Children’s Aid Society of Haldimand and Norfolk v. J.A.M.-F., 2011 ONCJ 53

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 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85. —

(3) Idem. — 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. Brantford Registry No. C54/04 DATE: 2011·II·02 CITATION: Children’s Aid Society of Haldimand and Norfolk v. J.A.M.-F. , 2011 ONCJ 53 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF HALDIMAND AND NORFOLK, Applicant, — AND — JENNIFER ANN M.-F. and ROBERT F., Respondents.

Before Justice Lawrence P. Thibideau Heard on 16 December 2010 Reasons for Judgment released on 2 February 2011

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 1(1), subsection 1(2), paragraph 1(2)¶1, subsection 37(1),subsection 37(2), clause 37(2)(b), clause 37(2)(g), subsection 37(3), paragraph 37(3)¶1, paragraph 37(3)¶2, paragraph 37(3)¶5,paragraph 37(3)¶6,

section 57, subsection 57(3),

section 58, subsection 58(7),

section 59, subsection 59(2.1),

section 63.1,

section 64,section 65,

section 65.1, subsection 65.1(4), subsection 65.1(5), subsection 65.1(6), subsection 65.1(9),

section 65.2 and subsection65.2(5). CASES CITED C. v. Children’s Aid Society of Ottawa-Carleton, , 9 R.F.L. (5th) 269, [2000] O.J. No. 2063, 2000 Cars​well​Ont 1976(Ont. Fam. Ct.). Catholic Children’s Aid Society of Metropolitan Toronto v. F. (Beverley Anne), , [1988] O.J. No. 2950, 1988 Cars​well​-Ont 2213 (Ont. Prov. Ct., Fam. Div.). Children’s Aid Society of Nipissing and Parry Sound v. P. (Sandra), 2009 ONCJ 219, [2009] O.J. No. 2074, 2009 Cars​well​Ont 2815(Ont. C.J.). Children’s Aid Society of Toronto v. C. (Michelle) and H. (Kenneth), , 126 A.C.W.S. (3d) 275, [2004] W.D.F.L. 87,[2003] O.J.

No. 4017, 2003 Cars​well​Ont 3944 (Ont. C.J.). Dilico Anishinabek Family Care v. T. (Marsha), C. (Alister) and M’Chigeeng First Nation, 2010 ONCJ 105, [2010] 2 C.N.L.R. 136,[2010] O.J. No. 1186, 2010 Cars​well​Ont 1737 (Ont. C.J.). Durham Children’s Aid Society v. S.(J-A.), , [2009] O.J. No. 5901, 2009 Cars​well​Ont 8777 (Ont. Fam. Ct.). G.(D.L.) v. Family and Children’s Services of Kings County (1994), (NS FC), 136 N.S.R. (2d) 131, 388 A.P.R. 131,[1994] N.S.J. No. 657, 1994 Cars​well​NS 588 (N.S. Fam. Ct.). M.(L.) and M.(B.) v.

Children’s Aid Society of Cape Breton, 1999 NSCA 101 , , 177 N.S.R. (2d) 25, 542A.P.R. 25, 176 D.L.R. (4th) 158, 50 R.F.L. (4th) 43, [1999] N.S.J. No. 236, 1999 Cars​well​NS 210 (N.S.C.A.). R. (Sean) v. Catholic Children’s Aid Society of Toronto, 2011 ONCJ 11 (Ont. C.J.). AUTHORS AND WORKS CITED Black’s Law Dictionary, 7th ed., (St. Paul, Minn.: West Group, 1999), sub verbis “prima facie” and “prima facie case”. The Canadian Oxford Dictionary, 2nd ed. (Toronto: Oxford University Press, 2004), sub verbis “prima facie”. Maureen E.

Bulbrook ..................................................................... counsel for the applicant society John K. Venn .................................................... counsel for the respondent mother and step-father No appearance by or on behalf of respondent natural father (deceased) [1] JUSTICE L.P. THIBIDEAU:— A variety of matters are before the court for consideration. The primary document isan application for status review of a Crown-wardship order brought by the biological mother, respondent, with respect to two childrenwho were made Crown-wards without access on 21 September 2006.

