Children’s Aid Society of Toronto v. B.-L., 2014 ONCJ 486

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

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

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

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

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

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

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of Toronto v. B.-L. , 2014 ONCJ 486 DATE: 2014·August·18 COURT FILE No.: Toronto CFO 11 10639 B3 BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO Applicant, — AND — B.-L., M. H., and V., D. Respondents

Before Justice E. B. Murray Heard on June 2, 3,4,10, 2014 and July 8, 10 and 29, 2014 Reasons for Judgment released on August 18, 2014 Ms. Christine Doucet .......................................................... counsel for the applicant society Mr. Mario Jorge De Sousa Paiva .................................. counsel for the respondent Mother Ms. Lisa Laborde ............................................................. counsel for the respondent Father MURRAY, E. B.

J.: [ 1 ] This is my decision on an application by the Children’s Aid Society of Toronto (“the Society”) which asks for an order of Crown wardship with respect to the child, B. D. V., born […], 2011, who is also known as “C.”. The Society’s plan is to place C. for adoption. [ 2 ] The respondents are the mother and father of the child. In their answers they sought an order placing C. with them, with or without an order of supervision.

At trial, Father sought the same relief, but Mother sought an order of continued Society wardship for 3-6 months, followed by an order placing C. with her and Father under Society supervision. In her evidence at trial, Mother also said that if the court did not see fit to return C. to her and Mr. V., she wished an order placing C. in her care alone under Society supervision. If an order of Crown wardship is granted, the parents seek an order for access, an order which is opposed by the Society. [ 3 ] C. was found to be a child in need of protection pursuant to section 37(2)(

b) of the Act on consent on November 30, 3012. He has been in temporary Society care since his apprehension on July 21, 2011. 1. History of the case [ 4 ] The Society’s involvement with this family began when Mount Sinai hospital made a referral with respect to Mother’s epilepsy, which caused frequent seizures, and the risks that condition might pose to her ability to parent..

The parents and the Society agreed that Mother could not be left alone to care for a baby. [ 5 ] The Society arranged for significant supports to be put in place ( including the Visiting Home Association (VHA) and a Society infant care specialist) so that there would be alternate caregivers in the home when Father was working. C. was discharged home on June 15, 2011. [ 6 ] On July 21, 2011 both parents were arrested and charged as a result of a domestic incident in which the VHA worker indicated that Mother was the aggressor. Mother was released, but Father was detained.

Because there was no one to take Father’s place as C.’s caregiver, the child was apprehended. A temporary without prejudice order placing the child in care was made, with access at the Society’s discretion. [ 7 ] Father was released from custody on October 4, 2011, subject to a condition of no-contact with Mother unless she gave her written revocable consent. Mother quickly gave her consent.

Mother was on a waiting list for surgery that might reduce or eliminate the seizures she suffered, but it was not clear when that surgery might take place. [ 8 ] The Society’s plan was to return C. to his parents, with Father acting as primary caregiver. Father told the Society that he had a criminal record for minor offences, and that he had used non-medically prescribed drugs in the past, but was not using now. [ 9 ] Initially access was for two hours three times a week, supervised at Society offices. As the plan progressed, visits became semi-supervised. Later, Father was allowed to take C. into the community.

By early 2012, Father was taking C. home for visits. By February 2012, C. had started overnight visits at home. The Society then received information indicating that Father’s criminal record and drug use were much more significant than what he had described. [ 10 ] This new information led to a re-evaluation by the Society of its plan. Home visits stopped, although Father was still permitted to take C. into the community for two- hour visits three times a week.

The Society convened a conference, and the service team decided to amend its application to seek an order of Crown wardship without access for the purpose of adoption. That amendment was made on June 12, 2012. As a result of a motion by the parents, visits in their home were reinstated in July 2012. No order of supervision was made; the visits ordered totalled 18 hours a week. Society workers, concerned about C.’s safety, made frequent announced and unannounced visits while C. was in the home. The Society also arranged for a family support worker to assist the family in the home.

