] Mr. R.I.’s use of drugs escalated during his four to five year relationship with Ms. L.P.. In addition to regular use of marijuana, they engaged in the use of cocaine and crack cocaine. Mr. R.

I. described his next partner, R., as a heavy drug user as well. He continued his illegal drug use while in a relationship with her. He also used alcohol, cocaine and marijuana during his subsequent relationship with Patricia. While little is known about R., in terms of the evidence of this case, Mr. R.I. admits to continued use of various drugs, including cocaine, to the present. [ 15 ] Mr. R.I.’s drug use is somewhat difficult to pinpoint for several reasons. In addition to use of clearly illegal drugs, such as marijuana, cocaine and crack cocaine, Mr.

R.I. has also used drugs such as percocets (oxycodone) and Tylenol 3. Some of these may have been legitimately prescribed for him for pain management purposes. Some of these clearly have not, as he admits to purchasing these off the street. In this sense, they also are “illegal” drugs. [ 16 ] Mr. R.I.’s background has other components. From a mental health point of view, he has had some significant traumatic events in his life. [3] He readily admits to suffering from anxiety and depression for which he has, in the past, been prescribed medication.

He has also reported daily struggles with pain induced negative mood swings. [ 17 ] Much of Mr. R.I.’s emotional variability is understandably related to relationship issues. His relationships with women have all been failures, punctuated by arguments, physical aggression, conflicts and, at times, violence. Almost all of his partners have been drug users or drug addicted. None of his relationships have lasted more than five or six years, and those have not been happy years. Most of his partners have had their own baggage to bear. On any objective basis, his relationships have been dysfunctional.

That has not improved over time. As late as 2010, he engaged in partner assault. In September 2010, he became violent while intoxicated. He was charged with break and entry, resisting arrest and mischief, and spent a period of time behind bars. [ 18 ] While a great deal of the father’s history is rather pessimistic, there are some favourable aspects that ought to be neither overlooked nor minimized. By far the most relevant, from a child protection perspective, is his record of providing adequate parenting for his children. The children were in father’s sole care and custody on two occasions.

The first time was in December 2003, but only for a short time as they were apprehended in January 2004. [4] The second period was much longer and more significant. They were in his care and custody from July 2005 until November 2006, a continuous period of 16 months. The children were between six and eight years of age during this time. While the evidence is not crystal clear, it is a fair inference that the father was parenting the children adequately. Throughout this time, there was a society supervision order in place.

The society was attuned to the types of protection concerns that might exist or emerge during the father’s care and custody. It continued to be a presence in his family throughout. It did not take any steps to apprehend the children or remove them from the father’s care.

In fact, when the initial seven month supervision order made in December 2005 was due to expire, the society’s status review application claim was for a continuation of placement with the father and for an extension of the supervision order. [ 19 ] The father’s most recent circumstances are not significantly different than they have been for some time. He maintains an apartment. He is in a cohabitation relationship with a woman (R.).

He has regular day access visits with S. and C. each Saturday, alternate Sundays, and one evening mid week, all at or from his residence. [5] He is unemployed and is in receipt of disability pension benefits, likely long term, if not permanent. He continues to consume illegal drugs, namely marijuana and cocaine, but maintains that he does not do so during access visits, and that he is not under the influence of these substances during access. He continues to work with Dr. Shamess, his physician, to address pain management issues as he maintains he suffers from chronic pain.

His plan is to have the children returned to his care and custody and to raise them to adulthood. [6] background – garden river first nation [ 20 ] The Garden River Band representative is a statutory party in this case because of the native status of the mother Ms. L.P.. The children are well aware of their maternal connection with their band. There is evidence that they have engaged to some degree in native cultural activities and events. [ 21 ] The children have been with the Morris foster family since December 2006, well over four years. This is not a First Nations family.

The Garden River Band representative concedes that it has investigated placements within the band and extended First Nation communities for these children, without success. While the band prefers, in general terms, that children be raised by their parents, it recognizes that some parents cannot adequately parent their children. It would be a fair inference that it has come to this realization with respect to the mother.

