Children’s Aid Society of Toronto v. T.S., 2011 ONCJ 732

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 one or more of 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 . . . 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) or 76(11) (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. Toronto (North York) Registry C31342/03 DATE: 2011·XII·01 CITATION: Children’s Aid Society of Toronto v. T.S. , 2011 ONCJ 732 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — T.S. (mother) and C.K. (father), Respondents. Before Justice Geraldine F.

Waldman Heard on 20-23 September 2011 Reasons for Judgment released on 1 December 2011 Anthony Macri ........................................................................................ for the applicant society William Sullivan .................................................................................. for the respondent mother

WALDMAN J.: [ 1 ] This is mother’s second child protection trial. This trial is about the child T.C.S., who was born on March […], 2010, during the course of the previous trial. T.C.S. was apprehended at birth and has been in the continuous care of the Children’s Aid Society of Toronto since then. The Children’s Aid Society of Toronto (CAST) is seeking a finding that the child is in need of protection pursuant to clause 37(2)(

b) of the Child and Family Services Act and a disposition of Crown wardship with no order as to access in order to allow the child to be adopted. Mother is opposing the finding of need of protection and is seeking the return of the child to her care with terms of supervision if required. [ 2 ] Father was found in default by Justice Spence on March 22, 2011. He did not participate in the trial. He has not been involved with this child. [ 3 ] The parties at the outset agreed that the trial would proceed as a single hearing with the evidence as to finding and disposition being heard at the same time.

I did not consider evidence that went strictly to the issue of disposition before I considered the evidence relating to the finding. Background: [ 4 ] T.S. is mother’s fourth child. Her three older children, T. (dob August […], 2003), D. (dob December […], 2004) and J. (dob September […], 2007), were the subject of a previous Crown wardship trial. The trial was heard by Justice Curtis commencing in November 2009 over several months with the decision released on June 28, 2010. The Reasons for the Decision of Justice Curtis were filed as Exhibit 1 in this proceeding.

It was agreed by both counsel that the Court is entitled to rely on the findings of fact of Justice Curtis. Counsel for the Children’s Aid Society of Toronto (hereinafter referred to as the Society) described this trial as a continuation of the previous trial with the previous findings of fact as a given and the evidence of this trial providing the court with information about what has happened since that trial was completed. Counsel for mother referred to these reasons as setting out the past parenting which the court may consider pursuant to

section 50 of the Child and Family Services Act . Counsel for mother acknowledges that Justice Curtis’s reasons are admissible in evidence pursuant to subsection 50(1) of the Child and Family Services Act but submits that the evidence of past parenting must be subjected to the tests of relevance, reliability and probative value. [ 5 ] Justice Curtis found that the children were in need of protection pursuant to clause 37(2)(

a) and (

b) of the Child and Family Services Act . In her decision, Justice Curtis set out the reasons for finding that the children were in need of protection. She stated at paragraph 177 of her judgment: This is the evidence which supports a finding that the children are in need of protection: (

a) The mother has relationships with and has children with partners who assault her; (

b) There is a pattern of mother engaging in relationships with violent partners; (

c) The violence against mother has been serious and even life threatening; (

d) The mother’s history is that of being involved in violent and abusive relationships to which the children have been witness; (

e) The children have repeatedly been exposed to violence and to risk to their own safety; (

f) The mother does not understand or appreciate the impact of this violence on her children; (

g) The mother has repeatedly refused to attend for counselling to help her gain insight into partner violence and its effects on her own well-being and how she parents, despite the fact that this was a term of a supervision order and that she has agreed several times to attend; (

h) The mother has continuing contact with and relationships with partners who are not only violent and dangerous but who are involved in criminal activity and a criminal lifestyle including possibly involved in gangs; (

i) The mother’s possible and suspected gang affiliation and potential risk of harm to the children of criminal associations; (

j) A demonstrated pattern that mother is not forthright with the CAST regarding her relationships and in fact openly lies to and misleads the CAST about these relationships; (

k) The mother’s inability to handle stressful situations and the impact on her children;

(

l) The mother’s failure to adequately supervise the children in her own home and on community access visits; (

m) The mother’s limited use of community resources and supports and the fact that she will only use those which she chooses; (

n) The mother’s history of a poor working relationship with CAST and her inability and unwillingness to work with CAST and acknowledge parenting issues; (

o) The risk of violence by mother against the children; (

p) The physical abuse of D. by the mother. Mother is responsible for and caused the injuries to D. in September and October 2008; and (

q) Repeated and defiant non-compliance by mother with supervision orders in the past. [ 6 ] When considering disposition, Justice Curtis reviewed the criteria set out in paragraph 37(3) of the Child and Family Services Act and decided that an order of Crown wardship with no order as to access was in the children’s best interests. Justice Curtis reviewed mother’s long involvement with the Society, going back to 2003.

She considered the fact that the issue of mother’s continued involvement with her two violent partners and the risk of physical and emotional harm resulting from her ongoing relationship with the two men had been raised with her repeatedly by the Society. “She has known for more than six years that her relationship with these men and exposing her children to these men (and others like them) put her children at risk of physical and emotional harm.” [ 7 ] To quote Justice Curtis beginning at paragraph 200: The mother does not understand that the choices she has repeatedly made about her partners in her life and the partners she has her children with have had a profound impact on her children.

The children are afraid of those two men, and more seriously and concerning, they are afraid in the care of their mother. It is very unusual for children to ask to have supervised access or to talk repeatedly about safety and issues related to safety, particularly children this young. The mother has shown, by her behaviour when previously caring for the children under supervision orders, that she will not abide by the terms of these orders. A supervision order would be inadequate to protect the children.

The mother has had six years to make changes and the high risk to the children remains unaddressed if they are in her care. A supervision order is not suitable in this case. Current Circumstances: [ 8 ] Mother became pregnant with T.C.S. during the period of her previous involvement with the Society and was pregnant and gave birth during the course of the previous trial. The Society apprehended T.C.S. from the hospital. Mother has had regular access to him. From birth until January 2011, mother’s visits with T.C.S. were supervised at the Society’s office.

Mother was granted community visits by the Court in January 2011. These visits take place at the Birchmount Bluffs Neighbourhood Centre’s First Steps Program on Mondays for two hours and are semi-supervised by the Society. Mother now sees T.C.S. three times a week for a total of six hours. Mother appealed Justice Curtis’s decision but that appeal has been dismissed without hearing. Mother’s counsel advised the court that mother may be taking steps in order to attempt to reinstate that appeal but, as of the conclusion of this trial, the court had no further information about this.

The Society terminated mother’s access to her other children on July 2, 2010. Position of the Parties: [ 9 ] It is the Society’s submission that T.C.S. is a child in need of protection and at risk of harm because some of the significant factors which formed the reasons for Justice Curtis’s finding and disposition remain. The Society acknowledges that it has no new information about mother’s involvement with abusive partners or being assaulted.

