Children’s Aid Society of Toronto v. E.S., 2011 ONCJ 688

WARNING The court directs that the following notice shall 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 Registry No. C25346/04 DATE: 2011·IV·20 CITATION: Children’s Aid Society of Toronto v. E.S., 2011 ONCJ 688 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant — AND — E.S. and W.B.

Respondents Before Justice Carole Curtis Heard on 31 January; 1-4, 7-11 February; 4-7 April 2011 Reasons for Judgment released on 20 April 2011 Danielle Szandtner ..................................... for the applicant Children’s Aid Society of Toronto Arthur Brown ........................................................................................... for the respondent E.S. Adam McIver.......................................................................................... for the respondent W.B. CURTIS, J.:

Index 1. Introduction 2. Background Facts a. Regarding G.S. (6), Mi.B. (5) and Ma.B. (4 years old) b. Regarding C.W.A.B. and M.E.M.S. 3. Litigation History 4. Are C.W.A.B. and M.E.M.S. in Need of Protection? a. The Protection Finding -- Legal Principles b. Analysis Regarding the Issue of Finding in Need of Protection i. Failure to Protect the Children ii. The Father’s Illnesses and Violent Behaviour iii. A Pattern of Neglect in Caring for the Children 5. Disposition a. Plans and Options Available at Trial i. The Plans for the Children 1. The Mother’s Plan 2. Mr. G.Ba.’s Plan for C.W.A.B. and M.E.M.S. 3.

The CAST Plan for Adoption b. Disposition Legal Principles c. Crown wardship analysis i. The Mother’s Lack of Judgment Regarding her Relationship with the Father ii. The Mother’s Lack of Insight Regarding her Parenting iii. The Mother’s Joint Visits with C.W.A.B. and M.E.M.S. d. Examination of the Disposition Options e. Access Legal Principles i. Access Analysis ii. The Father’s Access iii. The Mothers Access 6.

Conclusion and Orders Introduction [ 1 ] This is the decision in a 14 day crown wardship trial regarding the children C.W.A.B. (2 years old) and M.E.M.S. (6 months old). [ 2 ] The Children’s Aid Society of Toronto (“CAST”) is seeking crown wardship, no access, for the purposes of adoption for both children. The mother opposes this and asks that both children be returned to her care. The father supports the mother’s position. [ 3 ] The issues for decision are these: 1. Are the children C.W.A.B. and M.E.M.S. in need of protection under section 37(2) (

b) of the Child and Family Services Act, R.S.O. 1990, c. C 11, as amended (“ CFSA ”)?

2. If a finding is made that the children are children in need of protection, is it in their best interests to be made crown wards, or can some less intrusive protection order be made? 3. If the children are made crown wards, is access between the children and their mother or father meaningful and beneficial to the children, and if so, would access impair the children’s future opportunities for adoption? Background Facts [ 4 ] The mother is Ms. E.S., (“the mother”), born […] October 1981 (29 years old at trial).

She has worked at Tim Horton’s since 2005. [ 5 ] The mother has five children: G.S., born […] April 2004 (6 years old at the trial) Mi.B., born […] May 2005 (5 years old) Ma.B., born […] January 2007 (4 years old) C.W.A.B., born […] February 2009 (2 years old), M.E.M.S. , born […] October 2010 (6 months old) [ 6 ] The father is Mr. W.B. (“the father”), born […] September 1977 (33 years old). He is the father of the four youngest children, including C.W.A.B. and M.E.M.S., the subject of this trial. [ 7 ] The mother and the father have been in a long term relationship since about 2004.

They have lived together, but it was unclear when they last lived together. They were not living together at the trial. [ 8 ] None of the mother’s children are in her care. All of the children were apprehended as newborns, and have been involved with the CAST in protection applications. Regarding G.S. (6), Mi.B. (5) and Ma.B. (4 years old) [ 9 ] G.S. (6 years old) was apprehended when he was a few weeks old, and was found to be in need of protection on consent under s. 37(2) (b)(

i) and (ii) of the CFSA (due to risk of physical harm from a failure to care, and a pattern of neglect in caring for the child). G.S. was placed in the permanent custody of family friends, Mr. G.Ba. and Ms. A.Ba. when he was about five weeks old. G.S. remains with Mr. G.Ba. with no further CAST involvement. G.S. is the only one of the five children of the mother who was not fathered by Mr. W.B. [ 10 ] Mi.B. (5 years old) and Ma.B. (4 years old) were apprehended at birth. There was a 17 day trial regarding Mi.B. and Ma.B. (which took place from 6 November 2006 to 18 April 2008). Waldman, J. found Mi.B. in need of protection under s. 37(2) (b)(

i) and (ii) of the CFSA (due to risk of physical harm from a failure to care, and a pattern of neglect in caring for the child) and found Ma.B. in need of protection on consent under s. 37(2)(

l) CFSA (the parent is unable to care for the children and they are brought before the court with the parents’ consent). Before the trial was completed, on consent, Mi.B. and Ma.B. were placed in the care of the paternal aunt D.B. under a supervision order and remain there, still under a supervision order. Regarding C.W.A.B. and M.E.M.S. [ 11 ] The trial is the decision on the protection application for C.W.A.B., (started on 19 February 2009 and amended on 14 May 2010), and the protection application for M.E.M.S. (started on 25 October 2010), both seeking crown wardship no access for the purposes of adoption.

[12] Both C.W.A.B. and M.E.M.S. were apprehended from their mother at birth in the hospital and both have been in care fortheir entire lives. At the conclusion of the trial, C.W.A.B. had been in the temporary care of the CAST, without a final disposition undertemporary orders for about 26 months, and M.E.M.S. had been in care for about six months. There has been no finding that either childis in need of protection.