The Society brought a motion setting out the safety concerns observed during these visits. An order was made reducing visits to three times a week for three hours, but continuing in the home. [ 11 ] In October 2012, Father was arrested and detained on theft charges, and the parents separated. Visits reverted to twice weekly for an hour at Society offices, supervised or semi-supervised.

On November 12, 2012, the parties consented to a protection finding. They agreed in a statement of facts that Mother’s seizure condition meant that she could not care for C. safely alone. The Society brought a motion for

summary judgment with respect to disposition which was denied by me on February 24, 2014. As a result of a direction in that order, the Society again arranged for a Family Support worker to assist the parents on visits. These visits were once a week for three hours at Society offices. 2. Position of the parties [ 12 ] The Society submits that the plan submitted by the parents is not in C.’s best interests for several reasons: • Mother’s uncertain health. Although surgery has improved Mother’s condition, her prognosis is not clear.

She still cannot safely care for C. alone. • Father’s lengthy record for and continued use of non-medically prescribed drugs. • Father’s lengthy criminal record and history of frequent incarceration. • A pattern of conflict and instability in the parents’ relationship. • The parents’ dishonesty with the Society. • The parents’ lack of insight into the Society’s protection concerns. [ 13 ] Mother and Father submit that there have been significant positive changes in their situation in the past year, that C. can safely be placed in their care, and that this placement is in his best interests.

They argue as follows: • Mother’s physical and mental health has improved dramatically, and her doctors agree that she is now able to parent C. with some assistance from Father or with community assistance. If there is doubt about her ability to parent, a “piggy-back” order will allow Mother to work with her doctors and a Family Support worker for a limited period before C. is returned. • The parents’ relationship does not now give rise to a protection concern.

They explain the three incidents in which Father was charged and pleaded guilty to assaulting Mother as the result of, on one occasion, a misunderstanding of his actions (when he was attempting to get Mother out of a mall as she was about to have a seizure) and on other occasions as the result of violence between them provoked by Mother (who was, according to her psychiatrist, in a psychotic condition as a result of her epilepsy). The parents report that the surgery has led to a marked improvement in Mother’s mental health, and consequently, in the parties’ relationship.

They say that there have been no further incidents of violence between them since Mother’s surgery. • The parents assert that Father’s heavy drug use and criminal activity is a thing of the past, and his much reduced drug use now does not impair his ability to parent, particularly as a support to Mother.

They submit further as follows. o Father continues to participate in a methadone program and work with a counsellor to reduce and eventually eliminate his drug use. o Father’s criminal record is dated, and most of the record relates to petty theft and administration of justice offences (such as failure to comply), which have no relevance in assessing his ability as a caregiver. [ 14 ] The parents argue further that the Society has failed in its duty to assist them.

Specifically, Father’s lawyer argues that the Society failed to maintain communication with the services he accessed to deal with his substance abuse, and failed to make efforts to connect him with appropriate resources. Mother’s lawyer argues that the Society, after an initially helpful period, failed to give appropriate assistance to Mother until ordered by the court in February 2014 to provide the services of a Family Support worker. He asserts that this help, although late in coming, has been most beneficial, and should not be terminated now that Mother is finally physically able to parent. 3.

Witnesses [ 15 ] The Society called as witnesses Kristen Chambers, former family service worker; Stephanie Briskin, former children’s service worker; Theda Ross, current family service worker; Kim Audet, family support worker currently working with the parents; Joey Gareri, the manager of the Motherrisk Laboratory at the Hospital for Sick Children; and Wendy Valenzuela, Father’s current probation officer. Father gave evidence, and called as witnesses family friend Hai Nguyen, the family doctor, Dr. Nam Nguyen, and his substance abuse counselor Beth Collinson.

Mother testified and called as witnesses her psychiatrist, Dr.Peter Giacobbe and her neurologist, Dr. Martin DelCampo. Reports were filed in evidence from Mr. Gareri and all the physicians. In addition and on consent I received the following documentary evidence: reports and urine screen results from Dr.

