ChildrenÕs Aid Society of Toronto v. C.S.-S., 2011 ONCJ 645

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.Ñ

(7) Order excluding media representatives or prohibiting publication. Ñ 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. Ñ 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. Ñ 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.Ñ

(3) Idem. Ñ 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. C41512/06 DATE: 06áVá2011 CITATION: ChildrenÕs Aid Society of Toronto v. C.S.-S. , 2011 ONCJ 645 ONTARIO COURT OF JUSTICE BETWEEN: CHILDRENÕS AID SOCIETY OF TORONTO, Applicant, Ñ AND Ñ C.S.-S. and H.L., Respondents Before Justice Geraldine F.

Waldman Heard on 21 and 23-25 March 2011; and 1 April 2011 Reasons for Judgment released on 6 May 2011 Justine Sherman ........................................................................................ for the applicant society Caroline Chambers ............................................................................................. for the respondent [ 1 ] JUSTICE G.F. WALDMAN:Ñ The case before the court concerns the child R.S., born [É], 2006. R.S. was apprehended on November 17, 2009 and is currently in the care of the ChildrenÕs Aid Society of Toronto.

The society is seeking a finding that the child is a child in need of protection pursuant to clauses 37(2)(

a) and (

b) of the Child and Family Services Act and a disposition of Crown wardship with no order as to access in order to allow R.S. to be adopted. Mother is seeking the return of the child to her care, or the care of her and Mr. D.S., whom she alleges is her current partner, or to the care of Mr. D. S. alone.

[ 2 ] R.S.Õs father, Mr. H.L., is in default and signed a Statement of Agreed Fact in which he consented to a finding that R.S. was a child in need of protection and the disposition of Crown wardship. He has not exercised access to R.S., has not participated in these proceedings aside from executing the statement of agreed fact and did not participate in the trial. [ 3 ] The parties agreed that the trial of the finding and disposition should be heard together and all of the evidence should apply to both. SocietyÕs Position: [ 4 ] It is the position of the society that mother is unable to parent R.S.

Mother has already lost or given up custody of four children through previous child protection proceedings, including a trial in 2002 before Justice Scott in which she found that mother was unable to care for the child in question, a son Z., and that it was in his best interests that he be made a ward of the Crown and be placed for adoption. It is the societyÕs position that a review of the evidence in this trial establishes that the concerns about motherÕs ability to parent remain much the same. [ 5 ] It is the societyÕs position that R.S. had significant behavioural issues when she came into care.

It is also the societyÕs position that the observations of the societyÕs access supervisors and the Therapeutic Access Program are consistent with the findings of fact in the decision of Scott J. in 2002 relating to the child Z. It is the societyÕs position, moreover, that the conclusions in a parenting capacity assessment done in 2001 with respect to Z. are consistent with the evidence in this proceeding and the concerns about motherÕs ability to parent.

The society submits that I should therefore give weight to that report and its conclusions about motherÕs ability to parent notwithstanding its age. [ 6 ] It is the societyÕs position that, given motherÕs criminal history, the court ought to be concerned about her ability to remain a consistent caregiver for the child. It is the societyÕs submission that mother does not have a reliable plan before the court. Her current plan of caring for the child and residing with Mr. D.S. was only presented at court at the commencement of the trial.

It is the societyÕs position that the court ought to be concerned about this plan because of the evidence about the relationship, concerns about Mr. D.S.Õs ability to parent and, given the evidence of her probation officer, the possibility that mother is not in fact residing with Mr. D.S. it is the societyÕs position that mother has lied previously to the society and has lied historically about her plans and ability to care for the child and that the court ought not to accept her and Mr.

D.S.Õs evidence about the plan. [ 7 ] It is the societyÕs position that this child has special needs which mother has demonstrated she is unable to meet. The society submits that Mother has had numerous interventions over the years and has been unable to develop appropriate parenting skills notwithstanding these interventions and is therefore unlikely to change.

It is the societyÕs position that placing the child with mother would put her at risk of physical and emotional harm and therefore the least intrusive disposition that is consistent with the childÕs best interests is Crown wardship with a plan for adoption.

MotherÕs Position: [ 8 ] It is motherÕs position that the society had all of the evidence of her past parenting prior to the societyÕs returning the child to her in 2007 and the termination of the supervision order with respect to the child R.S. it is motherÕs position that the society had an opportunity to monitor her parenting when the child was placed with her subject to supervision and that the society was satisfied about her ability to parent, resulting in the termination of supervision.

The child was apprehended as a result of allegations of abuse by her, which resulted in criminal charges that have now been withdrawn by the Crown. The only evidence of the alleged abuse was some marks on the child and the statements of a four-year-old.

Mother submits that the court ought not to conclude that the abuse occurred, thereby leaving the court with no evidence to justify the apprehension. [ 9 ] It is motherÕs position that, while the evidence of the access supervisors and social workers was negative, in fact, the case notes of the observations of the access visits contained many positives and the supervisors and social workers focused on the negative and on negative details of the access visits rather than the visits as a whole, which were generally positive.

It is also motherÕs position that the society over-emphasised her negative conduct and under-responded to issues that she raised about the care the child was receiving in the foster home. [ 10 ] Mother submits that she and Mr. D. S. have a good relationship, that they are living together and plan to marry, that Mr. D. S. has experience caring for children, is committed to caring for R.S. and that their plan is one which will meet R.S.Õs needs. Mother submits that she is able to care for her child and that the child ought to be returned to her.

Background: [ 11 ] The following facts are agreed to by all parties: 〈 R.S. is motherÕs sixth child. None of the other children are in motherÕs care. The eldest, T., was made a society ward and later placed with his maternal grandparents who obtained custody of him in 2001. The second child, J., was born with significant health issues and died at about age two in 1997. M., the third child, was made a Crown ward on consent in 2001. The fourth child, Z., was involved with the Niagara society at the same time but was returned to mother subject to supervision.

He was subsequently apprehended and made a Crown ward after a trial in 2002. The fifth child was apprehended but was then privately adopted at the time of her birth in 2004. 〈 Mother was first involved with the Niagara ChildrenÕs Aid Society in 1995 after J,Õs birth. The society was involved with mother largely around supporting her in caring for J. and dealing with the significant stresses related to providing him with the care he required as well as meeting the needs of her other child. 〈 There was a trial to determine the disposition for Z. in December 2002 and Justice J.

Wilma Scott granted the disposition sought by the society and the child was made a Crown ward in 2002 and placed for adoption. 〈 A parenting capacity assessment was completed in 2001 during the course of this litigation which found that there were serious concerns about motherÕs ability to parent and recommended that the children not be returned to mother. 〈 The Toronto ChildrenÕs Aid Society became involved with the family in June 2006 as a result of a referral by the Niagara society. R.S. was apprehended by the society in June 2006 and returned to her mother subject to supervision in September 2006.

R.S. was found to be a child in need of protection on consent pursuant to clause 37(2)(

l) of the Child and Family Services Act in May, 2007. R.S. was again apprehended by the society in February 2007 and was placed in the care and custody of her daycare provider, Nefessa Nezir, subject to the societyÕs supervision.

There was a further finding that R.S. was a child in need of protection in August 2007. 〈 R.S. was returned to her mother in July 2007 and monitored by the Toronto and Peel Societies until January 2009 when the supervision order was terminated. 〈 R.S. was apprehended by the Toronto society on or about November 17, 2009, after the supervisor of R.S.Õs homecare provider reported possible physical abuse relating to marks on the childÕs back. R.S. has remained in the care of the society since that time. 〈 MotherÕs criminal record is filed as exhibit 6.

