FAMILY v. CHILDREN’S SERVICES OF GUELPH AND WELLINGTON COUNTY,, 2016 ONCJ 685

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(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) 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) 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. Guelph Registry No: C85/12 DATE: 2016·11·08 CITATION: Family and Children's Services of Guelph v. C.M ., 2016 ONCJ 685 ONTARIO COURT OF JUSTICE BETWEEN: FAMILY AND CHILDREN’S SERVICES OF GUELPH AND WELLINGTON COUNTY, Applicant, — AND — C.M., Respondent. Before Justice Michael P. O’Dea Heard on 17-21 October 2016 Reasons for Judgment released on 8 November 2016

Olivia N. Rebeiro ............................................................................ counsel for the applicant society Jonathan P. Krashinsky ............................................. counsel for the respondent foster parent C.M. [ 1 ] JUSTICE M.P. O’DEA— A status review of orders made for the protection of MGQ who was born on […] 2013 has concluded.

I reserved my decision and the following are my reasons for the order to issue. [ 2 ] Two orders are subject to review: a final order dated 27 May 2014 placing MGQ with her maternal grandparents subject to supervision; and, an interim order dated 20 January 2015 placing MGQ in the care and custody of the applicant following an apprehension from the grandparents.

For reasons set out below, the order of 27 May merits little weight at this stage; it is the events arising due to the apprehension from the maternal grandparents that informs the issues today. [ 3 ] At issue is whether the applicant’s plan to place MGQ with extended family merits preference over the plan of a foster parent with whom the child has attached; and, if the foster parent’s plan is found to be in the best interests of the child, what form of order does the Child and Family Services Act , R.S.O. 1990, c.

C-11, as amended (herein “the Act”) permit. 1: CONTINUED NEED OF PROTECTION [ 4 ] A finding that MGQ is in continued need of protection and requires an order of the court to protect her in the future is a mandated determination before I am able to consider the issues raised today. [ 5 ] MGH (the mother) has three children. [ 6 ] Her oldest, CDB, born on […] 2007, is her child from a relationship with DPB.

Neither is involved in this proceeding. [ 7 ] MGH and RJQ (the father) have two children: WRTQ born on […] 2012 and MGQ. [ 8 ] The record clearly identifies and it is not disputed in this hearing that MGH and RJQ are addicted to both soft (marihuana) and hard (cocaine, amphetamines and methamphetamines) drugs. Their addictions are long-standing. Neither has completed a drug treatment program notwithstanding that each order described below mandated the same and they have been repeatedly told that, without successful programs, their children cannot be returned to them.

The mother started a program once but did not finish and the father has consistently refused to participate. [ 9 ] As a result of their addictions, both parents have been and continue to live anti-social lifestyles defined by criminal activity, associates within the drug culture, impulsivity, violent dispositions, inability to problem solve, transience, financial problems and undefined mental health deficits connected to and independent of their addictions. [ 10 ] As a result of their lifestyles, all three children have been neglected and exposed to violence with the result that each has been the subject-matter of findings under subsection 37(2) of the Act: • CDB under subclauses 37(2)( b )(

i) and (ii) on 4 September 2013; • WRTQ under subclauses 37(2)( b )(

i) and (ii) and clause 37(2)(

g) on 10 October 2012 and 4 September 2013; and • MGQ under subclauses 37(2)( b )(

i) and (ii) and clause 37(2)(

g) on 27 May 2014. [ 11 ] All of the children were apprehended from the care of the parents herein and none have been returned to the care and custody of either of them. Each order placed the children with family: CDB went to his father; WRTQ was apprehended at birth and immediately placed with his paternal grandparents; and, MGQ was, at the outset, meant to remain in the care of her maternal grandparents. [ 12 ] The evidence is clear that neither parent has changed his or her lifestyle choices since the apprehensions.

Each continues to use; each is presently facing criminal charges; they have been transient since December of 2014; each continues to respond violently to difficulties in the community and with family; and, the father in particular is exhibiting conduct that strongly suggests his mental health is deteriorating. [ 13 ] On the evidence tendered, it is clear that, without an ongoing order of this court, MGQ is at immediate risk in the care of either or both parents as defined in subclauses 37(2)( b )(

i) and (ii) and clause 37(2)(

g) of the Act. 2: BACKGROUND TO THE ISSUES [ 14 ] In 2009, C.M. applied to become a foster parent of the applicant agency. In her application, she stated she would not foster short-term placements but was only interested in a placement that would lead to an adoption. A child services worker was appointed to assist C.M. as a foster parent. This worker was not part of the child protection team. [ 15 ] When the mother was pregnant with MGQ, the applicant determined that it would apprehend the child directly from hospital.

The applicant’s protection worker testified that she was intent on exploring and locating a family placement for the child since that was her duty under the Act. [ 16 ] The worker called the paternal grandparents before MGQ was born and asked whether they wished to make a plan to parent her given that her brother was living with them. They declined with reasons. The evidence is not clear why the worker did not call the maternal grandparents at that time.

[ 17 ] The paternal grandparents did not ask any questions about their grandchild in this telephone conversation with the applicant, in particular, whether they could see the child. They visited MGQ in the hospital and were made aware of the impending apprehension but still made no inquiries about what was to happen to her or whether they could see her. Until January of 2015, they expressed no interest in her; they first laid eyes on her in May of 2015. [ 18 ] When MGQ was born, the applicant secured an emergency order granting it temporary care and custody and placed her in the care of C.M.

The protection worker warned C.M. that it would investigate family placements and that MGQ may not be with her long-term. C.M. advised she was aware of this possibility and accepted the placement nevertheless. However, the evidence supports that she received a somewhat different message from the child services worker telling her this was a “foster-to-adopt” placement and suggesting why a family placement may not work out. [ 19 ] At some point after MGQ’s birth, the applicant called the maternal grandparents who agreed to present a plan to parent.

Time was taken to complete the required kin assessment which approved the placement. The transfer from C.M. to the maternal grandparents occurred on 12 February 2014. [ 20 ] This placement was subject to an interim supervision order that included the mother as a placement parent.

