) ) CHILDREN’S AID SOCIETY OF ALGOMA ) ) Jennifer Mealey, for the Children’s Aid Society of Algoma ) ) ) — v. —, 2012 ONCJ 452

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 COURT FILE No. 68/2009 DATE: 2012-06-14 Citation: Children’s Aid Society of Algoma v. S.L. , 2012 ONCJ 452 ONTARIO COURT OF JUSTICE IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c.

C.11 BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA ) ) Jennifer Mealey, for the Children’s Aid Society of Algoma ) ) ) — AND — ) ) ) S.L. ) David Stone, ) for S.L. (mother) ) M.R. ) ) Eric McCooeye, for M.R. (father) ) ) ) ) ) HEARD: September 26, 27, 29, 30, October 3, 4, 5, 16, November 16 & December 5, 2011; January 23, 24, 26, 27 & February 1, 2 & 3, 2012 kukurin J. [ 1 ] These are the rather lengthy Reasons for my decision in this child protection case which involves two children: V., now age four and one-half years, and J., now age three and one-half years.

These children were apprehended from their parents on March 3, 2009, a little over three years ago. They have been in the same foster home which is located in Bruce Mines, forty five minutes by automobile from Sault Ste. Marie, throughout all of this time. [ 2 ] The society’s initial claim was for a six month wardship order. However, that disposition became impossible because of the time in society care limitations [1] contained in the Child and Family Services Act (the Act) , the statute that governs child protection proceedings. Its claim changed to one of Crown wardship, without access, for both children.

Its plan is for these children to be adopted. [ 3 ] At the time the children were apprehended, they lived with their mother, S.L., and their father, M.R.. However, these parents did not stay together much longer. By January 2010, the father had relocated to Parry Sound. The mother remained in Sault Ste. Marie. [ 4 ] This child protection case followed a lengthy litigation route that culminated in a contested 16 day trial. The mother’s request at trial was for a return of the children to her care and custody with a supervision order in favour of the society. The father,

although separated from the mother for over two years, supported her efforts to have the children returned to her. He no longer sought placement of the children with himself. He was seeking an order that would allow his ongoing access, regardless of the outcome on placement and disposition. finding in need of protection [ 5 ] Before the court can make any final protection order, it must make a threshold finding that these children are in need of protection.

The CFSA sets out in section 37(2), an exhaustive list describing a number of circumstances, any one of which, if satisfactorily demonstrated on the balance of probabilities, can serve as a ground for such a finding. [ 6 ] In this case, the society is seeking a finding, with respect to both V. and J., under section 37(2)(b)(

i) and section 37(2)(b) (ii). [2] The mother conceded, in the trial submissions of her counsel, that a finding could be made based on the factual circumstances existing at the time of apprehension.

The father did not make this same concession although it might be inferred from his position at trial that placement with the mother with a supervision order was the appropriate disposition. [ 7 ] Where a child protection application is made to a child protection court, the CFSA places a statutory obligation on the court to hold a hearing to determine the issue of whether the child involved is a child in need of protection. [3] The court is not limited to the specific ground or grounds relied upon by the applicant society.

It may make such a finding on other grounds found in section 37(2), either instead of, or in addition to, those identified by the society. Nor is the court limited by an agreement of the parties as to such findings, although any such agreement may be a factor in the court’s determination of this issue. Moreover, the court is not limited to making a finding on factual circumstances that existed at the time that the child protection proceeding was started, or those that predated it.

The court can rely on findings of facts that arose well after the proceeding was commenced, so long as those facts support a ground for any of the findings set out in section 37(2) CFSA . [ 8 ] In the present case, there were a number of circumstances that the society relied upon cumulatively to justify its apprehension of the children. Most of these have been substantiated by the evidence at trial. They support a finding that V. and J. are children in need of protection.

Justice Gregson adverted to many of these in her written Reasons [4] released following the temporary care and custody hearing in October 2009. [ 9 ] Included among these were: - low levels of intellectual functioning by both parents, but primarily the mother who was the primary caregiver; - lack of recognition of children’s cues, and of their physical and emotional needs; - the mother’s inability to cope with both children and provide adequate childcare to both; - parental inability to properly budget, leading to food shortages, disorder within the household, and stress; - inadequate addressing of medical care and dental hygiene of the children; - home safety and cleanliness; - inappropriate caregivers and frequent guests/visitors, some of whom were objectionable; - parental conflict, with the father being the aggressor; - parental, especially maternal, lack of insight into parental deficiencies, and poor attitude towards correction, recommendations and advice. [ 10 ] Section 37(2)(b)(

i) refers to circumstances that give rise to a likelihood of physical harm befalling a child because of the failure of the child’s caregiver to adequately care for, provide for, supervise or protect the child. The existence of the risk of the likelihood of some physical harm is not that difficult to establish. Nor is it necessary to show what specific physical harm may materialize.

Showing that a child has already suffered some physical harm would, in most instances, support the existence of a risk of further physical harm in the future. [ 11 ] Somewhat more difficult to show is that the caregivers of the child are the source for such risk of likely harm, and, more specifically, their inadequacies in parenting, or, in terms of the statutory wording, in caring for, providing for, protecting and/or supervising. [ 12 ] In this case, there was an abundance of evidence from which a finding under section 37(2)(b)(

i) could be made. This evidence supports inferences of no oral hygiene or dental care, smoking in the home despite warnings (and despite symptoms exhibited by V. such as persistent coughing, running nose, congestion and vomiting), poor nutrition and feeding practices, irregular or non-existent medical care and follow-up on appointments, and mismanagement of the family income, resulting in significant consequences such as eviction, disconnection of utilities and insufficient funds to purchase diapers and other child needs. [ 13 ] The relationship of the parents was, in retrospect, relatively dysfunctional.

The father was of almost no help to the mother in “hands-on” childcare responsibilities. She accused him of wasting their scarce family funds on marijuana which he had been using for years. He minimized but did not deny his drug use. He accused her of wasting money playing bingo. He would get angry and yell at the mother. Ultimately, they separated because of his multiple infidelities.

[ 14 ] While caring for and providing for the children were the major focal points of parental inadequacy, a risk of harm also arose from questionable supervisory practices and, to some degree, from poor choices of persons with whom these children had contact. There was one acquaintance of the parents, for example, who was known to be a child sexual offender. [ 15 ] In

summary, there is ample evidence from which a risk of likely physical harm can be inferred for both children. Moreover, the factual evidence did not suggest that the risk of physical harm arose from isolated events. On the contrary, it suggested that theirs was an established lifestyle and that their parenting practices formed a pattern characterized by neglect which gave rise to this risk of physical harm. [ 16 ] Accordingly, I find that the grounds for finding V. and J. to be children in need of protection are satisfactorily demonstrated under section 37(2)(b)(

i) as well as under section 37(2)(b)(ii) CFSA . disposition [ 17 ] Once the court finds that a child is in need of protection, it must make some kind of order with respect to where the child is to be placed, and in what circumstances. This is the “disposition” phase of a child protection case. [ 18 ] The court has a number of choices in the disposition it may make.

If the basis for the protection concern has disappeared or abated sufficiently, it may simply return the child to its usual caregiver and custodian. [5] Where there are still protection concerns, however, the court has several options, with increasing levels of intrusiveness. [6] In such cases, the court would make a protection order.