She has convictions for setting fire in 1989, uttering forged documents in 1990, mischief under in 1990, assault and uttering counterfeit money in 2001, criminal harassment in 2006, criminal harassment, personation with intent, uttering forged document, false message and failure to comply in 2007, and breach of condition in 2010. She is currently completing a conditional sentence and will be on probation. Mother had been charged with assault on R.S. relating to the marks that resulted in the apprehension. The charges were recently withdrawn. 〈 R.S. has currently been in care for about 16 months.

She had been in care cumulatively for over twenty months at the commencement of the trial. 〈 The parties agree that the statutory findings as to name, age, date of birth, parents and religion are as set out in the application. [ 12 ] The significant concerns in this case are the childÕs presentation when she came into care, motherÕs past parenting, motherÕs current ability to parent based on the observations of the social workers and access supervisors, the evidence before the court about mother and the motherÕs plan of care. [ 13 ] The allegations of assault which led to the apprehension, while important, are not in fact the focus of the trial.

The fact that the

charges were withdrawn, however, does not lead to the conclusion that the assault did not occur. In fact, given the nature of the evidence, I can come to no conclusion about whether the assault did occur. The marks, while consistent with the allegations made, are not conclusive. R.S.Õs statements were consistent over several repetitions. Mother denies the assault. I am satisfied that I cannot rely on the statements of a then four-year-old child to support a conclusion.

The determination of whether the assault did occur is not necessary in order to determine whether R.S. is a child in need of protection and the appropriate disposition. R.S.: [ 14 ] R.S. has had a difficult few years. She was first apprehended in June 2006 and was in the care of the society until in or about September 2006. She was apprehended a second time on February 12, 2007. Mother had contacted the society to advise that she was leaving R.S. with her daycare provider for a few days while she attended to personal business. The society learned that mother was in jail.

R.S. was in care for a short time and then placed with her daycare provider subject to supervision of the society. She was returned to motherÕs care and continued to spend days with her daycare provider. [ 15 ] The Toronto and Peel societies supervised mother until in or about January 2009. During this period of supervision, it was the observation of Katherine Bodkin, the Toronto family service worker, that mother was able to provide suitable housing and food and for much of this period maintained an appropriate relationship with the daycare provider.

There were, however, ongoing concerns about motherÕs ability to meet R.S.Õs emotional needs, her parenting skills, her supervision of R.S. and her willingness to follow through with referrals. R.S. then moved with her mother and later moved in with her mother and Mr. D.S., where she lived for about 17 days before the current apprehension. Including her one change in foster placement, she has had about six caregivers since 2006 (not including Mr.

D.S.). [ 16 ] It was the evidence of the childrenÕs services worker, Heather King, and Kathy Williams, the foster mother, that R.S. had significant emotional and behavioural problems when she came into care. Kathy Williams testified that she was R.S.Õs second placement but that she had worked with the same agency as the first foster home and had provided advice to the former foster mother. R.S. was placed with her in April 2010, about four months after she came into care.

According to her evidence, she had the following concerns about R.S.Õs behaviour: 〈 she had huge temper tantrums that lasted a long time and were very expressive including throwing things; 〈 she mimicked animal behaviour with her hands coming up like paws, making mewing sounds and holding her head like a cat; 〈 she was more comfortable playing with toys intended for toddlers of about 18 months than those for three- and four-year-old children; 〈 she had no sense of caution and would do things like run out of doors; 〈 she did not know how to play with other children, would lash out at them, hurt them and interfere inappropriately with their play; 〈 she did not appear to recognize pain and would, by way of example, fall and hurt herself but did not appear to recognize the pain; 〈 she would pick at her fingers or scratches until they bled; 〈 she did not follow directions; 〈 she had poor self-help and hygiene skills; and 〈 she had so many difficulties at school she could only attend the full-day program for half a day.

She would lash out at other children and bolt out of class. [ 17 ] Heather King described the concerns about R.S. when she came into care as: inflicting self-harm by pinching herself and fixating on picking at minor cuts on her body; nervous ticks such as flicking hair; mouth moving without words; avoidance of using the washroom; and aggressive behaviour at school. [ 18 ] Kathy Williams testified that there have been significant changes in R.S. since she came to live with her. She now attends school for a full day and has successful days at school. She plays with other children and has friends.

Her self-help skills have improved and she dresses herself, picks out some of her clothes, washes her hands and face and brushes her teeth. She now plays with age- appropriate toys. She is able to listen and follow directions. She is reading beyond grade level. She still has tantrums but they are less frequent and less severe. [ 19 ] According to the foster mother, R.S. looks forward to the visits with her mother and talks to her about what happened during the visits. However, the visits appear to cause R.S. to be anxious. She sometimes sleeps poorly before the visits, does not eat well and

sometimes has vomited on the way to visits. [ 20 ] Dr. Fitzgerald, a psychologist, testified on behalf of the society. The parties consented to his testifying as an expert in child psychology. He evaluated R.S. twice, once on February 26, 2010 and again on November 8, 2010. His reports are filed as exhibits 27 and 28 respectively.

He testified that he obtained his information from the CAST file, a meeting with the foster mother who reported her concerns and answered questions about R.S.Õs behaviour, a questionnaire completed by the teacher, psychological tests which he administered and his own clinical observations. [ 21 ] I accept the position of counsel for mother that Dr. FitzgeraldÕs understanding of the child might be more complete if he had also interviewed the biological mother. I accept Dr.

FitzgeraldÕs observation that the information of the teacher, which is more objective, is consistent with the information of the foster mother and with the psychological testing and his clinical observations. This consistency leads to the conclusion that the information Dr. Fitzgerald received was reliable and that his conclusions should be given weight by the court. Therefore, notwithstanding the limitation as a consequence of his not meeting with mother, the evidence of Dr. Fitzgerald provided the court with insight into the childÕs behaviour and her emotional status. [ 22 ] According to Dr.

FitzgeraldÕs evidence, R.S. tested in the low average range for intelligence, at the 23 rd percentile. However, her language and non verbal skills were not within the normal range and her motor skills were immature. She had significant emotional and behavioural issues which, in his opinion, were consistent with an attachment disorder. She had difficulty in forming relationships, a series of issues in school, appeared to be indifferent to other children, was unable to engage them and did not know how to interact.

In relation to the severity of R.S.Õs difficulties, he noted that she had been identified as having special needs by the school in kindergarten at age 4-5, which is highly unusual. It was his opinion that her behaviour was suggestive of an attachment disorder. [ 23 ] The second assessment was scheduled immediately after an access visit with only the travel time in between. Dr. Fitzgerald observed that R.S. Òwas not as responsive to efforts to involve her in the testingÓ as she had been at the first assessment.

It was his observation that, ÒShe presents as a highly anxious girl who engages in elaborate fantasy and has a hard time coping with these feelings. Her play and drawings were highly aggressive and sexualized and she showed concerns about her own safety and well-being and fears of being attacked. She feels threatened and is apprehensive that others are unable to keep her safe.Ó [ 24 ] In his recommendations, he states, ÒWhen considering R.S.Õs current developmental status, it is important to be mindful of her history of disrupted care and emotional and behavioural instability.