This is an unacceptable situation. [13] It is also unacceptable that almost a year has passed since the CAST amended the protection application to seek crownwardship of C.W.A.B. and the start of the trial. The child protection judicial system must do better for children than to allow this levelof drift (as Katarynych, J. has described it) to affect their futures and delay their permanent placements. Litigation History [14] The trial took 14 days. These are the orders in this case that are relevant at trial:

a) On 19 February 2009 Sherr, J. ordered C.W.A.B. to be placed in temporary care without prejudice, with access to the parents inCAST discretion, at least twice per week for one hour;

b) On 4 February 2010, Waldman, J. heard the mother’s temporary care motion for the return of C.W.A.B. to her care. Waldman, J.declined to return to the child to the mother, and the motion was dismissed, but the temporary access order was changed to provide foraccess to C.W.A.B. to occur once per week for four hours at the mother’s home, and once in the CAST offices to be arranged. Thefather’s access was to remain as previously ordered;

c) On 10 June 2010 CAST brought a motion to return all of the mother’s access to the CAST offices. This was not granted. Thefather’s access was suspended until he met with a CAST worker and provided medical and psychiatric information; and,

d) On 25 October 2010, Waldman, J. ordered M.E.M.S. to be placed in temporary care without prejudice, with the parents’ access tobe separate. The mother’s access was to be at least two times per week and three times per week if possible. The level of supervisionwas at the CAST discretion. The father‘s access was to be fully supervised at CAST office. Are C.W.A.B. and M.E.M.S. in Need of Protection? [15] CAST seeks a finding that C.W.A.B. and M.E.M.S. are children in need of protection under s. 37(2)(

b) of the CFSA (thatthe children are at risk of physical harm resulting from the mother’s care of the children). The Protection Finding -- Legal Principles [16] These are the relevant sections of the CFSA regarding the finding: Child in need of protection

(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 orresulting 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; [17] Risk of harm (s. 37(2)(b)) must be real and not speculative: Children's Aid Society of Ottawa-Carlton v. T. and T., , 97 A.C.W.S. (3d) 939, [2000] O.J. No. 2273, 2000 CarswellOnt 2156 (Ont. Fam. Ct.).

[18] It is not necessary for the agency to prove an intention to cause the child harm before finding that a child is in need ofprotection (s. 37(2)(a)). A pervasive pattern of exposing a child to domestic abuse is sufficient: Children's Aid Society of Niagara Regionv. T.P. and R.G., , 35 R.F.L. (5th) 290, [2003] O.J. No. 412, 2003 CarswellOnt 403 (Ont. Fam. Ct.).

Analysis Regarding the Issue of Finding in Need of Protection [19] The CAST position is that C.W.A.B. and M.E.M.S. are in need of protection due to the mother’s and father’s failure toprotect the children, and due to the pattern of neglect in caring for these children. Failure to Protect the Children The Father’s Illnesses and Violent Behaviour [20] The father is quite ill. He has long-term and chronic health issues, regarding both his physical and mental health. He hasepilepsy, bipolar disorder, and has made multiple and repeated suicide attempts over many, many years.

All of his health issues, physicaland mental, are largely untreated. The evidence regarding the father’s health conditions is detailed, explicit, and overwhelminglyconcerning. [21] The father‘s mental health, and unstable and unpredictable violent behaviour have gone untreated for many years.

Thefather has a long history over many, many years of multiple attendances at the emergency departments of various Toronto and Durhamregion hospitals to deal with seizures and suicide attempts. [22] For seizures, the father acknowledges 27 hospital attendances over the recent 15 year period (1996 to 2010) in Toronto,all by ambulance to the emergency department of five different hospitals, due to seizures and resulting injuries.

At trial, the fatherdescribed an average of 10 such hospital attendances per month during the six month period October 2010 to April 2011 immediatelybefore the end of the trial. [23] For suicide attempts, the father acknowledges 16 hospital attendances over a 20 year period (1991 to 2011) in Torontoand Whitby, all attendances in the last 15 years by ambulance to emergency departments, to four different Toronto hospitals, due tosuicidal ideation, expressing suicidal intent, threatening suicide or attempting suicide. [24] The father is usually assessed and not admitted.

For the suicide attempts, he is sometimes prescribed medication onrelease. He refuses to seek treatment for these illnesses. At trial, he was not under the care of a psychiatrist or psychologist for hissuicide attempts or his bipolar disorder, or for any other reasons. Instead, he chooses to “manage” his illnesses by frequent and repeatedattendances at hospital emergency departments, always by ambulance, and always as a result of the father or someone else calling 911. [25] This behaviour by the father is tolerated by the mother and by his family.

The father’s family (his mother and sister D.)gave evidence, as did the mother, about their dealings with the father during his illnesses. The father has repeatedly acted in a violent,aggressive manner within the family environment and at the homes of family members, including the mother. [26] There are three episodes of the father’s violent and unpredictable behaviour which are particularly significant regardingthe issue of the protection finding for C.W.A.B. and M.E.M.S.

These incidents were described in the evidence of the mother, her sister,her mother, her Uncle Clifford, and the paternal aunt, all of whom were each present for some of these events. [27] There was a physical incident in February 2009, before C.W.A.B. was born, in which the father pushed the maternal auntKelly up against a wall, the maternal grand-mother tried to intervene, and the father bent her thumb back resulting in bruising. Themother was present, and tried to pull the father away from her sister.

None of those family members reported this to the police. [28] The mother’s evidence was that on 9 February 2009, while she was nine months pregnant with C.W.A.B., the mother andfather got into a dispute about money at her home. The father was yelling and screaming at the mother. The mother and her UncleClifford (whom she lived with, both then and now) both said that the father raised a hammer towards Uncle Clifford in a threateningmanner.

The father was charged with theft under $5,000, possession under $5,000, mischief under $5,000, possession of a weapondangerous to the public peace, assault with a weapon, On 18 December 2009, the charges were withdrawn and the father entered into apeace bond for 12 months.

[ 29 ] The mother, the paternal aunt and the maternal grand-mother all testified about an incident on 24 February 2010 during a visit with Mi.B. (then 4½) and Ma.B. (then 3) at the paternal aunt’s home. The father was playing with Mi.B. by holding him upside down, which the child did not like. The evidence was that child was very distressed, and the father began yelling and screaming. The mother was scared of the father’s behaviour and went into the bedroom with the two children.

The paternal aunt joined the mother and the children in the bedroom and the father went out on the balcony (in a fifth floor suite), and threatened to jump off. The paternal aunt called the police as she was afraid the father would harm himself. The police came and removed the father, who was apprehended under the Mental Health Act and taken to hospital, where he was assessed, and was discharged two days later. [ 30 ] The mother’s evidence was that she called the father only a few days later, on 2 March 2010. She says that she let him “cool off for a week or so”.