As a result of recent amendments to the Act , the court may now choose to grant custody of a child found to be in need of protection to one or more persons, with their consent, instead of making a protection order. [7] The society is mandated to remain involved only if a protection order is made. [ 19 ] In the present case, there are realistically only two options between which the court may choose. One is return of the children to their mother, S.L., subject to a supervision order by the society, and containing terms and conditions to address whatever protection concerns are found to exist.

The other is to make the children wards of the Crown. [ 20 ] Placement of the children subject to a supervision order in this case would be an option only with respect to the mother. The father is not a suitable candidate, on the evidence, to have care and custody, and he is not making such a claim in any event. There are no “kin” being put forward on the maternal side of the family. Neither is there a kin placement suggested from the father’s extended family. [ 21 ] A disposition of placement subject to a supervision order, whether with a parent or some other person, is statutorily time limited.

This kind of protection order must be at least three months, and not more than 12 months in duration. Why this temporal restriction? There is no reason given in the Act . However, some inferences can be made, at least with respect to why the Act prescribes a 12 month maximum for society supervision orders made pursuant to section 57(1) . [ 22 ] Firstly, the statute requires the society to bring a status review proceeding prior to the expiry of the supervision order term. [8] The court’s mandate in such cases is to review the “status” of the child.

Moreover, any order it makes on such status review must be made in the best interests of the child. [9] This is the same criterion that the court must have used when it made the supervision order being reviewed. Therefore, the objective of the status review should be to look at the evidence to see what changes have taken place since the order was made, and to decide whether these changes warrant some change to the existing order.

The underlying premise is that some changes should have taken place during the term of the supervision order. [ 23 ] Secondly, the expectation of the statute is that intervention by the society in a family by way of a formal supervision order has some purpose.

There is an added expectation that that purpose will be achieved, and will be achieved within a specified time. [10] Moreover, it is the logical inference that whatever plan of care is filed by the society, it will describe services to be provided during the supervision order term that addresses the reasons why the child was found to be in need of protection. It is an express statutory requirement that the society’s plan of care state the criteria by which it will decide when its supervision will no longer be necessary. [ 24 ] Thirdly, a supervision order is made by a judge in a child protection proceeding.

It is the judge who decides the length of the supervision order.

Moreover, this judge is statutorily required to state the plan for the child’s care [11] that the court is applying in making such supervision order. [12] It seems logical to conclude that there exists a judicial expectation that the plan, if followed, should eliminate, or at least attenuate the need for supervision within the length of the time that is chosen. [ 25 ] The upshot of the foregoing is that a supervision order is appropriate, where there is an expectation that, within some reasonable time, the need for society supervision and the need for court imposed conditions to protect the child will end.

Twelve months may turn out not to be sufficient time. The CFSA permits further supervision orders to be made, but each always subject to a maximum term of 12 months. It is not an expectation of the statute that a supervision order will be a long term mechanism for protecting children who are in need of protection and are not in care of a society. In short, the society’s involvement by way of supervision is not meant to be forever. [13] [ 26 ] The society’s argument is that the mother in this case, will never be able to effectively parent on her own.

It maintains that she will never be able to make up her deficiencies in parenting to the point that the children will be adequately protected in her care. This is despite any number of successive supervision orders that the court may make. The society insists that it cannot provide the high level of supportive services that this mother would need to be able to take proper care of her children.

[ 27 ] The mother’s response is that she doesn’t require the high level of supervision that the society currently insists upon, namely, almost total supervision of any contact she has with the children by a society approved supervisor. She proffers her family, primarily her mother and stepfather, as support persons to assist her in parenting of these two children. She acknowledges that she does require some assistance and direction from time to time and welcomes the involvement of the society in her life by way of a supervision order.

She disagrees with the contention that society involvement should have any time limits. The function of the society, she insists, is to assist persons in situations like hers to help her parent her children as best she can. She does not see society involvement in her family as being one of co-parenting.

Moreover, she opposes the society’s argument that she will never be able to parent independently, or that, if the children are returned to her, successive supervision orders will be required until the children are in their mid-teens. [ 28 ] The Child and Family Services Act , the statute governing child protection cases creates a procedural framework for the court to follow once a child has been found in need of protection. This is found in

section 57, and also more recently, in

section 57.1. [ 29 ] Section 57(2) requires the court to make inquiries about efforts made by the society and any other community agencies to assist the children prior to the commencement of a child protection case. [14] This inquiry was answered in the evidence of the society. Even before the family’s relocation to Sault Ste. Marie, the Sudbury Children’s Aid Society was involved on a voluntary basis to assist the parents in parenting and to monitor the care of the child V.. The Algoma society continued this role following the family’s arrival in this city.

Among the community services recommended to the parents were Healthy Babies – Health Children program, medical care to complete immunizations, and for regular check-ups, dental care from professional dentists, and budgeting assistance from local credit counselling.

However, the parents were either resistant to, or very slow to start accessing such assistance locally. [ 30 ] Section 57(3) CFSA creates a statutory preference for the least disruptive protection order that will adequately protect the child. [15] This statute imposes on the court the obligation to canvass all alternatives to removal of the child from the person who had charge just prior to the society’s intervention. In this case, the alternatives to removal of the children from their parents were limited to only one, namely, to leave the children in their care.

There were no other alternatives available at the time that were offered as reasonable.

Leaving the children in their home and with their parents was not an appropriate option, and this was recognized and confirmed at the temporary care and custody hearing held following the apprehension. [16] [ 31 ] Section 57(4) imposes a further obligation on the court once it has decided that removal of a child from the child’s caregivers is necessary, and before it makes a disposition. [17] This requires the court to consider the possibility of placing the child with a relative, neighbour, extended family member, or some other member of the child’s community. [ 32 ] There has been considerable evidence in this case about a variety of placements put forward since the removal of the children.

Accordingly, the court has had ample opportunity to consider these alternative placements. Except for one, all of these have involved placement with one of the parents and another person. All of these placements options have been tendered by one or the other of the parents. [ 33 ] A return of the children to both parents became impossible once they separated for the final time. Thereafter, there were the following suggested placements: (

a) with the mother, residing with the maternal grandmother; (

b) with the maternal grandmother and her partner (now husband) Mr. R.A.; (

c) with the father and his new partner Ms. J.P.; (

d) with the mother and her next partner Mr. J.S.; (

e) with the mother, residing with the maternal grandmother and her husband; (

f) with the mother and her next partner Mr. W.S., and (

g) the current placement suggested by the mother, namely, with herself (and presumably her new infant child), with support primarily from her mother and stepfather. [ 34 ] These placements were clearly not contemporaneous alternatives. Rather they were sequential and put forward as circumstances changed. Nor were these suggestions taken lightly. In fact, the society sought and obtained an order for a parenting capacity assessment of the mother, father, maternal grandmother and her spouse Mr. R.A., to better assess the placement proposals. Circumstances, however, continued to change.

By the time the assessment got underway, the maternal grandmother and her spouse had withdrawn from contention and both mother and father had new partners they were proposing to be their co-parents. The assessment shifted (without judicial authorization) to include these new partners. [ 35 ] Ultimately, by the time of trial, none of these proposed placements was any longer on the table. The grandmother and her spouse had withdrawn. The father and his partner split up. The mother and her partner (Mr. J.S.) also parted company. So also did the mother and her subsequent partner (Mr.