The fact that she has already been identified by the school board as an exceptional student is extremely concerning and suggests a very high risk of future emotional and psychological disturbance.Ó [ 25 ] According to the evidence R.S. is adoptable. Mother: [ 26 ] Mother has a long history with child-protection agencies going back to the mid-1990s. None of her four other surviving children are in her care. She was previously involved in child protection litigation and, in 2001, one of her children was made a Crown ward on consent.

In 2002 a second child was made a Crown ward after a trial. [ 27 ] Mother also has a criminal record as set out in paragraph 11. None of the convictions are directly related to the children. Her record, however, is significant because mother has been unavailable to care for R.S. on at least two occasions because of incarceration. [ 28 ] Mother presented as a reasonably intelligent woman. She understood that she needed to explain to the court what about her life had changed since her last involvement with a child protection agency and present an appropriate plan for the care of this child.

Mother testified that, during her previous involvements with childrenÕs aid societies, she had a high-needs child for whom she was caring with very little support from her partner. During this period she went through a separation and the death of this child. She then was left on her own with very small children to care for and support financially on her own. It is her evidence that she struggled with the emotional

upheaval and stress of being a single parent and running a business. It is her position that her current situation is much different. It is her evidence that she has now recovered emotionally. In addition she will have the support of Mr. D.S. in caring for R.S. She took a parenting course while in jail. She has the support of the Jewish community and has started counselling at the Jewish Family and Child Service.

It is her evidence that she has Òlearned a lot since R.S. has been in care.Ó [ 29 ] Ms Deacon, the coordinator of the therapeutic access program, provided the court with evidence about motherÕs parenting. Her evidence in chief was presented by way of affidavit which is filed as exhibit 20. Her rŽsumŽ is attached as exhibit A to that affidavit. Having reviewed the rŽsumŽ, I am satisfied that Ms Deacon has extensive training and experience in the area of parenting, assessing attachment and parenting skills and teaching parenting skills. The therapeutic access

summary for this family is attached to that affidavit as exhibit B. Mother participated in the therapeutic access program for six months with a period of interruption in the middle because of her incarceration. She had more than 80 hours of visits at the therapeutic access program. Most sessions were four hours long. The program terminated after it was determined that mother was not benefiting from the process and that, while there had been some improvements, it was unlikely that there would be further gains. [ 30 ] Ms Deacon presented a balanced picture of motherÕs parenting.

She saw positives in motherÕs parenting. However, her evidence at trial and her report also raised several concerns about motherÕs parenting ability. According to Ms DeaconÕs evidence, mother came regularly for the access visits and arrived on time. She brought appropriate and healthy snacks and lunch. Mealtimes were generally successful. She planned appropriate activities for the visits. She was good at getting down on the floor and playing with R.S. and following R.S.Õs leads. She also observed that, at times, mother and R.S. were able to be affectionate, have fun and play together.

Ms Deacon acknowledged that mother had also sought some help with R.S.Õs behavioural issues prior to the apprehension, approaching the doctor and school social worker. [ 31 ] By way of negative it was her observation that mother was not able to read R.S.Õs cues and respond to her emotionally. She had difficulty managing her behaviour and understanding situations from R.S.Õs point of view. It was her observation that when mother became stressed she became self-involved. She was unable to focus on R.S.Õs needs, put R.S.Õs needs first or respond appropriately.

Ms Deacon also observed that when stressed, mother often used physical interventions such as grabbing R.S., which caused concern for R.S.Õs physical safety. She observed mother grabbing R.S.Õs arm or lifting her up from behind. She observed that these actions startled and frightened R.S. In her report she observed that: She was able to come prepared with healthy meals and snacks for [R.S.] and she is affectionate with her daughter, particularly when [R.S.] is able to play and seeks affection.

Assessment also revealed that Ms S was unable to act protectively of [R.S.], was unable to recognize and respond to [R.S.Õs] needs and was unable to demonstrate changes to her parenting that would reflect that [R.S.] was safe in her care. [ 32 ] She stated further: [Ms. C. S.- S.] did learn to set rules for [R.S.] that encouraged safety and limits; however, when [R.S.] did not behave according to rules, [Ms. C. S.- S.] was unable to follow through with her daughter. [ 33 ] Ms Deacon observed as well that motherÕs ability to parent was influenced by her own feelings and emotions.

When mother became frustrated or upset, her ability to parent safely declined as did her ability to be sensitive to R.S.Õs needs. For example, as the situation with the social work staff deteriorated and became more stressed, mother would argue with them in front of R.S. which obviously caused the child distress. [ 34 ] Katherine Bodkin was the family service worker from October 3, 2007. She worked with mother through the period of supervision after the child was returned to her in July 2007, until the file was transferred to Peel Region and again after the child was apprehended the third time in 2009.

She has supervised many visits in the period since the most recent apprehension. Her evidence in chief is contained in an affidavit sworn March 15, 2011, and filed as exhibit 17. It is her evidence that she identified concerns regarding motherÕs parenting skills, her ability to supervise R.S., her ability to follow through with referrals and her ability to be forthcoming and honest. [ 35 ] Her observations about motherÕs parenting of R.S. during access visits through 2010 raised similar concerns.

The observations and concerns raised throughout the observation notes consistently raise the issues of R.S.Õs acceptance of her motherÕs affection, motherÕs ability to actively engage with R.S. and provide transition cues, motherÕs physical interventions, her inability to provide R.S. with rules and explanations and her inability to set boundaries, supervision and safety concerns and motherÕs need to be more consistent. She noted that mother tended to intervene physically with R.S. and that she did not communicate with R.S. and explain her desired behaviours and expectations.

[ 36 ] It was also Ms BodkinÕs observation that as the relationship between mother and the society staff deteriorated mother involved R.S. in the conflict. When she became upset she would speak loudly and in an obviously upset manner in front of R.S. She used R.S. as a Ògo betweenÓ having her make requests of the staff, such as permission to go to the park. Other examples of this include: On one occasion at the beginning of the August 9, 2010 visit, mother said, ÒYouÕre not going to hurt R.S. again,Ó while walking past the worker holding R.S.Õs hand.

On that same visit, mother abruptly pulled R.S. from the worker. According to Ms Bodkin, mother engaged in an argument with her during the December 9, 2010 visit and, while holding R.S. in her lap, mother accused the worker and said that she would ask R.S. about being touched in the washroom. It was the observation of Ms Bodkin that R.S. became visibly upset during this argument. [ 37 ] Other access supervisors, including Nadia Iskander, Christine Crane and Kristina Peters, testified about their observations of mother during the regular access visits (not part of the therapeutic access program).

The affidavit evidence presented by the supervisors was generally negative and focused on incidents such as motherÕs lack of cooperation in teaching R.S. to use the bathroom on her own and her conflict with them. Their evidence is generally consistent with that of the TAP coordinator and Ms Bodkin. [ 38 ] In cross examination, the witnesses did acknowledge that aspects of the visits were positive. Kristina Peters, for example, testified that there were many positives in the visits. Mother brought healthy lunches. She encouraged R.S. to use her fork.

At one visit, mother brought a pumpkin for R.S. to decorate which R.S. enjoyed. She described mother brushing R.S.Õs hair and singing with her. They played together in the gym. [ 39 ] The overly negative tone of the evidence impacted on the weight I gave to the evidence of the other access supervisors. They did not present a balanced picture of the access visits, focusing only on negative incidents and exaggerating the importance of these events which, even taken together, were not of great significance.