He “sounded fine” so she invited him over to watch movies and invited him to sleep over that night. She and Uncle Clifford left for work the next morning and left the father in the home. Uncle Clifford reported to her at 5.30 p.m. that someone had broken into her house. When she returned there, she found a terrible mess; the front and back windows were smashed; food from the refrigerator was all over the floor; there was blood everywhere; there was oil from the deep fryer all over the floor; the microwave was upside down on the floor. The father was upstairs in her bedroom.

He looked confused and told her that no-one had been in the house. The mother told Uncle Clifford not to call the police, but he did. The police told the mother and Uncle Clifford that this damage was done from inside the house as things had been thrown out the windows. The police asked to see the father’s arms and the mother noticed that there was blood on his arms. That was when the mother realized that the father had vandalized the home. The mother and Uncle Clifford did not lay charges. [ 31 ] At this time the mother’s access to C.W.A.B. was once per week for four hours at the home.

C.W.A.B. (then one year old) was scheduled to visit the mother at the home on Monday 8 March 2010, only a few days later. [ 32 ] The mother, the maternal grand-mother and the maternal aunt all gave evidence that the mother and her family members were cleaning up the home on 4 March 2010 when the father came into the home. He became extremely angry, and yelled that the only way he was leaving was if she called the police.

While the mother called the police, the father threw a drill through one of the newly replaced windows, smashed three new windows near the front door and one near the back door, and was yelling and very angry. He threw one of the window panes that had been leaning against the wall at the mother and it landed at her feet. The father was charged with mischief under $5,000 (conditional discharge given) and assault with a weapon (charge withdrawn). [ 33 ] The father’s behaviour in these three incidents is dangerous, out-of-control, violent, aggressive, and deeply concerning.

Equally concerning, however, is the mother’s reaction to the father’s behaviour. [ 34 ] Both the mother and the father’s family minimize the father’s behaviour. This is a pattern that has existed for many years. The paternal grand-mother described the father on one of the violent incidents as “having a bad day”. [ 35 ] The threat and risk of harm posed to the children by the father is minimized and not understood by the mother. The mother’s behaviour towards the father makes this clear. The mother renewed her relationship with the father after the peace bond was issued in December 2009.

She invited him to her home, and allowed him to stay over-night. This took place at a time when C.W.A.B. was having weekly access at the home. She refused to believe it was the father who vandalized the home on 2 March 2010, and refused to call the police. She chose not to charge the father.

She did not tell CAST about this incident, but cleaned up the home with her family’s help prior to the scheduled visit. [ 36 ] The mother misrepresented her relationship with the father to the court when she brought a motion on 4 February 2010 to ask for C.W.A.B.’s return, and also during the CAST’s motion to change her access in June 2010. In fact, she lied to CAST and cancelled an upcoming visit, telling them she was sick.

She lied to CAST about the relationship and she lied to the court. [ 37 ] In December 2009 and in early 2010, the mother’s behaviour clearly showed that her priority was to preserve her relationship with the father and to include the father in her life with C.W.A.B.

The relationship with the father was a priority for the mother, in spite of the father’s dangerous and unpredictable behaviour, precarious mental health and violent incidents involving her mother and sister, herself, and her Uncle Clifford. [ 38 ] It is not the business of the court or the child protection system if the father’s family chooses to accept this dangerous behaviour by the father and to not insist that the father get help and treatment.

But it is the business of both the court and the child protection system that the mother chooses to accept the father’s dangerous behaviour in this way, as it exposes her very young and

vulnerable children to an unacceptable level of risk of harm. A Pattern of Neglect in Caring for the Children [ 39 ] The mother’s three oldest children, G.S., Mi.B. and Ma.B., were all removed from her care by CAST due to concerns about the mother’s and the father’s ability to care for them. None of those three children are in the mother’s or father’s care and all will be permanently in the care of others (a family friend and the paternal aunt).

There is long-standing evidence about the mother’s inability to care for her children and about a pattern of neglect in caring for her children. [ 40 ] These are the agreed facts regarding G.S. which supported the consent finding regarding G.S. on 9 September 2004 and the final order on 9 June 2005, and which set out the mother’s inability to care for G.S. and the reasons why G.S. was in care: • The mother is unable to care for a vulnerable infant independently; • At the time of apprehension the mother had failed to demonstrate to CAST that she was able to effectively care for her son.

She was unable to provide G.S. with a safe and clean home environment and did not demonstrate the necessary skills to parent him on her own; • During access, the mother was able to follow suggestions and/or redirection but was unable to transfer this knowledge from one situation to the next or from one visit to the next; • The mother had not demonstrated to CAST that she has obtained the capacity or the ability to care for her son on her own.

She is unable to transfer knowledge from her parenting course to the day-to-day care of her son; • There was no appreciable change in the mother’s ability to effectively care for her son on her own. She requires constant reminders just to meet his basic needs, she continues to be unable to pick up on her child’s cues, and she is unable to place G.S.’s needs ahead of her own; and, • The mother continued in a relationship with the father, and became pregnant with another child (Mi.B.) by the father.

The father had a history of mental health problems, suicide attempts, many emotional and behavioural difficulties, had exhibited anti-social behaviour, had repeated attendances at several different hospitals, and had threatened to kill himself. [ 41 ] Following a 17 day trial regarding Mi.B. and Ma.B. which ended in April 2008, before the trial was completed, and on consent, the two boys were placed in the care of the paternal aunt D.B., where they remain subject to a supervision order.

She gave evidence at the trial that she will be bringing a claim for custody of the two boys under the Children’s Law Reform Act , R.S.O. 1990, c. C.12, as amended (“ CLRA ”), in 2011. [ 42 ] Sadly, very little has changed for the mother in the six years since the Agreed Statement of Facts regarding G.S. was signed. [ 43 ] The mother had two years of access to C.W.A.B. before the trial, including access in the Therapeutic Access Program [1] for several months, and access at her home once per week for over a year.