From the submissions of the band representative, it appears that the band prefers, perhaps with some reluctance, that the children remain in their present foster home rather than be returned to their father. Their father is also non-native. [ 22 ] In terms of statutory direction in section 57(5) CFSA [7] , the lack of viable alternative placement within extended family, Indian band or other native family is a substantial reason to place the children elsewhere. The band acknowledges that the children’s foster parents are sensitive to, and accepting of, the native cultural heritage of these children.

It is pleased that the family has taken steps to encourage the children to participate in cultural activities and to develop and cherish their native heritage. [ 23 ] The father, Mr. R.I., claims a sensitivity to the native connections of the children through their mother. He maintains that he

respected these when he and the mother Ms. L.P. were in a relationship, and that he continues to do so. What concrete steps he may have taken to promote or enhance the children’s connection to their native culture and heritage during the 16 months that they were in his sole care and custody is not well developed in the evidence. Understandably, he would have only a reduced role in this regard as an access parent over the past four and one-half years. the law [ 24 ] From a statutory point of view, the present status review application was brought pursuant to section 64(2)(

a) CFSA . [8] The options available to the court on such applications are four-fold and are set out in

section 65. [9] Regardless of which option the court selects, whatever order is made is required to be made “in the child’s best interests”. [ 25 ] Best interests of a child is not a subjective test in child protection determinations. This is not an arbitrary benchmark dependent on the outlook of the judicial decision maker and his or her peculiar biases or predispositions.

The CFSA , in fact, provides a list of circumstances that, to the extent that they are present in a particular case, require the decision maker to take into consideration in making orders or determinations in the best interests of a child. [ 26 ] These circumstances are set out in section 37(3) CFSA . [10] In addition, when the child in question is an Indian or native person, there are considerations relating to Indian and native culture, heritage and traditions that are mandatory. [11] [ 27 ] There is no hierarchy of importance of the section 37(3) considerations listed in the CFSA .

That does not necessarily mean that they rank equally in importance. One factor may, in some cases, outweigh the aggregate effect of several others. [ 28 ] Bests interests determinations are not simply arithmetic addition of pros and cons weighed against each other. They are considerably more sophisticated. Because these are made in the context of a court case, statutorily mandated circumstances on which such determinations are based must be tied to the admissible evidence in the case. They must have an evidentiary foundation. [ 29 ] The best interests analysis does not take place in isolation.

It is an exercise that is mandated by the Child and Family Services Act , the statute that governs (in

Part III thereof), all child protection proceedings. It is important to keep in mind the context in which this statute plays a role in our society. [ 30 ] In our society, the right of parents to raise their own children is well recognized and respected by our laws. But that is a right that the state can infringe upon in certain circumstances. That state interference is subject to judicial oversight.

The CFSA , the statute that authorizes such state intrusion into families contains checks and balances in the form of procedures, limitations (temporal and otherwise), burdens of proof and judicial authorizations in the form of court orders. [ 31 ] Limited state intervention is authorized on the basis of, for want of a better word, a situation of some urgency. Apprehension of children is typical of such intervention. Even these require some judicial approval in the form of warrants of apprehension, although there are exceptional circumstances where these are not required.

Beyond this, a society must obtain a judicial temporary care and custody order, and do so within five days, failing which it must return the child. [ 32 ] At some point, the society must obtain a judicial finding that a child is in need of protection. This is not an arbitrary or subjective decision. There are statutory grounds upon which such a finding may be made, and these are very circumscribed. If the society cannot obtain this finding, the child must be returned. [ 33 ] Where such a finding is made, some kind of protection order generally follows. [12] These range in degree of intrusiveness.