W.S.) although not before he impregnated her. What was left for the court to consider was placement with the mother alone, with “support” from the maternal grandmother and her husband, Mr. R.A.. [ 36 ] Section 57(5) [18] does not apply in this case. This

section imposes placement restrictions on the court where the child who is the subject of the case is Indian or native. Neither of the children, V. or J., is Indian or native. [ 37 ] The foregoing are statutory obligations that call for a judicial determination prior to the making of a protection order. There is one other option that the court is not obligated to consider, but may do so. This is the making of a custody order under

section 57.1 as an alternative to the making of a protection order. This option is viable only where the custody candidate has consented to accept custodial rights and responsibilities, and the court decides it would be in the child’s best interest to make such an order instead of a protection order.

[ 38 ] For V. and J., there are no candidates to whom their custody can be entrusted. No one is consenting to accepting custody, except the mother, S.L.. And this court cannot find that it is in the best interests of either child to simply grant sole custody to her. [ 39 ] Where the judicial alternatives reduce down to only two, and only one of them can be chosen, the role of this court becomes very clear. Pick one and reject the other. This case presents a not atypical scenario where the choices are return to a parent with a supervision order, or make the child a ward of the Crown.

From a practical perspective, Crown wardship should be a last resort in the sense that all other alternatives that are available have first to be considered and dismissed. Ultimately, this is the reason for these Reasons. They are to state which alternative was chosen, and which was rejected, and why this was done. [ 40 ] My decision in this case is to choose Crown wardship for both V. and J.. This choice is necessarily one that must be in the best interests of these two children. And, in my view, it is so.

These Reasons will review the several circumstances in section 37(3) of the Act that the statute requires the court to consider when making a Crown wardship order. However, the choice of Crown wardship as a disposition is more because the alternative was unacceptable from a ‘best interests of the child’ perspective. In a sense, Crown wardship is all that was left.

In explaining why the order for Crown wardship is in the best interests of these children, it is more logical for these Reasons to explain why the only other alternative was not. [19] [ 41 ] This is not a case where the decision was anywhere close to a foregone conclusion. In fact, the applicant society brought a motion for

summary judgment in this case for both a finding in need of protection, and for the disposition of Crown wardship. It was not successful in this motion. [20] There were clearly issues in this case that required a trial. Being both the

summary judgment motion judge and the trial judge, I can say, in retrospect, that the evidence at trial was much more comprehensive, and provided a great deal of very relevant information that was just not present in the evidence on the

summary judgment motion. More importantly, the trial process permitted an opportunity to consider the evidence on all sides tested by cross-examination. [ 42 ] The court is statutorily obligated to include in its Reasons for its decision “a brief statement of the evidence on which the court bases its decision ... [21] In this case, that evidence, although comprehensive, can be described in categories as follows: (

a) evidence of events that pre-dated the apprehension; (

b) evidence of changes in circumstances since the children were apprehended; (

c) evidence of maternal, paternal and grandparental family supports; (

d) professional expert evidence relating to parental capacity; and (

e) evidence of the plans being proposed for the future care of these children. (

a) Pre-apprehension Circumstances: [ 43 ] If any one thing can be identified as the main reason for protection concerns for these children, it is the low level of intellectual functioning of both parents, but especially of the mother S.L.. This has remained a constant and continues to be at present. Risk of harm to children results not just because their parents’ intellectual functioning happens to be low. Rather, it is because virtually everything that such parents do, or fail to do, is tied inextricably to how they function intellectually.

It is their conduct that creates the risk of harm for these children. [ 44 ] V. was born in […] 2007. The Sudbury society was involved with the family for seven months, until the family relocated to Sault Ste. Marie in approximately May 2008. Thereafter, the Algoma society became involved. However, it was not until March 2009, some nine or ten months later, that it apprehended both children (J. was born in […]2008). During this period of roughly 16 months, many behaviours of the parents became apparent to both societies.

The maternal grandmother, D.L., was in frequent contact with the parents and the children throughout most of this time, and in fact, lived with them for a considerable portion of it. She confirmed, in her testimony, many of the factual allegations made by the society about the parents and their parenting. [ 45 ] The evidence of this pre-apprehension period was characterized by: (

a) poor handling of limited family financial resources, occasional to frequent shortages of food and diapers, at one point, eviction from their premises, threats from their creditors, and unwillingness and inability to create and follow even a simple budget; (

b) poor parental attitude towards accepting advice and assistance; they verbalized that they didn’t need help and would not follow any advice or recommendations, even from the maternal grandmother; (

c) attendance to cleanliness, hygiene, physical and healthcare that often bordered on negligence – poor housekeeping, non-existent dental hygiene, ignorance about the need for regular baby checks, smoking in the home despite persistent coughing, congestion, running nose and vomiting symptoms in V.; and (

d) a dysfunctional parental relationship with the father as the verbally aggressive partner who undertook little, if any, of the work around the home or of the childcare responsibilities, who was a regular user of marijuana, and who was prone to becoming moody and angry; and (

e) instability in most aspects of family life: residential, financial, relational, parental and personal.

(

b) Changes in Circumstances after Apprehension [ 46 ] Following the apprehension in March 2009, the relationship between the parents withered, and by December 2009, they had separated for good. It was the mother’s behaviour thereafter that was more relevant to the issue of disposition in this case than was the behaviour of the father. He dropped out of sight for awhile, resurfaced with a new partner, also for awhile, and basically became an access parent, and not a very faithful one. [ 47 ] The mother, by contrast, became a very regular and a faithful access parent.

Her access was supervised and observed by the society. The access was relatively generous for the parents prior to their separation – 18 hours per week. This gave the mother an ample opportunity to demonstrate her parenting abilities. It also gave the society an ample opportunity to observe her while parenting V. and J.. [ 48 ] There are some inferences that can readily be made from the evidence from all of the witnesses. Firstly, the mother did not wish to parent on her own. She brought some “support” person with her to most of her access visits.

She made no secret of the fact that she had difficulty managing the two children on her own without assistance, despite the almost universally held view that V. and J. were extremely compliant and well behaved children. Her plan for caring for these children was never to care for them alone. Her plan involved co-parenting with someone else, although who that someone else might be changed over time. [ 49 ] Secondly, and related to her intention to not be a single mother, is the mother’s history of partner relationships.

Her first with M.R., the father of her children, was, by all accounts, not very happy or fulfilling. If she had any expectations that he would share in the parenting of either child, it was unfulfilled. He withdrew more and more from parental responsibilities, and would often become angry when asked to do some chore related to the children. His relationship with them, according to most observers, was as a playmate. M.R. did not treat S.L. well. The maternal grandmother, D.L., often disapproved of him and his behaviours, and there was always some friction between her and him.

M.R. had been a roofer but had injured his back. He was not the traditional family breadwinner. The evidence is not clear about the extent of his use of marijuana, but he was regular user, and this was a source of domestic discord with S.L., a non-user. He was not monogamous in his common-law relationship with S.L., at least after the apprehension. His multiple infidelities marked the end of their relationship. [ 50 ] The second relationship of the mother S.L. was with J.S. who was the boyfriend of M.[1], one of S.L.’s sisters. This was not a development that was welcomed in the family.

M.[1] was understandably upset. So was the maternal grandmother. Nevertheless, S.L. and J.S. continued with their relationship and were soon living together. J.S. was almost immediately proffered as S.L.’s co-parental candidate. He attended access visits and was, in fact, one of the subjects of the parental capacity assessment done for this case. However, his candidacy was of relatively short duration. He ended his relationship with S.L. and resumed his boyfriend-girlfriend relationship with her sister M.[1]. [ 51 ] Her third relationship, with W.S., followed on the heels of that with J.S..

