Catholic Children’s Aid Society of Toronto v. S.S, 2011 ONCJ 122

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

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

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85. —

(3) Idem. — A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Toronto (North York) Registry No. C49027/09 DATE: 2011·III·14 CITATION: Catholic Children’s Aid Society of Toronto v. S.S , 2011 ONCJ 122 ONTARIO COURT OF JUSTICE BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — S.S. and J.L., Respondents. Before Justice Harvey P. Brownstone Heard on 7-10 March 2011 Reasons for Judgment released on 14 March 2011

CHILD PROTECTION — Form of order — Crown wardship — Grounds — Least restrictive option to protect child — At time of birth of girl (now 27 months old), her parents were minors who had to struggle with issues such as domestic violence, safe and stable housing (especially for mother) and, in for father, extensive involvement with criminal justice system and frequent incarceration — For past 21 months, child had been in foster care under interim care and custody of children’s aid society which was now seeking Crown wardship without access for purposes of adoption — Mother showed no interest in taking

part in proceedings — Barely 6 months ago, father came up with plan for placing girl into care of his godmother with support from her 2 adult daughters, subject to his supervised access to daughter at society’s discretion — Godmother was agreeable to bringing child into her household and court did not did not doubt sincerity of her affection for child but had to reject this plan because of its instability and risks to child’s continuity of care — Court’s catalogue of risks included: 1.

Impact of godmother’s significant longstanding health problems on her long-term parenting abilities: She was subject to daily insulin shot; pills for her diabetes, high blood pressure and high cholesterol; analgesic medications; slow-release narcotic pain patch and anti-depressant medication — Her own doctor concluded that her physical weakness and low energy level rendered her “long-term disabled” and that she would have difficulty with primary care responsibilities for young child over extended time; 2.

Demonstrated degree of commitment by godmother and her daughters to child: Godmother and daughters were relative newcomers to child’s life — With past 6 months, record of access visits from godmother and her daughters was not encouraging — They were chronically late (often significantly so) in their visits to point where court doubted whether child could possibly have formed emotional bond with any of them; 3.

Level of projected commitment from daughters to child’s needs: Godmother suggested that child’s upbringing would be team effort that would involve her adult daughters, but their evidence suggested that they saw their role as quite secondary, which was understandable in view of their own social, educational and career priorities — Daughters had their own plans, some of which they did not disclose to each other or to mother — Oldest daughter had just given birth to her own child by male partner who was supposed to move into godmother’s household but about whom society and court knew nothing; 4.

Risk to stability of child’s care from continued interference by father, mother and paternal grandmother: Both father’s and godmother’s evidence revealed that they envisaged father’s re-involvement in child’s life — Unfortunately, godmother and her daughters had only vague awareness of nature and extent of father’s problems, his drug addiction and his record of very serious criminal charges and poor understanding of risk that he could pose to child — They had not seriously considered prospect of becoming embroiled in possibly protracted, high-conflict custody dispute with father, mother or paternal grandmother, which would have devastating impact on child’s need for stable home — Father had expressed intention to rehabilitate himself but, until he actually began and completed this endeavour, his child needed stable home life that was quite free from his destabilizing influence, something that godmother could not guarantee.

Court then explored various aspects of child’s best interests and concluded that those interests would be best served by order of Crown warship without access for purposes of adoption. STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], subclause 37(2) ( b )(i), subclause 37(2) ( b )(ii), subsection 37(3) , subsection 57(4) , subsection 59(2.1) , clause 70(1)(

a) and subsection 70(4) . W. Lauren Stringer ....................................................................... counsel for the applicant society No appearance by or on behalf of the respondent mother, S.S., even though served with notice Margarida M. Pacheco .......................................................... counsel for the respondent father, J.L. [ 1 ] JUSTICE H.P. BROWNSTONE:— These are my reasons for decision in the disposition stage of a twice-amended protection application regarding the child N.B., born on […] November 2008. The statutory findings as well as a finding that the child is in need of protection pursuant to subclauses 37(2) ( b )(

i) and 37(2)( b )(ii) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (“the Act”), were made in accordance with a statement of agreed facts filed on 23 September 2010. The society is seeking an order making N.B. a Crown ward with no access for the purpose of adoption. The father, Mr. J.L., is seeking an order placing N.B. in the care and custody of his godmother, Ms. L.Hn., with support and assistance from her two adult daughters, Ms. S.Hl. and Ms. P.Hl.. He is seeking access to the child at the society’s discretion, and is content that his access remain supervised.

The mother did not participate in the trial. She has not attended court appearances or access visits since October 2010, and her lawyer was removed from the record on 4 January 2011. Her pleadings were struck on 15 February 2011. The trial proceeded from 7 to 10 March 2011. 1: DECISION [ 2 ] For the reasons that follow, I have determined that the least disruptive order that will be in N.B.’s best interests is to make her a Crown ward with no access for the purpose of adoption. 2: BACKGROUND FACTS [ 3 ] N.B., who is just over 27 months old, has been in foster care for almost 21 months (since 17 June 2009).