A child may be returned to his or her caregiver, almost always with a supervision order in place, and with conditions. Alternatively, the child can be placed with another person. More intrusive are the orders whereby a child remains in the care of the society in a foster home setting, either on a temporary basis as a society ward, or on a longer term basis as a Crown ward. [ 34 ] Where, as in this case, the children are placed with the parents subject to a supervision order and conditions, such placements have limited durations, not exceeding 12 months.

Prior to the expiry of the supervision order, the society is required to commence a status review case so that a judicial review of the child’s status can take place. However, the society can start this status review earlier in the society’s supervision. It may do so leaving the child where he or she is placed. Or it can apprehend the child. [ 35 ] In the present case, the society has done the latter.

It removed S. and C. from the care and custody of their father in November 2006, less than four months from the date of the most recent supervision order placing them in his care. [ 36 ] It is evident from the foregoing that the statutory onus almost invariably falls on the society to justify, with evidence, whatever it does or wishes to do that represents an interference with the normal life of a family [ 37 ] In the case of these two children, the society’s intervention by court order started over ten years ago in March 2001.

At that time, they were found to be in need of protection and returned to their mother with a society supervision order. Since then, there has always been some kind of protection order in effect. The children were apprehended from their mother, placed with their father, apprehended from him, returned temporarily to their mother, with intervals in between these placements spent in foster homes. From July 2005, the children remained in the father’s care until apprehended from him in November 2006.

But for a brief placement in 2003, this 16 months represents the longest period of time that he was their sole caregiver and custodian. [ 38 ] The findings in need of protection back in 2001 meet the statutory threshold for the making of a child protection order, even now, ten years later, and notwithstanding that the factual basis for a finding back then may have had more to do with the mother’s parenting deficiencies than with the father’s. This is one of the oddities of the statute. However, that is the present statutory scheme.

At this point, it is not necessary that another formal “finding in need of protection be made. The main issue on a status review is whether the evidence supports an order that changes the child’s status under the existing order. And that determination, as mentioned, has to take into

consideration the “best interests of the child”. [ 39 ] This is a relatively lengthy

preamble to arrive at what the legal context in this case is today. The order, made in this case in July 2005 placing the children with their father under a supervision order for 12 months was necessarily one that was made in the best interests of the children. The subsequent order on July 19, 2006 continuing placement with him subject to a six month supervision order is also one that was, at the time it was made, in the best interests of the children. [ 40 ] It is hardly surprising that where a society wishes to disturb such orders, the onus falls on the society.

That onus is to persuade this court not only that the existing order should be changed, but also what replacement order is to be made in the best interests of the children. [ 41 ] This is not a process that can be completed overnight. It has taken over four years, for a variety of reasons, details of which are not necessary to include at this point. Until that final decision is made, there are provisions in the statute for interim care and custody. [13] [ 42 ] There is a deemed desirability, despite the apprehension of a child, that the child remain with the person who had care and custody.

If there is to be a change, the court must first be satisfied that the best interests of the child requires a change. The onus is again on the society to justify the change sought and the criterion that applies is the best interests of the child. best interests considerations – section 37(3) [ 43 ] Clause 11 of section 37(3) CFSA provides one of the circumstances that is front and centre in this case. The wording of this clause is important.

It is worthwhile to set out this clause in full. “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 parent.” [ 44 ] What should be the most immediate thought to any reader of this clause is that it is concerned with risk of harm to a child. Risk necessarily applies to the future. It involves an assessment of the happening of a future event.

In this case, the event is “harm” of some kind befalling the child. [ 45 ] The second most immediate mental response to this clause should be to ask, rhetorically, perhaps, “What kind of harm?” The kind of harm in any particular case is dependent on the facts of that case. In this case, the most obvious is the kind of harm that might be occasioned to a child being cared for by a parent who uses drugs. [ 46 ] However, that is not what clause 11 is limited to. It also refers to the kind of harm that might result to the child if not returned to the care of his or her parent.

The risk of this kind of harm is no less important a consideration. [ 47 ] Placement, or return in this case, of a child to the care and custody of a drug using parent is unquestionably the main issue in this case. The society apprehended S. and C. because their father tested positive for illegal drugs. The society’s evidence in support of its claim is preoccupied with the father’s drug use.

