Catholic Children’s Aid Society of Toronto v. S.S., 2011 ONCJ 803

Toronto (North York) Registry No. C49027/09 DATE: 2011·XI·30 CITATION: Catholic Children’s Aid Society of Toronto v. S.S. , 2011 ONCJ 803 ONTARIO COURT OF JUSTICE IN THE MATTER OF a twice amended protection application under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, for the Crown wardship of Na.A.P.S. (born on […] August 2010). B E T W E E N: ) ) CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, ) ) W. Lauren Stringer, for the applicant APPLICANT ) ) - and - ) ) ) S.S. and C.A.P., RESPONDENTS ) ) ) ) ) No appearance by or on behalf of the respondent mother, S.S., even though served with notice William A. Sullivan, for the respondent father, C.A.P. ) ) HEARD: 21-25 November 2011 NOTE: For previous proceedings regarding an older child, see Catholic Children’s Aid Society of Toronto v. S.S. and J.L.

L. , 2011 ONCJ 122 , [2011] O.J. No. 1258, 2011 Cars​well​Ont 1893 (Ont. C.J.), per Justice Harvey P. Brownstone. JUSTICE S.B SHERR: 1: INTRODUCTION [ 1 ] The Catholic Children’s Aid Society of Toronto (the society) has brought a twice amended protection application seeking a finding that the child, Na.A.P.S., born on August […], 2010, is a child in need of protection pursuant to sub- clause 37(2) ( b )(

i) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (the Act). They are seeking a disposition of Crown wardship, with no access, for the purpose of adoption. [ 2 ] The respondent Ms. S.S. (the mother) is Na.A.P.S.’s mother. She did not file an Answer-Plan of Care and was noted in default on May 11, 2011. The mother did not attend at the trial. She has chosen not to exercise the access offered by the society since October 18, 2010. [ 3 ] The respondent, Mr. C.A.P. (the father) is Na.A.P.S.’s father.

He opposed the society’s application and sought an order placing Na.A.P.S. in his care, subject to society supervision. He also asked the court to make an order restraining the mother from having contact with him or the child pursuant to

section 80 of the Act . In the alternative, he asks the court to extend the statutory timelines in clause 70(1) (

a) of the Act [1] and make an order for society wardship. [ 4 ] On the second day of trial, the father and the society executed a statement of agreed facts, agreeing to the statutory findings required pursuant to subsection 47(2) the Act , as well as a finding that Na.A.P.S. is a child in need of protection pursuant to sub- clause 37(2) ( b )(

i) of the Act. [ 5 ] The remaining issues for this court to decide are: (

a) What disposition is in Na.A.P.S.’s best interests? (

b) If Na.A.P.S. is made a Crown ward, should an access order be made?

2: REVIEW OF THE EVIDENCE 2.1: Background of the Parents [ 6 ] The mother and the father both had troubled childhoods. [ 7 ] The society was involved with the mother and her family from 1994-2008. She was placed in the care of the society four different times. The society provided evidence that the protection concerns revolved around parent-teen conflict and the mother being physically abused by her brother and mother (the maternal grandmother).

Further, the mother, at times, had been abandoned by the maternal grandmother, who would leave her and travel to Jamaica. [ 8 ] The mother had significant behavioural challenges and anger management issues while in the society’s care. She often ran away from her foster homes. She was described by witnesses as an angry young lady with a dominant personality. [ 9 ] The mother was made a Crown ward on October 11, 2007. [ 10 ] On August 12, 2008, the mother (then 16 years old) advised the society that she was pregnant and wanted to return to live with the maternal grandmother. The father of this child was Mr. J.L.

L. [ 11 ] The mother gave birth to Ne.B. on November […], 2008. Due to the mother’s troubled history, the society assigned a worker to monitor her. [ 12 ] On December 22, 2008, the mother’s Crown wardship order was terminated. The mother moved back in (together with Ne.B.) with the maternal grandmother. [ 13 ] The father is twenty years old. He testified that he comes from a dysfunctional family. He stated that his father (the paternal grandfather) was a violent alcoholic who was a dictator in his family. The paternal grandfather would frequently physically abuse his wife and children.

The family lived in fear of him. The father said that at age twelve he became the protector of the family and would frequently intervene when the paternal grandfather, while drunk, would attack his mother or one of his siblings. He gave evidence of several physical confrontations and physical injuries that he suffered during these confrontations, including at one time, a broken jaw. [ 14 ] The father said that criminal charges were laid three separate times against the paternal grandfather and that he had served time in jail for the assaults.

At one point, there was a concern that the paternal grandfather would be deported due to his criminal record. The father justifiably expressed considerable anger at the trial about how the paternal grandfather had treated his family. [ 15 ] Both the society and the Children’s Aid Society of Toronto had involvement with the father’s family. The father’s older brother was made a Crown ward when the father was very young. There were other society interventions from 2003-2006 due to conflict in the family. [ 16 ] The father described a loving relationship with his mother (the paternal grandmother).

Unfortunately, she suffered two strokes four years ago and has significant physical limitations. The father testified that he became upset when she had her strokes and self-harmed, cutting himself with a knife. [ 17 ] The father’s parents still reside together. [ 18 ] The father’s childhood wasn’t all bad. He testified that he enjoyed school and had a good relationship with his siblings. He is talented musically (he plays seven instruments well) and was captain of his high school soccer team.

He was also actively involved with youth groups at his church. [ 19 ] The father testified that he and the mother became a couple in February of 2009. He said that their relationship was positive in the first few months. This quickly changed. [ 20 ] The father was asked to leave his parents’ home in July of 2009. He acknowledged that this was because he had been stealing from them. He admitted that he “stole cell-phones, jewelry and other things”. In September of 2009, the father dropped out of school. He had finished grade eleven and still needed four credits to complete grade 12.

He has not returned to school. 2.2: Events Leading up to Na.A.P.S.’s Apprehension [ 21 ] The mother had an unhealthy relationship with Mr. J.L. L. The mother advised the society that Mr. J.L. L. assaulted her on April 30, 2009 in front of the maternal grandmother, who did not intervene. Mr. J.L. L. was also a known drug user. The mother signed a voluntary service agreement to work with the society and promised to stay away from Mr. J.L. L. She did not keep her promise. [ 22 ] On May 25, 2009, the maternal grandmother left for Jamaica for two months.

She had been collecting the child tax benefits for Ne.B. and the mother was left without adequate funds. The society encouraged the mother to apply for assistive housing, but she did not follow through with this. [ 23 ] On June 9, 2009, the mother and Ne.B. went to live with Mr. J.L. L. She advised the society that she had an argument with her brother and her neighbours were giving her a hard time. The society expressed their concern about this and encouraged the

mother to apply to move into a supportive housing facility for teenage mothers, such as the Massey Centre. [ 24 ] On June 17, 2009, Ne.B. came into the care of the society pursuant to a temporary care agreement. This agreement was extended twice and expired on September 17, 2009. The society then issued a protection application in this file to bring Ne.B. into care. [ 25 ] Arrangements were then made for the mother to move into the Massey Centre.