As well, she had six months of access to M.E.M.S. (at least two times per week, at the CAST offices, with the level of supervision at the CAST discretion). [ 44 ] This is the evidence of the CAST workers of their observations, which reflect the mother’s current ability to care for C.W.A.B. and M.E.M.S. The incidents demonstrate a pattern of neglect in caring for and supervising C.W.A.B. and M.E.M.S. : C.W.A.B.: • Failure to maintain an acceptable home environment for a baby: the home had a strong pervasive foul odour, filthy floor, filthy

surfaces, hazardous wooden window ledge, a soiled puppy pad, open kitty litter, stove elements left on, accessible hot tea; • Falling asleep during access to C.W.A.B. on five occasions; • Failure to read C.W.A.B.’s cues, he was sucking his hands when he was hungry (on five occasions), or to recognize his stranger anxiety (on five occasions); • Clifford returning to the foster home smelling of smoke, with filthy hands, cat feces on his shoes, and unexplained bites on his body; • Propping up C.W.A.B.’s bottle when the choking risk had been explained to her; • Failure to comfort C.W.A.B. during his immunization; • Permitting C.W.A.B. to climb onto his own highchair with the risk of pulling it over on him; to climb onto a chair leaning against the wall in the home, with the risk of pulling it over on him; • Feeding C.W.A.B. peanut butter when he had not previously eaten it nor been cleared as having no peanut allergy, and when the worker expressly told the mother not to do so; M.E.M.S.: • Holding M.E.M.S. by her head while attempting to change her clothes during access, with M.E.M.S.’s feet dangling, risking dropping or choking the child; • M.E.M.S. returning to the foster home smelling of smoke, requiring the foster parents to immediately change her clothes; • M.E.M.S.’s reaction to the mother’s clothing (wheezing, red eyes, congestion), requiring the foster mother to provide and launder a smock for the mother to wear during access; • Holding M.E.M.S.’s bottle under her chin while feeding (on two occasions); and, • Attempting to pick up and move C.W.A.B.’s high chair while holding M.E.M.S. [ 45 ] It is significant that this evidence describes events observed by the CAST workers.

This mother is a person very experienced with CAST and with the child protection system. She knows about access when her children are in care, she knows the purposes of access, and she has already been through seven years of child protection litigation and 17 days of trial, before this 14 day trial started. She realizes that the observations of the social workers may become part of the evidence at the trial.

Notwithstanding that, her behaviour with the children is often quite surprising, particularly when she openly ignores suggestions made by the workers, or tells the workers (as she did) that she disagrees with their suggestions and that she will parent the children the way she wants to. [ 46 ] There is ample evidence that C.W.A.B. and M.E.M.S. are children in need of protection under s. 37(2) (b)(

i) and (ii) of CFSA (due to risk of physical harm from a failure to care for the children, and a pattern of neglect in caring for the children). The evidence that these children are in need of protection is over-whelming, and easily supports such a finding. Disposition

Plans and Options Available at Trial [ 47 ] There were three plans proposed at the trial:

a) CAST’s plan is that both children be found in need of protection and be made crown wards without access for purposes of adoption;

b) The mother’s plan is to have the children returned to her care, without a finding, or if necessary, with a finding and a supervision order; and,

c) Mr. G.Ba., the family friend who is G.S.’s care-giver, offered himself and his partner as full-time and permanent care-givers for C.W.A.B. and M.E.M.S. [ 48 ] These are the options that are available at trial:

a) An order for crown wardship no access of purposes of adoption for both children; `

b) An order of crown wardship with access to the mother and father for both children;

c) An order placing both children in the care of the mother, with or without CAST supervision, with or without access to the father;

d) An order for society wardship of M.E.M.S. (this option is no longer available for C.W.A.B.);

e) An order placing both children with Mr. G.Ba., under s. 57.1 CFSA , with or without access to the mother and father; and,

f) An order placing both children with Mr. G.Ba., with or without CAST supervision, with or without access to the mother and father. The Plans for the Children The Mother’s Plan [ 49 ] The mother‘s plan for the return of the children is to be the sole care-giver of C.W.A.B. and M.E.M.S. Her plan does not involve the father, she says. She names Uncle Clifford, her mother and her sister as her supporters. None of these people can offer the mother much actual help.

All have health limitations (Uncle Clifford has limited mobility and a busy work schedule; the maternal grand- mother has asthma, diabetes, epilepsy and receives permanent disability due to her medical conditions; the maternal aunt has asthma and epilepsy and receives permanent disability due to her medical conditions). Paternal aunt D.B. is the caregiver for Mi.B. and Ma.B. and can only offer advice. [ 50 ] None of the family members showed any awareness of the mother’s limitations as a caregiver. They all supported her unconditionally.

They care for her and clearly all want to keep C.W.A.B. and M.E.M.S. within the family. There was no evidence that any of them acknowledged or understood the concerns raised by the CAST. Mr. G.Ba.’s Plan for C.W.A.B. and M.E.M.S. [ 51 ] Mr. G.Ba. is the family friend who has custody of G.S. He and his partner Ron Blais are willing to offer a permanent placement for C.W.A.B. and M.E.M.S. He gave evidence. He presented as a stable, caring, productive parent and person. He seems a suitable care-giver for the two children.

He has proven to be a good parent to G.S. for that child’s entire life (the child came to him at 5 weeks old). CAST is in the process of assessing and approving Mr. Barrett as an adoptive placement, with a view to possibly placing C.W.A.B. and M.E.M.S. with him for adoption, if they are made crown wards without access. The approval process was not complete at trial, but is likely to be completed by mid-May 2011.

[ 52 ] It is unfortunate that this plan did not come forward earlier in the litigation process. C.W.A.B. has been in care for more than two years already. [ 53 ] One option is to place the children with Mr. G.Ba. subject to a supervision order. Although CAST is actively considering placing the children with Mr. G.Ba. on adoption placement, the CAST is opposed to placing the children with Mr. G.Ba. under a supervision order, for these reasons:

a) A supervision order would not constitute a permanent placement;

b) A supervision order would keep the children before the court, and allow the litigation to continue (as it has for Mi.B. and Ma.B.);

c) On a status review the mother could claim the return of the children; and,

d) If the placement with Mr. G.Ba. broke down, there might need to be another trial for the ultimate decision regarding C.W.A.B. and M.E.M.S. [ 54 ] The mother does not support the placement with Mr. G.Ba. as she wants the children returned to her care. The CAST Plan for Adoption [ 55 ] CAST plans to place C.W.A.B. and M.E.M.S. for adoption in the same family. [ 56 ] During the break in the trial from 11 February to 4 April 2011, the CAST began an assessment of Mr. G.Ba. and his partner with a view to approving them as an adoption placement. Mr.

G.Ba. and his partner have already fully co-operated with this assessment process (including many hours of meetings, many hours of training, criminal records checks, medical information, consent forms), all in a matter of seven weeks. This is most impressive. CAST described them as extremely co-operative and motivated. In fact, this level of participation and willingness to co-operate on short notice and in a finite period is extraordinary. [ 57 ] CAST admitted that this is a strong plan, and is presently their first choice plan for the adoption placement of these children.