The plan was that the mother would reside with her parents and provide some parenting assistance; however, the order was clear that the grandparents were responsible for MGQ’s safety, given that they had to monitor the mother’s sobriety and provide 24/7 supervision of her time with the child. [ 21 ] This order was finalized on 27 May 2014.

The mother was removed as a placement parent although she continued to reside with her parents and the grandparents 24/7 supervision obligations continued. [ 22 ] On or about 1 December 2014, the mother left her parents’ home with the child and without permission after a fairly heated disagreement with the grandmother. The grandmother tracked her down and secured the return of the child.

As I hear the evidence, the only issue that the applicant had with the maternal grandparents resulting from this occurrence was that they did not watch the mother closely enough and the applicant believed it could no longer trust the grandparents to protect MGQ from her mother. [ 23 ] The applicant apprehended MGQ from the maternal grandparents’ care. [ 24 ] Following this second apprehension, the applicant elected not to immediately inquire whether the paternal grandparents might have changed their mind about making a plan given a year had passed since the last conversation.

In the result, on 1 December 2014, MGQ was returned to C.M. where she has remained to date. [ 25 ] On 2 December 2014, the applicant issued an early status review application seeking Crown wardship without access but, within weeks, began to actively communicate with both sets of grandparents about possible placement plans. [ 26 ] On or about 12 January 2015, the applicant finally called the paternal grandparents to inquire whether they would make a plan.

They declined to do so for reasons that are unimportant; however, after a family meeting, they changed their minds and called the applicant a week later asking to be included. [ 27 ] The maternal grandparents made it known to the applicant before MGQ was sent back to C.M. that they wanted to parent and were prepared to evict their daughter if that is what would be demanded of them. The applicant knew all along they would participate in future planning. [ 28 ] A family meeting was convened on 18 February 2015 involving the applicant and both sets of grandparents.

Given that the maternal grandparents had parented MGQ for nine months, the paternal grandparents agreed to defer to their plan and be their back- up in the event the maternal grandparent’s circumstances changed. [ 29 ] The maternal grandmother learned in March of 2015 that she had cancer. She and her husband withdrew their plan. For reasons unexplained, the worker did not call the paternal grandparents about this development until 27 April 2015 wherein the paternal grandparents confirmed they would provide a home for MGQ.

There was no need to investigate them since the applicant received ample information when they took custody of WRTQ. [ 30 ] The applicant’s evidence alluded to the fact that the paternal grandparents had not yet met MGQ and was conspicuously silent how it intended to remedy that reality.

As I understand its evidence, the applicant intended to begin access immediately and wanted to quickly progress to weekend visits. [ 31 ] On 14 May 2015, the applicant held an internal case conference at which it decided it would support the paternal grandparent’s plan and staff was directed to amend the status review application accordingly. [ 32 ] The applicant’s evidence was that it told C.M. of its 14 May decision immediately after it was made; however, it appears from C.M.’s evidence that she was aware of the plans much earlier.

She drove MGQ to and from the parent’s access which began not long after the 1 December 2014 apprehension. C.M. had a good relationship with the maternal grandparents and spoke with them frequently. It appears likely that they told her some of the details about the 18 February family meeting. [ 33 ] C.M. was not happy with the applicant’s decision to replace MGQ with the maternal grandparents and even less happy with the paternal grandparents plan.

She decided in or about late March of 2015 to fight to keep MGQ in her care. [ 34 ] The paternal grandparents did not meet MGQ until 29 May 2015 and the next two months were spent attempting to solidify an access schedule. A significant amount of time was spent in evidence who was at fault for the delays and that will be discussed below. In any event, four controlled visits occurred between 12 June and 2 July wherein C.M. was present to reassure the child if there were problems.

It appears the first visit without C.M. present occurred on 2 July, the first day visit in the grandparents’ home occurred on 15 July and the first overnight visit occurred on 31 July.

[35] The relationship between C.M. and the paternal grandparents was tense throughout but not overtly acrimonious such thatit was witnessed by the child. Although not discussed much in evidence, it is clear C.M.’s relationship with the applicant becamestrained even before the access began as each began to question the bona fides of positions taken or decisions made by the other. [36] On 28 October 2015, C.M. was granted party status after an argued motion. The applicant opposed the motion. Hermotion for full status was dismissed by Justice Jane E.

Caspers but she was granted subsection 39(3) status with her rights specified inthe endorsement. However, by the time this trial approached, all other respondents had been removed. For that reason only, JusticeCaspers extended full party status to C.M. [37] Throughout 2015, C.M.’s position was that MGQ had attached to her and her to the child. On 25 November 2015, theparties asked for an attachment assessment. Dr. Nitza Perlman agreed to conduct the assessment. [38] Dr. Perlman reported on 16 March 2016. Her conclusion that MGQ was primarily attached to C.M. surprised no one.

Her opinions respecting the impact on MGQ if the attachment was severed were not challenged. [39] None of the above evidence was challenged by either party. 3: TENSIONS BETWEEN THE APPLICANT AND C.M. [40] At the opening of each of the applicant’s and C.M,’s submissions, counsel began by stressing that there are no “bad guys”in this action.

These are unique submissions in that, if they are true, the trial would have been concluded in a day or two on the massiverecord which came in without objection and the main focus of the submissions would have been the appropriate application of thelegislative scheme. [41] As it was, the evidence clearly showed that each of the applicant, the paternal grandparents and C.M. had axes to grinddue to the positions taken or decisions made by one or the other and none of them were prepared to conclude this matter without layingthem out in detail.

In many respects, the tensions among the parties significantly inform the submissions respecting placement. [42] The tension between the applicant and C.M. was unveiled in recriminating evidence advanced by the applicant or C.M.about the decisions or conduct of the other or of the paternal grandparents.