Michal Lester, an addiction specialist with whom Father has been working for the past two years; results of Driver Check urine tests for Father; Father’s criminal record and current probation orders; transcripts of Father’s guilty pleas to charges of assaulting Mother; and certain observation notes of the parents’ visits with C..

4.Statutory framework 4.1 Options on disposition [ 16 ]

Section 57 of the Act provides that if a child has been found to be in need of protection and the court is satisfied that a court order is necessary to protect the child in the future, that the court shall make one of the following orders, or an order pursuant to

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

section 65 or expires under subsection 71 (1), and be placed in the care of the Society. Consecutive orders of Society wardship and supervision 4. That the child be made a ward of the Society under paragraph 2 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. [ 17 ] The parents do not assert that no further order is required to protect C.. 4.2

Section 70 time limit [ 18 ]

Section 70 of the Act limits the available options for disposition in this case.

Section 70 is a statutory recognition that permanency planning is of paramount importance for children.

Section 70(1) provides as follows: Subject to subsections (3) and (4), the court shall not make an order for Society wardship under this Part that results in a child being a Society ward for a period exceeding, (a) 12 months, if the child is less than 6 years of age on the day the court makes an order for Society wardship; or (b) 24 months, if the child is 6 years of age or older on the day the court makes an order for Society wardship.” [ 19 ] Section 70(4) provides that this period may in the Court’s discretion be extended by a period “not to exceed six months if it is in the child’s best interest to do so”. [ 20 ] In calculating the allowable period for a child to be a Society ward, the Act provides that any time a child has spent in care under a temporary order shall be counted. [ 21 ] As previously noted, C. has been in the care of the Society for almost three years, a period which far exceeds the applicable statutory limit. 4.3 Other considerations on disposition [ 22 ] Under the Act, the Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act which is to promote the best interests, protection and wellbeing of children.

A court is required before making a disposition to consider what efforts a Society or other agency has made to assist a parent before making an order that would remove a child from that parent’s care. [1] [ 23 ] Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether less disruptive alternatives will serve the child’s best interests and whether it is possible to place the child with a relative or member of the child’s community or extended family. [2] Last year Father indicated that his sister in Vietnam might be an alternate placement for C..

She did not contact the Society with a plan. The Society attempted to reach her through International Social Services, but that agency could not provide a worker to investigate. Later, Father indicated that he and Mother were firm in wanting to plan themselves, and did not want C. to be permanently placed with a family member. 4.4 Best interests [ 24 ] The decision as to disposition must be based on what is in the child’s best interest. Section 37(3) of the Act provides that in

determining best interests the Court shall take into consideration the following circumstances that are considered to be 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 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. 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, 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. 13. Any other relevant circumstance. 1. The facts [ 25 ] I set out below my findings of fact in this case, summarized from the findings made previously in the

summary judgment decision [3] and as established in the evidence in this trial. 5.1 Background [ 26 ] Mother and Father are each 41 years of age. Both were born in Vietnam, and are of the Buddhist faith. They have known each other for approximately 15 years, and have been in an intimate relationship for almost five years. Neither parent has family in Canada upon which they can rely. [ 27 ] Mother and Father live together in a two-bedroom apartment in Toronto. Father has worked in the past—in construction or auto body work-- but is not working now.

He and Mother are supported primarily by payments she receives under the Ontario Disability Support program. [ 28 ] Mother has suffered from epilepsy since her teen years, the result of a head injury incurred in an accident. Aside from a short period in the late 1980’s, Mother has been unable to work because of her seizures. She does not drive. [ 29 ] Mother’s epilepsy has involved frequent seizures, which increased in frequency when she became pregnant in 1997. Mother gave birth to a daughter, L.. Mother came to the Society’s attention after she dropped L. twice when suffering a seizure.