CAST felt the entire assessment process could be completed and ready for report by mid-May 2011. This plan has the advantage of placing C.W.A.B. and M.E.M.S. with their sibling G.S. and the likelihood of continued contact with their siblings Mi.B. and Ma.B. Disposition Legal Principles [ 58 ] Once a finding is made that the two children are children in need of protection, the court must determine what order for their care is in their best interests. [ 59 ] Section 57(1) of the CFSA sets out the types of orders available to the court after a child is found to be in need of protection: 57.

(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child’s best interests: Supervision order

1. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months. Society wardship 2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months. Crown wardship 3. That the child be made a ward of the Crown, until the wardship is terminated under

section 65 or expires under subsection 71 (1), and be placed in the care of the society. Consecutive orders of society wardship and supervision 4. That the child be made a ward of the society under paragraph 2 or a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. [ 60 ] The decision process on a disposition hearing, following a finding that the children are in need of protection, has been set out recently by Perkins, J. in Children’s Aid Society of Toronto v.

Tracy L. and Evonne B., 2010 ONSC 1376 , [2010] W.D.F.L. 1957 , [2010] O.J. No. 942 , 2010 Cars​well​Ont 1343 (Ont. Sup. Ct.), para. 25, as follows: 1. Determine whether the disposition that is in the child’s best interests is a return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not, determine whether the disposition that is in the child’s best interests is society wardship or Crown wardship. (Section 57) 2.

If a society wardship order would be in the child’s best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child’s best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship. [ 61 ] Section 57(2) CFSA requires the court to inquire into what efforts the society has made to assist the child before intervention.

There were numerous and repeated efforts by CAST to try to support the mother in caring for the children in learning new skills to care for the children, especially the participation in the Therapeutic Access Program, and the extensive access to C.W.A.B. over a two year period, and in particular, access to C.W.A.B. in her home for four hours once per week (a very unusual access arrangement) for over a year. [ 62 ] Section 57(3) of the CFSA requires the court to consider less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child.

For reasons articulated below, returning the children to the mother, even with a supervision order, would not be adequate to protect the children in this case. [ 63 ] Section 57(4) of the CFSA requires the court to look at community placements, including family members, before deciding to place a child in care. Until the trial began, there were no alternative family placements. During the trial, Mr. G.Ba. offered to plan permanently for C.W.A.B. and M.E.M.S., which plan has been evaluated and assessed during the break in the trial. [ 64 ] Section 57(1) is limited by

section 70 of the CFSA , which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, (which time limit applies to both children in this case), unless the time is extended as provided in section 70(4) of the CFSA . C.W.A.B. has been in care for a total of about 26 months at trial. C.W.A.B. is well beyond the prescribed time limits permitted for him to remain in foster care with no permanent placement.

A further order for society wardship is not available for C.W.A.B. The only options now available for C.W.A.B. are to return to his mother’s care (or someone else’s care) under a supervision order, or a crown wardship order. [ 65 ] In applying these provisions, the court must determine what is in the best interests of the child. The criteria to determine the child’s best interests are set out in s. 37(3) of the CFSA : Best interests of child

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take intoconsideration those of the following circumstances of the case that he or she considers relevant:

a) The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

b) The child's physical, mental and emotional level of development.

c) The child's cultural background.

d) The religious faith, if any, in which the child is being raised.

e) The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

f) The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member ofthe child's community.

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

h) The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption oradopted, compared with the merits of the child remaining with or returning to a parent.

i) The child's views and wishes, if they can be reasonably ascertained.

j) The effects on the child of delay in the disposition of the case.

k) The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the careof a parent.

l) The degree of risk, if any, that justified the finding that the child is in need of protection.

m) Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3); 2006, c. 5, s. 6 (3). [66] A crown wardship order is the most profound order that a court can make. To take someone’s children from them is apower that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after acareful examination of possible alternative remedies. Catholic Children’s Aid Society of Hamilton-Wentworth v. Jill G. (1996), 90 O.A.C.5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 Cars​well​Ont 1428 (Ont. Div.

Ct.). [67] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed atthe time of the apprehension still exist today. This must be examined from the child’s perspective. Catholic Children’s Aid Society ofMetropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, 165 N.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. [68] The significance of the child-centered approach is that good intentions are not enough.

The test is not whether the parentshave seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his

or her best interests. There is not to be experimentation with a child’s life with the result that in giving the parents another chance, thechild would have one less chance: Children’s Aid Society of Winnipeg (City) v. Redwood (1980), (MB CA), 19 R.F.L.(2d) 232, [1980] M.J. No. 245, 1980 Cars​well​Man 44 (Man. C.A.). There has to be some demonstrated basis for a determination that theparents are able to parent the child without endangering his or her safety. Children’s Aid Society of Brockville, Leeds and Grenville v. C.,(2001), 104 A.C.W.S. (3d) 892, [2001] O.J.

No. 1579, [2001] O.T.C. 287, 2001 Cars​well​Ont 1504 (Ont. Fam. Ct.). [69] An order for crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of thechild who becomes a crown ward, and it changes forever the life of the parent. No-one in the family is untouched by this order, and no-one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all theoptions available for the child. Crown wardship is the capital punishment of family law.

It is a decision that is the most serious andimportant decision any court can make. Crown Wardship Analysis [70] These are the options available regarding disposition for these children:

a) C.W.A.B. may be: i. returned to his mother’s care; ii. placed with other family or community members; or, iii. the court may make an order for crown wardship.

b) M.E.M.S. may be: i. returned to her mother’s care, ii. placed with other family or community members; iii. a society ward for a fixed period of time; or, iv. the court may make an order for crown wardship. [71] The mother has demonstrated some strengths as a parent:

a) She loves the children;

b) She is attached to the children;

c) She interacts affectionately with them; and,

d) She was co-operative and allowed the CAST workers access to her home and to the children. The Mother’s Lack of Judgment Regarding her Relationship with the Father [72] The mother’s plan for the children to be returned to her care is for them to live with her and her Uncle Clifford.