Having said that, I acknowledge that insofar as their observations were consistent with that of Ms Deacon and Ms Bodkin, their evidence supported the conclusion that the concerns noted were consistent and persistent throughout the access visits. [ 40 ] Mother raised concerns about her and R.S.Õs treatment during access visits by the society staff. Based on the evidence, it is clear that she felt that the supervisors were overly and unreasonably negative towards her, and interrupted her visits by insisting that she talk to them during her access time.

She also had concerns about the actions of some of the access supervisors who, according to mother, assaulted R.S. [ 41 ] Mother had concerns about the environment in which R.S. was living, testifying that R.S. described guns at school and described a hot dog as looking like a penis. It is clear that there was a high level of conflict between mother and the access supervisors, which may in part account for the overly negative evidence that they presented in the court.

Unfortunately, the relationship between mother and various of the access supervisors did become quite hostile, with mother contacting the police about some of her concerns. This created a stressful atmosphere at the access visits. Mother did exercise poor judgment in involving R.S. in the dispute between her and the supervisors and having inappropriate discussions during the visits, which, according to the evidence, upset R.S. [ 42 ] Mother described the visits very positively, except when giving evidence about the various supervisors. She testified that she felt that the visits were going very well.

It was her experience that R.S. was happy to see her, enjoyed the visits and gave her a great big hug when the visit ended. [ 43 ] Mother acknowledged that R.S. had problems prior to the apprehension, which she now attributes to all the changes in her life including moving, a new school and a new daycare provider. [ 44 ] According to mother, she was able to care for R.S. properly after she was returned to her the first time, as evidenced by the fact the Peel ChildrenÕs Aid Society terminated its supervision order. She worked with the public health nurse when R.S. was born.

She dropped in occasionally at the Early Years Learning Centre. She involved R.S. in activities. She had an appointment with Dr. Lester to discuss R.S.Õs behavioural problems which was scheduled before R.S. came into care. [ 45 ] Mother and R.S. were residing with Mr. D.S. at the time of the apprehension. They had met through an online dating service in or about July 2009 and began living together in October 2009. Mr. D.S. had telephoned the Peel ChildrenÕs Aid Society on the day of the apprehension to complain about motherÕs parenting of R.S.Mr. D.S. was motherÕs surety when she was arrested for assaulting R.S.

According to the evidence of Ms Bodkin, Mr. D.S. told her in court on January 5, 2010, that he was Òfed up with C.Ó and that he was going to withdraw as her surety. He withdrew his surety less than two weeks later, resulting in motherÕs arrest. Both he and mother advised the society in January 2010 that they were not romantically involved. Mr. D.S. repeatedly told the society through January and February 2010 that he did not want mother living with him.

[ 46 ] On March 3, 2010, after mother had been arrested, Mr. D.S. repeated to the society that he was relieved that mother was gone, that mother continues to lie to him, that she is a risk to R.S. and is not able to take care of herself and R.S. The society began to investigate his independent plan for R.S. but he was not accepted as a possible kin placement. According to Ms BodkinÕs evidence, Mr. D.S. continued to take the position that he did not want to live with mother through April 2010.

He did contact the society to advise that he and mother had reconciled in May 2010 and were planning for R.S. together. [ 47 ] At trial Mr. D.S. minimized his concerns about motherÕs parenting of R.S. In relation to withdrawing as motherÕs surety, he did not provide a detailed explanation of what had occurred but testified simply that: ÒI had a legal duty and responsibility to revoke the bail.Ó In cross examination he explained that he withdrew as surety because he was not aware of the fact that mother was taking counselling as required by her bail. [ 48 ] Mr.

D.S. in his evidence acknowledged that he had been critical of motherÕs parenting to the society at the time of the apprehension. He agreed in cross examination that, at the beginning, he had concerns about motherÕs attachment and care of the child and that he contacted the Peel ChildrenÕs Aid Society with these concerns. In his evidence, he denied the allegation made previously that mother used physical violence and testified that mother had hit R.S. only once, giving her what he described as a light tap on her bum when she ran away at the Eaton Centre and was missing for more than 45 minutes.

He testified that he agreed that mother needs counselling. [ 49 ] There are issues with motherÕs credibility. Ms Bodkin, who had a very long relationship with mother, stated in her evidence that she had issues with mother about being forthcoming and about mother being truthful. She told the society that she was leaving the child with her caregiver because she had personal issues when she was in fact in jail. She misled the society about the terms of her bail.

There was confusion in motherÕs evidence about what she told the society regarding when some charges against her were dropped; mother explained that she told the society they were dropped based on her information that the Crown intended on dropping them and acknowledged that the charges had not been dropped as she had said. In a previous proceeding involving R.S. mother told the society that her plan on R.S.Õs being returned to her care was to live with a Mr. T. her then boyfriend. The society learned after the child was returned that mother was in fact not living with Mr.

T. but that she and R.S. were living in a shelter. Mother acknowledged this in the Statement of Agreed Fact signed by her on August 15, 2007. According to the society, Mr. D.S. also had issues about mother lying to him.

I note that there were similar comments by Justice Scott in the previous decision where she found, ÒThis tendency to be less than truthful on the part of Ms S. is a trait that we saw evidenced over and over again in the testimony of various witnesses.Ó [ 50 ] Where there is a conflict between the evidence of the society and other witnesses or mother, I accept the evidence of the society or other witnesses over that of mother. Past Parenting: [ 51 ]

Section 50 of the Child and Family Services Act addresses the issue of past parenting as admissible evidence in a child protection proceeding: 50. Consideration of past conduct toward children.Ñ

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

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

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. [ 52 ] In this case the society has tendered two documents as evidence of motherÕs past parenting, the reasons for the decision of Madam Justice J.W.

Scott, dated December 16, 2002, in which Justice Scott ordered that the child Z.y be made a Crown ward with no access for the purpose of adoption, and the parenting capacity assessment completed in July 2001 at the Child Advocacy and Assessment Program operated at the ChildrenÕs Hospital in Hamilton, which was referenced and relied upon by Justice Scott in her decision. [ 53 ]

Section 50 of the CFSA allows the court to hear and rely on evidence of past parenting and specifically references reasons for decision in a previous child protection proceeding. I am satisfied that on their face these two documents qualify as potentially admissible under

section 50 of the CFSA . I am satisfied that they are relevant to this proceeding because they address the very issue before the court, motherÕs parenting. However, while potentially admissible, the evidence must still meet the requirements of necessity and

reliability Ñ Catholic ChildrenÕs Aid Society of Toronto v. Jean L. and Willard R. (No. 3), , 39 R.F.L. (5th) 54,[2003] O.J. No. 1722, 2003 Cars​well​Ont 1685 (Ont. C.J.).

Given the nature and age of the documents, they both meet the test ofnecessity and reliability. [54] In relation to the parenting capacity report, while the document is reliable in that it is a report prepared by a respectedinstitution, the fact that it is now about ten years old and was prepared for another proceeding makes it impossible for the court toevaluate the conclusions reached and their underpinnings against other evidence as I would in the case of such an assessment prepared inthis proceeding.

However, the report was before Justice Scott who addressed it specifically in her reasons and who accepted itsconclusions, which are excerpted at paragraph 24 of the decision.