It is the Society’s position that the following concerns about mother and her ability to parent remain: • mother lacks insight into the impact of exposure to violence on her children, • mother’s failure to obtain counselling to address the Society’s concerns, • mother’s lack of forthrightness and honesty when dealing with the Society, • mother’s continued limited use of community resources, • mother’s ongoing poor working relationship with the Society and • ongoing concerns about mother’s lifestyle.

[ 10 ] It is the Society’s position that it has evidence to support the conclusion that items (f) (g) (j) (k) (

m) and (

n) above, as found by Justice Curtis in support of the finding made by her, continue to be concerns, and that (

l) remains a concern but a less significant one. It is the Society’s position that many of the facts and circumstances which supported the previous finding continue and support a further finding which therefore ought to be made by this court.

It is the position of the Society that mother has not taken the steps necessary to address the issues which gave rise to the findings and, as a result, the circumstances which supported the disposition of Crown wardship continue to exist. [ 11 ] It is mother’s position that there is no evidence of her involvement in a relationship of violence, that she has been more open with the Society and that she has worked cooperatively with the Society workers. It is her submission that during her access visits she has demonstrated her ability to parent the child.

She acknowledges that she has made mistakes in the past but it is her position that she has learned a lot and has changed. It is her position that the evidence as it is currently does not support a finding that the child is in need of protection, that the evidence supports the conclusion that she is able to parent T.C.S. and that the child ought to be returned to her. Mother: [ 12 ] Mother is 26 years old. She grew up in Toronto.

According to mother, she became a ward of the Children’s Aid Society of Toronto at age 13 after making disclosures about physical punishment and because her mother, T.C.S.’s maternal grandmother, was unable to manage her behaviour. She completed grade 8 and has no high school credits. She was in the care of the Society and then lived with her grandmother until she was about 17 years old. She was about 18 when she had her first child. She has four children by two fathers, both of whom were physically abusive to her.

She previously did some type of job training and worked briefly as a painter in or about 2007 before J. was born. She participated in an employment program, Operation Springboard Employment Program, which she completed in the summer of 2010. Mother referred to two jobs in her evidence: working briefly as a painter and working briefly and part time washing dishes in September 2010. She effectively has no employment history and very limited education. Mother is financially supported by Ontario Works and her family. [ 13 ] Mother has been continuously involved with the Society since 2003.

Mother signed a voluntary agreement in August 2003 relating to the care of the child T.. Mother did not comply with the terms of that agreement. The Society commenced a protection proceeding in November 2003, resulting in the first finding that the child T. was in need of protection. The details of mother’s ongoing involvement with the Society are set out in Justice Curtis’s decision. I do not intend on repeating the entire history here.

It is important to note, however, that mother has been continuously involved with the Society since 2003; there have been three findings that the children in her care were in need of protection; domestic violence, exposing her children to domestic violence, and mother’s lifestyle have been ongoing issues and the Society has repeatedly included mother attending for counselling as a term of supervision. Mother’s demeanour and credibility: [ 14 ] Justice Curtis made adverse findings about mother’s credibility in the first trial.

Justice Curtis stated at paragraph 158: “The mother openly admits that she has lied and that she is willing to lie to get what she wants from those in authority (including the agency, the police and likely the Court). She said that sometimes she told the police less than what really happened and sometimes she told the police more than what really happened.” Justice Curtis found that mother was not a credible witness. [ 15 ] Mother’s demeanour at this trial is different than that described by Justice Curtis. She presented as much calmer and less volatile.

Mother appeared to be more forthright and made disclosures and admissions in her evidence that she knew would not help her case. However, mother’s credibility at this trial continues to be an issue. [ 16 ] Mother in her evidence in this trial has admitted to lying to the Society. Mother stated in her evidence, for example, that she knew that Mr.

C.K.C.K. was T.C.S.’s father when she became pregnant but that she did not disclose this and in fact lied repeatedly because “I knew it would be bad for me.” She admitted to acting against her own interest in order to keep information from the Society that would hurt her case. She, for example, testified that she would not call the police if she was assaulted because it would hurt her case. She failed to advise the Society about significant information including the fact that she had been charged criminally twice, once during the previous trial and once in the period between trials.

She testified that she did not tell the Society about the criminal charges involving marijuana and cocaine in March 2011 because “I did not want to sink myself.” [ 17 ] While mother did make adverse admissions in her evidence, they were about information already obtained by the Society from third-party sources such as her criminal charges or information given mother’s experience that the Society was likely to find out (her contacting the police after her experience when she was drunk).

She therefore admitted to information that the Society was already aware of or that she believed the Society might become aware of. In general she gave very little information about herself and her life.

[ 18 ] There remains a real issue as to mother’s credibility and I conclude, as did Justice Curtis, that mother is not a credible witness. Given the many lies and failures to disclose by mother throughout her involvement with the Society, it becomes impossible to know if mother is actually being forthright and honest in her evidence. Domestic Violence: Involvement with abusive partners: [ 19 ] There is no evidence that mother has been involved with Mr. C.K.C.K. or any other abusive partner since T.C.S.’s conception. Society workers have been to her home and there is no evidence of anyone else living there.

There have been no reports from police about contacts with mother as a consequence of violence or abuse except for the report mother made after waking up drunk in a stranger’s bedroom. Understanding the impact of exposing her children to violence and abuse: [ 20 ] The issue of mother’s continuing to be involved with abusive partners and exposing her children to domestic violence has been a consistent and persistent concern throughout mother’s involvement with the Society. Mother has made many commitments about ongoing contact with abusive partners in various agreements and supervision orders.

She has also agreed to go for counselling many times. When dealing with this issue, Justice Curtis states at paragraph 198: “The mother admitted that Wynn and Kotsopoulous are violent and dangerous men, who are gangsters and who are likely involved in gangs. However, the mother is not ready to deal with the issue of her involvement with violent and dangerous men and the question of why she is drawn to them, why she chooses to have their children, why she stays in relationships with them and why she exposes her children to them. The mother is still denying that this is a problem regarding her parenting.

She thinks that the CAST is interested in her ‘love life’.” [ 21 ] Mother in her evidence stated that she understood that she could not have her children around negative people. While she states that she will not expose her children to violence, there was nothing in her evidence that indicated that she understood the significance of exposure to violence on a child. I note that she stopped attending the domestic violence counselling because she did not find it helpful.

I note as well that she still does not accept Justice Curtis’s decision and she testified when responding to Justice Curtis’s decision, “I am not that person. I do not believe that I am capable of hurting my son.” She believes that the appeal was wrongfully dismissed, and blames her lawyer. Failure to obtain counselling: [ 22 ] Mother began counselling programs when she was pregnant with T.C.S. fact she was able to connect with appropriate services. She was highly motivated by her desire to keep her baby.