The children are not adopted. The respondent mother seeks anorder of access to the children. [2] The society brought a motion for dismissal on two grounds. First, that leave was not sought by mother, which wasabandoned at hearing. Second, dismissal of “the application for leave” to bring a status review application. [3] Belatedly, the moving party mother did bring a motion for leave which was heard and reserved. It is this issue that isnow considered. 1: BACKGROUND [4] The two children were apprehended on 10 March 2004 when the elder was almost two years old and the younger was12 weeks old.

Immediately upon apprehension, the children were placed with foster parents with whom they have now lived for over sixyears. It is conceded that the children will likely not be adopted but they will continue in the long-term placement care of the existingfoster parents. [5] It is not disputed that the children regard the foster parents as their only family and that they are extremely “high-needs”children requiring significant financial resources that are currently being supplied by the society while the children are in foster care.

Noadoptive parent has been found who can cope with the financial requirements for the needs of these children. [6] The eldest child suffers from the following:

1. Hyperactivity disorder 2. Obsessive behaviour regarding food 3. Impulsivity 4. Lack of remorse 5. Aggressive behaviour 6. Lack of understanding of personal safety 7. Sub-age appropriate social skills 8. Significant learning difficulties and delays with low intellectual function 9. Impaired memory [ 7 ] The actual diagnoses for this child are as follows: 1. Obsessive compulsive disorder 2. Attention deficit hyperactivity disorder 3. Mild developmental delay 4. Foetal-alcohol spectrum disorder complete with non-progressive brain dysfunction [ 8 ] The youngest child has the following issues: 1. Impulsivity 2.

Defiance 3. Anxiety 4. Hyperactivity 5. Sub-age appropriate social skills 6. Extremely highly change intolerance [ 9 ] His diagnoses are as follows: 1. Foetal-alcohol neuro-behavioural disorder, a milder form of foetal-alcohol spectrum disorder 2. Anxiety disorder 3. Attention deficit hyperactivity disorder 4. Obsessive compulsive disorder 5. Learning deficits 6.

Chronic speech stutter [ 10 ] Both children have been engaged with the appropriate medical and other professionals over a period of years and both take appropriate prescription medication. [ 11 ] It has been documented in the material before the court that both children, but particularly the younger child, are extremely change-affected. Any type of change, however small or innocuous, frequently results in the following observed behaviour: 1. General increase in difficult behaviour 2. Increase in anxiety 3. Increased compulsive behaviour 4. Increased hyperactivity 5.

The youngest child prone to behaviour crisis exemplified by inconsolable crying and clothing chewing. [ 12 ] The professional consensus is that both children require an extremely structured environment with steadfast routine and predictability. It is noted that even very small changes, especially for the youngest child, can result in difficulties. For instance, a supply teacher at school instead of usual teacher, a day off from normal school, attending a store in the community where there is excessive stimulation.

Seasonal change disorder is also noted. [ 13 ] At the time of apprehension, the mother had cared for the oldest child for a period of five months and for the youngest child not at all. The time period leading up to the final order made was characterized by significant non-involvement by mother on access and a continuation of core difficulties, particularly intensive drug-use-related parental deficiencies. [ 14 ] It is conceded by the society that the mother’s position that she has rehabilitated herself appears to be accurate.

As put in argument, the mother has sorted herself out, has a new step-child in a new relationship and the mother has made her current circumstances readily available for inspection by the society. By letter dated 6 July 2010 from a society worker to the respondent mother, she was commended for demonstrating her personal strengths and ability to change from a past lifestyle and to become a responsible member of the community. There were no verified risks with respect to her current parenting of her step-child.

In one paragraph, the society indicates that it has no verified risk for the mother to care unsupervised for the child; in the next paragraph, it indicates the continuing direction from the society that she not care for a child under the age of 16 years unsupervised without a further thorough risk assessment. In any event, the file opened at the instigation of the mother was closed with that letter. [ 15 ] By a further letter of 21 October 2010, the society made it clear that no fault was found with the mother’s current situation; however, “permission” for care of other children, as a baby-sitter, was not given.

The more pressing issue of the mother’s request to have contact with her biological children, the subject of the Crown-wardship without access order, was denied, simply on the basis that the order exists.

In its formal response to the mother, the society did not directly address her request that the order be changed. [ 16 ] The result is that it is uncontested that the mother has made an apparent recovery from her dependence upon illegal drugs, evidenced by her stable relationship of two years, her stable employment of three years and a negative drug test dated 13 October 2010. [ 17 ] The mother approached the society for consent to have contact with the children initially because the foster parents had

placed information regarding the children on the internet through Facebook.