Her parents were both minors with extensive society involvement as children and they have only recently attained the age of 18 years. The facts

forming the foundation for the protection finding are set out in the statement of agreed facts and will not be repeated here. Suffice it to say that the parents have had to struggle with a number of issues including domestic violence, safe and stable housing (especially for the mother) and, in the case of the father, extensive involvement with the criminal justice system, both in and out of custody. Neither parent nor any of their relatives are currently seeking custody of the child. However, the father considers his godmother Ms. L.Hn. and her adult daughters Ms. S.Hl. (age 23) and Ms.

P.Hl.. (age 19) to be close members of his extended family, and he has proposed that N.B. be cared for by them on a long-term basis. [ 4 ] The society first learned of this plan on 23 September 2010. Ms. L.Hn. has successfully raised six children and has even served as a foster parent for the Toronto Children’s Aid Society from 2004 to 2006 for a child who lived with her from the age of 15 to 18 years old. Her home was closed as a foster home on 12 September 2006 when her foster child turned 18, and this decision was based in part on Ms.

L.Hn.’s “quite significant health concerns”. [1] [ 5 ] The society’s kinship care department commenced an assessment of Ms. L.Hn.’s plan in October 2010 but discontinued its assessment several weeks later upon learning from Ms. L.Hn.’s family doctor, Dr. Tak Lo, that she is suffering from multiple health problems that would create significant challenges for her to assume primary care for a very young child. Ms. L.Hn. believes that, with the support and assistance of her daughters, S.Hl.. and P.Hl., she will be able to provide N.B. with good care on a long-term basis.

The central issue in the court’s evaluation of whether this plan of care would be in N.B.’s best interests, is whether Ms. L.Hn. is physically capable of being N.B.’s primary caregiver now and going forward on a long-term basis, recognizing that her daughters have expressed a commitment to assume greater responsibility for N.B.’s care should the need arise in the future. 3: Ms. L.Hn.’s HEALTH ISSUES [ 6 ] Ms. L.Hn. is a pleasant, forthright 54-year-old woman who has spent most of her life caring for others, especially her 6 children, and she has instilled in them a strong sense of family solidarity and community.

Unfortunately, she has been plagued by significant longstanding health problems. I had the benefit of hearing from her family physician of 26 years, Dr. Tak Lo, who also produced a written report on 3 November 2010 as part of the kinship care assessment. In addition, Ms. L.Hn.’s rheumatologist, Dr. S. Zareen Ahmad, wrote a report dated 27 July 2010 and she testified at the trial. [ 7 ] Ms. L.Hn.’s health is not good. She suffers from high blood pressure, insulin-dependent diabetes and high cholesterol, for which she takes daily medication causing no side effects.

These above-mentioned disorders are well controlled and do not impact on her daily functioning. Her real problems, in terms of her quality of life, began as a result of injuries that she suffered in four separate motor vehicle accidents that occurred in October 1988, September 1993, October 2000 and November 2000. [2] These accidents left her with chronic neck and back pain, requiring a variety of treatment strategies including medication, physiotherapy, nerve blocks and attendance at a pain control clinic.

Her chronic pain treatment regimen, which has been stable for the past 5 years, is as follows (in addition to the daily insulin shot and pills that she takes for her diabetes, high blood pressure and high cholesterol): analgesic medications and a slow-release narcotic pain patch that must be applied every 2 days. In addition, Ms. L.Hn. suffers from depression as a result of having had to live in constant pain for many years and so she takes anti-depressant medication. There is also some suspicion that Ms. L.Hn. may have suffered a stroke, although this was never confirmed, but Dr.

Lo described her to be physically weak with a low energy level. In his view, Ms. L.Hn. is considered to be “long-term disabled”. He further opined that Ms. L.Hn. would have difficulty carrying out long-term primary care responsibilities for a young child, although she would be able to supervise her daughters’ care of the child. [ 8 ] In addition to the above-mentioned medical problems, Ms. L.Hn. was diagnosed with fibromyalgia and systemic scleroderma in 2009. Systemic scleroderma is an incurable degenerative auto-immune disorder affecting the skin, connective tissue, muscles and organs.

Sadly, in the past 18 months Ms. L.Hn.’s scleroderma symptoms have “progressed fairly rapidly”, [3] from first affecting her hands (causing puffing of the fingers and loss of flexibility) to her feet, upper arms, thighs, chest and face. She also lost a great deal of weight since being diagnosed with this illness, going from a size 8 to size 3 in just 12 months. Dr. Ahmad’s report dated 27 July 2010 stated that Ms. L.Hn. “gets some chest discomfort at times when eating and feels that food gets stuck low in her throat. She is describing worsening heartburn and a poor appetite.

In addition, she is complaining of shortness of breath (stable for several years) and is known to have asthma.” Further in the report, Dr. Ahmad writes, “With respect of function, she was already quite limited due to her chronic pain syndrome but she is having increasing difficulty using her fingers and her exercise tolerance has declined further in the past year. She cannot walk a block and needs help at times to get dressed.” Ms. L.Hn. takes two types of oral medication for her scleroderma. [ 9 ] Dr. Ahmad did not have much to add in her testimony. She has met with Ms.