Themother says she does not live with the father and that she is not in a relationship with the father any longer. [73] The mother’s long standing relationship with the father and her inability or her refusal to see the father as a threat of harmto herself or the children is at the core of her lack of judgment regarding her parenting. The mother continued in a relationship with thefather after she had lost three previous children to CAST partly as a result of this relationship.

Indeed, she had two more children(C.W.A.B. and M.E.M.S.) with the father, even after the 17 day trial during which these issues were in evidence. [74] Both the mother and the father’s family consistently describe the father as someone who only hurts himself. Thatdescription implies that the father’s behaviour does not hurt anyone else. That is untrue.

The father‘s behaviour has had a verysignificant impact on the mother and on the children, and on the mother’s ability to be a parent to her five children. [75] The mother has been consistent in pursuing her relationship with the father, even in the face of clear information fromCAST that there were serious concerns about his involvement in her life and in the lives of the children.

[ 76 ] In May 2009, shortly after C.W.A.B.’s birth, and shortly after the father was violent in two incidents in February 2009 with her sister and her Uncle Clifford, the mother told the CAST worker that the father was the best thing that had ever happened to her.

She blamed herself for his violence and said he was only violent because she had ignored him. [ 77 ] For the mother’s motion in February 2010, she swore an affidavit on 14 January 2010 stating that she would not resume a relationship with the father unless he resumed his medication, obtained counselling and anger management and became financially self- supporting. She swore in her affidavit that she did not see him or meet with him at that time. She stated at the trial that she was, however, seeing him socially then for movies and dinner.

She invited him to her home on 14 February 2010, allowed him to stay over- night, became intoxicated and had sex with him. M.E.M.S. was conceived then, she stated. [ 78 ] This decision, to have unprotected sex with the father, is a significant one in the life of this case. The mother already had four children, three with the father. None of those children was in her care. The father had not addressed his mental health issues or his physical health problems. He had not taken anger management.

The mother’s evidence was that she knew then that continuing contact and involvement with the father was going to jeopardize her case regarding C.W.A.B.

Yet she continued to see him, had sex with him, became pregnant with M.E.M.S., and lied to both CAST and to the court about this. [ 79 ] There are many examples of the mother‘s lack of judgment regarding her relationship with the father, particularly around the several violent incidents involving the father in February and March 2010. [ 80 ] On 24 February 2010 when the father threatened Mi.B. and Ma.B. during an access visit at the paternal aunt’s, the mother hid the children in the bed-room, did not call the police, and did not inform CAST about this incident. [ 81 ] On 2 March 2010 the mother invited the father over to her home for dinner and a movie, only a few days after his release form a psychiatric ward.

She allowed him to stay the night. On 3 March 2010 he vandalized her home in her absence. She did not call the police, and she asked Uncle Clifford not to call the police. She did not accept that the father had caused the damage to the home until she saw blood on his arms. She did not press criminal charges. She did not tell CAST about this. She lied to CAST and said she was sick and cancelled her next visit to C.W.A.B. at the CAST offices.

On 4 March 2010, the father came to the home and in her presence vandalized the home again. [ 82 ] The mother did not tell CAST about the three violent incidents (24 February, 3 March and 4 March 2010). She admitted that she did not tell CAST because she knew that it would hurt her chances of getting C.W.A.B. home. [ 83 ] Even at the trial the mother was not absolute in her evidence about her relationship with the father.

When asked if she would live with the father again after the violent incidents of March 2010, the mother relied “probably not”. [ 84 ] Also concerning is the mother’s evidence about her pregnancy with M.E.M.S. The mother did not tell CAST she was pregnant with M.E.M.S. until about one week before M.E.M.S. was born on […] October 2010. The mother admitted that she knew CAST would be concerned and interested in this pregnancy and that she knew it was likely that CAST would apprehend this child. [ 85 ] The paternal aunt told CAST that the mother was pregnant on 23 September 2010.

She said the mother told her she was pregnant, and she knew that the mother was not telling CAST about the pregnancy. The paternal grandmother also said that the mother told her one month before the birth that she was pregnant. [ 86 ] The mother says that she did not know she was pregnant with M.E.M.S. until 29 September 2010 at an ultrasound appointment. On 23 September 2010, she told the CAST worker that she was not pregnant. [ 87 ] It is simply not credible that this mother did not know she was pregnant with this child. The mother has four other children.

This was at least her fifth pregnancy, and was her fifth pregnancy in seven years.

[ 88 ] The degree of risk posed by the father continues to be significant, given the chronic nature of his mental health and physical health challenges, his on-going lack of treatment and his feelings for the mother. The father testified that he is very much in love with the mother and wanted to be in a relationship with her. [ 89 ] How can the court have any confidence in the mother’s ability to protect the children when she has exercised such fundamentally poor judgment?

The Mother’s Lack of Insight Regarding her Parenting [ 90 ] C.W.A.B. and M.E.M.S. and are the fourth and fifth children of the mother that are involved in the child protection justice system and that have been removed from the mother’s care as a result of concerns over her parenting. This is a particularly telling context for the actions of the mother. [ 91 ] The evidence of the CAST workers identified many incidents which suggest concern over the mother’s lack of insight regarding her parenting. The mother resisted education about these issues, and in some cases refused to admit there was an issue.

The mother‘s behaviour puts the children at risk of physical and emotional harm, and compromises her safety and her suitability as a care- giver. The details of this evidence of observations by the CAST workers is set out earlier (see paragraph 44). The Mother’s Joint Visits with C.W.A.B. and M.E.M.S. [ 92 ] The mother has had difficulty managing both C.W.A.B. and M.E.M.S. during the visits at the CAST offices with the two children. Workers have had to intervene to ensure the safety of the children during visits.

The mother has expressly asked for more assistance during these visits from CAST workers and has asked to be able to bring her mother and sister to the visits. Examination of the Disposition Options [ 93 ] The mother has repeatedly lied to the CAST and to the court about her relationship with the father, and about other things, and has intentionally withheld and kept pertinent information from CAST. Any plan for the return of the children to the mother would involve a supervision order, at least initially.

The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order. There is no foundation for a working relationship or a supervision order under these circumstances in this case.

Any supervision order involving the children and the mother would be an ineffective instrument for the protection and safety of the children. The mother is not a suitable candidate for a supervision order, which requires a sense of co- operation and a willingness to work with CAST. [ 94 ] C.W.A.B. and M.E.M.S. are entitled to certainty, finality and to grow up in a safe and stable family, where they are valued and protected from harm.