The father himself states in his evidence: “Essentially then, this case comes down to an issue of whether I can have children in my care if I have occasional use of illicit drugs.” [14] His argument in this case contends that the court ought not conclude: “... that one cannot place children with the user of cocaine ...” [15] [ 48 ] The father’s drug use raising so prominent an issue, it is vital for the court to examine the evidence and to make some judicial findings with respect to this drug use. [ 49 ] The father admits to drug use, referring to himself in argument, as a “recreational user of cocaine”.

He claims that his use of illegal drugs does not impair his ability to parent. In fact, he asserts that he has never used drugs while the children have been in his care. They do not even know of his use of illegal drugs and he intends to shelter them from this knowledge whether they are returned to him or not. If he intends to engage in drug use, his plan is to arrange alternate childcare by his sisters, or father, or by babysitters. [ 50 ] If the father’s intention is to portray his use of illegal drugs as innocuous, he is less than persuasive.

The evidence as it relates to his drug use discloses that it is neither simply recreational, nor occasional, and not experimental. [ 51 ] Firstly, cocaine is not the only illicit drug that the father is currently using. He also uses marijuana. He also uses percocets (oxycodone) which he buys on the street. Cocaine and oxycodone are addictive. [ 52 ] Secondly, by his own admission, he uses these drugs to self-medicate because of the chronic pain that he claims to suffer.

Although he is a regular pain management patient, his physician no longer prescribes oxycodone for him, believing that the father had abused this (narcotic) prescription when he did prescribe it for him. His current pain management medication is a non-narcotic called Rivelia. Unfortunately, this drug is not covered by the father’s drug plan which is provided as a health plan benefit through his ODSP eligibility. Accordingly, the father is reliant upon his own financial resources, or on free samples given to his physician by drug sales persons and passed on to the father gratis .

The free samples are hit and miss, and not a steady or reliable source of this medication. The father cannot really afford to pay for Rivelia out of his own pocket as his sole income (from ODSP) is only $1,040 per month. [16] [ 53 ] The end result of these circumstances is that the father buys not Rivelia at the pharmacy but rather marijuana, cocaine and oxycodone on the streets. [17] This is his current response to his need for pain relief when he runs out of Rivelia. He has been doing this

for some time. His own physician has testified to positive drug tests for these substances from at least December 2008, when he first prescribed Rivelia. The father’s pain is constant and chronic. It is not going away. His income is fixed and has been since 1993, when he first received ODSP. My inference is that the father’s pattern of drug use will simply continue. This is not, in my view, either recreational, or occasional illegal drug use. It is a deliberate self-medication decision. [ 54 ] Thirdly, the father’s drug use is a long standing one.

He disclosed to the parenting capacity assessor that he first used marijuana at age 11. This was over 30 years ago. He admitted his usage of marijuana was heavy and constant through his adolescent years. He continued using marijuana throughout his various relationships and is still a regular user today. He claimed he started using cocaine at age 36, denying that he started using it as early as age 30. I conclude that he is lying or mistaken. He first started using, by his own admission, just after the death of his stillborn child. This child died no later than August 1997. S. was born in May 1998.

The father was born in June 1968. In 1997, he was 29 years of age. The evidence supports a finding that he continued using cocaine, including crack cocaine, and marijuana during his relationship with the mother Ms. L.P.. That lasted until approximately 2000 or 2001. He tested positive for illegal drugs in late 2003/early 2004 when the children were removed from his care and custody. He still uses these drugs today. [ 55 ] Fourthly, his use of drugs (and/or alcohol) is not without adverse consequences. The father claims that his life is “quiet and settled”. This may occasionally be true, but not always so.