These included the decision on 1 December 2014 toapprehend MGQ from the maternal grandparents; the paternal grandparents’ reasoning for not seeing MGQ over the first 14 months ofher life; the wisdom of the applicant’s plan to introduce MGQ to her paternal grandparents, particularly the access plan; C.M.’s co-operation with access scheduling and whether C.M. exceeded her role as a foster parent; C.M.’s allegation that the access was at timesharmful to the child; and the applicant’s decision to remove MGQ from C.M. on 22 July 2016 during a risk investigation. [43] I will eventually address each of these disputes but, at this point, I intend to focus decisions made between MGQ’s birthand 1 December 2014 in context of the broad principles enunciated in the Act and discussed in R.L. v.

Children’ s Aid Society of NiagaraRegion, , 167 O.A.C. 105, 34 R.F.L. (5th) 44, [2002] O.J. No. 4793, 2002 Cars​well​Ont 4262 (Ont. C.A.). Bothparties have offered up this decision in support of their submissions on the issues but it also has relevance to the tensions that arosebetween the parties. [44] The principles enunciated in R.L v. Children’ s Aid Society of Niagara Region focus the obligations of a society at the“initial stage”, that is, as a protection application proceeds to a hearing.

The statutory principles it focuses are the rights of parents andextended family as emphasized in subsections 1(2) and 57(3) and (4).

It also addresses the role of foster parents during this stage in aproceeding as well as the importance of expeditious decision-making. [45] No one practising in the child welfare industry would dispute the accuracy of the court’s comments at paragraph [9]which state: [9] . . . the Act envisages that, if it is not possible to return a child to his or her parent, thepossibility of placing it with a member of the child’s extended family will be explored expeditiously anddetermined prior to any hearing at which society or Crown wardship is sought.

The Act does notenvision a contest between members of the child’s family and a foster parent at a hearing to declarewhether the child shall be declared a society or Crown ward. . . .

Nor will anyone practising in the industry dispute the comments at paragraph [38] that: [38] . . . prior to the initial hearing, foster parents are meant to provide temporary care for childrenpending their return to their family or transfer to a more permanent placement. . . . [46] The applicant emphasizes paragraph [9] but ignores paragraph [38] in favor the statutory principle promoting expeditious“permanency planning” and it is this fact that sowed the seeds of discontent between it and C.M. as early as […] 2013. [47] In response to the permanency planning principles, societies are placing children in “foster-to-adopt” homes earlier andearlier in proceedings, including protection proceedings.

These decisions lead to very predictable results: parents and families and judgeslose trust in a society’s readiness to honestly adhere to the principles enunciated in subsections 1(2) and 57(3) and (4) and foster parentsare given an often false sense of hope that they will soon be adopting a child. [48] In this case, the applicant’s evidence, confirmed by C.M., was that C.M. applied to foster only to fulfill her wish to adopta child.

She was not a short-term placement option and, unfortunately, she was receiving mixed messages from her child services workersuggesting MGQ’s placement might very likely become long-term due to that worker’s limited understanding of the planning positionsof extended family members and their respective abilities to adequately parent. On the evidence of the protection worker, the placementthat began on […] 2013 would almost certainly be short-term as she believed a family placement was likely and would be aggressively

pursued. [ 49 ] In context of the priority of statutory principles, R.L v. Children’ s Aid Society of Niagara Region specifically stipulates that permanency planning must give way to the principles enunciated in subsections 1(2) and 57(3) and (4) before a finding is made. And to those who will argue that a child could languish in a temporary foster placement for a very long time before a risk hearing is held, the legislature addressed this factor when it established the 120-day timeline for such hearing. [ 50 ] In my mind, the direction in paragraph [38] of R.L v.

Children’ s Aid Society of Niagara Region supports a short-term placement in every case where an apprehension occurs. I am aware of the opinion among attachment experts that the more a child is moved, the harder it will be for him or her to establish a healthy attachment but societies have to accept that the statute may give them no choice. [ 51 ] More importantly, the applicant should immediately establish clear guidelines restricting the information to be given to a foster-to-adopt family. In this case, two workers were speaking with C.M. about matters in the child’s family and at cross-purposes.

Neither should occur. [ 52 ] The evidence is not disputed that C.M. did not balk at handing over the child in February of 2014 when it was time to place her with the maternal grandparents. Doing so hurt her emotionally but, at that point, she understood her role. It was the aftermath of the apprehension of 1 December 2014 that led her to reject this role as inconsistent with MGQ’s interests. [ 53 ] As indicated above, the order of 27 May 2014 binding the maternal grandparents obligated them to maintain constant supervision of the mother while the child was with her.

The fact that the mother found a way out of their home with the child might indicate that the grandparents failed to comply with that very important term. On this fact alone, a loss of trust is understandable. [ 54 ] However, as I read all the evidence in the document brief and trial record respecting MGH’s personal disposition, nothing that occurred before or on 1 December should have surprised the applicant.

In context of that evidence, the loss of trust in the maternal grandparents’ ability to protect becomes suspect especially considering that the grandmother responded appropriately by contacting the applicant and took it upon herself to retrieve the child. [ 55 ] The protection worker testified that the grandmother told her, before MGQ was removed, that she was prepared to evict her daughter upon which she and the grandfather would parent alone.

The worker rejected this offer on the basis of a loss of trust and on a comment that the applicant had undefined concerns about their parenting abilities. [ 56 ] When MGQ was delivered to C.M., her worker, who again was not part of the protection team but appeared to have obtained protection information from somewhere in the applicant’s building, told her that the applicant had lost faith in the grandparents’ ability to protect the child from the mother and that the protection team had some concerns about the quality of the grandparents’ parenting skills.

This, she said, along with the failure of the paternal grandparents to present a plan (they had not yet been asked), made a long-term placement with C.M. more likely. [ 57 ] What is utterly confusing to me, however, is that as soon as the apprehension occurred, the applicant was again considering or communicating with the maternal grandparents about a plan to parent.

The functional difference between the old and new plans was that they would be required to evict the mother and this was offered by the grandparents before the physical apprehension occurred. [ 58 ] In the decision to apprehend, the applicant appears to have given undue weight to the seriousness of the mother’s conduct and the harm that could have resulted and in so doing, ignored the core principle in paragraph 1(2)¶2 of the Act to assure that, before apprehending, it will consider lesser disruptive options.