The mother spent one day there on September 28, 2009 and promptly left. [ 26 ] On October 8, 2009, an order was made by Justice Robert Spence placing Ne.B. in the temporary care and custody of the society. Supervised visits were arranged at the society’s office. [ 27 ] The mother was inconsistent in exercising access to Ne.B. There was also an incident where she and Mr. J.L. L. engaged in a physical altercation at the society office.

Frances Levantis, the children’s service worker, testified that the mother took no responsibility for her challenges and would externalize blame. [ 28 ] Meanwhile, the relationship between the mother and the father was deteriorating. They frequently fought. The father testified that the mother was emotionally abusive to him and had a strong hold on him. He described that she had a dominating personality.

He said that he tried to assist her in planning for Ne.B., but that she wouldn’t follow through with what was required of her. [ 29 ] On November 10, 2009, the father called the police after a fight with the mother. The father testified that he was cutting himself with a box cutter. He said he did this so that the mother would pity him. The police took him to the hospital. The police records filed described significant cutting by the father.

He had multiple wounds (15-20) to his left forearm and bicep, 5-6 inches in length. [ 30 ] The father was seen by a psychiatrist at the hospital and released the next day. [ 31 ] The father called the police again on November 14, 2009 after another fight with the mother. He told the police that he wanted to cut himself with a knife. He was taken to the hospital pursuant to the Mental Health Act . The father was released after seeing a psychiatrist at the hospital. He was referred to supports.

He subsequently spent a few days in a respite home that he said he found helpful. [ 32 ] The father did not notify the society about these hospitalizations. The society’s family service worker, Monica McGarry deposed that she learned about these incidents through the police one year later. [ 33 ] The parties subsequently reconciled and lived together at the home of the maternal grandmother. The father acknowledged that this was a very unhealthy relationship. [ 34 ] On April 26, 2010, the mother reported to the society that she was pregnant.

The mother moved into Robertson House, a supportive shelter for young mothers. The father continued to live with the maternal grandmother. [ 35 ] Staff at Robertson House reported that the mother was breaching the rules of the residence, taking many unauthorized overnights, not participating in their programs, missing prenatal appointments she was supposed to attend and that she was not ready to parent a child. [ 36 ] The father would accompany the mother on some of her visits to see Ne.B. He made a good impression on the society workers.

He told the society that he would support the mother in planning for both children. [ 37 ] There were multiple protection concerns at this time, including: the young age and inexperience of the parents, the mother’s lack of motivation and effort to accomplish the task of securing and sustaining the necessities for her children, her lack of maturity, her poor decision-making (including her involvement with Mr. J.L. L.) and life skills, her participation in domestic violence (only known with Mr. J.L.

L. at that time) and her inability to demonstrate that she had learned and was able to implement parenting skills. [ 38 ] Na.A.P.S. was apprehended from the hospital when she was born on […], 2010. The society encouraged the father to put forward a separate plan for her. He indicated that he was prepared to do so. He advised the society that he recognized the mother’s limitations as a parent and her lack of maturity and motivation. He signed the consents requested by the society.

The society advised the father that they intended to assess his plan as soon as possible and suggested that he move from the home of the maternal grandmother. 2.3: August 5, 2010 — February 9, 2011 [ 39 ] On August 10, 2010, Na.A.P.S. was placed in the temporary care and custody of the society by Justice Marvin Zuker, with access to her parents in the discretion of the society. This order has never changed. [ 40 ] After Na.A.P.S. was apprehended, the parents initially had supervised access together at the society’s office. The society noticed a troubling dynamic between them.

The mother would be forceful, harsh and demanding towards the father and take over at visits. The father would retreat. When they would meet together with the society, the mother would dominate the discussions and the father would remain quiet. The society observed that when the father came alone to visits (the mother was inconsistent on visits), his parenting skills with Na.A.P.S. were very good. He was gentle, kind and affectionate with her. He was able to perform the instrumental skills of changing diapers and feeding her.

He was receptive to the instruction of the society workers and able to incorporate their instruction into his parenting. The society decided to separate the visits of the parents. [ 41 ] On September 23, 2010, Justice Spence found Ne.B. to be a child in need of protection pursuant to subclause 37(2) ( b )(

i) of the Act . The issue of what disposition was in her best interests was adjourned and eventually sent to trial. [ 42 ] The mother stopped attending visits at the society offices as of October 18, 2010. She did not call the society to inquire

about Na.A.P.S.’s welfare. At the same time, the father obtained social assistance and found his own apartment. [ 43 ] The father was doing all of the right things to have Na.A.P.S. returned to his care. He attended visits twice each week at the society office and the visits were positive. He reached out to his church for supports. His sister was also prepared to support him in his plan. [ 44 ] On October 27, 2010, a Family Centered Conference was held at the father’s church. This was attended by society staff, the father and his supports from the church and the community.

A plan was discussed to integrate Na.A.P.S. into his care. This was a very positive meeting. The father acknowledged that an important condition of this plan was that the mother was to only have contact with Na.A.P.S. via the society. He was also asked at this time to attend a parenting program. [ 45 ] Visits were increased and took place at the church. By the beginning of December of 2010, the visits were moved into the community. The father completed his parenting course. He worked cooperatively with a parent support aide from the society.

His access visits and interaction with Na.A.P.S. continued to be positive. The father made arrangements to obtain the necessary provisions in his apartment for Na.A.P.S. Members from his church promised to drop by and see how he was doing with Na.A.P.S. and provide him with whatever support he required. [ 46 ] A bump in the plan occurred on November 18, 2010. There was a public altercation between the mother and the father. They were arguing over money. The father wanted the mother to return money and she refused to do so. The father was holding the mother’s arm and she started yelling for help.

A man approached them and told the father to take his hands off of the mother. The mother called for a taxi. The father took her cell phone away and it broke. When the taxi arrived, the mother went into it and shut the door. The father grabbed the car handle as the taxi drove away and it broke off. The father called the police to get his money back. No charges were laid. [2] [ 47 ] At this time the police advised the society about the father’s hospitalizations that took place in November of 2009. The father openly discussed these hospitalizations with Ms.

McGarry when she asked him about them. [3] [ 48 ] This new information reinforced the need for the father to stay away from the mother. It was clear that this relationship was very unhealthy and compromised the father’s ability to function. The society continually reminded the father that an important part of the plan was that he had to keep Na.A.P.S. away from the mother when she was in his care. The father agreed to this. [ 49 ] A plan was discussed to return Na.A.P.S. to the father by the end of December of 2010.

He asked the society to slow down the plan because he was feeling a bit overwhelmed by the speed of the proposed transition of Na.A.P.S. into his home. This was a child-focused decision on his part. [ 50 ] Overnight visits began at the end of December of 2010. Three separate overnight visits took place. They went well. The new plan was to place Na.A.P.S. with the father on January 28, 2011. [ 51 ] The reintegration plan fell apart on January 18, 2011. The society received a call from Ms. A.J. Ms. A.J. is a community worker at the father’s church and was one of his supports.