Mother accepted that she was unable to care for the child, who was placed privately with a relative and adopted. Mother has ongoing contact with L., who lives about three hours from Toronto. [ 30 ] After L.’s birth, Mother’s seizures were relatively well-controlled by medication, until she became pregnant with C. With her second pregnancy, the frequency of her seizures increased, up to ten times per day. [ 31 ] Father has an acknowledged history of criminal activity (53 convictions, going back 20 years) and of drug use, including use of heroin and cocaine.

He says that his heaviest drug use and most serious criminal activity was in his ‘20’s and ‘30’s, prior to his relationship with Mother and the birth of C. , a time when he says that he was keeping company with “the wrong people”. [ 32 ] Father maintains that he last used heroin many years ago. He says that since Mother’s pregnancy with C., he has worked hard to eliminate use of cocaine, and that his use of that drug has been dramatically cut back, although there are occasional “slips”.

He further asserts that serious criminal activity is behind him, and that he last committed a criminal offence in 2012, excluding his conviction for assaulting Mother in 2013,.

5.2 Mother’s health [ 33 ] After Mother gave birth to C., she continued to have seizures as frequently as three times a day which sometimes involved loss of consciousness. As set out above, she and Father agreed with the Society that she could not safely care for the child alone. [ 34 ] Dr. DelCampo described Mother’s seizures as “complex partial seizures” which resulted in almost “automatistic” behaviour, tics, and great fatigue. Dr.

Giacobbe testified that Mother’s seizures also resulted in “symptoms of paranoia and psychosis” which were secondary to her neurological illness, a situation often observed in patients with epilepsy. The surgeries [ 35 ] Mother hoped that surgery could improve her condition, but she was on a waiting list for almost two years before the process began in April 2013.

This first surgery involved the implantation of intercranial electrodes (to provide accurate information as to the location of lesions in her brain to guide a surgeon).The electrodes were removed in June 2013, and in September 2013 she underwent a major operation in which her left temporal lobe was removed. Parents’ reports [ 36 ] The parents have consistently reported to Mother’s doctors that she has been seizure-free since the April 2013 surgery. The parents’ evidence in chief at this trial mirrored the account they provided to Mother’s doctors. In his report of February 2014, Dr.

DelCampo stated that Mother “is proceeding very well from the medical point of view. She appears to have no significant consequence or side effects from her operation and she has derived great benefit from complete seizure freedom”. Dr. Giacobbe in his report of February 2014 stated that since Mother’s surgery she was no longer exhibiting “symptoms of paranoia and psychosis” which were “directly linked to the expression of her seizures”. Sedation from pain medication [ 37 ] Despite the success of the September 2013 surgery, Mother’s fatigue continued and even increased. She also suffered severe headaches.

Mother was prescribed and took several medications—anti-epileptic and pain control medications. She slept long hours, and was drowsy in the daytime. At her visits with C., Mother was frequently sleepy and inattentive to the child, sometimes even falling asleep during a visit. Dr.

Nam testified that Mother returned to hospital many times after the September surgery because she had difficulty managing the pain from her headaches with the prescribed medication. [ 38 ] The Epilepsy Clinic at Toronto General Hospital determined that Mother’s “excessive use of opioid analgesics to manage her post-surgical headache were the major contributors to her sedation” [4] . Hydromorphone was identified as the medication with the heaviest sedative effect, and Mother was advised to take steps to cut back or manage her use of pain medications. [ 39 ] Dr.

Giacobbe referred Mother to addiction resources at the hospital. Mother did not avail herself of these resources. Rather, she went to Vietnam for a two month trip. Mother gave various reasons for the trip: a visit to paternal grandmother; a visit to her sisters; an attempt to deal with her addiction to hydromorphone with the help of alternate medical practices; and the desire to refresh herself spiritually by visiting temples in that country. [ 40 ] Mother returned from her trip stating that she had stopped using hydromorphone. Dr.

Nam was surprised that Mother had been able to stop using the medication without professional assistance. He administered a urine screen, the results of which confirmed that the drug was not present in her system. Recent medical reports [ 41 ] After Mother returned from Vietnam, she and Father met with both Dr. DelCampo and Dr. Giacobbe, telling them that she was still seizure-free and that she had stopped using hydromorphone. In his May 22, 2014 letter Dr. DelCampo reported what the parents had told him about Mother : “She has no significant problems.