S.L. jumped into bed, both literally as well as figuratively with W.S., and he became her new candidate to co-parent her children. She entered this relationship very quickly and with virtually no knowledge of W.S.’s background. That background turned out to be a relatively unsavoury one. He had lost two children at least, one to adoption and one to Crown wardship. He had a lengthy history of problematic relationships with a series of women, including the mothers of his two children.

The relationships were characterized by petty thefts, frauds, harassments, restraining orders, threats, some violence, arrest warrants, and plenty of police involvement. Not surprisingly, the mother’s relationship with W.S. was short lived. He had involvement with the police locally. He was using illegal drugs. He liked to drink and he, also, did not treat S.L. very well.

He was eventually asked to leave the apartment of the maternal grandmother and her husband, where he and the mother had been living, and he did leave, but only after getting the mother S.L. pregnant with her third child. [ 52 ] The inference from this history of the mother’s failed relationships combined with the oft expressed intention to co-parent with someone else, is that she will continue with this pattern of choosing partners who are unable, unwilling, unsuitable and/or unacceptable as child caregivers and custodians.

Moreover, her choice of partners is likely to be impulsive, poorly thought out, and contrary to the advice of her family members. [ 53 ] Thirdly, the mother is not amenable to learning. There are several dimensions to this inference. The mother was a special needs student. She was identified as early as grade five (at age 11) to have “a mild to moderate level of global development delay”, a very low range of functioning. [22] A subsequent assessment when the mother was age 18 came to the same conclusion.

Her achievement scores were mostly in the first to fifth percentiles, with an age equivalent “thinking ability” of someone eight years two months of age. [23] She carried this intellectual handicap into her adult life and, in fact, is a recipient of ODSP [24] benefits, specifically because of her learning disability. The Parenting Capacity Assessment report (PCA) assessor, Dr. J. Phillips arrived at very similar and consistent conclusions.

The cognitive abilities assessment of the mother, S.L., at age 24 showed her to be in the “extremely low” range of cognitive ability with performance levels at the first percentile or lower. [25] In academic terms, the assessment found the mother to be functioning at a level consistent with functional illiteracy. [ 54 ] In addition to this very significant obstacle to learning in her own mental functioning, the mother demonstrated what I consider to be an unteachable spirit. There are many references in the evidence to her attitude towards learning.

The maternal grandmother, D.L., refers to the mother’s wilfulness and insistence on doing only what she wants to do. She refers to the mother’s gesture of rolling her eyes at her, the same observation that was made by more than one maternal access supervisor when trying to help the mother with advice at access visits. Society access supervisors are fairly consistent in their evaluations of the mother’s responses to their efforts to help her in her parenting of the children.

References are made to the mother simply ignoring such attempts, or responding negatively, or rudely, sighing and rolling her eyes, often outright refusing to follow recommendations made, or making dismissive retorts. The mother was difficult to engage and not very open to discussion. According to her mother’s partner (now her stepfather), he advised against a relationship with W.S.. She didn’t listen “until she got her eyes opened”. The mother’s attitude to taking advice has persisted to date. [ 55 ] Fourthly, there is now on the mother’s horizon, the advent of a third child with an ETA in June 2012.

The mother’s intention is to parent this child without assistance of W.S., the child’s biological father. This new infant will represent a significant impediment to the mother’s plan to parent all three of her children. There is sufficient evidence, including her own acknowledgement,

that she has problems managing with two children. I believe that the care of a totally dependent, completely vulnerable newborn is generally conceded to be a major challenge for two parents working cooperatively. For this mother, to be sole caregiver of three children, one a newborn, would be unimaginable. [ 56 ] In

summary, the foregoing developments which have taken place since apprehension have not been favourable. The trial evidence with respect to these happenings has validated and solidified the protection concerns that existed when the apprehension took place. (

c) Family Supports [ 57 ] The mother S.L. has two sisters, M.[1] and S.[1]. Both had their own apartments in the same apartment building as did the maternal grandmother, D.L.. Both sisters have helped the mother S.L. with care of V. and J. in the past, and this included attendance at some maternal access visits. However, neither sister is a suitable person to parent these two children either as “kin” or together with the mother. Their value as support persons for the mother is, in my view, minimal. [ 58 ] S.[1]’s only child M.[2] was apprehended at birth.

In December 2007, she was made a ward of the Crown without access. The main basis for this was S.[1]’s limited intellect and her inability to demonstrate or to learn and apply new skills. [ 59 ] M.[1] had a son born in 2004. He was apprehended at birth by the society in Sudbury and ultimately was made a ward of the Crown without access. In the child protection proceeding in which this order was made, M.[1] advanced a plan that her son be placed in the care of her mother, D.L.. That plan was rejected by the court. [ 60 ] Of some interest, S.[1] did not continue a relationship with the father of her child.

M.[1]’s relationship with the father of her child was short-lived as well. D.L. is no longer in a relationship with her partner of that time. [ 61 ] S.[1], and the mother S.L. are somewhat estranged. S.L. lived in S.[1]’s apartment for a time with her partner W.S.. The arrangement caused friction and S.[1], with police assistance, made them leave. M.[1] is back in a relationship with J.S. and is somewhat less supportive of S.L. than she had been in the past. M.[1] also has some serious physical health issues. She is apparently blind in one eye and her sight is failing in the other.

Both M.[1] and S.[1] are functioning intellectually at extremely low levels. [ 62 ] The main support persons that the mother S.L. identifies in this case are not her sisters, but rather her mother, D.L., and her stepfather, R.A.. These two persons, she argues, will be there to assist her in parenting her three children. [ 63 ] The mother’s plan is to parent as a single mother but with the help of the maternal grandmother and the mother’s stepfather.

However, there are some significant problems with the proposition of the maternal grandmother, D.L., as S.L.’s main support person. [ 64 ] At one point, D.L. and R.A. were proffered as “kin” suitable to entrust with care and custody of both V. and J.. In fact, the parenting capacity assessment ordered by this court was to assess their capacity to parent as well as those of the mother and the father. However, D.L. and R.A. were never assessed. They withdrew as prospective long term caregivers and declined to participate in the assessment.

This was after they had consented to undergo the assessment. [ 65 ] There may be more than one reason for these developments. At the time, the society had extended to D.L. and R.A. their own time with the children by way of a series of access visits independent of those involving either the mother or the father. D.L. and R.A. attended at a half dozen of these, then unilaterally stopped, advising the society that they wished to discontinue these visits.

Contemporaneous with this was S.L.’s budding relationship with J.S., and her change of plans, namely, that she and J.S. would become the primary caregivers of the children. This may have influenced D.L. and R.A. to change their minds. What D.L. and R.A. did vocalize at the time was that they no longer wanted to be the primary caregivers; they wanted to have a more traditional grandparental relationship with the children. That has not changed to date. [ 66 ] Whatever the reason, there was an order made for a parenting capacity assessment of D.L. and R.A. in which they refused to participate.

That assessment was ordered pursuant to

section 54 of the Act . The court is permitted to draw any inference it considers reasonable from a person’s refusal to undergo such an assessment. [26] [ 67 ] I do make several inferences from their refusal to participate, most of which are “adverse”. Firstly, I infer that their commitment to long term care of these children was superficial. They unilaterally stopped their visits with the children. When they saw another plan being developed by the mother, S.L., they backed off completely with their own plan.