She advised the society that the father was allowing the mother contact with Na.A.P.S. Ms. A.J. testified that she warned the father several times of the requirement to keep the mother away from Na.A.P.S. The father acknowledged receiving warnings from Ms. A.J., but said that he didn’t take her seriously. [ 52 ] The father admitted to allowing the mother to see the child twice. The father testified that he was aware that he was breaching this important condition and that it was his fault that the reintegration plan did not go through.

He said that he had felt sorry for the mother and that is why he permitted the visits (even though she was not exercising visits available to her at the society offices). He told society workers that seeing the mother was not a good idea and “she has a hold on him to some degree”. He told them that the mother causes drama in his life and this drains him. [ 53 ] The society suspended the access visits pending a meeting to explore the matter further. This meeting was set up at the church. The father was asked to bring his supports.

The society told him that he should not bring the mother. [ 54 ] The meeting took place on February 3, 2011. The father disregarded the society’s advice and brought the mother and another community member (Ms. Beverley D.) to the meeting as his supports. The mother quickly took over the meeting and made numerous allegations against the father.

She set out a history of domestic violence by the father against her and alleged that the father had shaken Na.A.P.S., causing bruising. [ 55 ] The father denied shaking Na.A.P.S. and said there were indentations on her that might have been caused by a tight seat belt. [ 56 ] Ms. Beverley D. corroborated the mother’s allegations of domestic violence by the father at the meeting. She told the society of one incident in 2010 when she came into the room and saw the father strangling the mother with a telephone cord to the point where she was blue in the face. Ms.

Beverley D. said that she tried to get a neighbour to help but could not find anyone and that she couldn’t get the father to stop his assault. She said that she then got a large piece of wood, hit the father with it and he let the mother go. Ms. McGarry deposed that after telling everyone about this incident, Ms. Beverley D. turned to the father and asked if she was telling a lie and the father answered, “no”. Ms.

Beverley D. also described at the meeting another incident of domestic violence by the father in the presence of Na.A.P.S., where he ripped a phone off of the wall while arguing with the mother. [4] [ 57 ] The father testified that Ms. Beverley D. misunderstood his confrontation with the mother. He testified that he was arguing with the mother, she became enraged and swung at him. He said that he pinned her against the wall to restrain her. He denied choking her. At that point, he said that Ms. Beverley D. came into the room and told him to stop. He told her that this was none of her business.

He felt that the mother was still too enraged to safely release. He said that Ms. Beverley D. did try to contact neighbours, saying that he was attacking the mother and that she then hit him with the piece of wood to get him to let go of her.

[ 58 ] When asked why he admitted to Ms. Beverley D.’s version of events at the meeting, the father said that he felt betrayed by the mother and Ms. Beverley D., shut down and was willing to say anything to make them stop. I did not find this explanation credible. The father was able to deny the allegation of shaking the baby at the meeting. He was also able to tell everyone that the mother would threaten to send people to beat him up. He could have said nothing in response to the allegation, as he did with other allegations — instead he admitted this allegation.

However, even if I accepted the father’s version, the incident is very concerning and reinforced the need to ensure that he stay apart from the mother. [ 59 ] At the end of the meeting, the father advised the society that he was thinking of giving up on his plan to care for Na.A.P.S. He was despondent about this rapid change in developments — just two weeks earlier it had appeared that Na.A.P.S. would be living with him and now he was facing these serious allegations. [ 60 ] Na.A.P.S. was taken to the Hospital for Sick Children due to the allegation that the father had shaken her and caused her injuries.

The hospital found no physical evidence of abuse. The mother subsequently told Ms. McGarry that she had never seen the father shake Na.A.P.S. — she had only seen the bruising. The allegation of shaking Na.A.P.S. was not verified and I find that the father has never physically abused her. [ 61 ] The society held an internal meeting on February 8, 2011. They decided to reduce the father’s visits to once each week, fully supervised.

The father’s inability to manage his anger, as evidenced by his self-harming behaviour in 2009 and the domestic violence incidents in 2010, and his inability to remain separated from the mother posed significant protection concerns for Na.A.P.S. Ms. McGarry advised the father that he would need to participate in counselling and stay away from the mother completely in order to prove to the society that he would be capable of protecting the child. 2.4: February 9, 2011 — October of 2011. [ 62 ] The father testified that he lost hope at this time — he felt that he had lost his opportunity to parent Na.A.P.S.

His actions reflected this despair. [ 63 ] The father’s visits became increasingly sporadic and he often did not call to advise the society that he would be missing them. He would provide the society with flimsy excuses for not attending visits. By May 11, 2011, the father had not attended a visit in six weeks (last attending on March 25, 2011). [ 64 ] The father lost his apartment at the end of March of 2011. He could no longer afford it as Na.A.P.S. was not in his care and his social assistance payments were reduced. He had not found employment.

The father moved back to live with his parents. [ 65 ] On March 14, 2011, Ne.B. was made a Crown ward with no access for the purpose of adoption by Justice Harvey Brownstone. This order was made after a trial. The mother did not attend at the trial. The only plan put forward (other than by the society) was by a relative of Mr. J.L. L. [ 66 ] On April 8, 2011, the society sent the father’s lawyer a letter clearly setting out their expectations in order for the father to move forward with his plan to parent Na.A.P.S. This included the following terms: (

a) To attend all access visits unless he is ill or there is an emergency. (

b) To obtain a psychiatric assessment, with the psychiatrist to have access to the society file, and to follow through on any recommendations flowing from this assessment. (

c) To attend anger management counselling. (

d) To attend counselling to address his inability to stay away from the mother. (

e) To refrain from any contact with the mother and her family. [ 67 ] The father met with Ms. McGarry on May 11, 2011, acknowledged that he had “messed up” and again stated that he was going to start doing what he needed to do to have Na.A.P.S. placed in his care. [5] The father told Ms. McGarry that he had continued to have email contact with the mother. Ms. McGarry reminded the father again that he would have to completely stay away from her. The access visits resumed shortly after this meeting. [ 68 ] The father’s visits continued to be inconsistent.

From June through August of 2011, he came to nine out of 14 scheduled visits. In September and October of 2010, he only came to two out of seven scheduled visits. When the visits have taken place, they continue to be positive. [ 69 ] The father, at the request of the society, attended at Y-Connect (a program run through the Griffin Centre) for counselling on January 27, 2011. He did not initially follow through with their assessment process. He saw the counsellor on April 1 and June 6, 2011. He was cancelling appointments during this period.

He re-engaged with his counsellor on July 21, 2011, and then attended weekly for six consecutive counselling sessions. His last session in this period was on August 23, 2011. He next saw the counsellor on October 12, 2011 and then dropped in to see her once in November of 2011. The counselling evidence will be discussed in more detail below. [ 70 ] The father expressed an interest in returning to school during this time, but has not followed through with this goal. [ 71 ] The father worked sporadically after February 3, 2011. He testified that he did a few cash jobs totalling about $600.