The mother states, and it is not contradicted, that she chosenot to approach the foster parents directly, but rather to go first through the society and now through the court. [18] The society points out that the two children involved regard their foster parents as their emotional parents and they haveno knowledge of the biological parents at this time. 2: THE ISSUE [19] The issue before the court is whether or not the respondent mother should be granted leave pursuant to subsection 65.1(5)of the Child and Family Services Act, R.S.O. 1990, c.

C-11, as amended, to seek substantive relief, access, pursuant to subsection 65.1(4)of the Act. It is not disputed that the person bringing the application is a parent and that, for at least two years prior to the bringing of theapplication, the two children have been cared for by the same foster parent. It is also agreed the children have not been placed foradoption.

It is not clear whether the society has fulfilled the requirements of subsection 65.1(6) of the Act in giving notice to therequired persons under that subsection — in this case, the foster parents. [20] Documentation from the responding society and the moving party respondent mother with respect to this issue waswanting. Eventually by a motion returnable on the day of hearing, the mother made it clear upon what statutory authority she wasrelying.

None of the argument presented to the court provided any case law assistance. [21] A review of subsections 65.1(4) and 65.1(5) of the Act make it clear that the legislation intends that there be court reviewof any application by a parent of a child the subject of a Crown-wardship order in a circumstance where the child has a stableenvironment in a foster home, represented by continuous care for at least two years immediately preceding the application, absent anadoption placement. See subsection 65.1(9). [22] The granting of leave is not a mere formality. It is a matter of substance. See L.M. and B.M. v.

Children’s Aid Society ofCape Breton, 1999 NSCA 101 , , 177 N.S.R. (2d) 25, 542 A.P.R. 25, 176 D.L.R. (4th) 158, 50 R.F.L. (4th)43, [1999] N.S.J. No. 236, 1999 Cars​well​NS 210 (N.S.C.A.), at paragraph [68]. [23] Any judicial determination with respect to granting leave to permit a parent-originated status review must be done in thecontext of the philosophy and goals and requirements of the Act, including those in subsection 1(1), subsection 1(2), subsection 37(2),subsection 37(3),

section 57, especially subsection 57(3),

section 58, especially subsection 58(7),

section 59, especially subsection59(2.1) and

section 63.1, as well as the specific powers of review encompassed by sections 64, 65, 65.1 and 65.2 of the Act. [24] The paramount or overriding purpose of the Act is to promote the best interests, protection and well-being of children. The best interests are defined in subsection 37(3) where a non-exhaustive list is set out.

In this case, with these facts, the predominantconsiderations are: • Paragraph 37(3)¶1: “The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet thoseneeds.” Identified here are the children’s mental and emotional needs with physical needs attributable to self-harm or harmof others risks arising from the mental and emotional state of the children along with the continuation of verypurposeful and intensive care and treatment programs to address those needs. The mental and emotional needs of these two children are amply demonstrated by the society material.

Those needsare enumerated and specific. The origin of those needs are on the balance of probabilities related to pre-apprehension circumstances of care and personal make-up, including externally induced negative physical conditionsrelated to pre-natal alcohol abuse, and not factors after the apprehension.

The professionals involved are unanimouswith respect to the identification of issues, their probable origin and the plans going forward to minimize futurenegative consequences arising from those issues. • Paragraph 37(3)¶2: “The children’s physical, mental and emotional level of development.” The numerous comments by a number of appropriate professionals have made it clear that both of these children aresub-age appropriate and problematic, particularly with respect to mental and emotional development issues. • Paragraph 37(3)¶5: “The importance for the children’s development of a positive relationship with a parent and a secureplace as a member of a family.” This paragraph in the context of

section 37 itself, including subsection 37(1) — definition of “parent” — cannot beused by the society or the foster parents to advance the children-and-foster-family relationship directly. Thejuxtaposition of the defined word “parent” with the undefined word “family” in this paragraph does not lend itself tothe

interpretation that the word “family” can mean the foster family. Neither does paragraph 1(2)¶1, which in thepurpose and scheme of the Act, clearly refers to parents of first instance before apprehension with the result that thewords “autonomy and integrity of the family unit” must relate to that kind of parent. It is too far a stretch to equate abiological family unit or a family unit prior to intervention with a foster family after intervention that is mandated tocare for a child solely through a society, which alone has authority over the foster family. A foster parent isexpressly not a “parent” for purposes of