L.Hn. only once, on 8 July 2010, and therefore cannot comment on whether her scleroderma symptoms have progressed since then. She did not conduct a functioning capacity evaluation of Ms. L.Hn. and therefore was unable to express an opinion as to the physical limitations, if any, impacting Ms. L.Hn. by reason of the scleroderma. Her comments regarding Ms. L.Hn.’s physical abilities were based entirely on what Ms. L.Hn. told her. She was unable to provide a prognosis as to how Ms.

L.Hn.’s illness will progress, as scleroderma affects different patients in different ways, with a broad continuum of severity of symptoms, depending on a number of factors, including which organs are affected. She was unable to comment on whether Ms. L.Hn. has the strength, stamina and mobility to provide adequate long-term care to a child who is presently 2 years old. She was aware of Dr. Lo’s opinion in this regard, but did not feel able to either agree or disagree with it. [ 10 ] Ms. L.Hn. testified at the trial.

She is a slender, petite, soft-spoken woman who moved slowly and gingerly as she walked to the witness box. She gave the impression of being considerably older than her age of 54 years. She acknowledged having certain physical limitations, such as not being able to stand for long periods, not being able to do the gardening, not being able to lift heavy items, and having her hands “sometimes just becoming hard”. Her pain is described as “intense” at least 2 days out of 7, and she sometimes needs to lie down for 1 or 2 hours during the day. However, she is able to perform most household chores and she drives a van.

She helps with the care of Ms. S.Hl.’s baby (who resides in the home) and she enjoys visits from her 3 other grandchildren, who come to visit as often as 3 times per week and sometimes stay overnight. She has learned to live with her health problems and forces herself to do what needs to be done. In her words, “if I have something to do, I’ll do it.” She acknowledged all of the physical limitations that she reported to Dr. Ahmad. She also readily acknowledged the reality that, if her health no longer permits her to meet N.B.’s needs, Ms. S.Hl. and Ms.

P.Hl.. will have to take over as primary caregivers, in addition to caring for their mother.

[ 11 ] Ms. L.Hn. did not convey the distinct impression that she was planning to be N.B.’s primary caregiver; rather, she spoke in terms of a team effort by herself, Ms. S.Hl., Ms. P.Hl.., and her large family. When asked who would take care of N.B., she responded, “I and my extended family. . . . We will all pitch in. . . . We share tasks. . . . We would all work together.” I am somewhat troubled that Ms. L.Hn.’s vision of a “team effort” caregiving plan is not quite the same as Ms. S.Hl.’s and Ms. P.Hl..’s vision, which is that Ms.

L.Hn. will bear the major responsibility for raising the child, with support and assistance from them. Nevertheless, I readily acknowledge that this may be a difference merely in semantics and that, in reality, the family dynamic is one in which every member of the household pitches in however and whenever they can to the best of their abilities. Accordingly, in determining the impact of Ms. L.Hn.’s health issues on the plan to place N.B. in her home, I have taken into consideration the iteration of the plan that is most favourable to Ms.

L.Hn., which would envision a more equitable distribution of the childcare duties as between herself and her daughters, and consequently minimize the physical demands upon her. Unfortunately, even applying this generous

interpretation of the plan, Ms. L.Hn. is still a key component of it because of her daughters’ other competing responsibilities and priorities (see my comments below in the next section), and I find that the role Ms. L.Hn. would be expected to play is well beyond her capacity to carry out on a long-term basis. [ 12 ] There is absolutely no doubt that Ms. L.Hn. is a well-intentioned and good-hearted person who takes her commitments seriously. If N.B. were placed in her care, she would do her very best for this child. However, and regrettably, the evidence leads to the inescapable conclusion that Ms.

L.Hn.’s health simply does not permit her to play a major role in the long-term care of a 2-year-old child. She is already actively involved in the care of her newborn grandchild and is a frequent caregiver for her 3 other grandchildren. It is entirely unreasonable, given her fragile health, to expect her to assume responsibility for raising N.B. at this stage of her life, even with assistance from her daughters, who have their own busy lives. [ 13 ] I have carefully reviewed and considered the evidence of Ms. L.Hn. and her doctors and am in agreement with Dr. Lo. He has been Ms.

L.Hn.’s family doctor for over 20 years, sees her frequently [4] and is in the best position to observe and assess the deterioration in her health. My own observations of Ms. L.Hn.’s appearance, mobility, energy level and demeanour in the witness box were entirely consistent with the person described by Dr. Lo. Moreover, the observations made of Ms. L.Hn. at access visits — that she most often sat and passively observed rather than actively engaged the child — was consistent with Dr. Lo’s description of Ms. L.Hn. as a person whose physicality is limited. [5] [ 14 ] I recognize that Ms.

L.Hn.’s opinion of her own physical capacities is highly relevant and deserving of great respect and evidentiary weight, as are the observations and comments of her daughters who live with her. However, I find that neither Ms. L.Hn. nor her daughters were objective or realistic about her level of physical functioning, both now and projecting for the long term, in terms of what would be required to raise an active child who is currently 2 years old. 4: THE ROLE OF Ms. L.Hn..’s DAUGHTERS [ 15 ] Ms. S.Hl. is 24 years old. She lives with her mother and sister, Ms. P.Hl.., who is 19 years old. Ms.