As late as October 2009, he was so intoxicated on one occasion that he engaged in outrageous behaviour that led to charges and criminal convictions. In early 2010, he was involved in a domestic incident with his partner Patricia, which led to domestic charges and his detention in custody. While he was not convicted, this was because, at trial, Patricia was a no-show as a witness, not because he had not engaged in domestic assault offences.

In fact, this history of very poor, sometimes criminal behaviour, stretches back even before the birth of S. and C. and is almost invariably associated with his use of intoxicants. [ 56 ] Fifthly, the father has not done anything that has resulted in eliminating his substance abuse problem. Perhaps the major reason is that he refuses to admit that there is a problem. Virtually everyone who has had any significant contact with him shares the opinion that he has a significant drug and alcohol problem. The mother Ms. L.P. does. His former partner Patricia told the police that he was addicted to cocaine.

His former partner R.I. will not let him visit A. unsupervised. He has a record of arrests and convictions under the Controlled Drugs and Substances Act . He buys street drugs on a regular basis. His own doctor believes him to have a substance abuse disorder. Dr. Blackwell, the parenting capacity assessor, not only believes that has a significant drug problem, but also that he will not change. The society has been telling him for over ten years that his problem is drugs. This is not to say that the father has done nothing about it.

He did engage in a drug/alcohol assessment, but did so in relation to his pharmacological pain management issues, not with respect to a drug dependency or drug addiction issue. He did attend a residential treatment program, but did not complete it successfully. Clearly, when discharged from this program, there was no plan for relapse prevention, and whatever temporary gains he may have made within the program were quickly lost. He had earlier entered the methadone treatment clinic program. The raison d’être for this program is to help patients overcome their drug addictions.

It is particularly effective in treatment of cocaine addiction. The father never was successful in this program. The evidence shows that he continued to use both marijuana and cocaine during the time that he was in the program. Ultimately, he stopped attending. In

summary, he may have had moments when he acknowledged his problem. However, any steps to address the problem have never been successful. He presents, at this time in his life, as a confirmed drug user unwilling, and in my view, unable to stop. [ 57 ] Sixthly, the father cannot plead ignorance of the judicial concern that relates to his use of illegal drugs. That has been expressed continuously since 2001 in formal judicial Reasons released in connection with various hearings in this court.

The following is a sampling. [ 58 ] Friday, April 27, 2001 “On the evidence, this child [S.] has been subjected to violence, to adults, including his parents, in the state of intoxication or under the influence of alcohol or drugs. He is lagging developmentally and the father has failed, despite many opportunities, to get him the services needed to deal with his condition. The father has demonstrated limited insight, an aversion to working cooperatively with community agencies, and chronic inability to avoid unhealthy encounters with the mother.

On top of all this are now uncontradicted allegations that he is a cocaine user and a trafficker in drugs.” [ 59 ] December 18, 2003 “Mr. R.I. did not volunteer that he had used cocaine. He explained that he used cocaine only once, experimentally, after a random test report was positive for cocaine on October 24, 2003. He said that he realized he had made a “mistake” and would never touch it again. He claimed an intention to abstain completely from all alcohol and drugs ( page 523 of the Continuing Record, paragraph3).

However, his subsequent random test results showed: October 27 - positive for cocaine November 7 - negative for drug use November 13 - positive for cocaine November 17 - negative for drug use November 26 - positive for cocaine December 1 - positive for cocaine This is not an isolated “ won’t-happen-again” involvement with drugs. It is very serious when one considers the history of these children. Mr. R.I. knew even before 2001 that substance abuse was a major concern in this case.” [ 60 ] August 23, 2005

“The father’s history of problems with drugs, and perhaps to a lesser documented extent, with alcohol, is lengthy. This is not something that has developed recently and it is not a trivial problem. The fact that he is in a methadone program confirms not only that he is an addict, but also that his addiction is a serious one. He admitted that his drug of choice, when using, was cocaine. In short, with the children in his care, the main protection concern is his involvement with drugs and alcohol.

In abbreviated form, the evidence discloses: - the father has a long history of substance abuse going back at least six years; - the father had previously confirmed, in a prior affidavit sworn November 12, 2003, his resolve to abstain from both drugs and alcohol.