He also worked as a chef for one month in October of 2010 at Honey’s Bistro. He quit this job at the end of October of 2011 as he said that his priorities were wrong. He said that the job was interfering with his ability to visit with Na.A.P.S., see his counsellor and take the necessary steps to plan for her return. [ 72 ] The father was unable to obtain social assistance or obtain his own apartment during this eight-month period.

[ 73 ] The father was unable to arrange a psychiatric assessment, although he provided some evidence of efforts to obtain one closer to the trial. 2.5: November of 2011 [ 74 ] On November 15, 2011, the police were called to the father’s home. P.C. Fitkin testified that he had received a complaint that an adult male was fighting everyone in the house. When he arrived at the scene, he observed the father outside of the residence. The father was breathing heavily, appeared very angered and agitated. P.C. Fitkin went into the home and observed the father’s sister with a golf-ball sized bruise under her eye.

He observed that the paternal grandfather had multiple injuries, including a large bump behind his ear, large red bruising covering his right shoulder, a bruise around his neck and a bruise to his stomach area. He said that the sister’s two-year-old child was in the home during this incident. [ 75 ] The father was arrested and charged with two counts of assault. [ 76 ] P.C. Fitkin testified that an argument then broke out outside of the home between the father’s sister and another woman, who he said was later identified as the mother.

He said that the mother became verbally aggressive to the police. [ 77 ] The father testified about this incident. He said that he and his sister were arguing. He stated that he “lost it” and was “flipping out on her”. He admitted to pushing his sister. He attributed this to the stress of the court case and missing sessions with his counsellor. He said that he tends to swing his hands about when he is arguing and that he accidentally hit his sister under the eye. He stated that his father then came into the room, assumed that he had intentionally hit his sister, attacked him and they fought.

He said that he was pinning his father down when the paternal grandmother punched him in the back, trying to get him to stop. [ 78 ] The father was granted bail after a night in jail. His surety is the maternal grandmother and he is required to live with her. He stated that the mother is on the lease for this home, but does not live there. He said that the mother comes by on occasion to visit the maternal grandmother.

He said that she attended with him at criminal court and that he last saw her on November 22, 2011. [ 79 ] The father’s bail terms provide that he cannot be within 50 meters of his father or sister, including their home. [ 80 ] P.C. Fitkin said that on November 17, 2011, he met the father outside of his parents’ home to pick up his belongings. He testified that when they left the home, the mother was present. He said that she was again angry and belligerent towards him.

He said that the father and mother left together. [ 81 ] The father attended two out of his four access visits in November of 2011. [ 82 ] The father did not attend on the first day of this trial. He gave two excuses — one, that he did not think that after the events of the previous week he had any chance of success and two, that he did not think that he could attend court without his surety. The father said that he made inquiries on the second morning of the trial and attended (albeit 20 minutes late). His second excuse made little sense.

The father could have made inquiries during the previous week about his ability to attend at court. [ 83 ] The father also arrived 45 minutes late for the third day of trial. He gave the same heavy traffic excuse that he used for the second day of trial. He did attend on time for the last two days of the trial. [ 84 ] The father only called one witness in support of his case, Shawna-Kay Morgan, his counsellor from the Y-Connect program. 2.6: Evidence of Shawna-Kay Morgan [ 85 ] Ms. Morgan has an M.S.W. in social work. She has been working as a social worker since 2010. She gave extensive evidence at the trial.

She confirmed that the father initiated the contact with her in January of 2011, but that she subsequently had difficulty getting him to follow up. She said that the father was consistent in seeing her weekly from July 21 to August 23, 2011. [ 86 ] Ms. Morgan testified that the father has many strengths. She described him as a resilient young man who has many internal resources. She testified about how much the father loves Na.A.P.S.- that he wants to be the father to Na.A.P.S. that his father never was for him.

She observed that the father has nurturing qualities and appears to have a gentle and sensitive nature. She has never seen the father together with Na.A.P.S., but her observations are consistent with those of the society workers who have seen the father with Na.A.P.S. [ 87 ] Ms. Morgan felt that the father had made several gains in their counselling. She stated that he is aware of his limited resources and familial support, but shows an ability to reach out to professionals. She felt that he was working very hard to meet the society’s expectations.

She stated that he was developing better coping mechanisms for his anger and frustration. She commented on how the father was a very young man being asked to grow up very quickly. She felt that he was committed to Na.A.P.S. [ 88 ] Ms. Morgan discussed how the father will blame himself when he faces adversity and how this led to his feelings of hopelessness after the meeting on February 3, 2011. She said that he takes responsibility for his actions. She observed that at the beginning of her sessions the father struggled back and forth with terminating his communication with the mother.

She explained that the father wanted his daughter to have a two-parent family. She continued to remind the father of the no-contact provision. She said that one possible understanding of the parents’ relational dynamic is that: “these two teenagers come from dysfunctional homes and may not have had positive examples of what denotes a healthy relationship”. She said that throughout their sessions, the father continued to struggle with his ambivalence to detach from the mother.

She felt that during their sessions, the father’s self-esteem increased and he reported that he began to do things independently of the mother. She said that the father has become more reflective and has gained insight about their relationship.

[ 89 ] Ms. Morgan testified that the father became inconsistent with counselling after her session with him on August 23, 2011. He would cancel sessions. She has only seen him twice since then, neither appointment having been scheduled. [ 90 ] When questioned by society counsel, Ms. Morgan agreed that the father has good intentions, but has had difficulty translating these intentions into action.

She agreed that the father has attempted, but not completed any of the goals set out and that he has short periods of focus that he has been unable to sustain. 3: LEGAL CONSIDERATIONS [ 91 ] The court’s disposition options in this case are set out in subsection 57(1) of the Act . This subsection reads as follows: 57. Order where child in need of protection.—

(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 or an order under

section 57.1, in the child’s best interests: 1. Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months. 2. Society wardship — 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. 3. Crown wardship — That the child be made a ward of the Crown, until the wardship is terminated under

section 65.2 or expires under subsection 71(1), and be placed in the care of the society. 4. Consecutive orders of society wardship and supervision — That the child be made a ward of the society under paragraph 2 for 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. [ 92 ] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins 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. S.C.), as follows: 1. Determine whether the disposition that is in the child’s best interests is 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. 3. If a society wardship order is made determine whether an access order is in the child’s best interests. If not, dismiss the claim for access.

If so, make an access order containing the terms and conditions that are in the child’s best interests (section 58.) [ 93 ] Subsection 57(2) of the Act requires that I ask the parties what efforts the society or another agency or person made to assist the child before intervention under

Part III of the Act. [ 94 ] Subsection 57(3) of the Act requires that I look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless I determine that these alternatives would be inadequate to protect the child. [ 95 ] Subsection 57(4) of the Act requires me to look at community placements, including family members, before deciding to place a child in care.