She began individual counselling with Sherrette Thomas at Elizabeth Fry, domestic violence counselling at Tropicana Community Services, comprehensive counselling and integration of supports with Oolagen Youth Services’ WRAParound Program. She attended for appropriate prenatal care and pregnancy counselling at the SHOUT Clinic. She also attended a parenting program at Aisling Discovery Child and Family Centre. Mother attended seven of the ten parenting sessions at Aisling Discovery, which is the minimum requirement in order to complete the program and she did complete that program.

Mother attended four counselling sessions at Elizabeth Fry, two in July 2009, one in September 2009 and one in October 2009. The counsellor recommended that she continue but she did not. By way of explanation, mother testified that she included the counsellor as part of her Oolagen team. [ 23 ] Mother attended three out of ten sessions at Tropicana. Mother stopped working with the Oolagen program as early as January 2010 and, by May 2010, the Society was advised that Oolagen was closing her file. Based on the evidence, I conclude that mother’s involvement with these services was short.

She was not involved with any program to completion except for the parenting course and she had stopped being involved with all of these resources before T.C.S.’s birth and apprehension. Mother’s explanation was that they were not able to provide her with answers for the Society. It is clear that mother’s motivation for attending these programs was to use her attendance as a vehicle to support her in keeping the baby after birth. She stopped participating as soon as she knew that the baby would be apprehended from the hospital in any event.

She has not followed through with any counselling or programs since except relating to employment. Conclusion : [ 24 ] Mother has done very little in the period since the release of Justice Curtis’ decision to address the concerns raised by

Justice Curtis about her involvement with abusive partners. There is no evidence to allow the court to conclude that she has developed any insight into this pattern of behaviour or into the consequences of this behaviour on her children. She has not engaged in counselling with any level of commitment. She did not articulate a clearer understanding of these issues in her evidence. There is no evidence of any significant change in her behaviour, or the development of any insight into the impact of her involvement with abusive partners on her children as a result of any counselling she may have been attended.

Mother’s connection with community resources: [ 25 ] Mother has not connected with any community resources. She did contact the various agencies in 2009 including SHOUT Clinic, Elizabeth Fry, Tropicana and Oolagen and began counselling but, as set out above, she discontinued the counselling. She stopped her involvement with these community resources before T.C.S. was born. Mother attends access at the Birchmount Bluffs Neighbourhood Community Centre and sometimes swims there. Mother is otherwise not involved with any community resources.

Mother’s ability to handle stressful situations: [ 26 ] In her previous involvement with the Society, mother repeatedly acted inappropriately when stressed, angry or upset with the Society and her situation. This manifested itself in angry outbursts, threats, threatening behaviour and inappropriate behaviour. I conclude, given the evidence in this trial that mother’s behaviour has improved. She did not act out or act inappropriately when she received the decision of Justice Curtis and was appropriate with the workers when she was contacted while at the Society office.

She was appropriate when the Society apprehended the baby from the hospital. There was only one incident which could be and was interpreted by the Society as mother threatening the worker and I accept mother’s evidence that the worker in fact over-responded to mother’s statements on that occasion. Mother was calm and appropriate throughout the trial and testified in a calm and appropriate manner. [ 27 ] Mother did testify about a recent incident in which she went out after an access visit and got drunk.

She woke up the next morning in a strange man’s apartment and had no clear recollection of the events of the night before. She reported this to the police, who told her that they spoke with the man and no charges were laid. Mother got drunk because she became upset about a comment made to her by Ms. Gibbons, the access supervisor, about her daughter who had previously been made a Crown Ward. Mother describes her life without any children in her care as hectic.

I note also that one of the explanations given by mother for missed access visits was that she found attending too stressful. [ 28 ] While there clearly has been improvement, this evidence supports the ongoing concern that mother is unable to manage stress appropriately. While the “drunken night” incident is only one event it raises a “red flag” given that this was mother’s response to an upsetting comment.

Her failure to attend access visits because she was too upset and her description of her life as hectic given the information about her daily activities also raise concern that she is unable to manage her current life stresses even though she does not have the daily responsibility of caring for any children. Access Visits: [ 29 ] Mother’s attendance at access visits was initially excellent. She attended consistently in the period July 2010 until November 2010 and was described as present, on time and prepared for the visits. Her attendance since then has not been as consistent.

According to the evidence, she missed 37 of 117 visits or about 30 per cent of the available visits. Mother in her evidence offered no real explanation for the missed visits. She testified that she worked briefly and asked the Society to change her access but, according to the evidence, her employment happened in September 2010 and does not correspond with many of the missed visits. She testified that she missed visits because of appointments including lawyers and physiotherapy. She had been in a car accident and hurt her back.

She later testified that she went to a therapist whose office was close to the Society so she could go to therapy without missing visits.

She testified, “I know that the baby is in care but I also have to straighten out things in my life, I have a hectic life.” In her evidence, Taia Giecko, the current family service worker, testified that mother missed 39 visits with explanations that she is not feeling well, has various appointments or is too upset. [ 30 ] While mother describes her life as “hectic,” based on the evidence mother appears to have no consistent responsibilities other than her six hours a week of access visits.

The only evidence of any other activity mother is involved in is her evidence that she swims at the community center to relieve stress. [ 31 ] The pattern of missed visits is significant. I note that mother missed eight out of 14 visits in December 2010, seven out of 13 visits in January 2011, three visits in February 2011, seven out of 13 visits in March 2011, five out of 12 visits in July 2011 and

four visits in August 2011. The number of missed visits and the lack of explanation are significant, particularly as this occurs in the period when mother is working towards having T.C.S. return to live with her and is presumably “putting her best foot forward.” The court cannot trust that mother will put the child’s needs first when she cannot even organize herself to be consistently present for access visits. Observations of Mother during access visits: [ 32 ] M. A.V., mother’s family service worker from May 2009 until July 2010, testified that: “Ms.

T.S.T.S. has been very consistent with the scheduled access visits during this time. She has arrived on time and generally been prepared for the visits with gifts and food for the children, as well as a movie that they may watch. She is playful with the children and will often readily engage with them in activities in the park.” [ 33 ] Taia Giecko, the current family service worker, testified about an occasion when T.C.S. was about six months old when mother fed him food that he was not used to, causing him to get diarrhoea.

She testified that mother allowed relatives to come to visits on occasion even though she was told not to. Ms. Giecko stated: “Between July 2010 and November 2010, Ms. T.S.T.S. was able to attend at the Society’s office for the majority of the visits. She was punctual and prepared. Ms. T.S.T.S. would often bring food and toys to engage T.C.S. during the visit. Ms. T.S.T.S. is able to care for T.C.S. during the visit with minimal assistance and prompting. Ms. T.S.T.S. is affectionate and loving towards T.C.S. my involvement Ms.