Part III (Child Protection) of the Act based upon the definition of “parent”contained in subsection 37(1) therein. This position is not in accord with that of Provincial Judge Douglas A. Bean in the pre-eminent case with respect toleave as set out in Catholic Children’s Aid Society of Metropolitan Toronto v. Beverley Anne F., ,[1988] O.J. No. 2950, 1988 Cars​well​Ont 2213 (Ont. Prov. Ct., Fam. Div.), at paragraph [35]. It is in keeping withthe thinking of Justice Louisette Duchesneau-McLachlan in Children’s Aid Society of Nipissing and Parry Sound v.Sandra P., 2009 ONCJ 219, [2009] O.J.

No. 2074, 2009 Cars​well​Ont 2815 (Ont. C.J.). at paragraph [8], where it isat least implicit that integrity of the family relates to the pre-apprehension family.

However, the definition collaterally emphasizes the need for consistency and permanency as a specific goal for the proper care of children, in general, by including in the definition of parent a right of a child, not the parent, to have a caregiver who has demonstrated a minimum 12-month involvement with concomitant settled intention, to be the physical and emotional caregiver for the children. Here paragraph 37(3)¶5 reinforces the importance attached to continuity of proper and appropriate care in providing for the well-being of children.

The general proposition for all children that they have a positive relationship with a parent or parental figure and a secure place in a stable family environment is particularly important for these two children.

Their circumstances are such that a pivotal aspect of future successful treatment leading to progress and opportunities for a normal healthy life is an uninterrupted and unchallenged participation in a secure routine in a stable family group aided by appropriate professionals for years to come. • Paragraph 37(3)¶6: “The children’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.” Here the emotional ties are not to a biological parent, as contemplated by paragraph 37(3)¶6 of the Act but to the emotional parents, the foster parents, caregivers for all of the memory lives of these two children.

Now and for some time, the foster family will be the pivot point for the children’s community interaction. The treatment plan will be delivered primarily through the foster family. This is acknowledged by the foster family itself, and the society personnel, all of whom have accepted that these children, because of their needs and the cost of addressing those needs, cannot be formally adopted. However, they are to remain in a home situation emotionally similar to adoption. [ 25 ] Continuity of the plan of care is a given.

What requires examination is whether or not the relief requested will, on the balance of probabilities, for whatever reason, founded on the facts, unduly disrupt that continuity of the plan — the determination at trial. At this stage, the issue is whether or not mother’s request for access should go formally to a trial with leave of the court. [ 26 ] In general, the Act requires that whatever intervention by the society occurs, sanctioned by the court, that intervention should be done in the least intrusive and least disruptive way possible. This is mandated for final orders of first instance.

This ensures that the ties between a parent and child and the integrity of the family are preserved, unless it is harmful or risks harm to do so and that separation of a child from a parent and family is required for the child’s needs and proper care. The rebuttable presumption against access with respect to a Crown-ward contained in subsection 59(2.1) continues to be consideration on this hearing. [ 27 ] On a status review where children are Crown-wards, as here, the court shall make orders as specified in

section 65.2 based upon the children’s “best interests” considerations.

With respect to access at the status review hearing, the same considerations apply as if the matter is dealt with when a Crown-wardship order is being made at first instance — subsections 65.2(5) and 59(2.1). [ 28 ] Whether or not leave is granted to move forward with a hearing on the merits with respect to a varied order for access to a parent where none existed previously requires the court to determine the level of proof required to make out the case and then to apply that standard to the facts at hand within the context of the mandated considerations.

A review of the case law with respect to this issue is helpful here. [ 29 ] There is already a judicial finding that these children are in need of protection, a fact that is not challenged in this proceeding. In the reasons for judgment for the order of 21 September 2006, Justice W. Brian Stead found the children in need of protection pursuant to clauses 37(2)(

b) and (

g) of the Act, based on a number of factors including parenting adversely affected by ongoing issues, anger management issues, assaultive and threatening behaviour issues, and sporadic contact with the children after apprehension, overlaid by lack of co-operation with the society personnel and resistance to service provision in general. The mother’s personal stability in several aspects was found to be a concern.