He has tested positive for both since then, and he admits to using cocaine and marijuana since then; - the children were previously apprehended from the father’s care in January 2004 when he was using marijuana and cocaine; - the father has previously told the society that he had stopped using and this has turned out to be untrue; - the most recent use of cocaine showed up in a drug test in March 2005, only five months ago and while he was in his methadone treatment program; - the father admitted on July 6, 2005, only one and a half months ago, that he had recently consumed marijuana, again while in the methadone treatment program.” [ 61 ] January 22, 2007 “The father does not now deny that he has used drugs, although his initial reaction to the society’s investigation was a denial.

He claims, however, that the children were not present when he consumed drugs as he had arranged for them to be babysat elsewhere. Moreover, he argues that drug use by a parent does not, in itself, cause harm to a child…. However, for this father, the lengthy and chronic history of his problems with drugs puts him into a category of individuals whose lives demand abstinence if they wish to be caregivers for children. In short, Mr. R.I. is likely a drug addict who has relapsed after a lengthy period of abstinence and he continues to consume…… Mr.

R.I. was entrusted with care and control of these children but subject to several conditions, one of the most important of which was to abstain from non-prescribed drugs. The court has to be able to trust those to whom it gives care and custody of children. In this case, that trust has been eroded significantly by the father’s relapse and his continued use….. The main issue is the relapse of drug use, especially cocaine, by a father who has a long history of drug use and problems associated with drugs.” [ 62 ] August 14, 2007 “The father, Mr.

R.I., had care and custody of the two children… subject to a number of terms and conditions. One of these required Mr. R.I. to abstain absolutely from using non-prescription drugs. Another required him to participate in random drug testing. Following the apprehension in early November 2006, the father continued to use both marijuana and cocaine. This is evident from the random drug test results that are in evidence. Thereafter, he refused to call in pursuant to the random drug test protocol that has been in place. He gives no explanation in his evidence why he discontinued.

He was and is well aware that random drug testing was a condition of his having had care and control as well as of his having access. The court now has even greater concern about the father’s drug use, and he is the reason why reliable evidence of his usage or abstinence is not available to this court today. This is in addition to his blatant breach of a court imposed condition…. But there is more that is concerning. The father’s attendance at CADAP was not to provide the court with any comfort about whether or not he was continuing to use non-prescribed drugs.

He also entered the methadone treatment program, the purpose of which program is to wean addicts off drug dependencies. But the evidence suggests that the father did not complete the program successfully and is no longer a participant. Historically, he attended a residential substance abuse program which he also failed to complete.

The logical inference is that he is drug addicted, that he has not successfully completed any treatment for this problem, and that he deliberately refuses to participate in testing which he was and is under court order to undergo, and which would likely give the most reliable indication as to whether he is still using drugs.” [ 63 ] In

summary, the father’s use of alcohol and non-prescribed drugs is a circumstance that creates a risk of harm should these children be placed in his care and custody. He is, in my view, a drug addict , who refuses to admit to his addiction, who hides behind a chronic pain syndrome as his justification for his continued drug use, and has no real or realistic intention of overcoming this addiction and ending his drug use. [ 64 ] How about the other side of the paragraph 11 consideration?

What is the risk of harm in not returning to this parent two children, both of whom express a strong desire to return to live with him. [ 65 ] From an evidentiary point of view, this risk of harm is rather minimal. Historically speaking, these children have been in the same foster home and foster family now for over four and one-half years. This is the longest period in their lives that they have remained continuously in the same home.

The prospects are very good that they will remain there until adulthood. [ 66 ] It was this foster home that successfully addressed what their OCL counsel referred to as their “multiple problems of a behavioural nature”, not the least of which was C.’s habit of pulling hair out of her scalp. [18] [ 67 ] The portrait of the place of these two children within their foster family is a positive one. This placement is not a mere warehousing of two children pending some awaited disposition.