She excerpted as follows: ÒThere is ample evidence to support that Ms SÕs children experienced neglect and possible emotional harmÉ Ms SÕs parenting deficitsare such that she is unlikely to benefit from therapyÉ .Ó [55] Justice Scott found at paragraph 26: ÒWhile the CAAP report was written well over a year ago and focused not simply on Ms S and Z., the contents of their report and theconcerns noted should not be disregarded completely at this stage.

In a sense, many of the conclusions have been verified through thisfurther failed attempt at placing Z. with Ms S.Ó [56] I am satisfied then that this court can rely on the parenting capacity report to the same extent. I can also consider the extent towhich the conclusions in that report are consistent with the evidence currently before the court. [57] Given that this evidence (the reasons for the decision and the assessment) are about ten years old, insofar as it is accepted bythe court, it is evidence of motherÕs ability to parent at that time. It is a starting point.

The Court must evaluate the balance of theevidence to determine what is the same or different in motherÕs life, what steps she has taken, if any, to address the concerns raised inthis evidence, and the extent to which the current evidence raises similar issues establishing a pattern of behavior or a consistent patternof unchanged parenting concerns.

Where a parent has had previous children made Crown wards, as in this case, there is a tactical burdenon that parent to show that he/she has taken sufficient remedial steps to address the issues that resulted in the previous order and that theremedial steps allow the court to conclude that the risk to the current child is sufficiently reduced to allow the child to be returned to thatparent. See Catholic ChildrenÕs Aid Society of Toronto v. Christine S. and Laurie Hope B., 2010 ONCJ 656, [2010] O.J. No. 5831,2010 Cars​well​Ont 10360 (Ont.

C.J.). [58] The findings of fact in the decision of Justice Scott are as follows:

a) mother agreed to an order of Crown wardship for the child Madison.

b) the child Z. was placed with mother subject to supervision. A term of the supervision was that they reside in a ÒshepherdinghomeÓ where other adults would be available to provide a high level of supervision and support mother in learning better parentingtechniques. There had been two attempts to use this type of support and both had broken down. In the period between these twoplacements, mother and Z. had resided in an apartment with a number of professionals providing support.

This arrangement broke downresulting in Z.Õs being apprehended, the second placement in a shepherding home with mother, a further apprehension and the trialwhich resulted in the judgment. The court found, among other concerns, that the relationship between mother and the family providingthe shepherding support had broken down.

c) The judge found at paragraph 10: Over the years, based on the agreed statement of facts, it appears there were serious concerns with respect to the ability of Ms S to carefor and meet the needs of her children. One is struck by the large number of professionals from various agencies and programs in thiscommunity who have attempted to work with, assist and teach Ms S fundamental areas of child careÉ. Although denied by Ms S, Iaccept that Madison too was showing behavioural problems, eating and smearing her fecesÉ.

d) Referring to the service provider, the judge found (at paragraph 11), ÒShe described Ms S as having a hard time listening to instructions, as being a person who liked to do things her own way.Ó

e) The service provider raised as one concern that Ms S Òhas such great needs that she will leave Z. with almost anyone when she needs to get out of the home.Ó

f) The society again worked with mother. There appeared to be gains and the society considered returning the child to her care. However, according to the reasons of Justice Scott, motherÕs parenting again deteriorated, as did her personal situation. It was also noted that, over time, the relationship between mother and the society deteriorated seriously.

g) I quote also from the parenting capacity assessment, at page 27: ÒMs S states that she cares for her children; however, one must question the quality of attachment between Ms S and her children.Ó [ 59 ] In information reviewed by CAAP, there is repeated concern expressed by service providers about the interaction between Ms S and her children: ÒIt appears that Ms S has great difficulty providing the children with a consistently nurturing and appropriately responsive parenting in order to develop a secure attachment relationshipÉ Ms S. has great difficulty responding in a consistent and appropriate manner to the children..

Furthermore, despite repeated direction and support from parental support workers and the shepherding home parent, Ms S had difficulty with physical contact with her children.

It was also noted that during the observation, Ms S appeared to become frustrated with MadisonÕs challenging behaviours and handled her roughly (grabbing her arm) in order to direct her.Ó [ 60 ] I am struck by the consistencies between the findings in Justice ScottÕs reasons for decision relating to the child Z., the 2001 CAAP parenting capacity assessment and the concerns raised by the society in this case. [ 61 ] The evidence about motherÕs life in the period between 2002 and 2009, when R.S. was apprehended, does not support the conclusion that she had taken steps to improve her parenting and to reduce the risk to R.S.

She gave up a child for adoption in 2004. She was repeatedly involved with the police and had been found guilty of several offences. R.S. has been apprehended three times: in 2006, 2007 and 2009. Mother met Mr. D.S. in July/August 2009 and she and R.S. moved in with him in October 2009. Mother took a parenting course while in jail. Mother has just begun some counseling but, at the time of the trial, had only been to a few sessions. Finding : [ 62 ] The ChildrenÕs Aid Society of Toronto is seeking a finding that R.S. is a child in need of protection pursuant to clauses 37(2) (a), and (

b) of the Child and Family Services Act and submits in closing that the evidence also supports a finding pursuant to clause 37(2) (

i) of the CFSA . The

section reads as follows:

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

a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that personÕs, (

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; (

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

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; . . . (

f) the child has suffered emotional harm, demonstrated by serious, (

i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (

v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the childÕs parent or the person having charge of the child; . . . (

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

v) resulting from the actions, failure to act or pattern of neglect on the part of the childÕs parent or the person having charge of the child; . . . (

i) the child has been abandoned, the childÕs parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the childÕs care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the childÕs care and custody; . . . [ 63 ] The court has the discretion to make a finding that a child is in need of protection pursuant to a clause of section 37(2) of the CFSA that is not pleaded if the evidence before the court supports such a finding.

In order to do so, however, the court must be satisfied that the parent had disclosure of this evidence, is not caught by surprise and had an opportunity to test the evidence. See Durham ChildrenÕs Aid Society v. R.S. and J.M. , (2005), 137 A.C.W.S. (3d) 566, [2005] O.J. No. 570, 2005 Cars​well​Ont 10570 (Ont. Fam. Ct.) . The court is not bound by the evidence at the time of the apprehension to support the finding but can admit and rely on evidence arising up to the time of the trial, subject to adequate disclosure to the parties.

In addition, all evidence relating to the childÕs best interests is admissible to support the finding. Only facts relating exclusively to the disposition are excluded at the finding phase. See ChildrenÕs Aid Society of Brant v. James Albert T. and Melissa Marie S. , 2005 ONCJ 302 , 144 A.C.W.S. (3d) 278, 19 O.F.L.R. 161, [2005] O.J. No. 5249, 2005 Cars​well​Ont 7097 (Ont. C.J.); ChildrenÕs Aid Society of Hamilton-Wentworth v. K.R. and C.W. (2001), 114 A.C.W.S. (3d) 71, [2001] O.J. No. 5754, 2001 Cars​well​Ont 5006 (Ont. Fam. Ct.) , confirmed in ChildrenÕs Aid Society of Brant v.

James Albert T. and Melissa Marie S. , supra . Analysis : [ 64 ] Mother has been involved with child-protection agencies for more than twelve years. I accept motherÕs position that her circumstances when her other children were apprehended and taken permanently from her care were different than now. I accept that some of the issues in 2002 and before related to the stress of caring for Joshua, the breakdown of her relationship, the emotional consequences of JoshuaÕs death, being a single mother to two children and working.