All of this was evidenced over a period of time from at least 13 February 2003 when a prior finding of a child in need of protection was made regarding the elder child, the only child of mother at that time. Thus, the finding of risk of physical and emotional harm. The multiple issues and diagnoses for each child came into being after the order of Justice Stead, as the children became old enough to be assessed by the various professionals. [ 30 ] Catholic Children’s Aid Society of Metropolitan Toronto v.

Beverley Anne F. , supra , is the case to which all subsequent judgments on the subject in Ontario refer and all judges defer, with qualification. In that case, five principles were set out. They have become the standard to determine the issue of whether leave should be granted pursuant to what is now subsection 65.1(5) of the Act for review of Crown-wardship orders by a parent as defined in

section 37 of the Act. [ 31 ] The first four principles are focused on substantive issues, the applicant and the facts presented to the court by the parties: • Principle 1:— bona fides of the applicant, which addresses the applicant’s personal intent and motivation. • Principle 2:— confining the application to the relief sought and not a re-opening of the whole order to be re-examined, if possible.

For example, the issue of Crown-wardship itself is not required to be examined where the request for relief is access. • Principle 3:— consideration of factual circumstance and what actual circumstances will justify the order on the merits. • Principle 4:— a focus on the purposes of the Act and whether the application facilitates those purposes in a timely way. [ 32 ] The principle most discussed and most examined in subsequent cases is the fifth — the applicant must establish a prima facie case, however that is defined.

Principle five goes to the degree of proof required to make out a case with respect to the first four criteria. It makes more sense to define the degree of proof required and then apply that standard of proof to the remaining principles enumerated.

In this way, there is a focused consideration of degree of proof for all four substantive principles helping to ensure a proper consideration of all four separately and in turn. [ 33 ] That issue of standard of proof is the subject of considerable judicial thought and comment in relation to a determination of whether or not leave should be granted for status review applications by a parent with respect to Crown wards. [ 34 ] The words prima facie have been a particular difficulty in many of the cases considering a standard of proof required for these now classic principles.

[35] The Canadian Oxford Dictionary, 2nd edition (Toronto: Oxford University Press, 2004), defines “prima facie” as — “atfirst sight from a first impression . . . based on the first impression”. [36] Black’s Law Dictionary, 7th ed., (St. Paul, Minn.: West Group, 1999), defines “prima facie” as — “sufficient to establisha fact or raise a presumption unless disproved or rebutted”.

It also defines a “prima facie case” as — “the establishment of a legallyrequired rebuttable presumption or a party’s production of enough evidence to allow the trier of fact to infer the fact at issue and rule inthe party’s favour”. [37] Provincial judge Bean was clear in his opinion that the court, in determining whether or not a prima facie case waspresent, which was required, must “be satisfied on all of those principles on a balance of probabilities.” See Catholic Children’s AidSociety of Metropolitan Toronto v. Beverley Anne F., supra, at paragraphs [15], [16], [42] and [46]. [38] In C. v.

Children’s Aid Society of Ottawa-Carleton, , 9 R.F.L. (5th) 269, [2000] O.J. No. 2063, 2000Cars​well​Ont 1976 (Ont. Fam. Ct.), Justice Jennifer A. Blishen rejected the applicant’s argument that the threshold test to make out thecase was simply to present some evidence supportive of the applicant’s position on the status review. In deciding the issue, referencewas made to the fact that the applicant had not established a prima facie case. However, it was also clear that the evidence presentedresulted in a case, at its highest, where chances of success on the status review were minimal.

That explanation appears to indicate that,on the facts of the case, even a standard for proof less than on the balance of probabilities would not have been of any help to theapplicant. [39] In Children’s Aid Society of Toronto v. Michelle C. and Kenneth H., , 126 A.C.W.S. (3d) 275, [2004]W.D.F.L. 87, [2003] O.J. No. 4017, 2003 Cars​well​Ont 3944 (Ont. C.J.), Justice Robert J. Spence acknowledged the five principles asbeing generally accepted and followed by the courts over the years. He endorsed the five principles.

However, in defining what heconsidered to be prima facie evidence, he stated that, for the applicant to succeed, she must present persuasive evidence. On the facts ofthat case, he found that her evidence fell short of being persuasive to the extent that chances of success on a status review would beminimal, at best. (See paragraphs [10] and [15] of the judgment.) Similarly in Sean R. v. Catholic Children’s Aid Society of Toronto,2011 ONCJ 11 (Ont. C.J.), Justice Spence accepted the prima facie test as part of the review process.