S.Hl. is currently on maternity leave, as she gave birth to her first child in December 2010. In September 2011, she will resume her full-time studies at Humber College in the Community Justice Services program, as well as her part-time employment as a customer service officer at a bank. Her partner, who is the father of her child, does not live with her but their long-term plan is to live together and raise their child and N.B. in the same home with Ms. L.Hn. and Ms. P.Hl.. [6] They hope to acquire a larger home in the foreseeable future. [ 16 ] Ms.

S.Hl. presented as a pleasant, mature, goal-oriented, family-focused person who sincerely believes that all of N.B.’s needs can be met in her household through the combined efforts of her mother, herself, her sister, and eventually her partner (who so far has not yet met N.B.). She loves her mother deeply and is a loyal and devoted daughter. She minimized the concerns raised regarding her mother’s health and assured the court that, even though her mother may not be physically strong, she is a “strong person”, which I interpreted to mean strong-willed, driven and determined.

She steadfastly maintained that her mother (not her or Ms. P.Hl..) should be the child’s primary caregiver, and that she would need to take on the primary caregiving role “only if something happens” to her mother. I interpreted this to mean that Ms. L.Hn.’s two daughters would step in and take over primary care of the child if and when it is determined that Ms. L.Hn. can no longer do it at some point in the future. This raises the thorny question: given that Ms.

L.Hn. is already disagreeing with her doctors’ assessment of her physical capacity to care for a young child, and given her daughters’ reinforcement of that position, whose decision would it have to be to transfer primary care of N.B. to someone else, and would this decision be made at the appropriate time in an objective, proactive, responsible, child-centered way that will best meet the child’s needs? [ 17 ] For the time being, Ms. S.Hl. insisted that her mother is fully capable of being N.B.’s primary caregiver, and that her role (as well as her sister Ms. P.Hl..’

s) would be strictly as support persons to provide assistance. No detail was given in terms of which childcare tasks she was prepared to provide in her capacity as a support person, but it is clear that, once she resumes school and employment in September 2011, she will have very little time to devote to N.B.. She has a career, a partner (who did not testify and so I have no direct evidence from him regarding his level of commitment to N.B.), a very young baby of her own, and she has pledged to help to take care of her mother in the coming years as her needs increase. Ms.

S.Hl. is to be commended for showing support to N.B. and her father, and for expressing a heartfelt desire to support her mother’s plan for N.B.. However, looking at the situation realistically and practically, I must regretfully find on a balance of probabilities that Ms. S.Hl.’s other pre-existing priorities will not enable her over the long term to play a significant caregiving role for N.B. [ 18 ] Ms. P.Hl.. is 19 years old and is a first-year student in the Early Childhood Education Program at Centennial College.

After she completes this 2-year program, she plans to attend Ryerson University to obtain a degree in child development, which will take 3 years. After she graduates, she wants to run her own day-care service and eventually return to school to obtain a teaching degree so that she can become a kindergarten teacher. Obviously, she will be a very busy person for at least the next 5 years. Moreover, Ms. P.Hl.. loves children and is not ruling out the possibility of having a partner and starting a family of her own. Ms. P.Hl.. has an idealized vision of the role that she would play in the proposed plan for N.B..

She expressed an intention to live with her mother “forever” and “be there all the time” so she can dedicate herself to helping raise N.B. This is not realistic and most improbable. She is just starting her adult life. No one can be sure where her life’s journey will take her. It is not fair or reasonable to expect her, at this stage of her life, to

make and keep such an important long-term commitment. Moreover, Ms. P.Hl.. is already actively involved in assisting Ms. S.Hl. with the care of her baby and she helps out with caring for her other siblings’ children when they come to visit, which is a frequent occurrence. She will also very likely be heavily involved in caring for Ms. L.Hn. in the future as Ms. L.Hn. ages. Although I admire and respect Ms. P.Hl.. for showing the compassion and desire to be supportive to Mr. J.L. by wanting to keep his daughter “in the family”, I have concluded that Ms.

P.Hl.. has her own life to live and cannot at this point in her life be entrusted to put N.B.’s needs ahead of her own for the duration of N.B.’s childhood. 5: DEGREE OF COMMITMENT TO THE CHILD BY Ms. L.Hn. AND HER DAUGHTERS 5.1: Lateness of the Plan [ 19 ] Although Ms. L. Hn.. and her family are considered by the father to be part of his close extended family, the plan to place N.B. with them was proposed to the society only on 23 September 2010, which was more than a year after the child went into foster care.

Given the youthfulness and immaturity of both parents and the obvious unsuitability of the available relatives on both sides, [7] it should have been obvious to any close family members with a sincere interest in rescuing N.B., that a plan of care needed to be developed by them very soon after the child came into foster care. [ 20 ] Ms. L.Hn. testified that she “fell in love” with N.B. even before meeting her, because she’d seen pictures and heard so much about her from Mr. J.L. and his mother. If this is true, then one would think that Ms.