Some of these pressures are not currently present. [ 65 ] However, there are many similarities between the current circumstances and the findings of Justice Scott. When mother was involved with the Niagara Region society with Z., she only had Z. to care for, after having agreed to Crown wardship of Madison. In the previous parenting capacity assessment, the assessor concluded that, It appears that [Ms. C.S.] has great difficulty providing the children with a consistently nurturing and appropriately responsive parenting in order to develop a secure attachment relationshipÉ [Ms.

C.S.] has great difficulty responding in a consistent and appropriate manner to the childrenÉ It was also noted that during the observation, [Ms.

C.S.] appeared to become frustrated with MadisonÕs challenging behaviors and handled her roughly (grabbing her arm) in order to direct her. [ 66 ] These observations and conclusions mirror the evidence of Ms Deacon who observed that mother had difficulty reading R.S.Õs cues and respond to her emotionally, difficulty managing her behavior, was unable to act protectively, that she was unable to focus on R.S.Õs needs when she became stressed and used physical interventions such as grabbing R.S. [ 67 ] Mother has been able to demonstrate improvements for periods of time but not able to sustain these sufficiently resulting in Z.Õs being apprehended, returned, apprehended again, working towards reunification and finally the decision to seek Crown wardship and the trial.

R.S. has gone through two previous apprehensions, a similar pattern. [ 68 ] Mother has had numerous professionals involved with her over the years. She does not work positively with supports but develops antagonistic and hostile relationships with them. In both cases, mother developed difficult relationships with her supports, in the first case demonstrated through the breakdown of two shepherding home placements and the development of an antagonistic relationship with the Niagara society.

In the current case, mother developed a very antagonistic relationship with the CAST workers and access supervisors. [ 69 ] I accept the evidence of Shannon Deacon that mother has a lack of insight into her parenting deficits. Given the above, mother

has limited capacity to improve her parenting.

There have been, in fact, no significant improvements in motherÕs ability to parent since the last court decision in 2002. [ 70 ] There has been nothing about motherÕs life or history since 2002 to suggest that she has taken any steps to improve her parenting or to reduce the risk of harm that resulted in her other children being taken from her and in two cases being found to be children in need of protection and made wards of the crown with no access for the purpose of adoption. [ 71 ] Having considered the evidence, I find that there are serious concerns about motherÕs current ability to parent and that, given the similarities of the current concerns to those in the previous parenting capacity assessment and the decision of Justice Scott, these concerns and parenting issues have persisted for a long period of time and certainly since 2001 (or perhaps earlier, given the previous society wardship order and placement with grandparents, but I do not have sufficient details to come to that conclusion).

She is unable to provide an emotionally safe and secure environment for her child. She had difficulty reading R.S.Õs cues, responding to her emotionally, managing her behaviour and acting protectively. She is unable to focus on R.S.Õs needs when she becomes stressed. She uses physical interventions such as grabbing R.S. [ 72 ] R.S. had serious behavioural and emotional issues when she came into care. These behaviours included huge tantrums, not knowing how to behave with other children, lashing out at and hurting other children and interfering inappropriately with their play.

She had so many difficulties at school that she required a modified program and only attended for half-days. She played with toys intended for much younger children. She engaged in self harming behaviour including picking at her nails and sores until they bled. According to Dr. Fitzgerald, her behavioural issues were of a serious nature such that the school took the unusual position of identifying her as a special needs child in kindergarten. It was his opinion that her behaviour was consistent with an attachment disorder.

This conclusion is consistent with the parenting concerns identified by Ms Deacon. [ 73 ] Having reviewed the evidence, I find that R.S. is a child in need of protection according to the definition and criteria set out in section 37(2)(b), (f), (

g) and (

i) of the CFSA by reason of the following: 〈 The evidence of Sharon Deacon and Ms Bodkin is consistent with the findings of the 2001 parenting capacity assessment and findings of Justice Scott in 2002 that mother has great difficulty providing the child with a consistently nurturing and appropriately responsive parenting in order to develop a secure attachment relationship and that she has great difficulty responding in a consistent and appropriate manner to the child. Mother has difficulty managing R.S.Õs behavior and understanding situations from the childÕs point of view.

These parenting concerns have been present for many years resulting in mother having had two previous children made wards of the Crown, one on consent and one after trial, one child being placed in the custody of grandparents and one child being placed for adoption. Mother has not taken any steps to address these concerns over many years and at the time of trial had only started counseling. MotherÕs parenting has previously been found to put her children at risk of harm.

These parenting concerns put R.S. at risk of emotional harm. 〈 When mother becomes stressed she becomes self-involved and is unable to put R.S.Õs needs first or to focus on R.S. 〈 Mother has had numerous supports and interventions over the years. Mother does not work positively with supports. There is a longstanding pattern of mother developing hostile and antagonistic relationships with society and other supports that have been provided to her to assist in improving her parenting.

She has demonstrated a consistent inability to develop insight into her poor parenting and to work with supports. 〈 Mother has been observed using physical interventions when trying to manage R.S.Õs behaviour including grabbing her. Sharon Deacon noted this and expressed concern for the childÕs safety. This was also observed by the assessors in the 2001 parenting capacity assessment.

I accept the evidence of Sharon Deacon that this puts R.S. at risk of physical harm. 〈 R.S.Õs behaviour and emotional needs at the time of the apprehension were significant, consistent with an attachment disorder and consistent with the identified parenting concerns. 〈 R.S. engaged in self harming behaviours when she came into care including picking at her fingers and scratching scabs until they bled and pinching herself. R.S. was aggressive with other children and interfered inappropriately in their play.

〈 Mother was unable to care for R.S. at the time of the apprehension because she had been arrested and was detained in jail. Shewas unable to have contact with R.S. from November 17, 2009 until January 13, 2010 because of restrictive bail terms imposed as aresult of the assault charges. On January 5, 2010, the access order of Justice Bovard restricted motherÕs access to once a week for twohours supervised by the society. Mother therefore was not able to care for R.S. after her release from custody because of the terms of herbail, in place from November 2009. The charges were withdrawn in February 2011.

Mother was incarcerated from in or about February27 to on or about April 26, 2010, while R.S. was in care and was unable to care for R.S. during that period of incarceration. Mother wastherefore not able to exercise her custodial rights over the child and there was no other appropriate plan for her care. [74] I am unable to find that R.S. is a child in need of protection pursuant to clause 37(2)(

a) of the CFSA, given that the charges ofassault were dropped by the Crown, that the only evidence is the statements of the child and given the nature of the bruises which werethe injuries. [75] I have made findings under various clauses of subsection 37(2) of the CFSA which were not included in the societyÕsApplication. For the reasons given above, I find that the evidence in the trial supports the findings as set out. I find that mother haddisclosure of all of the evidence, was not caught by surprise and had the opportunity in the trial to test the evidence.

Disposition: [76] The legislation provides an evidentiary path or steps which must be considered in a disposition hearing. These wereconsidered by Justice Craig Perkins in the case of ChildrenÕs Aid Society of Toronto v. TÉ L. and Evonne B., 2010 ONSC 1376, [2010]W.D.F.L. 1957, [2010] O.J. No. 942, 2010 Cars​well​Ont 1343 (Ont. S.C.). 1. The court must consider

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

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

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

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

a) of the Act to determine whether an order ofaccess should be made. [77] An order for Crown wardship is one of the most serious orders this court can make. It is well settled law that a judge mustexercise the power to take a child permanently away from parents only with the highest degree of caution and only on the basis ofcompelling evidence and after an examination of possible remedies. See Catholic ChildrenÕs Aid Society of Hamilton-Wentworth v. JillG.-T. (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.). [78] The court must determine the appropriate disposition, having regard to the criteria set out in section 37(3) of the Child andFamily Services Act and based on the childÕs perspective. See Catholic ChildrenÕs Aid Society of Metropolitan 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, 1994Cars​well​Ont 376. The court must assess the extent to which the degree of risk which existed at the time of the apprehension continues toexist today.