On the contrary, the evidence shows that S. and C. have become well integrated not only with their foster parents, but have also formed meaningful and mutual bonds with the other family members of their foster parents, both immediate and extended. In short, as their OCL counsel put it, they have “become part of their family”. [ 68 ] The court cannot, and should not, minimize the importance of the emotional ties of these two children with their father and with their mother. Their continued residence within their foster family does not foreclose the continuation of the relationship with their biological parents.

They continue to see their father regularly and relatively frequently, and they do so in the environment of his home.

Their visits with him include overnight stays. His paternal relationship with them continues to be fostered, as do their emotional ties to him. While this takes place in the context of access visits, it nevertheless takes place. Their relationships continue albeit not in the family structure that both father and the children clearly prefer. [ 69 ] As for the maternal-filial relationship, it is available, but dependent on the extent to which the mother wishes to engage from time to time.

This relationship is clearly and necessarily an access relationship, and would be so whether S. and C. continue to live with their foster parents, or returned to live with their father. [ 70 ] Paragraph 11 of section 37(3) CFSA is a circumstance that requires the court to consider the risk that a child may suffer harm if kept away from a parent. It is risk of harm that is fundamental to this consideration. What harm is identified as a consequence of not returning to live with their father? The only harm seems to be emotional in nature, and frankly, it is somewhat speculative.

The father does not adduce any evidence from which I can infer that any harm, emotional or otherwise, will result if the children are not returned to his care. Over the four and one-half years that they have not been in his care, one would think evidence of some harm would have surfaced. [ 71 ] Accordingly, I cannot conclude, from a risk of harm analysis, that there is any significant harm likely to result for these children if they are kept away from [19] their mother or their father.

It would be somewhat novel to infer that children are put at risk of harm simply when their wishes are not acceded to. [ 72 ] While paragraph 11 of section 37(3) is perhaps the most prominent of the best interest considerations in this case, it is only one of a dozen that are specifically described. There are potentially many more. [20] [ 73 ] From my consideration of all of these circumstances, both individually and globally, it is impossible to come to the decision that the children should be returned to the care of their father.

Their physical, mental and emotional needs are being met where they are now, and have been for over four years. Remaining there represents, in this case, continuity of care which is most desirable having regard to the bouncing back and forth between caregivers that has characterized the majority of the infancy of these children. They have developed emotional ties to their foster family members that have been, and continue to be beneficial and to supplement their ongoing emotional ties to their biological parents.

There is evidence of the affinity of the children for a religious faith which is better cultivated from within their foster care placement than it ever was when in the care of their father or their mother. [ 74 ] From a cultural point of view, the most significant consideration is that these are Indian children. Neither the foster parents nor the father are Indian or native. Both claim a willingness to involve the children in their native culture. The evidence supports an inference that the foster parents have done so in practical terms more than the father ever did.

Perhaps the most significant factor in this case is the band representative’s preference for the children to remain in their present foster home rather than to be returned to their father’s care. [ 75 ] From a balancing of the merits of the plans of the father and of the society for these children, that of the father is clearly inferior. In almost all respects, the status quo comes out as the better plan. The father’s plan is not well presented in the evidence. Essentially, he simply wants the children back in his care and their lives will continue on as they had before the children were removed from him.

He is naive to believe that this is a viable plan. Firstly, he is cohabiting with yet another female partner who absents herself when the children are on an access visit with him. This could not continue if the children were to be returned to him. Either she would have to go, or she would be co-parenting the children with him. It is simply not feasible for her to remain as a live-in partner without some change in her role in this family. Which will it be? The father does not say what his plan is with respect to this partner and her interaction with the children. [ 76 ] The father has a defined and modest income.

While he would likely benefit financially from having these children in his care, [21] this would be more than offset by the expenses generated by having to provide full time for two teenage children. Factoring in the money he spends for drugs, either legal or illegal, an expense that is highly unlikely to ever disappear, the father lives at a subsistence level.