She sleeps about nine hours at night and she may sometimes require a one hour nap during the day, but otherwise she has remained alert and able to perform all the activities of daily life.” On cross- examination, Dr. Del Campo clarified that Mother told him that she sleeps 9-10 hours nightly, and naps between 1-2 hours each day. Dr. DelCampo said that, after these reports, he reduced the dosage of Mother’s anti-seizure medication. [ 42 ] Before being advised of Mother’s evidence that she has suffered some seizures since her surgery, Dr.

DelCampo testified that he was confident that, “from a medical perspective” Mother could care for a child, perhaps with the assistance of another responsible adult. He continued to say that “if she was a single mother, I might have more concerns”. Dr. DelCampo intends to monitor Mother for at least a year. [ 43 ] Dr. Giacobbe, who saw Mother on May 23, 2014, stated that Mother appeared, “much more animated and demonstrated a greater range of affect”. Dr. Giacobbe testified that he will continue to monitor Mother’s psychiatric condition for at least a year, and more if needed.

He has been gradually reducing the psychiatric medications that had been prescribed for her in April 2013, prior to her starting the surgery, to combat anxiety and depression he stated could often result from the surgery.

Continuing seizures? [ 44 ] Under cross-examination at trial, Mother’s evidence was that she has suffered seizures at least twice since the September 2013 surgery. Both these episodes occurred when she was travelling to visits at the Society’s offices [5] , and resulted in her fainting and losing consciousness.

On one occasion, she had to be taken by ambulance to hospital. [ 45 ] Mother testified: “my seizures are different than other people’s—when I am emotional it can trigger a seizure, fainting…If I am cornered, I can get tense, stressed, and that can trigger” an epileptic episode. [ 46 ] Parents’ counsel suggested that Mother was mistaken in testifying that she had seizures. They suggested that she might be experiencing “auras”. Dr. DelCampo testified that some patients experience “auras”—feelings which in their experience sometimes precede a seizure—and mistakenly believe that they have had a seizure.

Counsel did not question Dr. DelCampo as to whether what Mother described could be an “aura”, and did not question Mother further on re-examination on this issue. [ 47 ] Dr. DelCampo testified that Mother and Father had not told him about further seizures. He said that he was reducing her dosage of anti-epileptic medication based on their reports that she had been seizure-free, and that her condition could deteriorate on reduced medication if that was not the case. Dr. DelCampo said that he must rely on the reports of the patient and family as to whether she is no suffering seizures.

There is no test which will determine this. [ 48 ] Dr. Nam testified that Mother is very “anxious about her disease”, and if there are symptoms which worry her, she comes in “right away”. He sees her every 1-2 weeks because of these worries. [ 49 ] I take Mother’s evidence on the issue of whether she has experienced seizures since her surgery at face value. In my view, the evidence as a whole indicates that Mother’s condition is greatly improved, but that she is not seizure-free. 5.3 Father and C. [ 50 ] Father has consistently been the child’s primary caregiver during visits.

The evidence from workers who supervised visits about Father’s interactions with C. —up until the recent visits—was generally very positive. Father was described as being able to meet C.’s instrumental needs, usually alert to safety issues, and able to read the child’s cues. Workers testified that Father is affectionate with C., and that the child returns his affection.

The child runs to Father when he needs comfort. [ 51 ] Despite this generally positive description of Father’s caregiving abilities, workers did report some concerns. • Although before Mother’s surgery the parents agreed that she should not be left alone with C. on visits, there were times that Father did so. For example, on one occasion, Mother was found wandering a hallway at Society offices, dizzy, with 1-year-old C. in her arms. On another occasion during a home visit, Father prepared to leave C., who was in his crib, with Mother in order to go out to shop for groceries.