T.S.T.S. has been calm and collected during her visits and there have been no concerns with respect to her behaviour towards staff.” [ 34 ] Rakefet Oren, the Children’s Services worker, testified about visits that she had supervised. In her affidavit sworn September 9, 2011, she stated: “During many access visits Ms. T.S.T.S. focuses on T.C.S. and his appearance and development. She is verbal with him, smiles and shows love and affection.” She had some concerns about the food mother brought to the visits, making him walk before he was able and on one occasion trying to get T.C.S. to nap when he was not tired.

However, the criticisms are minor. [ 35 ] Sherry Gibbon a case aide who supervised 27 visits provided evidence as to her observations. Her observations of the interaction between mother and T.C.S. were positive. She observed that T.C.S. would reach out his arms when he saw his mother, would follow her around, and was visibly unhappy at the end of the visit. [ 36 ] None of the Society’s witnesses had any significant criticism about mother during access visits. She generally came on time and was prepared. She engaged appropriately with the child. There were no ongoing safety concerns raised.

T.C.S. has developed a good relationship with his mother. He is happy to see her, is affectionate with her, enjoys the visits and is sad to leave. [ 37 ] Mother did feed the child inappropriate baby food. She has brought family members to visits even though she has been told not to and in this respect has blatantly disregarded the directions of the Society. During one visit, she was angry with her family in front of the child. However, the criticisms of mother’s parenting of the child during access visits are minor and, overall, mother is able to care for the baby appropriately during the access visits.

Mother’s Lifestyle: [ 38 ] There is very little evidence about mother’s life and lifestyle. According to her evidence, she has not been assaulted since 2006. She testified that she has not been involved in a relationship with a man since she stopped having a relationship with Mr. C.K. SheC.K. testified that she is not currently involved with Mr. C.K.C.K. and that she has not been involved with him for years. It was her evidence that she had one sexual encounter with him in 2009 when they spent the day together which resulted in her pregnancy with T.C.S. saw him at court and she thought that he had changed.

According to her evidence, she has not been involved with him since. The only other evidence of contact is the police report that they found a card from him at mother’s apartment in January 2010. [ 39 ] Mother receives Ontario Works but her rent alone is more than she gets from the government. Her grandfather assists her financially. [ 40 ] Mother smokes marijuana regularly about three times a week at a total cost of about $30.00 except when her friends give it to her for free. She smoked marijuana when she was pregnant. It was her evidence that her doctor knew that she smoked marijuana while pregnant.

She does not use other drugs. This has been confirmed by a hair strand test done by Motherisk. She has,

however, been exposed to other drugs because, while her hair test was negative for cocaine, there were traces of cocaine consistent with environmental exposure. Mother denies knowingly being around anyone using cocaine and offers the general environment in her apartment building as a possible explanation for the exposure to cocaine. [ 41 ] Cocaine was found in her apartment by the police twice and the only two times that the police were in her apartment.

As a result of the police finding cocaine in mother’s apartment she was charged with marijuana- and cocaine-related criminal offences twice, once in January 2010 and once in March 2011, and, in both cases, the charges were stayed or withdrawn, it is unclear which. It is her evidence that on both occasions she did not know how the cocaine got into her apartment and she believes friends brought the drugs with them without her knowledge. In relation to the second set of charges, mother testified that she found the drugs in her couch and left them on her table when she went out for physiotherapy.

She testified that she had friends over the night before and offered that as a possible explanation, but also that she did not know how long the drugs had been at her apartment. [ 42 ] She has had two apartments and was, according to her, “illegally evicted” after the second set of criminal charges. Her current apartment is appropriate, clean and safe. She considers her life hectic but, according to the evidence, it consists of access visits three times a week for two hours, lawyer’s appointments and physiotherapy. She does not work.

She has not participated in any counselling or other services since around the time of T.C.S.’s birth in March 2010 except for the Springboard Employment Program in 2010. Conclusion: [ 43 ] What we are left with then is a long and problematic history of involvement with the Society resulting in mother having her children made Crown wards in June 2010, very little done by mother to address the issues raised by the Society and by Justice Curtis in her decision, very little information about mother and her life, and a mother who is not forthcoming about events in her life.

There are “red flags”: specifically, her two arrests with drugs found in her apartment, the presence of environmental exposure to cocaine in her hair test, missing thirty percent of access visits, and a drunken binge ending with mother waking up in a strange man’s apartment with no recollection of the events that led to her getting there. Grandmother: [ 44 ] Maternal grandmother Ms. F.C.F.S. is the proposed alternative caregiver if the court finds that T.C.S. cannot be returned to mother. Mother’s three older children lived with Ms. F.C.F.S. for about five months in 2006-2007.

The Society did not have concerns about the care that she provided for the children at that time. She was unable to plan for the other children at the time of their trial. The Society conducted a kin assessment in this litigation when grandmother was proposed as a possible placement for T.C.S. and did not approve her as a placement. [ 45 ] Grandmother is 51 years old. She lives in a two-bedroom apartment with mother’s sister, K., age 24, and mother’s youngest sister, S., age 16. S. is a high school student. Mother’s brother Z. lives with his father.

K. was charged with a drug offence in Jamaica involving cocaine found in her suitcase which, according to grandmother, was planted there. K. does not have a criminal record. Grandmother was employed but is not working now. She left her job in February 2011 because of health issues. She receives a pension from ODSP for a back injury. It is grandmother’s evidence that the disability would not prevent her from caring for the child and she would have the help of her other two daughters. [ 46 ] If T.C.S. is placed with her, grandmother would be home with him full time.

She would arrange day care after he had settled in and adjusted to his new home. [ 47 ] Grandmother attended about 13 access visits with T.C.S., although she was approved to attend visits in July 2010 and visits occurred up to three times a week. According to the evidence of the Family Service worker, Taia Giecko, which is not contradicted, grandmother had the opportunity to attend 147 visits. Also according to the same witness, as of September 9, 2011, grandmother had not attended a visit since June 30, 2011. Grandmother agreed that she was allowed to come to all of the visits.

When asked why she did not come to access visits more often, she testified that at the beginning she was working and, after she stopped working, she had other things to do and that she wanted to give mother more time with the baby.

Her failure to attend access visits and to work on developing a relationship with the child that would support a placement with her raises real concerns about grandmother’s commitment to the plan of placing the child with her. [ 48 ] Grandmother testified that she was very concerned about her daughter when she was involved with her two previous partners and that she told her to get away from these men. She testified that she tried to intervene and that she was there all the time if

mother needed her. She testified that: “I know the two fathers are in jail and it is a good feeling.” [ 49 ] Grandmother does not understand the significance of mother’s issues. When asked about her daughter’s ability to care for the children, grandmother testified: “To me she is okay to have her children. She has learned from experience. I don’t think my daughter will harm the children.” She testified that she would have no concerns about leaving T.C.S. with mother, that: “Honestly, I have no concerns about her being with T.C.S.” and “There is no reason [Ms.

T.S.T.S.] should not be with [T.C.S.].” [ 50 ] Mother and grandmother have had a difficult relationship with a lot of conflict. Mother as a teenager was in the care of the Society because grandmother could not manage her behaviour. Mother has ambivalent and angry feelings towards grandmother. In her evidence, mother told the court, “When I did have my kids, she (grandmother) was not there for me… Like today .. mom should be here for me.