L.Hn. or her daughters or both might have accompanied the father to at least one access visit even before presenting a plan for the child, but this did not occur. It is bewildering and regrettable that she did not make the effort to get involved in this case much sooner than she did. [ 21 ] Ms. L.Hn. explained the lateness of her plan by saying that she genuinely believed that N.B.’s mother was making good progress towards getting the child returned to her, and so she did not think that it was necessary to come forward.

This may well be true, and if it is, then it is indicative of a poor degree of honesty being communicated to Ms. L.Hn. by Mr. J.L. and his mother. Given the chronology set out in the statement of agreed facts filed on 23 September 2010, it must have been abundantly clear to all concerned that at no time since the date of apprehension was N.B.’s mother even remotely close to having N.B. returned to her. Mr. J.L. and his mother ought to have approached Ms. L.Hn. and formulated their plan long before 23 September 2010, when the plan was finally communicated to the society.

This delay is significant because much time was lost during which N.B. could have been forming a meaningful bond with Ms. L.Hn. and her daughters. There could have been time to expand their access and allow Ms. L.Hn. and her daughters to integrate N.B. into their home and large family. 5.2: Lateness at Access Visits [ 22 ] Although Ms. L. Hn.. and her daughters expressed sincerity in their desire to provide a home for N.B., their commitment to the child as demonstrated by their attendance at access visits appears to indicate otherwise. Ms. L.Hn. first met N.B. on 28 September 2010.

She has attended only 12 out of 18 scheduled visits (60%) and, on every occasion except the most recent visit on 1 March 2011, she was very late. Her visits were scheduled to occur every Tuesday from 10 a.m. to 12 noon. On 28 September and 9 November 2010, she was 30 minutes late. On 16 November 2010, she was 20 minutes late and absented herself for 35 minutes to take Ms. P.Hl.. to school. On 23 November 2010, she was over 30 minutes late and left 30 minutes early without saying anything to the child or the society staff. On 25 January 2011, she arrived 25 minutes late. On 1 February 2011, she was 1¼ hours late.

On 8 February 2011, she was 1½ hours late. On 15 February 2011, she was 1¾ hours late. On 22 February 2011, she was 55 minutes late. This chronic lateness is of great concern, given the fact that the visits were only 2 hours long, once per week. It was not fair to N.B. to be sitting in the access room, being looked after by society staff, waiting so many times, for such lengthy periods, for Ms. L.Hn. to show up. Moreover, it is clear that N.B. has not had the opportunity to form any meaningful relationship with Ms. L.Hn. [ 23 ] Unfortunately, Ms. S.Hl. and Ms.

P.Hl.. were equally tardy, and their relationship with N.B. is even weaker than their mother’s. Ms. S.Hl. only just met the child for the first time on 1 February 2011 and, so far, she has visited with the child 5 times. She arrived late every time except the most recent visit on 1 March 2011. Ms. P.Hl.. first met the child on 19 October 2010, and she has attended 7 access visits to date. She was also late for every visit except the one that occurred on 1 March 2011. [ 24 ] Ms.

L.Hn. testified that her chronic lateness was caused by heavy traffic, even though she conceded in cross-examination that the access visits took place at the society’s Scarborough office, which is only a 15-minute drive from her home. Ms. S.Hl. insisted that the lateness was caused by confusion created by the society in communicating the start time of access visits. She claimed that the society was providing instructions to Ms. L.Hn. through the paternal grandmother rather than directly from the family service worker. I did not find this to be credible and, in any event, Ms.

L.Hn. confirmed in her testimony that she had consistently understood from the society that access times were always on Tuesdays from 10 a.m. to 12 noon. Ms. L.Hn. acknowledged her chronic lateness and did not even make a serious effort to offer a reasonable explanation for it. If one knows that the traffic is always bad, then one should leave home earlier so that the access visit can begin on time and the child can benefit from all of the allotted visitation time. [ 25 ] In my view, lateness at access visits is not as important a factor to be considered as the quality of the access visits themselves.

However, when the party presenting a plan is chronically and severely late for almost every visit even though a trial is on the horizon, such that the child’s opportunity to form a meaningful relationship with the person by the time of the trial has been drastically impaired, this factor becomes significant in the court’s assessment of the sincerity of the plan and the person’s commitment to the child. In the circumstances of this case, I must conclude that the chronic lateness by Ms.

L.Hn. and her daughters at almost every access visit raises cause for concern, and has contributed — albeit in a minor way — to my conclusion that Ms. L.Hn.’s plan is not in N.B.’s best interests.

5.3: Failure to Make Full Disclosure [ 26 ] Another disturbing circumstance must be mentioned at this juncture. Throughout the 5 months that Ms. L.Hn.’s plan was under consideration by the society, there were numerous meetings (both formal and informal) and conversations that occurred between the society workers and Ms. L.Hn. and her daughters (as well as Mr. J.L.). There were also many court appearances. At no time did anyone make the society aware that Ms. S.Hl. was pregnant. In fact, the society did not find out that Ms.