The evidence strongly supports that no consideration whatsoever was given to leaving the child where she was upon issuing protective directions (a step made available in the existing supervision order) to deal with the risks created by the mother in her parents’ home. [ 59 ] The considerations in a decision to apprehend should not be limited to actual or potential harm to the child.

Concurrent considerations must include the parenting figure’s conduct that gave rise to the harm or potential harm since it is the conduct that will inform remedial steps and lesser intrusive intervention options. [ 60 ] The result of the confusion is that I question the wisdom of disrupting MGQ’s placement with the maternal grandparents only to immediately begin to consider restoring it.

Nowhere in the evidence did I hear that the applicant considered the impact of a move on MGQ before apprehending her and handing her over to a foster parent whose sole purpose was to attach to and then adopt the child. [ 61 ] On the evidence, this is where C.M. lost faith in the rationality of the applicant’s decisions. I do not blame her. [ 62 ] Where I do blame C.M. is in her failure to address her loss of faith proactively. There is no evidence that she discussed her specific issues with the applicant when she began hearing about the plans.

Instead, she waited in the bushes to make her case when the applicant attempted to implement whatever plan it finalized. Doing so was not in the interests of the child since the only logical result was a custody dispute that, experience suggests, cannot occur without the child’s becoming involved to some degree. 4: TENSIONS BETWEEN C.M. AND THE PATERNAL GRANDPARENTS [ 63 ] Applicant’s plan favoring the paternal grandparents definitely heightened the tensions that already showed between the applicant and C.M.

The grandparents invested themselves in these tensions to such an extreme degree that it will have an impact in the

best interest assessment. [ 64 ] As indicated earlier, the paternal grandparents elected to have no contact with MGQ after their brief visit with her at hospital. The evidence appears to suggest that, until the applicant called them in mid-January of 2015, neither had given much thought about MGQ or her well-being or her blood tie to them. [ 65 ] Notwithstanding, the applicant wanted them to participate in planning and, if possible, put forward their own plan of care.

The applicant was correct, from the perspective of statutory principles, in giving their prior decision to have no contact little weight. [ 66 ] C.M., on the other hand, believed the opposite.

Her view was that the failure to establish a relationship should be given significant weight and that their decision should either disentitle them from making a plan or doom their plan from the outset. [ 67 ] From the first day that access to the paternal grandparents was raised with C.M., her responses were coloured by her belief that access was the first step to a transition of care and, in that regard, she was determined to fight the process as long as possible.

The applicant began tracking her opposition to access in mid-May of 2015. [ 68 ] A few aspects of C.M.’s opposition were understandable but, in the main, it was overtly confrontational. [ 69 ] I accept as understandable C.M.’s questioning the speed with which the applicant wanted unrestricted access to commence. The paternal grandparents had never met the child.

The child was under two years of age when the discussions began and my sense of the applicant’s evidence on point was that it considered the need to begin access quickly to be an adjunct to its statutory duty to promote family but I heard nothing in the applicant’s evidence suggesting how it factored the child’s quirks and sensitivities into the equation. [ 70 ] My sense is that the applicant’s attitude was full steam ahead and, if there were difficulties with the child, they could be addressed at the time.

I believe that the applicant owed MGQ something more than a wait-and-see attitude. [ 71 ] As to opposition to the plan itself, I got the sense that the applicant considered the “role” of a foster parent to be one of deference, akin to a suggestion that she is our agent who should accept our decisions since we are the “experts”. With respect, the applicant cannot expect its foster parents to be so robotic.

The effort that foster parents are asked to put forward for potentially vulnerable children does not occur in isolation of the foster parent’s sense of the child’s needs and meeting the child’s needs should always be a collaborative effort. [ 72 ] As to C.M.’s opposition, the tact with which she might raise an issue and how a worker responds depends on personalities and a lack of tact will usually cause tension; however, an opinion respecting a foster child’s interests should always be accepted collaboratively. [ 73 ] In this case, I am of the view the applicant initially responded with tact and collaboratively to C.M.’s issues but C.M. did not reciprocate.

Involving the grandparents was an issue that she refused to let go of because of self-interest and in my mind, she is responsible for much of the resulting tension between her and the applicant and her and the paternal grandparents. [ 74 ] C.M.’s responses were understandable where her failure to agree to a

schedule was due to legitimate family responsibilities. C.M. testified that her father was ill and she was required to assist him and her mother. This is a legitimate timing conflict and her evidence was not challenged by the applicant in cross.

However, C.M. never clarified how much of her time was actually spent assisting her parents so, in context of assessing reasonableness connected with the eventual delay, it is impossible to give much weight to an otherwise fair response. [ 75 ] I agree with the applicant that C.M. exceeded a collaborative role because she delayed commencement of access and independent visits out of self-interest, not best interests. The evidence is clear that she viewed access as inconsistent with her long-term goal of securing permanent placement.

I found a good deal of her evidence and explanations on point to be incapable of belief. In many areas, her evidence was utterly self-serving. It is also clear on the evidence that much of the initial delay was C.M.’s decision to use her son Tristan’s

schedule as an excuse for delaying MGQ’s interests in commencing a relationship with her grandparents. [ 76 ] The grandparents’ delay in expressing an interest in a relationship with MGQ was 14 months. However, the delay over the next three months rests with the applicant’s tardiness in translating the grandparents’ interest into action.

Delay attributed to C.M. is less than two months and, in this context, all of the time spent on the issue of delay was much ado about nothing. [ 77 ] The deep hatred that the grandparents expressed toward C.M. in evidence is totally inconsistent with the fact that neither had much in the way of prior contact, knowledge about or communication with her. Their feelings had to come from somewhere and I doubt they are limited to Dr. Perlman’s assessment alone. I suspect they were kept informed by the applicant and I do wonder how much of the applicant’s feelings about this foster parent rubbed off on the grandparents.