In this case, no alternate community or family plans were proposed. [ 96 ] In determining the appropriate disposition, I must decide what is in the children’s best interests. I have considered the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:

(3) Best interests of child.— 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 into consideration those of the following circumstances of the case that he or she considers relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child’s care proposed by a society, including a proposal that thechild be placed for adoption or adopted, compared with the merits of the child’s remaining withor returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returnedto or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13.

Any other relevant circumstance. [97] In paragraphs [67] and [68] of Jewish Family and Child Service of Toronto v. Rachel K., 2008 ONCJ 774, [2008] O.J.No. 1940, [2008] O.J. No. 5856, 2008 Cars​well​Ont 9306 (Ont. C.J.), I reviewed the following legal principles for the court to consider inmaking its disposition: [67] A Crown wardship order is the most profound order that a court can make.

To takesomeone’s children from them is a power that a judge must exercise only with the highest degree ofcaution, and only on the basis of compelling evidence, and only after a careful examination of possiblealternative remedies. See Catholic Children’s Aid Society of Hamilton-Wentworth v. Jill G.-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.). Indetermining the best interests of the child, I must assess the degree to which the risk concerns thatexisted at the time of the apprehension still exist today. This must be examined from the child’sperspective.

See Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2S.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. It is important not to judge the parent by a middle-classyardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poorparent of extremely limited potential, provided that the standard used is not contrary to the child’s bestinterests. See Catholic Children's Aid Society of Hamilton v. J.I. I.M. and V.I.O., ,150 A.C.W.S. (3d) 406, [2006] O.J.

No. 2299, 2006 Cars​well​Ont 3510 (Ont. Fam. Ct.). It is alsoimportant not to impose an unrealistic standard of child care upon a young mother, who has not fullyemotionally developed herself, provided that the standard used is not contrary to the child’s bestinterests. See Children’s Aid Society of Toronto v. Rebecca B.-H. and Sheldon W., 2006 ONCJ 515,[2006] O.J. No. 5281, 2006 Cars​well​Ont 8484 (Ont. C.J.). [68] The significance of the child-centered approach is that good intentions are not enough.

Thetest is not whether the parents have seen the light and intend to change, but whether they have in factchanged and are now able to give the child the care that is in his best interests. There is not to beexperimentation with a child’s life with the result that, in giving the parents another change, the childwould have one less chance. See Children’s Aid Society of Winnipeg v. Redwood (1980), (MB CA), 19 R.F.L. (2d) 232, [1980] M.J. No. 245, 1980 Cars​well​Man 44 (Man. C.A.).

Therehas to be some demonstrated basis for a determination that the parents are able to parent the childwithout unreasonably endangering the child’s safety. See Children’s Aid Society of Brockville Leedsand Grenville v. C. and J. (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.). 4: SERVICES PROVIDED [98] Numerous services have been provided to the parents and the child as follows: (

a) The father received referrals for parenting programs. (

b) The society assigned an access supervisor to be a support for the father. (

c) The father was referred to Y-Connect for counselling. (

d) The society assisted the father in obtaining a crib for the child and provided him with bus tokens for visits. (

e) The society provided the father with a referral to the Jamaican Canadian Association to deal with angermanagement issues. (

f) A family service worker was assigned for the family. (

g) The mother was referred to supportive housing for young mothers. (

h) The mother was referred to parenting programs and counselling services that she didn’t follow through with. (

i) The child was assigned a child service worker. (

j) The child was seen by a health specialist. (

k) The child was referred to an occupational therapist in October of 2010, due to tight tone in October of 2010, anissue that resolved by January of this year. 5: THE CHILD [99] Na.A.P.S. is doing very well in her foster home. She is a happy and healthy child. She is meeting all of herdevelopmental milestones. She is walking, saying many words and playing well. She had some issues with twitching in 2010, but thiswent away. She was described as a very easy child to manage. There was no issue that she was adoptable.

6: PLANS OF CARE [ 100 ] The society’s plan of care is simple. They wish to free Na.A.P.S. up for adoption. Na.A.P.S.’s present foster parents are not able to adopt her, so she will have to eventually be moved, whether she is returned to her father or placed for adoption. [ 101 ] The father had to change his plan of care just prior to the trial due to his arrest and the bail terms that restrict him from living with his family. In the short term, the father proposes to live with the child at the home of the maternal grandmother. He said that presently, only her son, age 16, lives there with them.

He said that he has a criminal court date on December 13, 2011 and hopes to vary his bail terms to permit him to live on his own with Na.A.P.S. He intends to apply for social assistance and obtain housing. [ 102 ] The father plans to stay at home with Na.A.P.S. for three to six months and then return to school to complete his high school education. He hopes to either become a paramedic or a chef. He said that he would find daycare for Na.A.P.S. when he returns to school. He plans to have Na.A.P.S. participate in church activities.

The father testified that he will work cooperatively with the society and sees them as an important support. He is willing to continue his counselling with Y-Connect and Ms. Morgan confirmed that she would be willing to continue to work with him. He is willing to follow through with a psychiatric assessment. The father asked the court to make a restraining order against the mother in order that the message to stay away from him would get through to her. [ 103 ] The father asked the court for a second chance and states that he is willing to stop all contact with the mother.

He testified that he wants to be the father he never had and be a positive male role model for Na.A.P.S. 7: POSITIVE ASPECTS OF THE FATHER’S PLAN [ 104 ] I have considered the following positive aspects of the father’s plan in light of the best interests factors set out in subsection 37(3) of the Act : (

a) Na.A.P.S. would have the opportunity of living with a biological parent. (

b) Na.A.P.S. would be raised in her father’s cultures. The paternal grandmother is from Trinidad and the paternal grandfather is from Ecuador. (

c) The father has been active in his church and this would be an important element in the child’s life. (

d) Na.A.P.S. will have to be moved if she is placed for adoption, so the argument that it would be detrimental to be removed from the care of her current primary caregiver does not apply here. (

e) It was abundantly clear to the court how much the father loves Na.A.P.S. and wants to be a positive parent for her. He has the best of intentions. (

f) The father, when he exercises access, has very good visits with Na.A.P.S. He is loving and affectionate to her, is able to play with her in a developmentally appropriate way and prepares well for the visits. He is able to meet her instrumental needs on the visits and respond to her emotional cues. He is willing to take parenting instruction and incorporate the instruction into his visits. (

g) The father has a pleasant and likeable personality. Service providers want to help him. (

h) At times, the father is able to access supports. In 2010, he completed a parenting program run by the Aisling Discoveries program. He was beginning to develop a positive relationship with his counsellor at Y-Connect by the end of August of 2011. Ms. Morgan’s positive comments about the father have already been set out. (

i) The father has been able to work cooperatively at times with the society. This was particularly the case in 2010, when they were planning to return Na.A.P.S. to his care. (

j) The father accepts responsibility for many of his mistakes. Often in child protection cases, we cannot move forward because a parent has no insight at all into the protection concerns. That is not the case here. 8: NA.A.P.S.’S BEST INTERESTS [ 105 ] Despite the positive aspects of the father’s plan, the evidence was overwhelming that it is not in Na.A.P.S.’s best interests to be placed with him.