S.Hl. gave birth to a baby in December 2010 until it received the father’s amended answer and plan of care on 10 February 2011. The society workers had not noticed that Ms. S.Hl. was pregnant and no one bothered to tell them. Ms. S.Hl. and Ms. L.Hn. testified that they simply assumed that the society knew that Ms. S.Hl. was pregnant because she looked pregnant.

When they were asked why they never mentioned that there was going to be a new baby in the household, they answered, “No one asked.” They testified that they did not think that the existence of a newborn baby in the home was relevant to their plan. [ 27 ] Whether or not the society workers ought to have noticed that Ms. S.Hl. was pregnant, it is inconceivable that someone would propose a plan of care for a child without disclosing the existence of every other member of the household, especially a newborn baby, whose needs must also be met by the same proposed caregivers.

It is nothing short of astounding that the person presenting the plan in this case is a former foster parent, who must have known that the children’s aid society must have all pertinent information in order to assess a plan of care. This startling omission by Ms. L.Hn. and her daughters is demonstrative of either a monumental lack of common sense, or a monumental lack of forthrightness and good faith. Either way, it does not reflect positively on the person presenting the plan. [ 28 ] In addition, on at least 3 occasions between October 2010 and 8 February 2011, the society asked Ms.

L.Hn. and her daughters to provide completed police record searches as part of its kinship assessment. Ms. L.Hn. and Ms. P.Hl.. have still not provided the completed search reports. This unco-operative behaviour by proposed caregivers is unacceptable. [ 29 ] Also, until 10 February 2011, the society was unaware of the existence of Ms. S.Hl.’s partner, who is the father of her child. This man visits the home frequently and may even become a member of the household at some point in the future.

No one from the society has met this person and the society has had no opportunity to conduct any records searches relating to him. If the family had been more forthcoming in providing necessary information, this would have enabled the court to look more favourably on the proposed plan of care. 6: STABILITY OF THE PLACEMENT [ 30 ] The concerns expressed above regarding the viability and sincerity of Ms. L.Hn.’s plan of care are directly relevant to the issue of the stability of the proposed placement of the child in her home.

However, there is a secondary concern that impacts on the likely stability of this proposed placement: the role, if any, to be played by the parents now and in the future. [ 31 ] N.B.’s parents have had very difficult and chaotic lives so far. The mother’s life is so unstable that she has withdrawn altogether from N.B.’s life. However, she is aware of the father’s plan to place N.B. with Ms. L.Hn. and there is evidence that she has been in contact with at least one of Ms.

L.Hn.’s daughters in an attempt to maintain contact with a view to re-involving herself in N.B.’s life at some point in the future should N.B. be placed in Ms. L.Hn.’s home. In addition, on 5 August 2010, the mother gave birth to a second child, Nadiya, who has a different father and there are child protection proceedings ongoing in respect of that child, who was apprehended at birth and is in a different foster home than N.B.

The mother has become a total stranger to N.B., and there is virtually no bond between N.B. and her half-sibling. [8] Nevertheless, there is cause for concern that a placement of N.B. in Ms. L.Hn.’s home might enable considerable disruption by reason of potential interference by the mother to seek access or even custody at some point in the future. [ 32 ] There is even greater concern regarding the father. He only recently turned 18 years old and, by his own count, he has already been arrested 30 times.

So far in N.B.’s young life, he has already had 3 serious encounters with the criminal justice system that prevented him from having regular access to his child for lengthy periods of time by reason of being on the run from police after assaulting the mother at the society’s office, [9] being incarcerated, [10] and being required to reside with his surety in Ingersoll. [11] He is now facing serious criminal charges including kidnapping, assault with a weapon, threatening bodily harm, forcible confinement, procurement and assault. [12] He has an anger management problem and is addicted to marijuana and has very little respect for authority. [13] All of this gives rise to concern in terms of: (1) what role, if any, he should play in his child’s life; and (2) how likely he is to abide by any court orders governing his access to the child.

Clearly, if N.B. were to be placed with Ms. L.Hn., the father’s access should continue to be supervised for the foreseeable future [14] and the father understands and accepts this. [ 33 ] However, of much greater concern here is the father’s true intention in wanting to have his daughter placed with Ms. L.Hn. On the one hand, he testified that he is prepared to allow Ms. L.Hn. and her daughters to be N.B.’s permanent caregivers.

On the other hand, when asked what role he planned to play in N.B.’s life, he stated, “I want to love her and be there for her as much as I can and be her dad.” More alarming was his comment that he sees the placement of N.B. with Ms. L.Hn. as his “way of getting my daughter back”. From these comments, it is reasonable to infer that, in fact, Mr. L.’s true long-term plan is to become increasingly involved in his child’s life, which would likely include requests for increased access and possibly even custody. [ 34 ] It is therefore clear that any assessment of the plan to place N.B. in Ms.

L.Hn.’s household must contemplate the likelihood that either or both parents will, at some point in the foreseeable future, make efforts to re-involve themselves in N.B.’s life, which would at the very least create stress and disruption to the entire household, especially N.B.. It was clear to me when Ms. S.Hl., Ms. P.Hl.. and Ms. L.Hn. testified, that they do not know Mr. J.L. as well as they think they do: they have only a vague awareness of the nature and extent of his problems, especially his drug addiction and the allegations giving rise to his current very serious criminal charges. [ 35 ] Ms.