This may be unfortunate given that their attitude about C.M. will carry some significant negative weight in the best interest assessment. 5: EVIDENCE DESCRIBING MGQ [ 78 ] On the evidence I heard, MGQ presents as a well-adjusted three-year-old who has met all of her developmental milestones. She presents as a child who, once exchanges are complete, presents with a sense of comfort in most surroundings and presently even in the absence of C.M. Dr.

Perlman generally described her as a remarkable child who is attractive, very communicative and whose play and responses are well organized; as a strong child but who is not invulnerable. [ 79 ] It is in the vulnerability context that Dr. Perlman describes MGQ as “coping” with time away from C.M., as “fragile” and as a “child in limbo” since she is likely aware she is claimed by different people.

[80] Dr. Perlman’s opinion that MGQ’s primary attachment is to C.M. is not challenged by the applicant. Nor does itchallenge that her attachment is “secure” (which merits ordinary dictionary meaning) and “selective” to C.M. [81] It is in the selectiveness of the attachment that Dr. Perlman sees red flags. On a return from an outing where C.M. is notwith her, she is demanding of C.M.’s reassurance that she is still there for her and she is excessively demanding of C.M.s comfort asevidenced by clinging and attention-seeking behaviour for lengthier periods after her return than normal. [82] The red flags that Dr.

Perlman attaches to MGQ’s selectiveness is the effect of a permanent disruption of the attachment. She opines, and has not been challenged, that a disruption of this attachment would “traumatize” MGQ and considerable time would berequired to resolve her trauma because MGQ will never forget her attachment to C.M.

She indicates success of an intervention afterremoval is speculative and will require psychological intervention (play therapy) to help ease the impact. [83] She indicates the new placement parents must be educated about and be empathetic to the impact of the move on her aswell as the signs of trauma that will logically arise. These include, but are not limited to, a loss of trust in the care-giving adults in herlife (oppositional behaviour), anger and interruptions in her learning process.

The doctor’s evidence as a whole suggests the child’strauma could be, for a period of time, consuming and the new parents must be prepared for the long haul. [84] Dr. Perlman opines that past and ongoing contact with the new family might soften the blow to some extent, assuming nonegative occurrences arise within the visits but warns that mere affection for the new parenting figures will not reduce the traumadescribed above.

In her report and evidence, the doctor describes MGQ as coping with her time with the maternal grandparents andbases her opinion on her observation that MGQ responded in their home as a visitor, not one with an attachment to the occupants orhome. [85] Lastly, Dr. Perlman mandates that MGQ must be allowed to visit with C.M. during her period of trauma. The reasons areobvious and need no further discussion. [86] The applicant suggested in questioning Dr. Perlman that she could not have possibly seen enough to support all of theopinions mentioned above in the limited time she spent with MGQ.

The doctor’s response was succinct: “I know what to look for; if Ihad needed more time, I would have asked for it”. [87] This answer appears flippant until you take a look at her curriculum vitae. [88] Dr. Perlman has, since the early 1970’s, focused her practice solely on children and families. It is mainly all she writesabout. It is mainly all she lectures about. She has conducted hundreds of these sort of assessments.

When her background is considered,the answer is not so flippant nor can her opinions be easily ignored or their weight lightly tampered with. 6: PATERNAL GRANDPARENTS’ RESPONSE TO THEASSESSMENT [89] In cross-examination, the grandmother initially attempted to be diplomatic in responding to cross-examination about Dr.Perlman’s assessment but, by the end of her evidence, she made no bones about the fact that she did not believe MGQ would require anyform of counselling since she coped well in the three weeks last summer that she was with them; that she has no use for C.M. since C.M.has put them through this trial and since C.M. is not “blood”; that she would only permit MGQ to visit C.M. if directed by Dr.

Perlmanand the society and a court order; that a separation from C.M. will not have a lasting effect on MGQ; and, that MGQ’s relationship todate with C.M. merits no consideration. All of her opinions are expressed notwithstanding that she has read Dr. Perlman’s report. [90] The grandfather agreed with all of his wife’s opinions notwithstanding that he has read the report because, in his mind,“all this attachment stuff is made up”. Like his wife, he bases his opinion on the fact the he saw nothing unnatural about the time MGQspent in his home. He believes that C.M. has manufactured the evidence upon which Dr.

Perlman bases her opinion of selectiveattachment and the impact of severing it. He was adamant that, if MGQ was transferred into his care, C.M. would never see her again. [91] In their responses, the grandparent’s hatred of C.M. was clearly and unambiguously laid on the table. When they spokeof her, their feelings of contempt ran deep and will likely never abate.

They blamed her lies and deceit for Perlman’s findings and bothwere equally adamant that, when they obtained custody of MGQ, she would never see C.M. again. 7: THE PRIMACY OF THE APPLICANT’S PLAN [92] The applicant argues its plan for the paternal grandparents is entitled to “primacy” considering the statutory framework. The case law does not support this position. [93] The Supreme Court in Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, 165N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, , [1994] S.C.J.

No. 37, 1994 Cars​well​Ont 376, atparagraph [39] clearly indicates that, at the status review stage, the psychological bonding of a child to her foster parents merit equalconsideration with a family plan on a subsection 37(3) assessment. [94] The Court of Appeal in Children’s Aid Society of Peel Region v. Mary Jane W., , 23 O.R. (3d) 174, 81O.A.C. 56, 14 R.F.L. (4th) 196, [1995] O.J. No. 1308, 1995 Cars​well​Ont 431, at 189 [O.R.] held:

On a status review hearing under s. 65, once it is established that the child is in continued need ofprotection and court intervention continues to be necessary, the court is required to consider the leastrestrictive alternatives consistent with the child’s best interests. This may or may not involve thepotential for some form of familial care. I do not think that, on a status review hearing, a plan proposedby “extended family” (s. 57(4)) is to be given a prima facie elevated status. [95] This passage was cited with approval in R.L v.

Children’ s Aid Society of Niagara Region, supra, at paragraph [40]wherein the court recognized the special role a foster parent may have in the life of a child can be given equal weight to a plan put forthby family and is constrained only by a caution against allowing the “foster home” to become a comparative to the homes of familymembers who are also making a plan. [96] Most lately, the Supreme Court addressed the state’s obligations to parents and extended family as defined in subsections1(2) and 37(3) of the Act in Syl Apps Secure Treatment Centre v.