The reasons for this conclusion are set out in the sections that follow below. 8.1: Father’s Inability to Meet Expectations [ 106 ] The expectations of the father to show that he could properly parent Na.A.P.S. were clearly set out by the society. These expectations were provided to give the father the opportunity to demonstrate that he could provide the stability, consistency and sound judgment that Na.A.P.S. requires.

They were also designed for the father to demonstrate that he had the ability and commitment to protect Na.A.P.S. from conflict and a chaotic lifestyle by staying away from the mother. [ 107 ] The father made very little progress in meeting the expectations. He was inconsistent with access. He attended counselling sporadically before July 21, 2011 and after August 23, 2011. He did not obtain a psychiatric report. He did not follow through with the referral for anger management counselling. He did not attend the parenting programs that Ms.

McGarry referred him to after the February 3, 2011 meeting. [ 108 ] The father also did not follow through on many of the goals set out with Ms. Morgan. He talked of going back to school, but never registered. He only worked sporadically. He did not maintain his counselling sessions. He did not obtain separate housing, although he had shown the ability to do so when he left his parents’ home in 2009 and when he was planning for Na.A.P.S. in 2010. In fact, at trial, the father claimed that there was no impediment to finding housing shortly.

[ 109 ] The father offered a plethora of excuses for not following through with the expectations, some of which made little sense. He did appear to have made some last ditch efforts to obtain a psychiatric report and housing closer to the trial. At other times, he would candidly admit that he hadn’t done what he was supposed to do, but would do so, if he was given yet another opportunity. [ 110 ] Most importantly, the father was unable to meet the expectation of staying away from the mother and her family. He sabotaged his plan for Na.A.P.S. by secretly allowing the mother contact with the child.

He invited her to the February 3, 2011 meeting, despite being told not to do so. He has continued to live close to her and ignored the society’s recommendation to move away from her neighbourhood. He acknowledges maintaining contact with her, despite the fact that he has been continuously told that Na.A.P.S. will not be returned to him if he continues this contact. He has effectively put his relationship with the mother ahead of the best interests of the child.

This casts severe doubt over his ability to prioritize the child’s interests and meet her emotional and mental needs. [ 111 ] The father now lives with the maternal family. It would be naïve to expect the mother to stay away. [ 112 ] The importance of the father staying away from the mother and her family has been set out. The evidence shows that the father’s judgment becomes seriously impaired, and his life becomes violent and chaotic when he is involved with her. This instability started with his hospitalizations for cutting himself in the fall of 2009.

There was evidence of two domestic violence episodes in 2010. [6] By secretly allowing the mother to see Na.A.P.S., the father lost the opportunity of having the child returned to his care and he subsequently lost his housing. The mother was present berating police officers when he was arrested for violent assaults on November 15, 2011 and when he collected his belongings from his home on November 17, 2011. [ 113 ] The mother’s involvement with Na.A.P.S. and the father is toxic. She is an angry and troubled young lady who is a lightning rod for conflict. The police advised Ms.

McGarry in February of 2011 that they had 74 hits for incidents involving the mother on their system. [7] [ 114 ] The failure of the father to keep the mother away poses both physical and emotional risks for Na.A.P.S. He knows all too well the emotional scars that a child can suffer being exposed to domestic violence and a home where yelling, hitting and chaos is a constant.

There is also the risk of a young child being injured or neglected during physical confrontations between the parents or other persons they come into conflict with. [ 115 ] While the father would readily admit that he breached the condition that he should keep Na.A.P.S. away from the mother, I was far less certain that he really appreciated why this was important for the child. He has expressed ambivalence about his relationship with the mother to his counsellor.

When asked at trial why he was continuing to see the mother today, he did not seem to understand why this was a problem when Na.A.P.S. was not in his care. He said at one point “our contact has nothing to do with Na.A.P.S.”. [ 116 ] There was no evidence to support a realistic belief that the father will now stay away from the mother. 8.2: The Father’s Anger [ 117 ] The father gave heart-rending testimony about the abuse he suffered from his alcoholic father. It has left him angry, frustrated and damaged. The evidence indicates that his anger has, at times, manifested itself in severe violence.

This is evidenced by his cutting himself on three separate occasions when upset, the arguments and domestic violence incidents with the mother and most recently the violent incident with his own family. [ 118 ] While the father and Ms. Morgan both state that he has developed positive coping mechanisms, the recent incident with his family indicates otherwise. The father, even by his own version of events, “lost it”, causing significant injuries to his sister and father. [ 119 ] The father has failed to obtain any meaningful treatment for what appears to be a deep-rooted issue.

He did not follow up with treatment after being released from the hospital for cutting himself in 2009. He did not follow through with the referral for anger management counselling given to him by the society to the Jamaican Canadian Association. He has not obtained the psychiatric report requested. [ 120 ] The inability of the father to meaningfully address his anger issue poses risks for Na.A.P.S. In fact, a young child was present when the father had his recent explosion. Na.A.P.S. cannot be exposed to this behaviour.

This risk is exacerbated by the father’s continued involvement with the mother, who is a trigger for the father’s anger. [ 121 ] The evidence indicates that the father likely needs more intensive therapeutic intervention to address these issues than can be offered by Ms. Morgan. A lot of damage has been done to him and it will likely be a lengthy process to address his issues in a meaningful way. 8.3: Access Visits [ 122 ] An important part of being a parent is being consistent, stable and present. The father has been unable to do this consistently for Na.A.P.S.

His access attendance since February of 2011 has been unacceptable. He really has done very little with his life since February of 2011. He appears to have been paralyzed by his challenges and the setback he suffered at the meeting on February 3, 2011. He has worked six weeks at most during this time frame. He has not gone to school. He attended ten counselling sessions. His excuses for missing access have little, if any, merit. He has given the court no reason to believe that this would improve in the future.

He has made several promises to the society in the past to pull up his socks and do better, but has never put his actions into words. He has been unable to recognize that being a consistent presence is an important need for Na.A.P.S. 8.4: The Father’s Judgment

[123] The father has acknowledged that he has shown very poor judgment. He testified that he wasn’t ready for theresponsibility of parenting Na.A.P.S. earlier in 2011. Examples of this poor judgment are: (

a) Self-harming when he becomes upset. (

b) Stealing from his parents and being asked to leave their home. (

c) Continuing to see the mother when his ability to plan for Na.A.P.S. was at stake. (

d) Allowing the mother to see Na.A.P.S. contrary to the society’s direction. (

e) Inviting the mother to the February 3, 2011 meeting despite being told not to do so by the society. (

f) Not following through with expectations, missing access visits and counselling sessions. (

g) Becoming involved in violent episodes. [124] The father was asked what is different now. He said that he is more mature and has benefitted from his counselling withMs. Morgan. The evidence says otherwise — he continues to be involved in violent incidents, have contact with the mother, has not beenconsistent with access, has shown no indication that he can follow through with expectations and could not even make it to court on timeconsistently when his daughter’s future was being decided. Na.A.P.S. needs and deserves a parent who will make sound choices for her.