However, on the facts, he decidedthat the father’s application had no merit and was a product of wishful thinking. The facts did not require a focus on the standard ofproof required since the evidentiary effect was minimal. [40] In Children’s Aid Society of Nipissing and Parry Sound v. Sandra P., supra, the prima facie requirement for standard ofproof was adopted without further comment. [41] However, in Durham Children’s Aid Society v. J-A.S., , [2009] O.J. No. 5901, 2009 Cars​well​Ont 8777(Ont. Fam. Ct.), Justice D.

Roger Timms had difficulty with the prima facie evidence or prima facie proof or prima facie case criteria. Ifthose words were equivalent to the standard civil onus of proof on the balance of probabilities, he had no difficulty. If, on the otherhand, some higher onus was suggested by those words, he could not accept that

interpretation of the required standard of proof. Whiletaking exception to the use of the words prima facie to describe the evidence, the proof or the case, Justice Timms was content with astandard of proof that equated to the “standard balance of probabilities” test. [42] In Dilico Anishinabek Family Care v. Marsha T., Alister C. and M’Chigeeng First Nation, 2010 ONCJ 105, [2010] 2C.N.L.R. 136, [2010] O.J. No. 1186, 2010 Cars​well​Ont 1737 (Ont. C.J.), Justice Marc L. Bode refused leave where the applicant hadfailed “to satisfy the court” on the five criteria or principles.

By implication, it would appear that he accepted the classic principles intheir entirety including the requirement that there be a prima facie case equating to proof on the balance of probabilities as originally setout in the case of Catholic Children’s Aid Society of Metropolitan Toronto v. Beverley Anne F., supra. [43] What are the considerations in determining the standard of proof? [44] The standard of proof must not be determined in a vacuum. Context is all important.

Here, the context is generally this— what is required is a standard of proof that is compatible with, and not contradictory to, the purposes and principles of the Act.

Particularly, to promote the best interests, protection and well-being of children, and secondarily to help support the family unit and tointervene, if required, in the least intrusive way to attain the primary purpose, keeping in mind continuity and stability, child uniquenessand early intervention where possible. [45] These principles support the argument for a relatively high standard of proof for requests for change in circumstanceswhere subsection 65.1(5) applies here.

It is not all status reviews that require leave, only those defined by this subsection of the Actwhere the request to change is not made by the society caregiver and the plan is demonstrated as fixed and as longstanding and stable. [46] It is logical to conclude that the test for leave in these circumstances has to be substantial. If not, the plan and itsimplementation are jeopardized. In all other circumstances, where the criteria of subsection 65.1(5) are not present, there is a directroute to a status review on the merits, whatever party seeks the review.

In those other circumstances, the standard of proof relates onlyto the hearing on the merits at trial. [47] The proper test is one that recognizes the intent of the legislation and at the same time does not require the parent to makeout the case twice, once at the leave hearing and again on the status review hearing, if successful on the leave hearing. The proper testallows meaningful and meritorious applications to move forward and prevents those that unnecessarily put at risk the in-place plan frommoving forward. [48] The test must be persuasive — see paragraph [15] of Children’s Aid Society of Toronto v.

Michelle C. and Kenneth H.,supra, per Justice Spence. [49] In Nova Scotia where the child care legislation is similar to, but not identical with the legislation in Ontario, leave isrequired for a parental application to change an existing order for permanent care and custody (Crown-wardship) in certain specificcircumstances. Again, the focus is on permanency of planning. There, the courts appear to take the middle ground approach. In L.M.

and B.M. v. Children’s Aid Society of Cape Breton, supra, Appeal Justice Edward J. Flinn, speaking on behalf of the court, endorsed thecomments of Family Court Judge Robert Levy in D.L.G. v. Family and Children’s Services of Kings County (1994), (NS FC), 136 N.S.R. (2d) 131, 388 A.P.R. 131, [1994] N.S.J. No. 657, 1994 Cars​well​NS 588 (N.S. Fam.

Ct.), at page 134 [N.S.R.]: . . . the applicant for leave must, in my opinion, present ostensibly credible and weighty evidence thatthose deficiencies in the parent or her circumstances that led to the care and custody order being grantedhave improved, or are being convincingly and meaningfully addressed with a realistic expectation ofsuccess in the reasonably foreseeable future. [50] The applicant for leave does not have to prove that the children should be returned forthwith.