Bernard De L., 2007 SCC 38, [2007] 3 S.C.R. 83, 365 N.R. 302, 227O.A.C. 161, 284 D.L.R. (4th) 682, 49 C.C.L.T. (3d) 1, 39 R.F.L. (6th) 245, [2007] S.C.J. No. 38, 2007 Cars​well​Ont 4789.

In context oftoday’s submissions, the starting point is paragraph [47] where the court refers with approval to Joseph Goldstein, et. al. in The BestInterests of the Child: The Least Detrimental Alternative (1996)[1] where the authors state at page 88: . . . once justification for state intervention has been established, the child’s well-being — not theparents’, the family’s or the child care agency’s — must be determinative. [97] Then at paragraph [44], the court states: [44] The primacy of the best interests of the child over parental rights in the child protectioncontext is an axiomatic proposition in the jurisprudence.

As Daley J.F.C. observed in Children’s AidSociety of Halifax v. S.F., (1992) (NS FC), 110 N.S.R. (2d) 159: [Child welfare statutes] promot[e] the integrity of the family, but only in circumstances whichwill protect the child. . . . [98] And at paragraph [46], the court states: [46] It is true that s.s. 1 and 37(3) of the Act make reference to the family, but nothing in themdetracts from the Act’s overall and determinative emphasis on the protection and promotion of thechild’s best interests, not those of the family.

The statutory references to parents and family in the Act . . . are not stand-alone principles but fall instead under the overarching umbrella of the best interests ofthe child. [99] The court emphasizes its findings in context of the statutory limitation in subsection 1(2) of the Act — “so long as theyare consistent with the best interests, protection and well-being of children”. [100] Read as a whole, Syl Apps Secure Treatment Centre v.

Bernard De L. appears to promote the proposition that the child’sbest interests achieves primacy over all other principles within the Act when a finding in need of protection is made and it is not alwaysnecessary to await a status review application to apply the principles respecting foster parents identified in Catholic Children’s AidSociety of Metropolitan Toronto v. Cidalia M. and R.L. v. Children’ s Aid Society of Niagara Region.

It appears to me this is a logicalproposition to be applied in protection applications where lengthy periods of time elapse following an apprehension before the findingissue is brought before the court for hearing — all the while a child has been in the care of a party unrelated to the family, including afoster parent. [101] In this case, however, the finding hearing occurred promptly and the justification for state intervention occurred on 27 May2014.

Since that date, I am of the view the applicant’s primary obligation has been to MGQ’s best interests and all family placementplans must fit under its umbrella. 8: PATERNAL GRANDPARENTS’ PLAN — BESTINTERESTS [102] From the child’s perspective — and ignoring for the moment the attachment issue together with the grandparents’ tensionswith C.M.’s role in this proceeding and C.M.’s parenting of the child — I am of the view that a subsection 37(3) assessment of theircircumstances would offer little opposition to their custody plan.

Absolutely no negative issues have arisen during WRTQ’s placementwith them and there is no evidence that they would not treat MGQ with the same care and attention given to her brother. These findingswould diminish any weight that might be attributed to their delay in establishing a relationship. [103] However, the pitfalls that will accompany the attachment issue are overwhelming. The pitfalls are identified in Dr.Perlman’s evidence and assessment and the grandparents’ response to it.

This evidence has been canvassed above. [104] The position of the applicant is that I should give the grandparents’ responses little weight and instead focus on the verygood job they have done with WRTQ. It takes the position that the goodwill they have shown to date in parenting WRTQ suggests theywill “come around” and, when faced with issues affecting MGQ, they will address them. [105] With respect, the applicant may be prepared to gamble with the child’s future well-being but I am not. The grandparents’responses to Dr.

Perlman’s evidence are simply too stark, too final and too determined to be summarily dismissed or diminished. [106] The certainty that C.M. may need to be involved with a remedial plan to address the child’s trauma upon separation from

C.M. dooms, in my mind, the applicant’s plan to fail. I cannot ignore the visceral dislike of C.M. shown by both grandparents. I do not see either relenting on this factor, yet C.M.’s involvement would be a critical component to any effort to resolve the child’s trauma. Furthermore, holding out hope that the grandparents might concede in the future the possibility that the attachment assessment might be correct would require a concurrent concession that C.M. might have a role to play and I do not see the grandparents making one concession if the other is included.

If MGQ were in their care, I would worry how they would likely go about attempting to erase MGQ’s memories of C.M. [ 107 ] On the evidence related to the attachment issue, specifically the result of severing MGQ’s attachment to C.M., paragraphs 37(3)¶5, ¶6 and ¶7 so overwhelmingly discount the grandparents’ plan that the value of other positive parenting indicia are significantly eroded. [ 108 ] In the end, I believe the evidence clearly supports that the grandparents would ignore signs of trauma or fail to report or address them, lest doing so would suggest that they might have been wrong.

It is speculative to suggest how serious MGQ’s emotional trauma might become but it is definite that she will experience a level of harm that logically presents a risk of emotional and other related behavioural deficits in the future. [ 109 ] In the circumstances, the paternal grandparents’ plan is rejected as it is clearly contrary to the child’s best interests. 9: PLACEMENT OPTIONS [ 110 ] The applicant and C.M. focused either a supervision order or Crown wardship order if the grandparents’ plan was rejected. I raised the

section 57.1 option to which the applicant responded and C.M. agreed with its submissions. [ 111 ] In the normal course of these applications, the applicant would have proposed an alternate placement option focusing on the child’s best interests but, in this application, it has adopted an all-or-nothing position in its support of the paternal grandparents’ plan.