Their expression of wanting a classic grandparental role corroborates this inference. [ 68 ] Secondly, I infer that the assessment would have found them wanting in their proposed role of primary caregivers and custodians. [ 69 ] With respect to the grandmother D.L., the refusal to be assessed for parenting capacity turns out, in this case, to be not so critical. This is because D.L. did undergo a parenting capacity assessment in 2005 when she was being tendered by M.[1] as a potential kin placement for M.[1]’s son who had been apprehended in Sudbury.

The society, in this case, tendered as part of its evidence, the 2005 assessment report [27] done by Dr. B. Blackwell of D.L. and her partner at that time, P.V.. While the report is somewhat dated and deals with different prospective parenting partners for a different child, there are some aspects of that report that are relevant to and retain their validity in connection with the assessment of the grandmother D.L.’s capabilities as a support person for her daughter S.L.. [ 70 ] D.L. was born in 1965. She was age 40 when assessed by Dr. Blackwell. She is almost age 47 now.

Included in that assessment were a number of psychometric tests, the results of which were relied upon by the assessor in her overall

summary. That

summary, for the maternal grandmother, D.L., found her to be a person “with significant ... even profound impairments in cognition, personality, and parenting.”

Dr. Blackwell felt that she met the criteria for mild developmental delay. She noted impairments in D.L.’s executive functions (extremely low to borderline), thinking and reasoning (extremely low), vocabulary (borderline in receptive and extremely low in expressive vocabulary). Dr. Blackwell could not recommend D.L. as a “parent” at any level because her deficits were so profound. [ 71 ] As for the relevancy and reliability of this kind of information about the grandmother, I am satisfied on both measures.

Although the grandmother is no longer being put forward as a primary caregiver for her grandchildren, she is being proposed as the mother’s primary support. The mother has verbalized consistently that she relies on others for childcare giving; that she cannot do it on her own. And this was with two children. It will be inevitable that the grandmother will have to be called upon to do a great deal of parenting if the court placed the children with the mother.

Accordingly, the grandmother’s capacity or deficiency in parenting is very relevant in the present case. [ 72 ] As for the reliability of this information about the grandmother, it is clearly dated. However, this causes me to discount this information hardly at all. Partly this is because the type of testing that produced these results is fairly standardized within the profession. Partly it is because the testing was done by a professional clinical psychologist whose credentials have not been attacked.

Partly it is because, at age 40, the grandmother’s intellectual functioning and personality characteristics were fairly well fixed and were unlikely to change significantly over the next ensuing seven years to the present. [ 73 ] Reliability of the overall assessment of the grandmother’s parenting is supported by other evidence. This evidence relates to how the grandmother has performed, especially in a parental role, in her own life. Has her performance been consistent with the conclusions of the assessment? [ 74 ] Firstly, D.L. achieved only a grade nine level of education. She was considered a slow learner.

M.[1] was the product of D.L.’s teenage pregnancy (at age 15) whose relationship with the father lasted only a few days. D.L. had only a two week relationship with S.L.’s father. D.L. married S.[1]’s father, M.L., and they had an eight year relationship. Unfortunately, M.L. sexually abused all three children over several years, and D.L. was either unable or unwilling to protect them from this abuse. Ultimately, they divorced. D.L.’s next significant partner was P.V.. He had had a horrendous childhood and upbringing and became involved in criminality and excessive drinking.

Although he eventually settled down somewhat, his relationship with D.L. did not work out. He became angry and verbally abusive and D.L. eventually left him. D.L.’s present partner is R.A.. Their relationship started only since she relocated to Sault Ste. Marie in 2008. They began cohabiting and have since married. D.L. also had a son, S.[2], in 1982 or 1983, with her then partner, A.G..

She was involved with the Children’s Aid Society for several years over her lack of parenting skills, financial problems, domestic problems with her partner, residential instability, problems with alcohol, and inappropriate childcare. In 1984, S.[2] was made a Crown ward without access. [ 75 ] In

summary, the maternal grandmother D.L. has only minimal education, has had a succession of failed relationships with a number of different men, has herself lost one child to Crown wardship, and has raised three daughters all of whom are cognitively challenged, and two of whom have already lost their own children to Crown wardship in the past.

She and her present partner put themselves forward as long-term caregivers for her two grandchildren in the present case, agreed to a parenting capacity assessment, started visits with the children, then stopped the visits, declined to participate in the assessment and withdrew themselves as candidates for a primary care giving role for these children.

The maternal D.L. is far from the kind of support person that a mother like S.L. would need to enable her to provide adequate care for her children. [ 76 ] The maternal grandmother D.L.’s personal shortcomings as a childcare provider are not the only reasons why she would not make a very good support person for the mother S.L.. The relationship between the mother and the grandmother is a factor of great importance if the latter is to be the main support for the former. [ 77 ] The evidence does not paint a portrait of a good relationship, certainly not a good working relationship.

The mother S.L. had verbalized many times her disappointments with the maternal grandmother. Most of these were in connection with the mother’s expectations which the maternal grandmother did not meet.

These included various things at various times: - declining to give the mother a ride to appointments; - not attending at some maternal access visits; - attending visits, staying for a short time, and leaving early; - withdrawing from contention as a long term caregiver; - declining to participate in the parenting capacity assessment; - terminating independent grandparental access visits; - leaving on a cross-country trip in the middle of the trial in this Crown wardship case. [ 78 ] This was a two way street. The maternal grandmother had her own disagreements and disappointments with the mother.

The maternal grandmother disapproved of the mother’s pursuit of a relationship with the father. He had been dating the mother’s sister S. [1]. The mother did not heed her advice. The maternal grandmother also warned the mother against a relationship with J.S.. She again disregarded this advice. When the mother got involved with W.S., the maternal grandmother cautioned the mother to make sure she used birth control. Again, she didn’t listen and told the maternal grandmother that she could decide how to live her own life. This attitude of the mother was not specific to the maternal grandmother.

She displayed the same kind of “don’t tell me what to do” posture to anyone trying to give her advice. [ 79 ] The maternal grandmother was very forthright in her testimony at trial. She expressed her view that the mother was “quite capable of looking after V. and J. by herself”. She was of the opinion that the mother did not need the maternal grandmother 24/7. She

felt that the mother might well respond to her with smart remarks from time to time, but in the long run, would listen to the maternal grandmother’s advice. I find that these views of the maternal grandmother were not at all supported by the evidence. The mother is not capable of looking after these two children by herself – even by her own admission – and certainly by examination of the history of her parenting of these children since their births. Nor has the mother taken the maternal grandmother’s advice.

In the long run, she has disregarded most of what the maternal grandmother told her, and did just the opposite – to her own detriment. There is little that persuades me that the mother will change her spots this late in the day. [ 80 ] In addition to the personal shortcomings and a questionable working relationship, there is the practical consideration of just what “support” means in the context of this case. The maternal grandmother is age 47. She has diabetes, currently under control, but a source of concern in terms of physical health and ability to function. The maternal grandmother has recently married.

Her husband is a long haul truck driver whose runs may take him on the road 14 days continuously, and sometimes longer depending on circumstances. Their plan is for the maternal grandmother to accompany him on some of these trips. Although he is presently employed, his plan at time of trial was to have his own business and to become an owner/operator. Should this materialize, it would remove any obstacles to the maternal grandmother going along with him on his long distance hauls.

Accordingly, for the dozen or more days that the maternal grandmother would be travelling the highways of Canada with her husband, she would not be available at all for the mother S.L. or for the children. [ 81 ] The grandmother would hardly be on the road for every trip. Even if she stayed behind, the question remains as to the kind of support she would actually be to the mother. The mother’s plan does not have the mother living in the maternal grandmother’s home or the maternal grandmother living in the mother’s home forever.