L.Hn. and her daughters have known Mr. J.L. his whole life and they love him as a member of their family.

Understandably, they have minimized his problems. Ms. P.Hl.. described Mr. J.L.’s problems as follows: “He just needs to listen”. Ms. S.Hl. admits that she tries to give Mr. J.L. good advice but he “hides” from her whenever he chooses to avoid her good influences. Ms. L.Hn. believes that she has a special relationship with Mr. J.L. and that she can get through to him, but she admitted that when Mr. J.L. resided with her as a teenager for 3 months, he refused to comply with the rules of her household and she had to call the police and terminate his residency with her. Unfortunately, since that time, Mr.

J.L.’s behaviour has spiralled even more out of control, but I did not get the sense from Ms. L.Hn. or her daughters that they realize the magnitude of his problems. [ 36 ] Mr. J.L. needs much, much more than the love and support of Ms. L.Hn. and her daughters (who have always been there for him); he needs drug addiction treatment, prolonged counselling and therapy to address his anger management and emotional problems, and he needs to complete his education and acquire a trade or profession so that he can become a constructive member of society.

He needs to learn how to make better choices in his life and to unlearn patterns of behaviour that have caused him to hurt himself and others. All of this will take a lot of time and hard work on his part. He has expressed an intention to turn his life around and I wish him the very best in this endeavour. However, while he is doing all of that, his child needs a stable home life that is free from her father’s destabilizing influence. His pattern of intermittently severing his visitation

schedule (referred to in paragraph [32] above) is unfair to the child and must not continue. [ 37 ] The impact of Ms. L.Hn.’s, Ms. S.Hl.’s and Ms. P.Hl..’s not having a solid appreciation of Mr. J.L.’s problems is that they do not likely understand the risk that he may pose to N.B.. Ms. L.Hn.. expressed conflicting views when asked about the role, if any, that Mr. J.L. might play in her plan of care. At first, she stated that Mr. J.L.’s access should be supervised at the society’s offices for perhaps the first 6 or 12 months and that Mr. J.L. would have to abide by her terms.

When asked what she thought should happen after that period of time, she expressed the hope and expectation that Mr. J.L. will change so that he can be a part of N.B.’s life. She even went so far as to say, “Mr. J.L. will have to take control of his daughter’s life.” This raises concerns that at some level, Ms. L.Hn. too hopes that the placement of N.B. with her may only be temporary, until such time as Mr. J.L. turns his life around and is able to be a responsible parent. [ 38 ] Ms. L.Hn. also raised an issue that no one else in the trial raised: the hovering presence of Mr.

J.L.’s mother, the child’s paternal grandmother. Ms. L.Hn. described the paternal grandmother as “overprotective” of N.B. and mentioned that the paternal grandmother had been attending at the court house during the trial. In fact, the paternal grandmother entered the courtroom on the first day of the trial and asked to address me. I told her that this was not appropriate as she was not a party in the case and that, unless she was called as a witness in the trial, I could not hear from her. No one called her as a witness. It is clear from this incident and from Ms.

L.Hn.’s comments that the paternal grandmother intends to remain involved in N.B.’s life if she is placed with Ms. L.Hn. Ms. L.Hn. has a good relationship with the paternal grandmother and with Mr. J.L., but she acknowledged that the level of conflict between Mr. J.L. and his mother is high enough to justify having both persons’ access be supervised at the society’s office rather than in Ms. L.Hn.’s home. Given the paternal grandmother’s own extensive history of personal problems and society involvement, [15] she must be considered a destabilizing influence on N.B. [ 39 ] Having carefully considered Ms.

L.Hn.’s testimony regarding Mr. J.L. and his mother, I am compelled to conclude that Ms. L.Hn. has given insufficient consideration to the impact upon them and especially upon N.B. of becoming involved in a possibly protracted, high-conflict dispute with either or both parents or the paternal grandmother or all of them regarding N.B.’s future. N.B. has waited an inordinately long time for a stable, permanent home with consistent, responsible caregivers.

Quite frankly, the parents and the paternal grandmother have had long enough to demonstrate the necessary motivation and capacities to parent this child (she has been lingering in foster care 9 months longer than the law allows), and it would be very unfair to N.B. at this point to place her in a situation and dynamic that is so obviously fraught with instability. [ 40 ] Simply put, the court is required to choose the best possible and least disruptive option for N.B. that will be in her best interests . There can be no doubt that the proposal to place N.B. in Ms.

L.Hn.’s household, in all of the circumstances set out above, comes nowhere near meeting this requirement. 7: N.B.’S BEST INTERESTS [ 41 ] In reviewing the factors that must be considered under subsection 37(3) of the Act in determining N.B.’s best interests, I consider the most important factors in the circumstances of this case to be: paragraph 37(3)¶1 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. [ 42 ] By all accounts N.B. is a happy, healthy child who is meeting all of her developmental milestones. paragraphs 37(3)¶3 and 37(3)¶4 3.