I don’t have good support… I cannot tell you the last time mom told me that she loved me… She would sometimes take the kids for the weekend and when she did, it would turn into a conflict.” [ 51 ] Mother also testified that she had concerns about grandmother’s ability to care for the children. It was her evidence that when grandmother previously cared for the children, her son developed very serious eczema which grandmother did not treat properly. She accused grandmother of neglect.

She also testified that she had concerns about grandmother’s supervision of the children. [ 52 ] The Society had several concerns about placement with grandmother: • the conflict between mother and grandmother and the possibility that the child would be caught in this conflict; • whether grandmother would actually act as the child’s caregiver or merely appear to take responsibility while mother was actually the caregiver; and • whether mother had the ability to stand up to her mother (T.C.S.’s grandmother). [ 53 ] Given the evidence, I am satisfied that these concerns are real and significant.

T.C.S.: [ 54 ] T.C.S. is now about 18 months old. He was apprehended from the hospital and has resided in the same foster placement. T.C.S. has had a consistent placement in a single foster home and has a close and loving relationship with the foster mother and her family. The foster mother’s son has expressed an interest in adopting T.C.S.T.C.S. is described as a healthy, happy child. He meets his developmental milestones. He has no special needs. He does, however, require a permanent home. [ 55 ] The Society submitted a sample of meconium for testing after T.C.S.’s birth. It tested positive for cannabis.

Mother has admitted smoking marijuana during her pregnancy. [ 56 ] T.C.S. knows his mother and is happy to see her when she comes for access and sad when the visits end. Mother has missed a number of access visits and some of them sequential. There is no evidence that the missed visits had any impact on T.C.S. Past Conduct: [ 57 ]

Section 50 of the Child and Family Services Act specifically provides that the court can consider past conduct towards a child by the party in the current litigation. This is set out in

section 50 of the Child and Family Services Act . 50.

(1) Despite anything in the Evidence Act , in any proceeding under this Part, (

a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding orthe reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. 1999, c. 2, s. 12. [58] In this case, the past conduct to be considered by the court is as set out in the decision of Justice Curtis, which is filed asExhibit 1. [59] While evidence of past parenting is potentially admissible, before it is admitted it must meet the tests of relevance andreliability. Its probative value must exceed its prejudicial effect. (Durham CAS v.

R.B. (ON SC), 2005 O.J. No.3794 (SCJ)) [60] In considering reliability, the court must consider the age of the evidence, its nature including the manner in which itwas obtained, whether it has been tested by cross-examination, whether it is supported by direct observation of the parent, the extent towhich it is hearsay information and the extent to which it is fair. (CAS Waterloo v.

C.R.) [61] Therefore, the Court has the obligation to carefully consider the evidence and has the right to refuse to rely on thisevidence, to give it limited weight or to rely on only some of the evidence. [62] The reasons of Justice Curtis as they relate to mother’s parenting and the protection concerns which gave rise to thefinding and disposition in that case about her other three children are relevant to the case before the court. [63] In relation to reliability I note: • the findings of fact that the court is asked to rely on in support of the findings and disposition in this case are the reasons from atrial.

Therefore the evidence and findings are based on admissible evidence, were subject to the scrutiny of cross examination and werebased on the direct observations of the various witnesses at that trial; • the decision was released about 18 months ago and is therefore recent. [64] Given the above I find that the evidence of past parenting is reliable and should be considered by this court. [65] The periods of time under consideration in both this and the previous trial overlap in part and are certainly a continuum.

Given the fact that there has been almost no lapse of time between the past conduct and the parenting we are now considering, thisevidence should be given considerable weight. [66] In Children’s Aid Society of Niagara Region v. D.P. and S.B. (no.3) (2003) (ON SC), O.J. No. 619 (Ont.Family Court), the Court considered the issue of past parenting in a case in which the parent’s previous children had recently been madeCrown wards.

That case involved two children, one born during the child protection trial involving this mother’s other children and asecond child born in the course of the protection proceeding, relating to the child born during the first trial. The trial of the first childrenwas concluded in October 2001; three of the children were made Crown wards with access, one was made a Crown ward without accessand two children were placed with their biological father. The second trial was heard in December 2002 and January and February 2003with the decision released in February 2003.

When dealing with the issue of the evidence and findings from the first trial, Quinn J.stated: Burden of Proof on the Society: As stated earlier in these reasons that, on the issue of Crown Wardship without access, the Society must prove its case with the highestdegree of probability. Evidentiary Onus on the Respondents: With S.B. Jr. and D.P. Jr. having been apprehended at birth, and with the decision in the first protection proceeding being

clearly correct, the respondents must show that they are not the same parents as the ones about whom Justice Dandie heard; …This evidentiary onus is a matter of common sense. [ 67 ] I agree with this statement. The burden of proof remains with the Society. However, mother in this case has an evidentiary obligation to show this court what steps she has taken to address the protection concerns raised in the decision of Justice Curtis and to provide evidence to the court about what is now different and that she is not the same mother as the one about whom Justice Curtis heard.

The Finding: [ 68 ] The Children’s Aid Society of Toronto is seeking a finding that the child is in need of protection pursuant to section 37(2) (

b) of the Child and Family Services Act .

(2) A child is in need of protection where, (

b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (

i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child; [ 69 ] The court has the discretion to make a finding that a child is in need of protection pursuant to a clause of the Act that is not pleaded if the finding is justified by the evidence, the parent had full disclosure, is not caught by surprise and had an full opportunity to test the evidence. See Durham Children’s Aid Society v. R.S. and J.M.[2005] O’J’ No. 570 (Ont Fam Ct). [ 70 ] I have considered the evidence and I find that this child is a child in need of protection pursuant to section 37(2)(

g) of the CFSA. I am satisfied that I am able to make this finding given the evidence. I am satisfied that the test in Durham Children’s Aid Society v. R.S. and J.M.has been met. The evidence that I am relying on in support of the finding is the evidence presented at trial. Mother had full disclosure of this evidence and a full opportunity to test the evidence in cross examination. [ 71 ] Section 37(2) (

g) is as follows:

(2) A child is in need of protection where, (

g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (

v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child. [ 72 ] Having reviewed the evidence and using the standard of a balance of probabilities, I find that T.C.S. is a child in need of protection pursuant to section 37(2)(

b) and (

g) of the Child and Family Services Act for the following reasons: • T.C.S. was born during the course of the previous trial. His birth was therefore concurrent with the findings made by Justice Curtis in relation to the other three children. Justice Curtis’s decision is filed as Exhibit 1 in this proceeding. I have set out the evidentiary findings made by Justice Curtis in support of the finding that the three children were in need of protection pursuant to sections 37(2)(

a) and (

b) of the CFSA in paragraph 4 above. I therefore rely on the findings of fact and decision of Justice Curtis concerning the finding that the three children who were the subjects of that litigation were in need of protection to support my conclusion that T.C.S. was a child in need of protection at the time of the apprehension in March 2010. • Mother’s behaviour and actions since the findings made by Justice Curtis are consistent with the findings made by Justice Curtis. Mother admitted that she continued to lie to the Society. Mother failed to disclose significant events in her life to the Society.