There clearly would not be round the clock availability to whatever assistance the maternal grandmother might provide. I foresee the mother having to cope with two, and possible three children, on her own, even with the maternal grandmother staying in town. [ 82 ] The maternal grandmother does not present as having been particularly helpful to the mother, at least not on the basis of the evidence. The grandmother has not been timid in criticizing the mother. She has a poorly disguised distain for the society, and clearly has little use for CPW Lindsay Spina, the mother’s primary society worker.

The presence of the grandmother would likely place the mother in the middle of an unhealthy relationship between the maternal grandmother and the society. If the children were to be returned to the mother, it is inconceivable that the society would not remain involved through a supervision order. The maternal grandmother has, in the past, created problems for the mother who was trying to work with the society. At one point, the mother had to ask the society to curtail the maternal grandmother’s presence at the mother’s access visits because of the maternal grandmother’s interference. [ 83 ] In

summary, S.L. is a high needs mother. I accept the evidence that she easily and readily becomes overwhelmed when has the sole care of her two children. I find that her mother, D.L., for the foregoing reasons, would be unable to provide S.L. with the kind and degree of support that S.L. would need, at a minimum, to adequately care for V. and J.. [ 84 ] The other main support person that the mother S.L. currently holds out is R.A., who is married to her mother D.L., and is technically her stepfather. R.A. was called as a witness at trial. He was cross-examined on his trial affidavit.

He stated candidly “on my days off, I will be able to help out”. These days off, at the time of trial, were four days every 14 days. [28] As an owner/operator, my expectation is that he would have even less spare time. [ 85 ] Time is his biggest limitation in being a significant support for the mother S.L.. He is simply not around very much. He is very clear in stating that his work has to come first. [29] This work is the source of the financial means of his family. In fact, these means did not appear to be particularly abundant.

There were intimations that money was tight, that the maternal grandmother was a spender and that he had to take control of the family budget to rein her in. At times, there was no money to buy gas for the family automobile. [ 86 ] The stepfather presented as a credible witness. He was forthright not only about the work but also with respect to his relationship with the maternal grandmother and with the mother. His views are uncomplicated and somewhat simplistic. He perceives the mother as a 25 year old who has to take the responsibility for the choices she makes. If she asks him for help, he is willing to help.

He is unspecific about what help he can give other than financial. [30] At trial, he said he was in full support of the mother’s plan to have the two children, V. and J., return to her, and they and the new baby would live with him and the grandmother in their apartment. Or, if that two-bedroom apartment would be too small to accommodate three adults and three children, he would look for a bigger apartment, maybe even a house. [ 87 ] The stepfather’s heart is in the right place. However, he is hardly the kind of support person that the mother would need to overcome her deficiencies in parenting.

He, like the maternal grandmother, sees no problem with the mother as a primary caregiver for three children. He will be absent a lot more than he will be present, so his help is bound to be minimal. He is not likely to involve himself in the practical aspects of childcare, based on his history. There is an intimation in the evidence of the stepfather that if he and the maternal grandmother are going to be supportive, the much greater part of that support will be coming from the maternal grandmother, not from him. (

d) Professional assessment of parenting capacity [ 88 ] An order was made pursuant to

section 54 CFSA that each of the mother, father, maternal grandmother and her partner, R.A., undergo a Parenting Capacity Assessment by Dr. Jeffrey Phillips. The mother and father, as well as their respective partners at the time, J.S. and J.P. (as they were being presented as their intended co-parenters) actually underwent the assessment. [ 89 ] The

section 54 order had not included these partners but had named the maternal grandmother and her partner R.A.. For reasons adverted to previously in these Reasons, they had dropped out of contention as prospective long-term primary caregivers. The focus of the assessment understandably shifted to persons who were then the intended caregivers. [ 90 ] Dr. Phillips has an impressive professional curriculum vitae and was accepted as an expert for purposes of his assessment in this case. The report, as submitted to the court, was somewhat unconventional. It appears that Dr. Phillips does his professional

assessment work through a business structure known as Perspectives Inc. Dr. Phillips’ assessment is primarily a psychological assessment. It involves psychometric testing of intelligence, academic skills, personality and parenting. It also includes a clinical component which is very important, particularly when the assessor has almost three decades of professional assessment experience under his belt. [ 91 ] What Dr. Phillips produced, however, was only a part of the overall assessment report that was submitted to the court.

The other and considerably larger (by volume) part was referred to as a “psychosocial” assessment. This was not done by him, nor was the report generated by him. In fact, as explained in testimony at trial, he was unaware of what the psychosocial portion of the report actually said. There was a purpose to this compartmentalization which does have a logical basis. Primarily, it was to avoid his part of the assessment being tainted by information or conclusions by the other part of the assessment (and although not entirely clear, perhaps also vice versa).

The two assessment results, completed independently, could then be juxtaposed to see whether they were more or less congruent. If they were, this would provide an additional validity to the overall results. I am not sure what would be done if they didn’t accord well. [ 92 ] I declined to qualify the author of the psychosocial portion of the report as an expert in this case. [31] A considerable amount of time and effort was spent in interviewing the persons assessed as well as a number of collateral individuals.

The results were well documented, and the quality of the psychosocial report that emerged was very good. Unfortunately, my decision is to disregard this report for purposes of this case. Firstly, the persons involved in this part of the assessment were not the persons set out in the

section 54 order. Secondly, they do not meet the qualifications in section 54(1.2) of a person that the court may appoint. [32] Thirdly, the person that was actually appointed by the court had nothing to do with the preparation of this report. Fourthly, reports prepared pursuant to

section 54 are rather unique statutorily. Pursuant to section 54(6) such a report “is evidence” in the case in which it was ordered. [33] It is simply a bad precedent to accord this psychosocial assessment report the status of a statutory report under

section 54 when there are clearly some major issues in how it came about. Finally, this report contains not only factual information. It also contains a fair amount of opinion. Sometimes it is not easy to draw the line where fact ends and opinion starts. Opinion is generally inadmissible as evidence. It may be admitted if it is the opinion of a qualified expert provided it meets certain criteria. [34] Any opinion evidence in this psychosocial report was not produced by a qualified expert. [ 93 ] What Dr. Phillips himself did, however, was done in accordance with the order made under

section 54. He also testified at trial. His part of the overall report is evidence in the case. This was done by him independently of any psychosocial assessment. I understand that a fairly experienced psychometrist assisted in the administration of the test instruments. This is perfectly acceptable procedure for a professional psychologist to engage the services and expertise of a professional psychometrist. It was Dr. Phillips who interpreted the data produced by the tests. It was his professional opinion that was provided to the court based on his

interpretation of the test results. [ 94 ] And what was that opinion? Psychologists typically don’t simply say that the person assessed for parenting capacity can or cannot parent adequately. The closest Dr. Phillips comes to a black and white opinion about the mother is: “Ms. D.L. is seen to be highly compromised in regard to personal and parental functioning.” [ 95 ] That is a very relevant opinion if accepted. It is clearly adverse to the mother. The words “highly compromised” indicate that the mother’s deficiencies, as a parent and as a person are substantial. Indeed, in his testimony, Dr.

Phillips confirmed this opinion and further explained the basis for it. [ 96 ] On an intellectual level, he found that the mother’s level of functioning was very low. Her test scores placed her at or lower than the first percentile. [35] This places the mother in the category of persons with mild intellectual delay or mild mental retardation. In practical terms, this suggests that the mother would have difficulties in functioning on a day-to-day basis. She would need help consistently. It would be difficult for her to do everyday things on her own.