For the children, who are in foster care, with the financial support of the society, as well as that of a well established foster family, it would mean a substantial reduction in their lifestyle to return to their father’s care. [ 77 ] Practical considerations aside, the father’s plan has to be assessed in light of his history, both before and after the children were born. What that history shows is that he is actually a poor candidate for parenting.

This rating is a reflection of his: - chronic drug addiction; - chronic and debilitating back pain; - very poor choices in partners, [22] all involved in drug use; - succession of partners, all with dysfunctional relationships; - involvement in criminal conduct with incarcerations; - engaging in domestic violence; - extremely poor follow through with rehabilitation; - lack of insight into his problems; and - absolutely nothing on his horizon from which a prognosis of positive change can realistically be inferred. [ 78 ] To return to what I posed as the main issue in this case, the answer is an unqualified “no”.

These children cannot be returned to this drug dependent father. There may be drug dependent parents who can parent their children adequately. This father is not

one of them. [ 79 ] In Children’s Aid Society of Toronto v T.R. [23] , Spence J. declined to take judicial notice that parentally admitted heavy marijuana use, per se , impairs a person’s ability to care “ I am unable to accept the society's submission that the father's admitted regular drug use is, by itself, an impediment to the father's ability to care for his children adequately. Notwithstanding the father's acknowledgment that he is a regular, even a heavy user of marijuana, there is little or no evidence that the father's use of marijuana has impaired his ability.

However, in the present case, there is evidence that the father’s drug use has adversely affected his parenting ability. There is more than ample evidence from which a judicial inference can be made that this father’s drug use will continue to impair his ability to effectively parent these children. Moreover, I am prepared to take judicial notice that both cocaine and oxycontin (oxycodone) are very addictive narcotics, much more so than marijuana. [ 80 ] The decision of what happens to these children is not tied only to the drug usage of their father. This is unquestionably a major factor.

It is not the only factor. It must be considered together with all of the circumstances statutorily mandated to be considered when making decisions in the “best interests” of a child. [ 81 ] Having regard to all of the circumstances, these children cannot now, and will likely never be able to return to the care and custody of either parent. They cannot, because of the temporal limitations in this statute, be made temporary wards of the society.

There will be an order that both S. and C. shall be wards of the Crown, and placed in the care and custody of the applicant society. [ 82 ] With respect to parental access, the society is not averse to an order for access to both the mother and the father, with terms similar to those in the existing interim order.

There is a prohibition in section 59(2.1) CFSA [24] that prevents the court from making an order for access with respect to a Crown ward unless the court is satisfied of three prerequisites. [ 83 ] In this case, and for the reasons set out previously, I am satisfied that the relationship between the children and each of their parents is both beneficial and meaningful. It nourishes the sense of family that these children obviously value.

In the case of their mother, it also helps them to realize their cultural identity. [ 84 ] Parental access does not, in my view, impair the opportunity of either child for adoption. Adoption is not in the cards for these children, and is not part of the plan of the society for them. At their ages, their consent is required for their adoption. Considering the evidence, it is extremely unlikely that their consents will be forthcoming. The plan is for long term foster care by their present foster family. This ensures continuity of care. It also allows for parental access to continue as it has for years.

Prohibiting access makes little sense for these children. Accordingly, there will be an order for parental access to both mother and father. Released: 22 August 2011 ________________________ Justice John Kukurin (

a) a member of the child’s extended family; (

b) a member of the child’s band or native community; or (

c) another Indian or native family. (

a) may apply to the court at any time for a review of the child’s status; (

a) vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order; (

b) order that the original order terminate on a specified future date; (

c) make a further order or orders under

section 57; or (

d) make an order under

section 57.1. 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. 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. 7.

The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8. 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. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. 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. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13. Any other relevant circumstance. (

a) the relationship between the person and the child is beneficial and meaningful to the child; and (

b) the ordered access will not impair the child’s future opportunities for adoption.