He was stopped only because of an unannounced visit from Ms. Briskin. • There were other safety concerns that became apparent during home visits. Workers inspected the apartment, and advised Mother and Father about numerous safety hazards. Some were removed, but others were not. • Although workers offered information about age-appropriate activities and developmental stages to the parents, Father (and Mother) did not always appear to be able to apply that information.

For example, on one home visit when C. was 13 months old, it was observed that the parents expected C. to sit stationary on a blanket and play with toys over a lengthy period; they did not recognize the child’s need for movement and exploration. • Mother engages in excessive cleaning of C. and objects around him, with such intense focus that it interferes with the child’s development of appropriate skills.

Although Father does not initiate this activity, he participates when Mother does. [ 52 ] Kim Audet, the Family Support worker who has worked with Father on visits since the end of March 2014, has more significant concerns about his caregiving abilities than other workers. These are set out later below. 5.4 Mother and C. [ 53 ] Mother loves C. very much, and her interactions with the child demonstrate this love. She made it clear in her evidence that nothing matters to her so much as the chance to raise C..

However, her health and fatigue have interfered with her ability to attend or, when she could attend, participate fully in visits for significant periods while C. has been in care. • From the apprehension in July 2011 to March 2013, Mother was occasionally absent from visits because of hospitalizations triggered by seizures. When Mother was present, she might play with the child, change a diaper, or feed him, with Father always taking the lead. Sometimes Mother had to nap during a visit.

• From March 2013 to February 2014 (when the

summary judgment motion was heard), Mother frequently missed visits for health- related reasons [6] , and because of a visit to Quebec to see relatives. When Mother was able to visit, she was often very tired, sometimes even falling asleep, and could not engage much with C.. • Immediately after the

summary judgment motion was argued, Mother left Canada on a two- month trip to Vietnam. She had no contact with C. during that time, except for some telephone contact which Father initiated during his supervised visits. I had hoped when I ordered the Society to provide the assistance of a family support worker that this would be of particular help to Mother, who in essence needed to “catch up” on parenting activities she had been unable to perform prior to her surgery. However, because Mother was in Vietnam, she missed the first month of visits in which Ms. Audet offered assistance. By the time that Ms.

Audet gave her evidence, Mother had attended only four visits. [ 54 ] When Mother has been able to attend visits, her communication with C., who speaks only English, has been hampered by her limited facility in that language. Her evidence is that she relies on Father to communicate effectively with the child. [ 55 ] All observers have noted that Mother is very focused on cleaning C. and his environment. She frequently wipes the child’s hands or his face while he is eating or as he moves around the visiting room.

Although workers have advised Mother that this constant cleaning interferes with C. being able to develop age-appropriate activities and with her being able to properly supervise and interact with him, this behavior has continued. 5.5 Family Support worker’s observations [ 56 ] Kim Audet started working with the family in March 2014. Ms. Audet testified that at the outset of her work she aimed to support the parents to “provide and consistently follow through with age appropriate limits, routines and structure, expectations and behaviour management” during visits.

She intended to pay particular attention to Mother’s ability to “actively participate and co-parent” C., because her illness had prevented her from taking a more active role previously. After several visits Ms. Audet adjusted the goals to include improving the parents’ ability read the child’s cues and respond appropriately, to adequately supervise, and to manage access time appropriately (e.g., not making calls or sending texts during visits). [ 57 ] Ms. Audet testified that there were positive aspects in her work with the parents. • Both parents were receptive to the interventions she provided.

Father incorporated some of what she modeled for him—e.g., allowing C. to play and involve him in the play, rather than intruding on the child’s play in an effort to entertain him. Father talked to Mother about this strategy, and she attempted to use it. • Both parents engaged C. verbally. Although Father initially talked quickly to the child -- peppering him with remarks without giving him a chance to respond -- when this was pointed out to him, he modified his behaviour. • The drowsiness and inattention that Mother had exhibited during visits prior to the

summary judgment motion was not evident. Mother appeared more engaged in activities with C. than was noted by previous workers. [ 58 ] However, Ms. Audet found significant problems in the parents’ ability to care for C., and testified as to her observations as follows: • Although Father is able to provide basic structure to the visits and meet C.’s instrumental needs (e.g., feed him), he is either overly rigid or overly passive in dealing with the child. Ms.