It then must weigh all of the factors and consider the plans proposed by the society and the parents. SocietyÕs Plan: [79] If the society is successful in obtaining the order sought, it intends of finding an adoptive home for R.S. The evidence beforethe court is that R.S. is adoptable. MotherÕs Plan:

[ 80 ] According to mother, she plans on residing with Mr. D.S. who will assist her in caring for the child. Her plan at trial was for the court to return the child to her alone, jointly to her and Mr. D.S. or to Mr. D.S. alone. However, regardless of the named caregiver, the plan according to mother is for her and Mr. D.S. to live together with R.S. as a family and to parent R.S. together.

She proposes a gradual re-integration, with R.S. spending more time with her and returning to her full-time care gradually. [ 81 ] Nicole Burkett, motherÕs probation officer, testified that the previous Tuesday (she gave her evidence on March 25, 2011), the police had conducted a compliance check at Mr. D.S..Õs address and were told by a male who identified himself as residing in that apartment that mother had moved out on February 2, 2011, and that she was now residing at Sherbourne and Dundas. Mother sent me a letter after the conclusion of the trial in which she addressed this issue.

I cannot consider the contents of that letter because it was not properly tendered as evidence. This evidence clearly contradicts the evidence of both mother and Mr. D.S. and raises serious issues about the plan. [ 82 ] Where there is a conflict between motherÕs evidence and that of the probation officer, I accept the evidence of the probation officer. Justice Scott previously made an adverse finding relating to motherÕs credibility. Ms Bodkin also noted that in her years of involvement with her, mother had not been truthful.

Mother acknowledged in the Statement of Agreed Fact signed by her in August 2007 that she had lied to the society about the fact that she was living with her boyfriend and that she intended on living with her boyfriend as part of her plan for the care of R.S. there is evidence in this proceeding of mother not being truthful with the society. Mr. D.S.: [ 83 ] Mr. D. S. is an important part of motherÕs plan. They both testified that they are involved in a relationship and that they intend to marry after mother converts to Judaism. This process cannot begin until she has resolved this litigation.

They met online in July 2009 on a dating website and began a serious relationship in or about September 2009. In October 2009 mother gave up her apartment and she and R.S. moved into Mr. D.S.Õs bachelor apartment. They resided there for a few weeks until R.S. was apprehended. [ 84 ] Mr. D. S. is 38 years old. He has never married and has no children. He has no physical health problems but testified that he receives ODSP because of Attention Deficit Disorder. He has no criminal record. His educational history includes a child and youth worker program at George Brown College which he did not complete.

He has worked generally as a law clerk since 1999 and, according to him, generally in the area of family law. He admitted to losing a lot of jobs because of poor organizational skills. It is his evidence that he is now taking medication and his work performance has improved. He was last fired in December 2010. He had three jobs in 2010 and two jobs in 2009 with a period of unemployment. He had been in his current job for one month when he testified at the trial. [ 85 ] Mr. D.

S. testified that he had five years of experience working with children: one year as a teacherÕs aide in a grade one classroom; working at Cornerstone Group Home while he attended George Brown College; volunteer at the childrenÕs aid society in the therapeutic access program for three months; and volunteering as a Big Brother for five months. [ 86 ] While both mother and Mr. D. S. testified that they have a close and committed relationship, their history raises concerns. According to the evidence of Ms Bodkin, which I accept, Mr. D. S. expressed serious concerns about mother and her parenting.

He complained to the Peel ChildrenÕs Aid Society at the time of the apprehension in 2009 and the Toronto society from in or about January 2010 through to in or about May 2010. He withdrew as motherÕs surety resulting in her arrest. Both he and mother told the society in early 2010 that they were not involved in a romantic relationship and Mr. D. S. was consistent in this position until May 2010 when he advised the society that he and Ms. Stewart had reconciled. [ 87 ] Mr. D. S. acknowledged that he had seen R.S. twice since the apprehension and had spoken with her on the telephone a number of times.

He testified that: ÒI love her and I always will. I have tried for the last eighteen months to be a part of her life.Ó He also testified that he focused a lot of love on her in the 17 days she lived with him. [ 88 ] He testified that while R.S. lived with him he had a very structured behavioural modification program with charts and stickers on the wall and that she responded very well to that. It is his evidence that he will use his experience working with children and that he is able to provide a stable, loving, therapeutic, nurturing environment for R.S.

In cross examination he explained a parenting plan which included structure and discipline, behavioural modification using rewards, development of social skills and learning how on meet R.S.Õs emotional needs with a focus on structure and stability.

[ 89 ] It was his evidence that he and mother had lived together continuously since in or about December of 2009 except for the periods of time during which mother was in jail. This evidence is contrary to the evidence of the probation officer about where mother was actually residing. Where there is conflict between the evidence of Mr. D. S. and the probation officer, I accept the evidence of the probation officer. I accept the evidence of Ms Bodkin about Mr. D.S.Õs concerns about mother and the fact that he did withdraw as her surety supports this conclusion. Mr. D.

S. has changed his evidence to support his current position that the child ought to be returned to mother. His change in position and his change in evidence about his concerns about motherÕs parenting, and the fact that he misled the court about where mother had been living does not give me confidence in his honesty when it comes to mother. I find that Mr. D. S. will say whatever he believes is required to support mother in recovering R.S. [ 90 ] Mr. D.

S. has expressed a deep love and commitment to R.S., a child that he barely knows and with whom he has had minimal contact for more than a year. [ 91 ] I have the following concerns about this plan: 〈 Mr. D. S. does not know R.S. He knew mother for about three months prior to the apprehension. R.S. lived with him for about 17 days. He has seen her twice since she came into care. Their primary contact has been by telephone. 〈 There is very little information about Mr. D. S. The society has had very little contact with him.

He did testify at trial but the evidence does not give a very comprehensive understanding of him and his actual parenting ability. 〈 Mr. D. S. has never been a full-time caregiver of children. He did take part of a childcare worker course at George Brown College, which he did not complete. He testified about his experience working with children but did not provide any documentation to support his evidence, such as letters of recommendation or any proof of employment at any of these jobs or volunteer experiences. 〈 Mr. D. S. admitted to a problematic employment history.

He had two jobs with some period of employment in 2009 and three jobs in 2010. He had been at his current job for a very short period of time. He admitted that he had difficulty keeping jobs. 〈 Mr. D. S. admitted that he had Attention Deficit Disorder of sufficient significance that he receives ODSP.

While ADD does not disqualify a person from parenting, given this and his job history, it would be necessary to have a deeper understanding of what this means in relation to his behavior and parenting ability before placing a child with him especially in relation to a high needs child. 〈 The stability of the relationship is a serious concern. Mr. D. S. withdrew as motherÕs surety after her arrest in 2009. He now alleges that he did so because he did not know that she was attending counseling as required. He also contacted the Peel society to report concerns about her parenting.