She continues to lack forthrightness and honesty when dealing with the Society. Mother continues to make limited use of community resources. Mother has not engaged seriously in counselling and the counselling that she has engaged in has not resulted in any real changes. Mother continues to lack insight into the risk to her children of exposure to domestic violence. There are ongoing concerns about mother’s lifestyle.

Mother has not taken any other step to support the conclusion that the concerns and risks which supported the previous findings and, in particular, her lack of insight into the impact of exposing her children to violence and her longstanding pattern of involvement with men who abuse her have been addressed. The current evidence taken together with the evidence of past conduct as contained in the reasons of Justice Curtis establish concerns and patterns of behaviour which are longstanding and pervasive.

I acknowledge that there has been some improvement and in particular there is no evidence of recent involvement with abusive partners and mother is less volatile and has maintained a more cooperative relationship with the Society. However, while these improvements mitigate the risk of harm, these changes are not sufficient to reduce the risk to an acceptable level. Too many serious and significant concerns remain. • Mother has not presented evidence to support the conclusion that she is not the same mother as the one about whom Justice Curtis heard. Disposition:

The Law: [73] The legislation provides an evidentiary path or steps which must be considered in a disposition hearing. These wereconsidered by Justice Perkins in the case C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 . 1. The court must consider

section 57 of the CFSA and determine whether the disposition which is in the child’s best interests is thereturn to a party with or without supervision. Section 57(3) of the CFSA requires the court to look at less disruptive alternatives toremoving the child from the care of the person who had charge of the child immediately before the intervention unless the court findsthat these alternatives would be inadequate to protect the child. Section 57(4) requires the court to look at community placementsincluding family members before deciding to place a child in care. 2.

If the court finds that the above is not in the child’s best interests then the court must decide whether a period of Society wardshipor an order for Crown wardship is in the child’s best interests. Subsection 57(1) of the Act is limited by

section 70, which provides thatthe court shall not make an order that results in a child aged younger than age six being a Society ward for a period exceeding twelvemonths and a child over age six being a Society ward for a period exceeding twenty-four months. This

section informs the court as towhat order it can make in cases in which the statutory time limits have been exceeded. 3. Section 70(4) of the Act allows for a single extension of the allowable period for Society wardship by a further six months, if suchan extension is found to be in the child’s best interests. 4. If an order of Crown wardship is made, the court must consider section 59(2.1)(

a) of the Act to determine whether an order ofaccess should be made. [74] An order for Crown Wardship is one of the most serious orders this court can make. It is well settled law that a judgemust exercise the power to take a child permanently away from parents only with the highest degree of caution and only on the basis ofcompelling evidence and after an examination of possible remedies. Children’s Aid Society of Hamilton Wentworth v.

G.(J.), (1997) 23 RFL 4th 79 (SCJ-Family Branch). [75] The court must determine the appropriate disposition, having regard to the criteria set out in section 37(3) of the Childand Family Services Act and based on the child’s perspective. Catholic Children’s Aid Society of Metropolitan Toronto v. C. M. (1994) (SCC), 2 S.C.R. 165 (S.C.C.). The court must assess the extent to which the degree of risk which existed at the time ofthe apprehension continues to exist today.

It then must weigh all of the factors and consider the plans proposed by the Society and theparents. [76] Subsection 57(3) of the CFSA requires the court to consider less disruptive alternatives than removing a child from thecare of the person who had charge of the child immediately before the intervention unless the court determines that these alternativeswould be inadequate to protect the child. [77] The court must also consider community placements including family members.

In this case, I must consider maternalgrandmother in particular. [78] In determining disposition, I must consider the child’s best interests having regard to the criteria set out in subsection37(3) of the Act. [79] In determining the best interests of the child, the court must assess the degree to which the risks which gave rise to theapprehension still exist at the time of the trial. [80]

Section 70 of the Act sets out specific timeframes which restrict the orders which can be made. According to thatsection, the court cannot make an order for Society wardship that results in a child under six being a Society ward for a period exceedingtwelve months. This

section is modified by subsection 70(4) which gives the court the right under some circumstances to extend thetime period by six months. Since T.C.S.T.C.S. is under six, this

section limits the courts options. Analysis: [81] When considering disposition, the court must determine what is in the child’s best interests having regard to the criteriaset out in section 37(3) of the CFSA. [82] The decision of Justice Curtis and the findings of fact in that decision which support the finding and disposition formthe background for this litigation.

To paraphrase Justice Quinn, while the onus rests with the Society to prove its case on a balance ofprobabilities and with the level of seriousness and certainty consistent with the relief sought, the evidentiary burden rests with mother toprove that she is not the same parent as the one Justice Curtis heard about.

Given mother’s history, the court must be satisfied thatmother has addressed the issues which caused her to lose her other children. [83] Mother has had a lengthy history with the Children’s Aid Society going back to 2003 and the Society has had an openfile regarding mother as a mother since 2003 when her first child was born. At that time, domestic violence was one of the Society’sconcerns. Since then she has signed voluntary service agreements and did not comply with the terms of the agreements; there was aprotection finding in 2004 and a supervision order.

There was a further finding that mother’s second child was in need of protection inMarch 2005. The issue of mother being involved with dangerous and violent men has been a consistent concern of the Societythroughout its involvement with her.

[ 84 ] It is the case that there is no evidence that mother has been involved in an abusive relationship or a relationship with either of her former partners or had any contact with the police as a result of intimate partner abuse since in or about 2007. An absence of evidence of mother being involved in further incidents of domestic violence, while preferable to the alternative, is not sufficient to allow the court to conclude that mother has addressed these longstanding issues.

There is no evidence before the court that mother has developed insight into why she becomes involved with violent men and why she continues in relationships with them. [ 85 ] While mother may not have been involved with abusive partners in this period she has continued to show a lack of insight and understanding about the emotional harm caused by exposing her children to domestic violence.

She has in the past acted without regard to the risk of physical harm by allowing these dangerous men to be around her children. [ 86 ] The Society has repeatedly made counselling a term of supervision and has consistently encouraged mother to go for counselling to address her issues and break the cycle of violence to which she exposes herself and her children. In the period since the last trial, mother attended for counselling only briefly and only when she thought it would help her keep T.C.S. from being apprehended by the Society.

She was frank in her evidence that she stopped the counselling because the service providers were unable to give her the answers about how to keep her baby. She testified that she did not find the domestic violence counselling useful. Mother was not committed to the counselling and there is no evidence of any significant change or benefit as a consequence of the counselling that she did participate in. [ 87 ] Mother’s pattern of behaviour of involving herself with abusive and dangerous men has been pervasive and longstanding.