Its position is that placement with the grandparents is the only option that fits the legislative scheme and that Crown wardship or supervision orders are not available as they require some level of its support. [ 112 ] It is in its clear refusal to offer any level of support to its own foster parent that its axe to grind with her becomes focused. The applicant’s opposition to a supervision order was explained in its opening address. It would not support such an order since it would translate into a back-door avenue to the foster mother to apply for a

section 57.1 custody order on review. [ 113 ] C.M. supports a supervision order as the least intrusive option available. [ 114 ] My issue with supervision, in context of the legislative scheme, is that I am asked to order it without an identification of any level of parental risk in support of relevant term(s).

That is not an available option and, if I were to accede to C.M.’s wishes, I would have — on the evidence — to manufacture risk attaching to her to support my jurisdiction. [ 115 ] There is absolutely no evidence that MGQ is at risk in the care of C.M. and I refuse to imply a justification for state intervention that such findings would entail. [ 116 ] In the result, I am of the view that a supervision order is not an appropriate disposition. [ 117 ] The second option as submitted by both parties is to make MGQ a Crown ward. [ 118 ] On the facts of this case, I find it is not in MGQ’s interests that I do so since I am not assured that the applicant fully adopts Dr.

Perlman’s evidence respecting the trauma that will ensue if the child’s attachment to C.M. is severed. I can only make a Crown wardship order; it is up to the applicant to place the child and I am not convinced that it is willing to make that determination solely focusing the child’s needs and interests. [ 119 ] My lack of assurance flows from the risk investigation in July of 2016. [ 120 ] On 22 July, C.M.’s family was at a campground in Grey County when police were called to investigate an incident of a child in distress. The child was MGQ. Police attended and investigated the circumstances.

They were on scene for about a half hour, asked the questions they deemed important and then left without putting anything in place to “protect” MGQ as a result of some of the observations they reported. [ 121 ] The investigating officer filed a “Non-emergency Child Protection Report” since C.M. advised of her involvement with the applicant. It was received by the applicant the following morning. [ 122 ] The applicant convened a conference to discuss its response. It decided MGQ would be “removed” from C.M.’s care. The only evidence it had at the time was the officer’s Non-emergency Child Protection Report.

It immediately called the paternal grandparents and instructed them to attend an out-of-town location to retrieve the child from a children’s aid society agent in that jurisdiction. [ 123 ] A supervisor who was present at the opening and closing conferences testified.

She testified the “removal” was only for the duration of its investigation after which a decision whether the removal should become permanent would be made. [ 124 ] After she was examined and cross-examined, I asked whether there were regulations to the Act that approved such a temporary “removal” from a foster parent and she stated there were and offered to produce them. I asked whether a foster parent was treated differently than any other parent under a risk investigation by a society and she stated that they were since they were held to a higher standard given their unique role.

I asked for something that defined the higher standard and she offered to deliver it.

[ 125 ] Information was delivered but it did not include any regulations defining a process where a foster parent is investigated for risk allegations. There is no reference to the higher standard mentioned by the witness. [ 126 ] In my mind, the documents tendered (the applicant’s internal policy) are silent about what criteria, if any, supports a decision to remove a child. Most importantly, there is no reference in the policy how the interests of the child will or should be considered before a removal is effected.

As I read the policy, the decisions available appear to be entirely subjective. [ 127 ] As I read it, neither the Act nor its regulations carve out a special process for a risk investigation of a child in foster care.

Read as a whole, a foster parent is “a person having charge of a child” for the purposes of a risk investigation and she should be treated as any other person having charge of a child in the event a society deems it necessary to remove a child from his or her care. [ 128 ] In this case, I am of the firm view that the applicant’s decision to remove MGQ from C.M.’s care on 22 July 2016 was an “apprehension” as the applicant deemed the paternal grandparents’ home to be a “place of safety” as defined in subsection 37(1) of the Act.

I am of the firm view that the applicant was mandated to bring the matter before the court within five days as required in subsection 46(1) and it failed to do so. [ 129 ] On the evidence of the incident, there is no doubt in my mind that, had there been independent oversight, the decision to remove would have been immediately overturned and lesser intrusive measures implemented to protect the child during the balance of the investigation.

The applicant’s reasons for not implementing lesser intrusive measures boiled down to a matter of convenience for it and its workers since C.M. and the child were not in Wellington County at the time. [ 130 ] Paragraph 1(2)¶2 considerations are vital to any child in the system in regard to the effect of a separation from a parenting figure and specifically vital to MGQ on the assessment evidence that was known to everyone with decision-making authority. [ 131 ] Factually, the core risk (too much alcohol contributed to inattentiveness) was not verified; yet two of the applicant’s witnesses effectively stated that they did not give the failure to verify any weight because of two prior related complaints that also were not verified.

Both of the witnesses appeared to rely on the proposition that “if there’s smoke, there must be fire” in assessing the core risk and in refusing to return MGQ and that paltry standard diminishes any sense of objectivity or fairness.

The applicant had absolutely no evidence of a history of C.M.’s inattentiveness to the child’s needs or safety; quite the contrary. [ 132 ] Put succinctly, the officer’s report and the evidence that the applicant had on file about C.M. was as consistent with accident as with risk and this accentuates the duty to weigh lesser intrusive options. [ 133 ] More disturbing was the closing conference where whether to return the child was debated.

Notwithstanding the lack of any evidence respecting the core risk or historic inattentiveness, the applicant continued to balk at returning the child and declined to make the decision. On the evidence as a whole, I find that the applicant declined to make a decision solely because of its tensions with C.M. and its preference that the child remain with the grandparents.