They will not have this if they are returned to the mother. [ 95 ] The challenge for the court in this case is choosing the proper disposition option for the children that does not involve a return to the mother’s care. [ 96 ] The central issue regarding disposition is the tension between the desire for certainty and finality for the children (which would lean towards crown wardship, no access and adoption), and the desire to see the children placed with a known suitable care-giver, placed with a sibling, placed where there will be access to the other two siblings, and where the court has the ability to control the placement (all of which would happen if the children were placed with Mr.

G.Ba. under either a supervision order or a s. 57.1 CFSA order). As well, the court is required to consider such a plan, from a family or community member, under s. 57(4) CFSA . [ 97 ] Should the children become crown wards without access for the purposes of adoption, the court is not involved in the adoption placement of the children. They could be placed with Mr. G.Ba., if he completes the adoption placement assessment process successfully. He and his partner have co-operated fully and impressively, and in every way, with this process, during the break in the trial.

It is likely they will be approved for adoption placement.

[ 98 ] However, CAST has the legal right to decide where crown wards without access are placed for adoption. The court is not involved in this decision. The parents are not involved in this decision. CAST has the legal authority to choose another family for the adoption placement, even if Mr. G.Ba. and his partner successfully complete the adoption placement assessment currently underway. CAST has the discretion to choose the family they want to choose in the children’s best interests. And although CAST indicated at the trial that Mr.

G.Ba. was a likely candidate and was currently their first choice for the adoption placement, CAST in no way undertook to the court to place the children for adoption with Mr. G.Ba., nor does CAST have the right or authority to do so. [ 99 ] Should the court choose crown wardship without access, the court gives up any ability to control or even influence the adoption placement of the children. [ 100 ] It is significant that this mother had 17 days of trial regarding Mi.B. and Ma.B. in 2006-2008, which ended with no decision by the court, and with a consent family placement.

That is eerily, unfortunately and uncomfortably similar to what has happened in the case of C.W.A.B. and M.E.M.S. This trial has been 14 days, and in the middle of the trial, a plan for a placement of both children with a suitable family friend has been put forward. [ 101 ] Three years later, after the 17 day trial, the CFSA case re Mi.B. and Ma.B. is still unresolved. This case is still in court with the children placed with the paternal aunt under a supervision order.

Although the paternal aunt says she will start a CLRA case for custody in 2011, three years after the trial, there is still no finality for Mi.B. and Ma.B. They are still in litigation. There is still a status review case before the court. There is still uncertainty in their placement. There is still no permanent placement. [ 102 ] It is clear that if C.W.A.B. and M.E.M.S. were placed with Mr. G.Ba. under a supervision order or a s. 57.1 CFSA order, there is a risk that exactly this would happen again, that there would be no certainty or finality for some time, and possibly no certainty or finality at all.

The status review process which results from a supervision order means that the mother has an open door to return to court to seek the return of the children, much as she would have if there were an order for custody of C.W.A.B. and M.E.M.S. to Mr. G.Ba. under s. 57.1 CFSA, through a motion to change under the CLRA . That option is not available to the mother if the children become crown wards without access for the purposes of adoption.

Crown wardship has the added advantage of certainty and finality, which the other options do not offer. [ 103 ] It is not in the best interests of C.W.A.B. and Madeleine to delay their permanent placement any longer. C.W.A.B. is long past the statutory time permitted for staying in foster care. [ 104 ] It is not in the children’s best interests for the court to choose a disposition that will continue the litigation, leave the door open to the mother claiming a future return of the children, or risk that there might have to be another trial to determine the proper future disposition.

The proper disposition for these children now is clear. The mother is not capable of caring for these children and they should not be returned to her care. [ 105 ] It is tempting, very tempting, to choose a placement with Mr. G.Ba. subject to a supervision order or a s. 57.1 CFSA order. If this plan had come forward at a different time in the life of this case and the lives of these two children, it may have been the plan of choice. However, neither of those options offers certainty and finality.

Both options offer the near certainty of future litigation and the risk of instability and uncertainty for the children for some period of time. [ 106 ] It is not in the children’s best interest, in these circumstances, for the court to choose a disposition that is in any way uncertain or not final. The only option that meets these criteria is crown wardship. Access Legal Principles [ 107 ] The test for access to crown wards is set out in s. 59 (2.1) of the CFSA : Access: Crown ward

(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 is satisfied 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.

[108] The process for a decision regarding access, following a decision that the children should be made crown wards, was alsoset out recently by Perkins, J. in Children’s Aid Society of Toronto v. Tracy L. and Evonne B., supra, 2010 (Ont. Sup. Ct.), para. 25, asfollows: 1. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the childand the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1)(a)). If not both meaningful andbeneficial, dismiss the claim for access. If so, go to the next step. 2.

Determine whether the access would impair the child’s future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss theclaim for access. If not, go to the next step. 3. Determine whether an access order is in the child’s best interests. If not, dismiss the claim for access. If so, make an access ordercontaining the terms and conditions that are in the child’s best interests. (Section 58). [109] After a decision for crown wardship, the CFSA provides a prohibition regarding access unless certain very specific criteriacan be met.

It is effectively a presumption against access for crown wards. [110] Once there is an order for crown wardship, the focus of the CFSA shifts to establishing a permanent and stable placement— preferably through adoption. This is clear from the wording of s. 140(1) of the CFSA which requires the agency to make allreasonable efforts to secure a crown ward's adoption. Only crown wards that are not the subject of an access order are eligible foradoption (s. 140(2)(a)).

Therefore, there is a presumption against court ordered access for a crown ward in order to facilitate permanencyplanning: Children’s Aid Society of Niagara Region v. J.C., , 223 O.A.C. 21, 281 D.L.R. (4th) 328, 36 R.F.L. (6th) 40,[2007] O.J. No. 1058, 2007 Cars​well​Ont 1680 (Ont. Div. Ct.), para. 22. [111] To achieve the permanence and finality of an adoption placement,

section 140 of the CFSA requires that there be no orderfor access: Children’s Aid Society of Ottawa v. R.L., , , [2004] O.J. No. 3112, [2004] O.T.C. 665,2004 CarswellOnt 3080 (Ont. Fam. Ct.), para 75. [112] Once there has been an order for crown wardship, the legislation reflects an intention to shift the focus away fromproviding services to facilitate the re-integration of the child back to the natural family, towards a focus on long-term, permanentplacement, preferably through adoption: Children’s Aid Society of Ottawa v. R.L., supra, para 57. [113]

Section 141.1 of the CFSA provides that before the agency can place a child for adoption, any outstanding order of accessto the child must first be terminated. An adoption placement cannot be made if there is an outstanding order of access. [114] Access is the exception and not the rule in the context of a crown wardship order. Section 59(2) of the CFSA creates apresumption that any right of access is revoked: Nouveau-Brunswick (Ministre de la santé & des services communautaires) c.