What must be established,however, is that there is sufficient evidence to support holding a hearing and having any agency plans put on hold; some reasonableprospect of success.

The parent’s rights and her evidence are to be weighed against whatever negative consequences there might be fromholding a hearing and a decision, as with all decisions under the Act, is to be in the best interests of the children. [51] At the other end of the scale, keeping in mind the purposes and philosophy of the Act, the minimalist approach of a testanalogous to the test for committal in criminal proceedings by way of preliminary hearing is not appropriate.

Merely to allow anyevidence to be used by a reasonable trier of fact, properly applying the law, to move the matter on for trial at a status review hearingwould risk introducing unnecessary elements of uncertainty with respect to a child’s legal status and personal circumstance, physicallyand emotionally, that are unacceptable. Similarly by requiring the opposing society to meet a

summary judgment motion evidentiary test— is it inevitable the applicant parent will fail, or is it a foregone conclusion — weighs too heavily in favour of the parent and discountsthe interests of the children. [52] The whole philosophy of the Act founded on protection from harm by way of providing a specific enduring stable careenvironment for children harmed, or at risk of harm, would be compromised by adversely affecting caregivers and plans of care, if notthe children themselves, before final disposition if the minimalist view is accepted.

Once leave is given, the doors open for temporaryrelief orders, possible intrusive assessments and examinations after the main issue has already been decided by a Crown wardship order.

This has particular consequences in this case where the children have had the same legal and personal status for all of their memory livesand are entirely dependent on stability and predictability to deal with and make progress with respect to multiple diagnosed illnesses andassessed issues. [53] In short, the consideration of the children’s circumstances take precedence over the wishes or needs of a parent orprevious caregiver when a conflict arises, however good faith they may be. Clearly, the leave test cannot equate to the trial test of proofof facts on the balance of probabilities.

If this were so, the test would be onerous for the applicant and the trial function would beusurped by the leave determination itself. It is not logical or appropriate that this onerous test be applied. The leave hearing is agateway to the trial hearing, not a substitute for it. Otherwise, fuller evidence from all parties would be missing and the benefit ofevidence tested by cross-examination would not usually be present.

The practical effect would be that issues would be finally decided,whether or not leave was granted and the only reason for the substantive hearing will be a consideration of further and other evidence notpresented at the leave hearing. At best, a truncated process, and at worst, redundant. [54] The middle approach maintains the intent of the Act. On the one hand, applications that have limited merit, or next tonone, do not move forward.

On the other hand, the parent with changed circumstance, keeping in mind all the circumstances of the case,does not have the onerous burden of proving the case twice on the basis of the civil standard — balance of probabilities. [55] It is noteworthy that allowing an application with significant merit to move forward is in keeping with the basic principlesof the Act.

It may well be that the new evidence offered would be compatible with the primary principle and the secondary principles ofthe Act, warranting reintegration of the child with the biological parent in some cases. [56] The test, when considering the other four principles for consideration of whether or not leave will be granted, is this —Has the moving parent placed before the court, with the request for leave, apparently credible and weighty evidence that is sufficient towarrant holding a hearing on the merits? Is the evidence sufficient to demonstrate there is reasonable prospect of success?

However,this test would apply to all of the evidence and of the circumstances of the parent and the children before the court at the time leave isrequested to be given. Once again, context is everything. It is not sufficient that the context be restricted to the facts and circumstancesrelated only to the parent. It is required that the evidence take into account the facts and circumstances of the parent and the childrenwho are the subject of the application. It is this additional component, focused on the children themselves, that appears to be lacking inmany of the cases when dealing with the issue.

Perhaps it was assumed that those considerations are present because of the nature of thestatus of the children at the time of the application or there was simply no evidence in that regard put before the court. 3: PRINCIPLES 3.1: Principle 1:— The Judge Must Be Satisfied That the Status ReviewApplication for Which Leave Is Sought Is Being Brought Bona Fide [57] The application must be made in good faith and not for some ulterior motive. In this case, it is not disputed that theapplication is made in good faith.

As in most of the cases cited, the applicant mother has placed sufficient evidence before the court todemonstrate that her own personal circumstances have changed for the better, that the application is not made as merely a means toprevent the society from proceeding with a permanent plan of care for the children and is not an attempt merely to re-litigate somethingthat has already been litigated, without any meaningful additional evidence.