Assuming best interests was considered, those considerations clearly took a back seat to the issues deemed important by and personal to the adults in this proceeding. [ 134 ] This evidence firmly suggests that I cannot be certain that the considerations respecting MGQ’s long-term placement following a Crown wardship order will be any different with the result that ordering Crown wardship is not in her best interests. [ 135 ] A third option would be to make no order, applying subsection 57(9). This would allow the parties to start over by focusing child-driven issues rather than adult-driven issues. However,

section 70 of the Act negates this option. [ 136 ] The only appropriate option, considering all of the evidence and MGQ’s best interests, is a

section 57.1 order. As indicated above, the applicant disputes my jurisdiction to issue this order and C.M. does not challenge its submissions on point. [ 137 ] The applicant submits that the legislative scheme does not permit a

section 57.1 custody order in favor of C.M. Its position focuses on the wording of subsection 57.1(1) and clause 65(1)( d ): 57.1 Custody order. —

(1) Subject to subsection (6), if a court finds that an order under this

section instead of an order under subsection 57(1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child , with the consent of the person or persons. . . . 65. Court may vary, etc .—

(1) Where an application for review of a child’s status is made under

section 64, the court may, in the child’s best interests, . . . (

d) make an order under

section 57.1. [ 138 ] I am of the view that clause 65(1)(

d) did not repeat the exclusion of foster parents but referred only to the end result under subsection 57.1(1), that is, a custody order. I questioned whether this wording was intentional, given the role of foster parents discussed by the higher courts cited above, especially Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M. , supra , which was decided long before

section 57.1 was added. [ 139 ] To this, the applicant submits that the court must extend to clause 65(1)(

d) as “fair, large and liberal

interpretation as best assures the attainment of its (remedial) objects”: Legislation Act, 2006 , being

Schedule F to the Access to Justice Act, 2006 , S.O. 2006, c. 21. In its view, the italicized words in subsection 57.1(1) should be read into subsection 65(1)( d ) [ 140 ] A review of the legislation clearly identifies an intent to protect parents, family and the child’s community by extending to them preferred status over all others, including foster parents, at the “initial stage” of a proceeding, that is, within a protection proceeding. The rationale for this intent is clearly supported in the case law cited above and the exclusion in subsection 57.1(1) fits this remedial purpose.

[ 141 ] On a status review application, however, the higher courts have interpreted the legislation to deem that the only statutory preference is extended to the child’s interests and placement positions taken by all others are secondary, even as between those with prior preferred or excluded status. Each case cited agrees that this

interpretation fits the remedial purposes of the Act. [ 142 ] The finding at paragraph [9] in R.L. v. Children’ s Aid Society of Niagara Region , supra , that, the applicant believes, supports that a foster parent’s only avenue to permanent placement is through a society and a Crown wardship order is illogical in context of the remedial purposes on a status review which, in my mind, was endorsed in R.L. v.

Children’ s Aid Society of Niagara Region as well as the other cases cited. [ 143 ] If the applicant is correct, the result would be to promote policy over best interests and, in context of subsection 1(1) of the Act, this would give rise to an absurdity in that it would frustrate the paramount purpose of the legislation. Had the Legislature intended to continue the foster parent exclusion in subsection 57.1(1) at the expense of best interests, it would have specifically said so in clause 65(1)( d ). [ 144 ] It is important to note that a subsection 65(1)(

d) custody order is not available to C.M. solely because an attachment has formed; more is necessary. The core remedial intent in the Child and Family Services Act is the protection of children from the risks defined in subsection 37(2) and, in this context, the risks inherent in severing the attachment is the only factor that opens the custodial door to C.M. [ 145 ] In this case, the evidence is clear that no plan except placement with C.M. will protect MGQ from the trauma that would follow a severance of the attachment. There is no evidence diminishing MGQ’s best interests in C.M.’s care.

Paragraphs 37(3)¶5, ¶6 and ¶7 significantly support leaving MGQ where she is. [ 146 ] It may appear unjust to some that MGQ is being left with C.M. notwithstanding that she was responsible for many of the tensions that were discussed above. However, the misconduct of an adult does not disentitle her to a custody order if the order is otherwise in the child’s interests. [ 147 ] In my mind, there is no present rationale for a placement order that involves the applicant’s or the court’s oversight. Protection findings respecting the parents were made above. There are no other domestic custody orders involving MGQ.

In the result, I order that MGQ, who was born on […] 2013, be and the same is placed in the custody of C.M. pursuant to

section 28 of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended. 10: ACCESS [ 148 ] Access to MGQ by her family is assessed under

section 58 of the Act. The determining factor in granting or denying access is best interests. Unfortunately, neither party offered submissions on this issue. [ 149 ] Since the apprehension of 1 December 2014, MGQ’s access to her parents and maternal grandparents was at the discretion of the applicant. [ 150 ] In the case of both parents, exercising access to their daughter has been the exclusion rather than the rule. They may have reasons why their access has been so rare but as at this point, neither parent knows MGQ and she does not know them.

I cannot, on the evidence, even infer that she remembers them. [ 151 ] In these circumstances, I cannot identify a best interest factor that would support an access order in favor of either parent. In the result, I order that neither parent shall have access to MGQ without further order of the court.

I further order that a parent seeking access shall obtain leave of the court before moving for a change to this order and a motion for leave shall focus personal changes to one or the other’s personal limitations discussed above. [ 152 ] The maternal grandfather has experienced considerable difficulty dealing with his wife’s passing and he has not responded to C.M.’s offers to accommodate his visits with MGQ.

I will leave that door open and I order that the maternal grandfather, G.C., shall have access to MGQ at the discretion of C.M. [ 153 ] I question whether the paternal grandparents would elect to exercise access following this decision. My question is based on their feelings about C.M. that were discussed above. As a result of my uncertainty how they will react, if they want a relationship with MGQ, it will have to arise through WRTQ. [ 154 ] I am of the view that MGQ is entitled to access to her brother WRTQ. She is entitled to know him and to choose how their relationship might progress over time.

However, MGQ’s entitlement must, in the circumstances, be presently driven by her paternal grandparents. If they will support the sibling relationship, they shall communicate their intent to C.M. who shall then assure that the access defined below occurs. [ 155 ] I order that MGQ shall, upon request of her paternal grandparents, have access with WRTQ once monthly for eight consecutive hours on a Saturday or Sunday to occur at the home of the paternal grandparents who shall also provide transportation to and from each visit.

The day and time of each visit shall be agreed between C.M. and the paternal grandparents. [ 156 ] Costs submissions were not made; however, neither party has presented with clean hands in context of the facts demanding a hearing. In the circumstances, costs submissions will not be entertained. 8 November 2016

________________________________ Justice Michael P. O’Dea