L. (M.), (SCC), [1998] 2 S.C.R. 534, 230 N.R. 201, 204 N.B.R. (2d) 1, 520 A.P.R. 1, 165 D.L.R. (4th) 58, 41 R.F.L. (4th) 339,[1998] S.C.J. No. 52, 1998 CarswellNat 557 (S.C.C.), para. 44. [115] Only children who are crown wards without access orders are eligible for adoption. Therefore, there is a presumptionagainst court-ordered access for a crown ward in order to facilitate permanency planning by way of adoption: Children’s Aid Society ofOttawa v.

R.L., supra, para 58. [116] Where the children’s aid society leads evidence to indicate an ability to secure an adoption placement for a crown wardand where, on the facts, that placement better promotes the best interests of the child than a non-adoption placement with an accessorder, then the court should not make the access order. To make an access order under those circumstances would simply invite anapplication to terminate the access order as not being in the best interests of the child, because of the fact it is an impediment to theadoption placement which the society has a duty to secure.

Children's Aid Society of Ottawa v. K. (D.), , [2002] O.J.No. 2483, 2002 Carsw​ell​Ont 2095 (Ont. Fam. Ct.), para 29.

[117] The onus to rebut the presumption against access to a crown ward is on the parent seeking access: Children’s Aid Society ofToronto v. Dora P., (2005), 202 O.A.C. 7, 19 R.F.L. (6th) 267, , [2005] O.J.

No. 4075, 2005 Cars​well​Ont 4579 (Ont.C.A.). [118] The onus is on the persons seeking access to a crown ward to prove on a balance of probabilities that: (1) the relationship between the person and the child is meaningful to the child; (2) the relationship between the person and the child is beneficial to the child; and, (3) access will not impair the child's future opportunities for a permanent or stable placement. Children’s Aid Society of Niagara Region v. J.C., supra, 2007 (Ont. Div. Ct.). [119] The parents have the onus of establishing all three portions of the test in section 59 (2.1) of the CFSA.

This is a verydifficult test for parents to meet. [120] The meaning of the phrase “beneficial and meaningful” was considered in Children’s Aid Society of the Niagara Region v.M.J., , 4 R.F.L.(6th) 245, [2004] O.J. No. 2872, [2004] O.T.C. 634, 2004 Cars​well​Ont 2800 (Ont. Sup. Ct.), para. 45-47: What is a “beneficial and meaningful” relationship in clause 59 (2)(a)? Using standard dictionary sources, a “beneficial” relationship isone that is “advantageous”. A “meaningful” relationship is one that is significant.

Consequently, even if there are some positive aspectsto the relationship between parent and child, that is not enough - it must be significantly advantageous to the child. I read clause 59 (2)(

a) as speaking of an existing relationship between the person seeking access and the child, and not a futurerelationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomingsso as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is notexpected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing ofthe benefits to the child of access versus no access, before an order is made. [121] Section 59(2) establishes a threshold test which must be met before the court goes on to consider whether an access orderis, in fact, in the best interests of the child. The determination about access for a crown ward does not start with an examination of thechild’s best interests.

Rather best interests is the final piece for consideration, after consideration of the criteria in s. 59(2) CFSA:Children’s Aid Society of Ottawa-Carleton v. T.C., , 117 A.C.W.S. (3d) 258, [2002] O.J. No. 3711, 2002 Cars​well​-Ont 3269 (Ont. Fam. Ct.), para 7. Access Analysis [122] Where there is an order for crown wardship the onus is on the parents to establish that their access is meaningful andbeneficial to the children, and that it would not impede a permanent plan for these children. The Father’s Access [123] The father has had no contact with C.W.A.B. since February 2010.

He did not request access to C.W.A.B. from February

2010 to February 2011, despite being represented by a lawyer. During the break in the trial between February and April 2011, the father requested access to C.W.A.B. CAST set up several meetings with the father regarding his access to C.W.A.B. (as there was an existing order from Waldman, J. on 10 June 2010 suspending access to C.W.A.B. until he met with a CAST worker and provided certain medical and psychiatric information). He did not attend any of these meetings. The father had sporadic contact with M.E.M.S. in the first two months after her birth and no contact with her since January 2011.

It is not possible for the father to argue that he has a relationship with the children that is beneficial and meaningful to the child. The Mother’s Access [ 124 ] The mother’s access to the children has been more consistent, and she would argue is both beneficial and meaningful, particularly to C.W.A.B. However, given the children’s ages, and their adoptability, the mother cannot establish that access would not impede a permanent adoption plan for the children. [ 125 ] Both children are adoptable. Both children are in foster placements with foster parents who are not presenting plans for their adoption.

Both children will need to be moved to another placement following this trial. [ 126 ] The parents have not met the onus upon them to rebut the presumption against access to a crown ward outlined in subsection 59(2) of the CFSA . The parents cannot meet the onus in s. 59(2.1) CFSA regarding access to the children. The parents’ claims for access to the children are dismissed. There shall be an order for no access to the children. Conclusion and Orders [ 127 ] These are the statutory findings regarding these children: • C.W.A.B. is a male child who was born on […] February 2009. His mother is Ms.

E.S. and his father is Mr. W.B. He is not Catholic and not Jewish. He is not Indian and not Native. He was apprehended from his mother’s care at Mt. Sinai Hospital on […] February 2009; and, • M.E.M.S. is a female child who was born on […] October 2010. Her mother is Ms. E.S. and her father is Mr. W.B. She is not Catholic and not Jewish. She is not Indian and not Native. She was apprehended from her mother’s care at the Humber River Regional Hospital Church site at birth. [ 128 ] The following orders will issue:

a) C.W.A.B.and M.E.M.S. are to be a crown wards; and,

b) There will be no access to C.W.A.B. and M.E.M.S., in order that they are available for adoption. _____________________________ 20 April 2011 Justice Carole Curtis