He denied a romantic relationship with mother in 2010 and raised concerns to the society about mother and about motherÕs parenting. 〈 While they both testified that they were living together and that the plan is to continue to live together and parent R.S. there is reason to believe, given the evidence of the probation officer, that this is not true. Given the previous finding of Justice Scott about motherÕs credibility and the current findings, where there is a conflict in the evidence between mother, Mr. D.

S. and the probation officer, I accept the evidence of the probation officer. [ 92 ] When determining the appropriate disposition for R.S., I have considered the best interests criteria set out in subsection 37(3)of the CFSA as follows: 〈 there are serious issues with motherÕs parenting of R.S. as observed by Ms Deacon, the coordinator of the therapeutic access program, and other witnesses.

The parenting issues are consistent with the conclusions of Justice Scott in her 2002 decision, who found that the appropriate disposition in that case was an order of Crown wardship with no access for the purpose of adoption. 〈 given the above, the risk of harm to R.S. if she is returned to her mother remains high. 〈 motherÕs plan for R.S. includes Mr. D.S. She cites Mr. D. S. and the Jewish Community as her supports. For reasons already given I conclude that this plan is problematic. Mother has previously misled the court about her plan for R.S.Õs care.

As well, given the history of the relationship and the evidence about motherÕs residence, it is unclear whether mother has a viable plan for R.S.Õs care. 〈 the plan proposed by the society, of adoption, is far more likely to provide R.S. with a stable home and life as part of a family. 〈 R.S. had serious emotional and behavioural problems when she came into care. It is Dr. FitzgeraldÕs opinion that these behaviours are consistent with an attachment disorder. R.S. has made gains while in care. She requires consistency and stability. Mother has not demonstrated the ability to provide these for R.S.

I conclude, based on the evidence, that returning the child to mother

would not meet her emotional needs. The plan proposed by the society is likely to provide the consistency and stability that R.S. needs. 〈 motherÕs plan puts the child at emotional risk and includes the possibility of physical risk. 〈 R.S. has already had a number of caregivers in her life. She requires stability and continuity. The plan proposed by the societyof adoption maximizes the possibility of a stable long-term placement as part of a family. 〈 R.S. has been in care an aggregate of more than twenty months. She has been apprehended three times and returned to hermother twice.

The length of time alone is sufficient to lead to the conclusion that she requires a final disposition. 〈 mother has not made any significant gains in her ability to parent R.S. in more than one year. Ms Deacon, the coordinator of theTherapeutic Access Program, terminated motherÕs involvement in the program because mother was not benefitting from the program. Many of the parenting issues in this case are consistent with the parenting issues in the previous 2002 decision, suggesting that theseissues are of long standing and not easily amenable to change. 〈 R.S. is adoptable.

This plan represents stability and security for R.S. and a place in a home and as part of a family in which heremotional and developmental needs can be met. [93] There is no other family or community plan available. I have reviewed the services provided by the society and I am satisfiedthat there are no other services which could have been provided which would have impacted on the outcome for this child. [94] R.S. has been in care beyond the statutory period. I must therefore make an order for Crown wardship or an orderreturning her to the care of her mother or her mother and Mr. D. S. or Mr. D. S. alone.

Having considered the evidence and the criteriaset out in section 37(3) of the CFSA, I find that the disposition that is in the childÕs best interests is an order of Crown wardship. [95] I find that this is not an appropriate case for a further extension of six months. Such an extension ought to be grantedonly in special circumstances and only where the court determines that such an extension is in the childÕs best interests. I find that thisis not such a case.

The parenting issues which have resulted in the finding and facts which support the disposition establish a longhistory of poor parenting and parenting concerns which have not been amenable to change. R.S. has been in care for a long time. Giventhe evidence there is no possibility of positive change sufficient to result in a different outcome if I were to extend the time for R.S. toremain a society ward for a further six months. Therefore, a further delay and an extension of the time period by a further six months isnot in R.S.Õs best interests. Access: [96] The statute provides as follows:

(2.1) Access: Crown ward.Ñ A court shall not make or vary an access order made under

section 58with 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 childÕs future opportunities for adoption. [97] The onus to rebut the presumption against access to a Crown ward is on the parents. See ChildrenÕs Aid Society of Toronto v.Dora P. and Raymond L., , 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J. No. 4075, 2005 Cars​well​Ont 4579 (Ont.C.A.). The parents have the onus of establishing both portions of the test in subsection 59 (2.1) of the Act. This is a very difficult test forparents to meet.

Where a Crown wardship order has been made, there is no obligation on the society to prove that the children areadoptable, let alone that there is a prospective adoptive family. See ChildrenÕs Aid Society of Niagara Region v. J.C., S.B. and R.R.,, 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.). [98] The meaning of the phrase Òbeneficial and meaningfulÓ was examined by Justice Joseph W. Quinn in ChildrenÕs Aid Societyof Niagara Region v. M.J., K.S. and S.S., (Ont. Fam. Ct., 6 July 2004), Justice Joseph W.

Quinn Ñ (2004), (ON SC),132 A.C.W.S. (3d) 300 Ñ , 4 R.F.L.(6th) 245, [2004] O.J. No. 2872, [2004] O.T.C. 634, 2004 Cars​well​Ont 2800 (Ont.Fam. Ct.) where he said:

[45] What is a Òbeneficial and meaningfulÓ relationship in clause 59(2)( a )? Using standard dictionary sources, a ÒbeneficialÓ relationship is one that is Òadvantageous.Ó A ÒmeaningfulÓ relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough Ñ it must be significantly advantageous to the child. [46] I read clause 59(2)(

a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent. [ 99 ] The evidence in this case is that R.S. generally looks forward to the access visits with her mother.

The visits are generally pleasant. There is some evidence that the visits cause her anxiety, and some concerns raised by Dr. Fitzgerald about the impact of the visits on R.S. there is also evidence that mother exposes R.S. to the conflict between her and the society workers during the access visits which causes her stress. I cannot, however, conclude that the visits have a significant negative impact on her. The words beneficial and advantageous require the court to conclude that the relationship between mother and child is significant and meaningful to the child. I cannot conclude that in this case.

Mother has not met the required onus in this case. In any event, the only evidence before the court is that the child is adoptable and the plan is to place her for adoption. Any access order would therefore impair the childÕs ability to be placed for adoption. There will therefore be no order as to access. [ 100 ] I wish to comment briefly on the trial itself. I note that motherÕs counsel did not conduct an examination in chief of either mother or Mr. D. S. I was told that they were both making statements.

When I inquired, I was referred to a previous endorsement of Justice Brownstone, the case management judge, relating to a motion by one of motherÕs lawyers to be removed as solicitor of record. That lawyer did not act at trial but another lawyer from his office did represent mother. Mother did not raise the issue of her representation at the trial. I did intervene and asked both mother and Mr. D. S. questions in addition to giving them the opportunity to make any statement that they wished.

While this procedure is somewhat unusual, mother did not object and I had no reason to be concerned that mother was not given an opportunity to have her case fully presented. Order: [ 101 ] The child R.S. is a child in need of protection pursuant to clauses 37(2)( b ), ( f ), (

g) and (

i) of the Child and Family Services Act . The child R.S. shall be made a ward of the Crown and placed in the care and custody of the CAST. There is no order as to access . Released: 6 May 2011 Signed: ÒJustice Geraldine F.WaldmanÓ