Her reliance on others would also open her up to being dominated or over-controlled by them. [ 97 ] The mother has achieved grade eight in terms of her academic education according to what she disclosed in the assessment. However, in her testing for academic skills, she performed in an extremely low range, less than the first percentile (0.3 percentile) in reading comprehension skills. This translates, in practical terms, to functional illiteracy. [36] Dr.

Phillips estimated that the mother was at the mid-elementary school level academically, or, described otherwise, at a pre-adolescence level, albeit with some variances. This again puts the mother in a position of being reliant on others, making her vulnerable to the dangers inherent in such dependency relationships. [ 98 ] The mother did not fare well on personality testing. [37] The assessor’s impressions from the test data were that the mother had tendencies to be hostile, suspicious, hypersensitive to treatment by others, tense, fearful and anxious.

He felt that her thought processes were likely to be marked by confusion, distractability and difficulties in concentration. He foresaw anger, resentment and anxiety as prominent features to be expected in her interpersonal relationships. She presented as a person with low self-esteem, almost with a defeatist attitude. [ 99 ] In testing for anger, hostility and aggression [38] she was felt to be performing in the average range in terms of anger. However, her scores on hostility were in the high range, and on aggression in the high average range, inclining towards indirect aggression.

These results suggested that the mother may feel substantial frustration in her life and experience a lot of stress. [ 100 ] Regrettably, tests relating to parenting functions [39] did not yield data that was considered reliable. This is unfortunate, particularly when the objective was to test capacity to parent. [ 101 ] Overall, the opinion of Dr. Phillips was unfavourable in terms of the mother’s ability to function as an adequate parent. He did not view her deficiencies as marginal. He felt she was highly compromised. Moreover, he had a very pejorative prognosis for change.

However, Dr. Phillips made it clear that one cannot look at the

interpretation of psychometric tests and his clinical opinion in isolation. It is important to look at the whole picture. [ 102 ] The assessment of the father is, in retrospect, of lesser significance than that of the mother as he concedes that she is the candidate for care and custody, not him. The father appears to operate cognitively at an average range. However, he showed evidence of verbal learning disability, attention deficit hyperactivity disorder, as well as issues with substance abuse. His personality characteristics and test data indicated problematic functioning in multiple areas.

His prognosis for developing abilities for capacities related to parenting was poor. The assessor made no recommendations for any services as the father did not feel that there was any need for him to change. The bottom line of the assessor was that the father “... is not likely to be able to offer a high level of stability, understanding, problem solving skills, or advocacy effectiveness in regards to the children”. (f)Plans plans proposed for the care of the children [ 103 ] The father’s plan in his Answer was for a return of the children to himself and the mother, or to the mother alone.

That plan changed over the course of the proceeding. After separation and relocation to Parry Sound, he entered into a relationship with Ms. J.P.. His plan then was for a return of the children to himself. That plan went south once he and Ms. J.P. parted company.

At trial, his plan was for the children to placed in the care and custody of their mother, and he would continue his parenting of them in the role of an access parent. [ 104 ] The mother’s plan for care and custody of the children changed multiple times depending on her circumstances at the time. [40] In her case at trial, her plan was for a return of the children to herself, subject to a society supervision order. Her plan was to live in the apartment of the maternal grandmother and her stepfather with the two children, and also with the new baby once he or she was born.

What is somewhat unclear is whether she intended to remain living with the maternal grandmother and her stepfather long term, or whether she planned to find her own accommodations for herself and the children. In the evidence, she had mentioned that she didn’t want to take any steps to move out of the maternal grandmother and her stepfather’s apartment until she knew if the children were being returned to her.

In fact, the evidence of W.S., an affidavit sworn when he and the mother were still together and living in the apartment of the grandmother and R.A., indicated that he and the mother were planning to get their own place once they knew the court’s decision about the children. The mother was very clear, however, that she would be the primary child caregiver, but that she would rely for help on the maternal grandmother and on her stepfather. [ 105 ] The society’s plan also changed. Initially, it was seeking a six month temporary wardship order.

In early October 2010, shortly after the parenting capacity report had been released, the society’s plan changed to one of Crown wardship with no access to either parent. It wanted to find an adoptive home for V. and J.. This remained and continues to be its current plan for these two children. [ 106 ] The court’s plan for these two children is that they be adopted, and preferably by the same adoptive family. They are highly adoptable. V. has long since caught up on the developmental lag she was exhibiting when apprehended.

By all accounts, these children are exceptionally compliant, two of the least challenging children, according to one of the society’s access supervisors, [41] that she has ever seen. They have been much too long in the temporary care of the society, well beyond what is contemplated by the Child and Family Services Act . While their status screams out for a resolution that has permanency, their circumstances over the past three years have not been as unsettled as they could have been.

They were fortunate to have been placed in a foster family where the foster mother, by all accounts, even the mother’s, has been exceptional. They were doubly so as their foster placement did not change throughout their entire time in society care. Their access with their mother was, with relatively few interruptions, a regular occurrence in the pattern of their lives.

There have been virtually no problems of any significance for either child while in foster care. best interests of the children [ 107 ] The Child and Family Services Act is somewhat unique in that it contains a procedural code for child protection cases within the boundaries of the statute. The starting point of a child protection case should be the establishment of a global context for the case.

Not unexpectedly, this is provided in the starting point of the CFSA which sets out the paramount purpose of the statute as well as other or additional purposes. [42] These pervade both the substantive and procedural provisions in this statute and apply to every child protection case (including status review cases) brought pursuant to the statute’s

Part III provisions. [ 108 ] There are numerous obligations and restrictions imposed on societies as well as on child protection courts involved in child protection cases. These Reasons have already canvassed the temporally related limitations in

section 70 which eliminate one of the disposition options in this case. Also reviewed previously are the mandatory judicial inquiries and determinations contained in

section 57. A statement of plans of the parties and of the court for the care of these children, as required by

section 53, is in the immediately preceding paragraphs [103] to [106]. By far the most voluminous part of these Reasons has been the “brief statement” of the evidence on which the decision of this court in this case is based, and the not insignificant requirements of

section 53 of the Act . [ 109 ] Also required by the statute is a statement of the reasons why these children cannot be returned to the person or persons who had charge of them immediately before the society’s apprehension. These Reasons have touched upon this critical aspect of this case in the review of the evidence. This is dealt with as well in the consideration of best interests which follows. [ 110 ] Any final order that the court can make under

section 57 (or alternatively, under

section 57.1) is required by the statute to be

made in the best interests of the child. [43] This ostensibly innocuous phrase establishes a criterion that is far from simple and far from precise. The most notable aspect of the “best interests” test is the legislatively imposed obligation requiring the court to consider each of a number of described circumstances that the court considers relevant. There is no hierarchy or priority of importance established by the statute for these listed circumstances.

This is likely deliberate as each child protection case differs in its factual circumstances, and what may be a critical circumstance in one case may be a marginal one in another. [ 111 ] In this case, clause 11 of section 37(3) is not only relevant but ranks highly in importance in this case. It is also tied into the statement required by section 53(1)(d)(ii) as to why the children cannot be adequately protected if in the care of either the mother or the father. [ 112 ] Clause 11 of section 37(3) deals with risk of harm to a child.