This is particularly evidenced by the fact that she avoideddirect contact with the children and the foster family even though she acquired the knowledge through the internet and that she couldhave done so if she chose. Instead, she contacted the society directly, placed her circumstances before the society for inspection andcomment and has brought the matter to court for adjudication.

3.2: Principle 2:— Leave Ought Not to Be Granted If the Relief Sought Can Be Obtained Practically Otherwise Than by Reviewing the Whole Order Itself [ 58 ] Permission should be refused where it is possible to get the relief sought by some less drastic way than the review of the whole Crown wardship order. This test is also passed. The mother does not seek a review of the Crown wardship order itself, merely one component of it — the denial of access to her children.

She is clear in her material that she would work with the court and the society in a careful way to obtain access to the children by appropriate degrees over time. 3.3: Principle 3:— There Must Be Some Unusual Circumstances That Justify the Review in Spite of the Child’s Permanent Status [ 59 ] There has to be some unusual circumstance to justify the court’s intrusion into a continuous and long-term foster placement, especially from the child’s perception of time. If only the mother’s circumstances are relevant, then this test is apparently met.

There has been a substantial and relatively fixed positive change in the circumstances of the mother with respect to her social situation, her financial ability to care for the children, her former dependence upon illegal drugs and her demonstrated care over a relatively short period of time to care for a child in her home. The question becomes whether or not the sole determining factor is her personal circumstances with respect to whether or not leave will be granted.

This is addressed with respect to principle number 4. 3.4: Principle 4:— An Applicant Must Establish and the Judge Must Be Satisfied That a Status Review Application at This Time Would Likely Accomplish the Purposes of the Act as Set Forth in

Section 1 [ 60 ] We now arrive at that principle that is most difficult to satisfy based upon the existing case law. The failing in the mother’s position before the court is the focus on her own improved personal circumstance without reference to the personal circumstance of the two children involved. The primary purpose and the secondary purposes of the Act are child-focused and not parent- focused. It is the best interests of these two children that must be considered.

The secondary purposes, maintenance of family integrity, need for stable relationships within a family unit, need for the least disruptive course of action to avoid removing the children from the family environment if possible, are all child-focused. Although there is an obvious benefit to a parent in having these purposes met, it is not the parent who is the primary concern, rather the children.

To determine whether or not leave should be granted based solely on the situation of the parent, improved or not, is to avoid the responsibility given to the court by the legislation to make the decision taking into account all circumstances that relate to the best interests and the well-being of these children. [ 61 ] It has been argued that it is not for the judge at this stage to be a trier of fact, weighing and balancing evidence, accepting some evidence and not accepting other evidence. That is so.

However, this does not to prevent the court from assessing the evidence to determine whether or not the evidence meets the criteria that the evidence is apparently credible and weighty enough to allow the judge to come to the conclusion that there is a reasonable prospect of success. By the same token, the judge is able, without trying the matter, to come to the conclusion that some aspect of the evidence precludes the matter moving on to be heard on the merits with the result that leave should not be granted. [ 62 ] In this case, there is substantial evidence with respect to the situation of the two children.

It is overwhelming. Both children are extremely fragile emotionally and psychologically. That fragility has been, according to the assessments, of lifelong duration, only coming to the fore as the children became old enough for a proper assessment. A plan of care has been developed to directly address the very specific diagnosed needs of these two children. The cornerstone of that plan is absolute stability and certainty in a long-term care situation with existing care givers if the plan is to have any success at all.

The plan also involves a complete removal of distractions from that certainty and stability in the plan of care.

Introduction of a biological mother, unknown to the children at this time, would have far greater consequences than a professional development day at school resulting in a new teacher, a trip to a box store with sensory overload or any other of the relatively small changes in the day-to-day life of these children that have already been demonstrated to cause difficulties for them and impede their short-term progress at the least. [ 63 ] The improvement in the mother’s circumstance must be considered in this context.

Much more is known now about the circumstances of these two children than when the Crown wardship order was made on 21 September 2006. Their circumstances are such that they are not adoptable. Their circumstances are such that the existing plan for their care has to be adhered to strictly and without compromise if there is to be any chance of success.

The mother’s request, despite her own personal improvement, is a direct threat to that plan, which cannot be accommodated, even for access, without very real and substantial risk to the best interests of these two children. [ 64 ] For these reasons, the leave request is refused.