The father has not yet demonstrated the maturity or the ability to consistently do this for her. 8.5: Difficulty with the Father’s Plan of Care [125] The father’s plan of care is not viable at this time. His short-term plan is to live in the home of the maternalgrandmother. The maternal grandmother has a long-standing history with the society. She physically abused and abandoned her owndaughter. She was described as having a volatile relationship with the mother.

Ne.B. was removed from this home when the motherlived with her. [126] The father acknowledges that the mother needs to stay away from him for his plan to succeed. It is not realistic to expectthe mother to stay away from this home. She maintains a relationship with the maternal grandmother and continues to go to the home.

The father seeks a restraining order against the mother, but there was no evidence that the maternal grandmother would permit him tolive there if a restraining order prevented her daughter from coming to her home. [127] The maternal grandmother did not testify about what her role would be in the father’s plan. Given her history, this is aserious evidentiary omission. [128] The father hopes that this housing arrangement will be short-term. However, there is no assurance that this will be thecase.

He has had since the end of March of 2011 to obtain social assistance and separate housing, but has failed to do this. [129] A sad aspect of this case is that the father had a number of supports earlier in this case. He had members from his family,community and church supporting him. The society wanted him to succeed. By the time we came to trial, the only witness to supporthim was Ms. Morgan.

When he was criminally charged, he had to turn to the maternal grandmother to act as his surety. [130] The father has potential as a parent, but would need a supportive and healthy environment and be able to sustain aconnection with supportive services to be able to successfully meet that potential. He also needs treatment to deal with his emotionalissues. The evidence indicates that this scenario does not exist and will not likely exist in the near future. 8.6: Proposed Extension of Time Limits [131] Clause 70(1)(

a) of the Act directs that the court should not make an order that results in a child under the age of sixremaining in care for a period exceeding six months. Subsection 70 (4) of the Act permits the court to extend this time limit by sixmonths if it is in the best interests of the child to do so. The father has asked the court, in the alternative, to apply this extension.Na.A.P.S. has now been in care for over 15 months. [132] The application of subsection 70(4) was discussed in Children’s Aid Society of Carleton v. K.F., , 123A.C.W.S. (3d) 705, [2003] O.J. No. 2326, 2003 Cars​well​Ont 2211 (Ont. Fam. Ct.), which set out: (

a) The decision to extend must be made in accordance with the children’s best interests. (

b) The decision must be viewed from the children’s perspective. (

c) The factors in subsection 37(3) of the Act must be considered. (

d) The court must be satisfied, balancing the factors in subsection 37 (3), that there are unusual orequitable principles in the circumstances that would justify granting an exception to the generalrule, for the “child’s sake.” [133] Justice Janet M. Wilson reviewed case law with respect to subsection 70 (4) extension orders in Children’s Aid Society ofToronto v. Lourdes U., , 56 R.F.L. (6th) 186, [2008] O.J. No. 2170, 2008 Cars​well​Ont 3192 (Ont. S.C.) and wrote thefollowing at paragraph 18 of her decision:

[18] The trial judge considered the issue of delay in making her order. In my view JusticeMurray's approach is consistent with the existing case law requiring unusual, exceptional, or equitableconsiderations to trigger an extension. Clearly the power to grant extensions should not be routinelyused. The extension must be in the best interests of the child, understanding the importance ofpromoting stability in the life of a child. See Catholic Children's Aid Society of Metropolitan TorontoU.C.M., (SCC), [1994] 2 S.C.R. 165; Kawartha-Haliburton Children's Aid Society v.K.M., [2001] O.J.

No. 5047; Children and Family Services for York Region v. A.W.A.M.A. [2003] O.J.No. 996; Children's Aid Society of Ottawa Carlton v. K.F., [2003] S.C.J. (ON SC),[2003] O.J. No. 2326; Children's Aid Society of Toronto v. K.G., [2006] O.J. No. 5600. [134] The statutory time limits in subsection 70 of the Act reflect the need for timely permanency planning for children. Theirfutures cannot be left in limbo while parents struggle to change their lives and try to put forward a viable plan. See Children's AidSociety of Toronto v. Yvonne B., 2008 ONCJ 800, [2008] O.J. No. 5698, 2008 Cars​well​Ont 9621 (Ont. C.J.).

Time is particularly of theessence in child protection cases, especially when adoption is being considered. See 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.). The longer a child has remained in care, the more cautious the court should be to apply subsection 70(4). [135] There will be cases where, for a variety of reasons, it is in the best interests of a child to return to a parent, but a delay isappropriate.

In these limited cases, the court should make the extension order set out in subsection 70(4). See Kawartha-HaliburtonChildren's Aid Society v. K.M., (2001), 110 A.C.W.S. (3d) 491, [2001] O.J. No. 5047, 2001 Cars​well​Ont. 4507 (Ont. Fam. Ct.).

Thesewould include cases with the following facts: where a parent needs a little more time to complete a program where participation wasdelayed due to waiting lists; where a parent or child is waiting for an important support service or imminent housing to become availableor where a child needs additional time to make a positive and gradual transition from a foster placement to a home placement.

It wouldbe detrimental to a child in such cases to rush this process for the sake of strict compliance with a time limit. [136] None of the fact situations described above, or any other that would warrant making an extension order, applies here. There are no unusual, exceptional or equitable considerations that justify the granting of an extension order.

The evidence does notindicate that the father could safely parent Na.A.P.S. in the near future and it is not in her best interests to delay permanent planning anyfurther. [137] In support of his argument to extend the timelines, the father argued that the society gave up on him after the February 3,2011 meeting. I agree with him that the access restriction (from overnights to one hour of supervised access per week) was likelyexcessive at the time. However, the father put the society in a difficult position. He breached a fundamental condition to keep the motheraway from the child.

He did not deny the domestic violence allegations at the meeting. Then, he did not exercise the access granted tohim, making it very hard to justify an increase. The father never brought a motion to increase his access. [138] The evidence does not support the father’s argument that the society gave up on him. They referred him to parenting andanger management programs after the February 3, 2011 meeting. They clearly set out reasonable expectations for him to meet to showthat he could safely parent Na.A.P.S. He did not come close to complying with those expectations.