However, as with many of the circumstances listed in section 37(3) , there are several aspects to be considered in terms of the source of any risk of harm. These are: - through being removed from a parent; - through being kept away from a parent; - through being returned to a parent; and - through being allowed to remain in the care of a parent. [ 113 ] The ground for a finding in this case that V. and J. are children in need of protection was risk of physical harm.

For consistency, risk of harm in the context of a consideration of section 37(3) , clause 11, should also be with respect to physical harm, at least primarily so. [ 114 ] I conclude that there is and has been no such risk for either child in having been removed from, and in being kept away from the mother or the father. In fact, the totality of the evidence is that the children have thrived while in foster care. This was not the case when they were living with their parents. Their father was relatively uninvolved in the day-to-day care of these children. The mother bore the brunt of hands-on childcare.

She experienced a great deal of difficulty, at times was overwhelmed. The children were not receiving very good care. There was little residential stability in the family with an eviction in Sudbury, a relocation to Sault Ste. Marie and with several local residential changes afterwards. V. was lagging developmentally. She was also somewhat sickly, and her health was adversely affected by parental cigarette smoking in the home. She was behind in her childhood immunizations.

There were incidents that could easily have resulted in real injuries: in one case, letting V. remain too close to a stove, in another, neglecting to drain standing bathwater after a child’s bath, and in a third, becoming distracted and letting J. run out in a bus terminal area resulting in a bus driver having to brake to avoid hitting him. [ 115 ] The children’s home in Sault Ste. Marie was actually a succession of different apartments that the mother called home at various times.

Co-resident in these apartments were a succession of different people: the father, the maternal grandmother, the sister, S. [1], the new partner, J.S., the sister S.[1], again, the maternal grandmother again. The housekeeping standards of the mother and father were poor. These did not improve for the mother when she cohabited with J.S.. He left her partly because she was lazy, was not doing housework, and was being a couch potato.

The children lived in environments that were chaotic with angry adult conflicts between the father and the maternal grandmother, the father and the mother, the mother and J.S., and the mother and her sister M.[1]. The mother rarely took the children out into the community. They had no family doctor in Sault Ste. Marie. They had no dentist and no dental hygiene to speak of. Their father was not the family’s breadwinner. He was a regular and chronic drug user and criticized for this, and for his failure to be a responsible father.

The family finances were a shambles and the children’s basic needs were often not met. There was no risk of physical harm in the removal of these children. Nor was there any risk in keeping them out of the care and custody of their parents. [ 116 ] For many of these same reasons, there was a risk of physical harm inherent in returning them to either the mother or to the father. There were also other reasons why doing so, and allowing them to remain in the care of either of them, would give rise to a significant risk of harm. [ 117 ] The father was, and is still is, an inadequate child caregiver.

His relationship with the children was one of playmate rather than responsible parent. His departures from this area, and relocations to Parry Sound, speak volumes in terms of his commitment to the children. His access visits were interrupted by his absences. It is not as if Parry Sound offered him any employment or a lucrative salary. So far as is known, he continues to be a drug user. He has provided no evidence of any effort to address this problem – and it is a problem for parenting. Nor has he undertaken any parenting programs to improve his parenting skills.

On top of all of this are the personal challenges he faces, namely, functional illiteracy, a learning disability and ADHD. His support system was J.P., a woman with three children of her own and problems of her own, who didn’t stay around very long. He has no one else. His stepmother does not even come close to filling the kind of parenting support person role that he would need. [ 118 ] There were, and are, many other reasons which post-dated the apprehension, why returning the children to and allowing them to remain in the care of the mother would have led to a risk of harm for them.

Her personal handicaps, since disclosed through the Parenting Capacity Assessment, should be sufficient in themselves to raise a significant risk of physical harm. Her extremely low cognitive functioning level, her functional illiteracy, and her ingrained pattern of coping with life all portend trouble for any child in her sole care. Combined with admitted problems and frustrations in caring for both children on her own, these personal challenges amplify the risk considerably.

This is exacerbated even more by her poor prognosis for change, an opinion of the assessor which I accept. [ 119 ] If these are not sufficient to raise the spectre of risk of harm, there are also the happenings in her life following the removal of the children. Prominent among these are her impulsive cohabitation relationships with male partners, both of whom turned out to be abusive, both of whom left, and neither of which was a reasonable candidate for parenting.

In the case of W.S., as after acquired information made fairly clear, he was a confirmed drug user, had fathered at least two children who were made Crown wards, and had an unsavoury criminal and associated record which included serious domestic problems with a series of women. Not the kind of male role model anyone would suggest for V. and J..

[ 120 ] In

summary, in considering section 37(3) , clause 11, removing the children – no risk of harm; returning the children – considerable risk of harm. Clause 11 of section 37(3) can, in some cases, be a trump over all of the other circumstances listed in section 37(3) . If the return of the children results in a high enough risk of harm, consideration of any other circumstances listed in section 37(3) becomes somewhat academic.

Courts do not, or should not, place children in places where they are at risk of harm. [ 121 ] The other circumstances listed in section 37(3) should not be supposed to support a return of the children to the mother. In fact, based on the evidence in this case, most do not, or are relatively neutral. [ 122 ] The mother is not particularly equipped to handle the physical, mental and emotional needs of the children. All of the evidence points to the inescapable conclusion that she cannot handle two children, much less three on her own. It is fair to consider her “on her own”.

For reasons already covered (in paragraphs [62] to [86] above), I have discounted the support that might be forthcoming from the grandmother, D.L., and her husband, R.A.. The mother is greatly handicapped intellectually and academically, and I adjudge her ability to meet the mental needs of these children to be compromised. [ 123 ] There was little evidence of the level of development of the two children, physically, mentally or emotionally. They appear to be functioning within normal ranges in these spheres at the present time. They are very compliant children behaviourally.

The mother’s persistent difficulties in managing their behaviours, even in controlled access settings over a period of three years, suggests that it is the mother who has the problem, not the children. [ 124 ] The cultural background of the children is a very peripheral consideration at best. There is nothing particularly distinctive in connection with their cultural background, at least nothing disclosed in the evidence. [ 125 ] Nor is the religious faith of the children relevant. Their faith at time of apprehension was unknown.

No evidence was provided as to any affiliation they may have formed since their births. Nor is there any about the maternal or paternal families. [ 126 ] The circumstances in clause 5 of section 37(3) should be read carefully. This has two components: - a positive relation with a parent, and - a secure place as a member of a family. These are conjunctively stated in this clause which means that both must play a role in the court’s consideration.

Moreover, these are required to be examined in the context of their importance for the child’s development. [ 127 ] Considered somewhat superficially, and using common sense, a positive relationship with a parent, and a secure place in a family are almost axiomatically important for a child’s development. The question in this case is which of the two competing plans, the mother’s or the society’s, is superior from the point of view of the development of these children. The society’s plan has no parent in it, at least no present parent as defined in the CFSA .

At best, its plan includes an adoptive parent (or parents), as yet unidentified and hypothetical. The mother, on the other hand, is a flesh and blood person who has an established relationship with both children. That includes not only a genetic relationship as a birth mother, but also a relationship as a primary caregiver until apprehension, and since then, as a faithful and consistent access parent over a three year period. These children know their mother and know she is their mother. They clearly have a parent and child relationship. Is it a positive relationship with a child?

Taking the word “positive” as meaning beneficial to the child, I would say that the relationship with each child is positive as it presently exists. However, there are degrees of “positive”. I cannot say that the maternal relationship is negative. But I do not consider it to be strongly positive. [ 128 ] The present parent-child relationship is certainly

[…]