The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. [ 43 ] N.B. is of Jamaican heritage on her maternal side and mixed Jamaican-Caucasian heritage on her paternal side. She is of the Roman Catholic faith. Ms. L.Hn. and her family are of Jamaican heritage and are of the Roman Catholic faith. I have considered the great benefit to N.B. of being raised in a home that is a good cultural and religious match and that would maintain her connection to her heritage and religion.

There is every reason to expect that these factors will figure prominently in the society’s selection of the most appropriate adoptive family for N.B. paragraphs 37(3)¶5, 37(3)¶6, 37(3)¶7 and 37(3)¶8 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 the 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 the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. [ 44 ] In considering the above 4 factors, it is important to note that N.B. has no relationship with her mother or maternal side of her family and a weak relationship with her father and paternal grandmother because of the very limited access that they have had during the 21 months that she has been in foster care.

She has never met any of the father’s siblings or members of his extended family related by blood. However, I consider Ms. L.Hn. and her family to be a part of the father’s (and therefore N.B.’s) “extended family” within the meaning of subsection 57(4) of the Act , and I am mindful of the requirement to consider such a placement before Crown wardship can be considered. [ 45 ] N.B.’s relationship with Ms. L.Hn. and her daughters is at best superficial. Given the sparse access that has occurred (see paragraphs [22] and [23] above), N.B. could not possibly have formed an emotional attachment to any of them.

Moreover, N.B. has never met Ms. L.Hn.’s 4 other children or their partners and children, and she has not even met Ms. S.Hl.’s child or partner. Nevertheless, I am satisfied that, if N.B. were placed in Ms. L.Hn.’s household, she would quickly become a cherished member of Ms. L.Hn.’s entire family. I wish to make it clear that Ms. L.Hn.’s plan is being rejected not because of the child’s insufficient bond to her and her daughters, but because the plan itself is not viable and is fraught with risks of disruption to the child’s continuity of care. As discussed above, these risks have to do with:

(1) Ms. L.Hn.’s health and its impact on her long-term parenting abilities; (2) the degree of commitment to N.B. demonstrated so far by Ms. L.Hn. and her daughters; (3) her daughters’ pre-existing priorities affecting their commitment level and availability to meet N.B.’s needs; and (4) the spectre of continued involvement and interference in N.B.’s life by her parents and paternal grandmother. [ 46 ] N.B. has a half-sibling, Nadiya, whom she has met only 10 times, and with whom she has not formed any meaningful bond.

I have considered the value to N.B. of maintaining an ongoing connection to Nadiya, and have concluded that the importance to N.B. of being placed in a permanent adoptive home outweighs the value to her of maintaining a connection to her half-sibling. [ 47 ] There can be no doubt that the child’s strongest emotional ties are to her current caregivers, her foster parents, in whose home she has lived since coming into care on 17 June 2009.

Unfortunately, the foster parents have not expressed an intention to adopt N.B. and therefore she will have to detach from them and form the necessary attachments to her adoptive family. N.B. is a beautiful, healthy, bright, well-adjusted child who should have no difficulty making this transition. paragraph 37(3)¶10 10. The effects on the child of delay in the disposition of the case. [ 48 ] The child has been in foster care far longer than the time permitted by clause 70(1) (

a) of the Act . Her family, the society and the justice system have let her down, as she has been languishing for far too long, solidifying a bond with foster parents who have no plan to adopt her. She urgently needs to be placed in the care of healthy, loving and committed caregivers who will provide her with a permanent home and family. I was not asked by anyone in this case to make an order under subsection 70(4) extending the child’s time as a society ward but, had such a request been made, it would most definitely have been denied.

N.B. cannot afford to wait any longer for a permanent plan. paragraphs 37(3)¶11 and 37(3)¶12 11. The risk that the child may suffer harm through being removed from, kept away from, returned to 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. [ 49 ] N.B. is not bonded to any of her family (including Ms. L.Hn. and her daughters). Accordingly, I find that she will not suffer any harm if her relationship with them is severed.

As discussed above, the factor in paragraph 37(3) ¶12 figures prominently in the risk analysis relating to the potential for disruption caused to the child by continued involvement and interference in her life by her parents and paternal grandmother. [ 50 ] Accordingly, having regard to all of the circumstances and factors referred to above, I find that the least disruptive alternative that is in N.B.’s best interests is to make her a Crown ward. Further, I find that neither the father nor any of his family (including Ms.

L.Hn. and her daughters) have discharged the onus under subsection 59(2.1) of the Act to enable the court to make an access order. None of N.B.’s relationships with any of them can be said to be “beneficial and meaningful” to N.B. within the meaning of the jurisprudence and, in any event, an access order would impair N.B.’s opportunity to be adopted, which is the plan found by the court to be in her best interests.

Further, I find that it would not be appropriate to make an access order to preserve N.B.’s relationship with her half-sibling, as: (1) neither party in this case has asked me to do so; and (2) the test set out in subsection 59(2.1) has not been met in relation to N.B.’s relationship with that child. 8: ORDER [ 51 ] For all of the above reasons, there shall be an order making N.B. a Crown ward with no access. [ 52 ] I want to thank both counsel for the professional, sensitive, child-focussed and efficient way in which they conducted this trial.