The father continued to have theopportunity to show that he could parent Na.A.P.S. He failed to take advantage of that opportunity. His argument to extend the statutorytimelines lacks merit. 8.7: Findings [139] I make the following findings based on the evidence set out above: (

a) The father is not able to meet the child’s mental and emotional needs at this time — in particular, her need to havea stable, safe and secure home. (

b) The father is not able at this time to provide the child with a home that would be free from conflict, violence andchaos. (

c) The father is not able at this time to meet the child’s need to have consistent and continuous care. (

d) The father has not provided a viable plan to care for the child. The society’s plan is in the child’s best interests. (

e) The risks of harm to the child that existed at the time of her apprehension continue to at least the same degreetoday. The child remains at an unacceptable risk of physical harm as defined in subclause 37(2)(b)(

i) of the Actand emotional harm if placed in the care of the father. (

f) It is not in the child’s best interests to delay her future any further. It is time to find a permanent home for her. (

g) The least disruptive option, consistent with the child’s best interests, is to make her a Crown ward. 9: ACCESS 9.1: The Law [140] Once a disposition of Crown wardship is made, the Act provides for a presumption against access. The test for access toCrown wards is set out in subsection 59(2.1) of the Act, which reads as follows:

(2.1) Access: Crown ward.— 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 child’s future opportunities for adoption. [141] The onus to rebut the presumption against access to a Crown ward is on the father. Children’s Aid Society of Toronto v.

[141] The onus to rebut the presumption against access to a Crown ward is on the father. Children’s Aid Society of Toronto v.Dora P., , 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 fatherhas the onus of establishing both portions of the test in subsection 59(2.1) of the Act. This is a very difficult test to meet. [142] The meaning of the phrase “beneficial and meaningful” was examined by Justice Joseph W. Quinn in Children’s AidSociety 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.

Fam. Ct.), where he said: [45] What is a “beneficial and meaningful” relationship in clause 59(2)(a)? Using standarddictionary sources, a “beneficial” relationship is one that is “advantageous.” A “meaningful”relationship is one that is “significant.” Consequently, even if there are some positive aspects to therelationship between parent and child, that is not enough — it must be significantly advantageous to thechild. [46] I read clause 59(2)(

a) as speaking of an existing relationship between the person seekingaccess and the child, and not a future relationship. This is important, for it precludes the court fromconsidering whether a parent might cure his or her parental shortcomings so as to create, in time, arelationship that is beneficial and meaningful to the child.

This accords with common sense, for thechild is not expected to wait and suffer while his or her mother or father learns how to be a responsibleparent. [47] Even if the relationship is beneficial and meaningful, I think that, as a final precaution, therestill must be some qualitative weighing of the benefits to the child of access versus no access, before anorder is made. [143] In Children’s Aid Society of Toronto v. M.A., , 145 A.C.W.S. (3d) 276, [2006] O.J. No. 254, 2006Cars​well​Ont 328 (Ont.

S.C.), the court found that even though the access visits were generally enjoyable for the child, it was open to thetrial judge to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child’s need forcontinuity of care, and for a secure place as a member of a stable family. [144] In Children’s Aid Society of Toronto v. Tracy L. and Evonne B., supra, Justice Perkins described the two-part test as agateway. He wrote in paragraphs [29] and [30] of his decision as follows: [29] Section 59(2.1)(

b) operates even if there is no immediate prospect of an adoption: “A courtshall not make or vary an access order … unless the court is satisfied that … access will not impair thechild’s future opportunities for adoption” (emphasis added). How much stronger still must thepresumption be if, as in this case, there is evidence that there is an immediate, existing placement readyto adopt and there are two other placements waiting in the wings? [30] Note as well that the focus of section 59 (2.1) is very narrowly on the tests of beneficial andmeaningful relationship and no impairment of adoption opportunities.

Best interests, including a child’swishes, are not mentioned. It is only when one gets through the narrow gateway of section 59 (2.1) thatthe wider best interests test of section 37 (3) becomes open for discussion. The new

section 63.1 makesit clear the legislature has determined that the best interests of children who cannot return to a parent’scare and who are adoptable lie in a permanent family placement by way of adoption or a custody order. Parents might be able to satisfy a court that future adoption opportunities for a child do not likely exist,either because the child’s wishes to return to their care are so overwhelming that the child would notconsent to a placement or because the child’s special needs are so extreme that an adoption is not arealistic possibility.

But that is far from this case, on the evidence. [145] Until recent amendments to the Act, a society was unable to place a Crown ward for adoption if there was an outstandingaccess order under

Part III of the Act. Crown wards with access were not eligible for adoption.

Section 141.1 of the Act has now beenamended to allow societies to place Crown wards with an access order for adoption. Under the former legislation, it was almostimpossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption.

Section 141.1opens the door slightly. But it does not change or even reduce either element of the conjunctive test in s. 59(2.1). The court must still besatisfied that "access will not impair the child's future opportunities for adoption. The operative words of s. 59(2.1)(b) — “will notimpair” — place an onus on the parents to satisfy the court that access to the Crown ward will not diminish, reduce, jeopardize orinterfere with the child's future opportunities for adoption. The onus on parents remains high. See: Catholic Children's Aid Society ofHamilton v. L.S., 2011 ONSC 5850, [2011] O.J.

No. 4512, 2011 Cars​well​Ont 11097 (Ont. Fam. Ct.), paragraphs [419]-[421] and [427]. 9.2: Analysis [146] I find that the father has not met his onus with respect to either prong of the two-part test in subsection 59(2.1) of the Act. I have no doubt that the visits with Na.A.P.S. are beneficial and meaningful for the father. However, while the visits are enjoyable forNa.A.P.S., her relationship with the father does not rise to the level of being beneficial and meaningful for her as defined in the case law.

Quite simply, he has not been able to come close to sustaining a level of consistency in her life that would meet this onus. [147] There is no issue that Na.A.P.S. is adoptable. The father provided the court with no evidence to meet his onus todemonstrate that his access would not impair Na.A.P.S.’s opportunity to be adopted. 10: CONCLUSION [148] An order will go that Na.A.P.S. be made a Crown ward, with no access, for the purpose of adoption.

[ 149 ] I understand that this will be a painful decision for the father. It was very courageous for this young man, who has had such difficult challenges in his life, to step forward to try to plan for his daughter, when the mother was not capable of doing this. I also recognize that it took courage for him to attend at trial and fight for his daughter, particularly when he was aware, by his own admission, that his chances of success were bleak because of the criminal charges the week before the trial started.

He spoke very well for himself, demonstrated to the court his love for his daughter and his good intentions. If Na.A.P.S. ever reads this decision she should know that her father loves her very much and wanted to parent her — he just had too many challenges to overcome at this time. [ 150 ] The father has the potential to make something of himself. He is intelligent, well-spoken and likeable. Hopefully, he will complete school and follow his plan to either become a paramedic or a chef, or whatever other career path he chooses.

However, he will have to take his good intentions and convert them into action to be successful. He has suffered significant trauma in his life and I suggest that he obtain a comprehensive mental health assessment so that he can be directed to appropriate support services. If he engages in meaningful treatment and forms relationships with secure and stable people in the future, he has the potential to be a good parent. I wish him the very best. [ 151 ] Lastly, I wish to thank counsel. They presented this case with exceptional skill and sensitivity. Released: 30 November 2011 Justice Stanley B. Sherr