Given her history, it is fair and reasonable for the Court to be concerned that there cannot be any confidence in mother not repeating her pattern of violent partners unless she has taken steps to address this through counselling. [ 88 ] Mother has been less volatile and her behaviour has been more appropriate with the Society and in the court than that observed by the Society and the court at the time of her last trial. She has been able to maintain a more cooperative relationship with the Society with only one incident where the Society worker felt threatened by mother.

Mother denied making a threat and, having reviewed the evidence, it would appear that the worker over responded to mother’s words. [ 89 ] While mother has been less volatile and more co-operative there has not been a relationship of trust between mother and the Society. Mother has continued to omit telling the Society important information. The identity of T.C.S.’s father was determined by DNA testing and not by mother’s disclosure. She admitted lying about this repeatedly and over a long period of time in order to protect her interests in the litigation.

She did not tell the Society about her two arrests for drug charges. She did not tell the Society that she had been evicted from her apartment. She did not tell the Society about her sister’s drug charges. She admitted that she did not disclose this information because she knew that these disclosures would hurt her case. She admitted previously that she lied to the police as suited her. She testified that she would not contact the police if assaulted if that might hurt her case.

There is actually very little information about mother’s life and most of what is known was discovered by the Society and not as a result of mother being forthright with the Society. Her failure to be honest and forthright and her decision not to provide important information in order to protect her own interests make it difficult to have confidence that she will disclose problems, seek help when required and obtain support when necessary.

We are also left with a lack of confidence that we actually know what is going on in mother’s life, which makes effective monitoring a problem. [ 90 ] Mother has not connected with any community resources except for a period in 2009-2010 when she took some steps in an effort to have her baby remain with her. She has a relationship with her family doctor and some connection with her family but she has no connection with any other community resources. Her relationship with her mother is volatile and conflicted.

Her family was unable to protect her other children from mother’s violent relationships or to influence mother’s behaviour. She does not have an open and trusting relationship with the Society. There is no evidence about any peer support or community support either formal or casual. This lack of connection and support creates concern about mother’s ability to address issues which may arise, to seek and have support for herself and her child and to overcome problems. [ 91 ] Mother’s lifestyle continues to be a concern.

While she does not use cocaine herself, cocaine was found by the police in her apartment on two occasions. The second time mother testified that she found the drugs in her couch. Mother testified that she did not know how long it had been there or how it got there. She did acknowledge that it must have been brought into her apartment by someone she allowed to be there. It is also interesting that, when she found the cocaine, according to her evidence, she did not dispose of it but left it on the table when she went out.

Mother’s hair strand test tested negative for ingestion or use of cocaine, but also shows exposure to ambient or environmental cocaine. Mother denied being around people who used cocaine and suggested that it could be in her hair because of the type of apartment building she lived in. I conclude from this evidence – the cocaine in her apartment on the two occasions that the police entered it and the cocaine in her hair – that mother does not use cocaine but continues to be involved with people who use cocaine. At best, mother is careless as to whether people who are in possession of cocaine are in her apartment.

Moreover, the presence of cocaine in her apartment and more importantly in her couch represents a danger to the child if he were to be in that apartment. This issue is not resolved by mother stating that she did not know how the drug got there or how long the drugs had been there. [ 92 ] I am also concerned about the fact that mother disclosed almost nothing about her life and routine.

I know almost nothing about what mother does each day except for going to the access visits which take up six hours of her week, going to physiotherapy for some period, going to lawyer’s appointments and swimming at the community centre. Mother in her evidence described her life as hectic. Notwithstanding that description, mother did not provide any details about what she does each day. There is no evidence of an appropriate routine. There is no evidence that she is engaged in productive activities of any kind that would be consistent with a lifestyle that would support the return of the child.

I appreciate that it would be difficult for her to work because of the access visits but she could have taken some educational or vocational upgrading beyond the short programs that she attended, done volunteer work, or participated in more structured recreational or social activities. In the entire period in question, she took an employment readiness course and worked very briefly in the fall of 2010. [ 93 ] Mother missed about thirty per cent of the access visits. The reasons offered for the missed visits were sickness, being too upset to come or other appointments, specifically physiotherapy or lawyers.

These reasons are also concerning. Mother had limited contact with this child whom she wishes to care for full time and knew that she was under scrutiny. Missing thirty percent of the visits,

including and, particularly, several visits in July and August immediately before this trial, raises questions about mother’s ability to be reliable, her ability to organize her life and to be child-focused and her ability to assume the full time responsibility for this child. [ 94 ] Mother has continued to demonstrate appropriate parenting skills during access visits. Mother sees T.C.S. three times a week, both at the Society office and once in a less supervised setting at a community centre. She focuses on T.C.S. during access visits.

She talks with him, plays with him, shows affection and is largely able to meet the child’s instrumental needs. While mother is generally appropriate with the child, she does not respond positively to direction or criticism. She knows the rules but chooses not to follow them. For example, she brings unauthorized people to access visits even after being told not to. These are more control issues between mother and the Society rather than parenting issues. [ 95 ] Mother has consistently failed to put her children’s interests ahead of her own.

She knew that her ongoing involvement with her previous partners was dangerous for her children and put them at risk of apprehension by the Society. However, she continued her relationship with Mr. C.K.C.K. and, in the end, these children were made Crown wards. Mother knew what was at stake in the period between trials and knew what steps she needed to take to demonstrate that she had changed so that T.C.S. could be returned to her. She continued to lie to the Society. She continued to fail to disclose important information to the Society.

Quite frankly, it is very telling that mother did not do anything, attend for any counselling with any degree of commitment or take any meaningful step to address the Society’s concerns and the concerns raised by Justice Curtis in her decision released in June 2010. She missed thirty per cent of the access visits. Her behaviour in this period is not consistent with a person who is focused on having her child returned to her. [ 96 ] Mother’s plan for the care of T.C.S. is vague and without detail. She plans on staying home with him and putting him into day care.

She has not connected with any community resources to provide her with support and assistance. Given all of the concerns. along with the lack of ability to monitor and the lack of community supports, placement with mother puts the child at risk. [ 97 ] The alternative plan proposed by mother is for the child to be placed with her mother, the maternal grandmother. The maternal grandmother has done nothing to support this plan. Grandmother has not demonstrated any commitment to this plan.

She has not worked at developing a relationship with T.C.S. came to only 13 access visits out of a possible 147. [ 98 ] Grandmother did not demonstrate an understanding of mother’s issues. Grandmother believes that mother is no longer at risk because her two previous abusive partners are now in jail.

While she presents herself as a proposed caregiver, she states in her evidence that her daughter is capable of caring for the child and that she see no reason why the child should not be placed with her and in her care. [ 99 ] While mother presents grandmother as her alternative plan, in her own evidence she raises serious issues about grandmother’s care of her other children during the period in which they resided with her and accuses her of being neglectful of their needs.

She also accuses her mother of being emotionally abusive to her, not showing her love and affection and not providing her with emotional support. The relationship between mother and grandmother is volatile and difficult. If T.C.S. is placed with grandmother, he will be exposed to this conflict. [ 100 ] I accept the Society’s concerns that placing T.C.S. with grandmother would expose him to the conflict between grandmother and mother, that grandmother has not shown a commitment to caring for T.C.S. and that grandmother believes that mother is capable of caring for him.

Given these concerns, placing T.C.S. with grandmother is not an appropriate plan. [ 101 ] The Society’s plan is for adoption and possibly by a member of the foster mother’s family. The Society’s plan for the child is therefore the preferred plan and the one which is most likely to allow the child to grow up in a safe and nurturing environment and as part of a loving family. [ 102 ] The child has never resided with mother and in fact has had limited contact with her, six hours a week of access.

The child has never resided with his siblings and, while maintaining contact with his siblings is optimal, the relationship between the child and his siblings is not now significant. Placing child with mother subject to terms of supervision: [ 103 ] Mother has a long history of failing to abide by terms of supervision, going back to her involvement with the Society in 2003 and her signing a voluntary service agreement and the first supervision order. She does not have an open and honest relationship with the Society and she admits not telling the Society important information because it would hurt her case.

Given her long history of noncompliance and her failure to be forthright with the society during this litigation, I find that mother is unlikely to abide by terms of supervision and that the Society would be unable to adequately monitor mother’s compliance. Therefore, there are no terms of supervision that would adequately protect the child. Community or Kin Placement: [ 104 ] The court has rejected the alternate plan of placing the child with grandmother. There are no other kin or community placements. Adoptability: [ 105 ] According to the evidence T.C.S. is adoptable.

In fact the son of the foster mother has expressed an interest in adopting him. Conclusion: [ 106 ] I have reviewed the evidence and considered the criteria set out in section 37(3) of the CFSA. For the reasons set out

above I find that T.C.S. would be at risk of harm if he were to be returned to his mother. I find that having considered all of the evidenceand the criteria set out in paragraph 37(3) of the CFSA that the Society’s plan of adoption is the plan that is in the child’s best interests. Given mother’s history a supervision order will not adequately address the risks. There are no appropriate community or kinplacements. [107] T.C.S. has been in care since March 2010, about 19 months. Therefore given paragraph 70(1) of the CFSA the onlyorder available to the court is an order of Crown wardship.

Extension of time, Section 70(4): [108] Section 70(4) allows the court to extend the period of 12 months of society wardship set out in section 70(1) for a child under sixby a period of up to six months if it is the child’s best interests to do so. Mother has done nothing significant in the past 18 months toimprove her situation. I cannot conclude that she would do anything if she were given further opportunity to do so. The child has been incare for over 18 months which is well beyond the statutory limit. I find then that this is not an appropriate case for a further extension oftime.

Access: [109] The statute provides as follows: Section 59 (2.1) A court shall not make or vary an access order made under

section 58 with respect to a Crown ward unless the court issatisfied that, (

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

b) the ordered access will not impair the child's future opportunities for adoption. [110] The sections of the Child and Family Services Act relating to adoption of children who have been made Crown Wardswith an order for access by the biological parent have recently been amended. These amendments allow the Society to look for anadoptive placement for children who are Crown wards with access and, if same is found, require the Society to give notice of theproposed adoption to the party who has access.

The amendments then create a process for determining whether the party having accessshould continue to have contact with the child post adoption and, if so, what contact. [111] The recent amendments to the CFSA create new considerations when addressing the issue of access and newdynamics in the adoption process. These new considerations must be addressed when considering the test in Section 59(2.1) incircumstances in which the issue of impairment to adoption needs to be addressed. [112] The onus to rebut the presumption against access to a Crown ward is on the parents.

Children’s Aid Society of Toronto v.D.P. (ON CA), [2005] O.J. No. 4075 (Ont. C.A.). The parents have the onus of establishing both portions of the testin subsection 59 (2.1) of the Act. This is a very difficult test for parents to meet. Where a Crown wardship order has been made, there isno obligation on the Society to prove that the children are adoptable, let alone that there is a prospective adoptive family. Children’s AidSociety of the Niagara Region v. J.C., (ON SCDC), [2007] O.J. No. 1058 (Ont. Div.

Ct.) [113] The meaning of the phrase “beneficial and meaningful” was examined by Justice Quinn in Children’s Aid Society of theNiagara Region v. M.J. (ON SC), [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family) where he said:

(45) What is a “beneficial and meaningful” relationship in clause 59(2) (a)? Using standard dictionary sources, a “beneficial”relationship is one that is “advantageous.” A “meaningful” relationship is one that is significant. Consequently, even if there are somepositive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child. [114] The visits between mother and T.C.S. are good. He enjoys them, is happy to see his mother and is sad when the visitsend.

While it is clear that T.C.S. enjoys the visits, the requirements to meet the test of meaningful and beneficial go beyond enjoymentand require the relationship which is maintained through the access visits to be of consequence to the child’s development and well-being. There is no evidence that allows me to conclude that the visits are significant to the child beyond his enjoyment of them. Motherhas missed about thirty per cent of the visits and some of the missed visits were sequential resulting in T.C.S. not seeing his mother forseveral days and as long as a week (e.g., Janurary 6, 10, 13, 14, 2011).

There is no evidence that these absences had an adverse impacton the child. T.C.S. has never lived with his mother and his contact has been limited to a maximum of six hours a week. Based on theevidence, I conclude that the access visits, while enjoyable, are not significantly advantageous to the child. Mother therefore has not metthe first part of the test. [115] I have found that mother does not meet the first part of the test in section 59(2.1). Therefore, I do not need to consider

the amendments relating to access and adoption. [ 116 ] T.C.S. has never lived with his mother. Given T.C.S.T.C.S.’s age, the fact that he is adoptable, the possible placement within his foster family, the quality of his relationship with his mother, and the reasons for the finding and disposition, he should be able to move forward to adoption without any encumbrance. [ 117 ] Given the above I find that the least intrusive disposition that is in the child’s best interests is a disposition of Crown wardship. Statutory Findings: [ 118 ] Name : T.C.S.

Date of Birth : March […], 2010 Parents : T.S., Mother C.K., Father Religion : Not Catholic; Not Jewish Sex : Male Age : 1 year Not Native [ 119 ] Finding: the child T.C.S. is a child in need of protection pursuant to section 27(2)(

b) and (

g) of the Child and Family Services Act . [ 120 ] Disposition: that the child T.C.S. be made a ward of the Crown and that he be placed in the care and custody of the Children’s Aid Society of Toronto. There will be no order of access. Released: 1 December 2011 Signed: “Justice Geraldine F. Waldman”