Audet had no comment on Mother’s ability to structure her time with C. because she observed her for so few visits, and because when Mother was there, Father took on the role of the primary caregiver. • Both parents had difficulty giving C. boundaries and direction. The child often ignored them. • Both parents were inconsistent in their ability to supervise C. adequately. On more than one occasion, C. wandered from the visit room without a parent noticing or following.

C. was observed to climb to an unsafe place without a parent’s intervention. • Father was not consistently able to read C.’s cues; e.g., he persisted in tickling the child after he displayed distress, or tried to force food on the child when he demonstrated forcefully that he was not hungry. Ms. Audet did not observe Mother with C. for sufficient time to comment on her ability in this regard. [ 59 ] Ms. Audet observed that C. did not appear to recognize Mother on the first visit after her return from Vietnam. On the second visit, the child cried when Father left the room and he was left alone with Mother.

In subsequent visits, the child resisted when Mother tried to feed him or cuddle with him. In the last visit, C. allowed Mother to feed him and did not react negatively when left alone with her, but he clearly still preferred Father when Father was in the room. Ms. Audet advised Mother that she would work in future visits to help her re-establish her place as a parent. 5.6 Father’s drug use

[ 60 ] Father has often claimed during his work with the Society that he is not using any non-medically prescribed drugs. In the documents he has filed in this litigation, his claims have been more measured—that he is working to eliminate his drug usage, that he is not dependent on any drugs, or that he has cut his drug use substantially. [ 61 ] These claims have been disproved by evidence of his drug use from testing.

The most significant evidence comes from Motherrisk hair test results from four different samples which cover much of the period from September 2011 to May 2014. [7] Many of the gaps in the hair-testing periods are filled in by results from urine tests in the methadone program in which Father participates conducted by Dr. Michael Lester.

The “negative” readings in the urine tests must be viewed with some caution, as they are not random, Father did not attend for testing regularly, and the timing of the tests was not always such as to be able to capture evidence of drug usage (because different drugs stay in the urine for different periods of time). Hair test results [ 62 ] On consent, I qualified Mr. Joey Gareri, the manager of the Motherrisk laboratory, as an expert in detection of alcohol and drugs by hair testing. Some sobering facts emerge from the hair tests and Mr.

Gareri’s analysis of the results of those tests.: • All the hair tests, including those from the period starting in September 2011, show a presence of cocaine and opioids. • Since September 2012, the hair test results have consistently indicated use of cocaine and heroin. The presence of the metabolite 6- MAM in Father’s hair indicates “at a minimum, repeated use” of heroin [8] . • There is no indication that Father’s use of these drugs is decreasing.

Hair testing for the periods mid-September 2012 to late January 2013 and mid-February 2014 to mid-May 2014 for cocaine fell within the high range of exposure, indicating frequent and/or sporadic intensive use of cocaine during three periods.

Presence of cocaine metabolite in the test results rule out passive exposure to the drug. • Father’s evidence that he had used cocaine on only three occasions in the last test period was inconsistent with the test results covering this period. • Hair test results demonstrate the use of a number of drugs other than cocaine and heroin, drugs which were not consistent with any drugs prescribed to Father during the relevant time.

These drugs include amphetamines, methamphetamines, and a variety of opioids other than heroin, such as codeine, oxycondone, and morphine. • Father’s last hair sample (for the period mid-February-mid-May 2014) was positive for cocaine and cocaine metabolites, and several opioids—codeine, morphine, 6-MAM (a metabolite of heroin), hydrocodone, hydromorphone, oxycondone, and methadone. Mr. Gareri testified that this sample was unique in those he has seen in his nine years at Motherrisk, in terms of the number of drugs indicated. Mr.

Gareri’s evidence was that the presence of morphine, 6-MAM (heroin), codeine and oxycodone cannot be explained by Father’s self-reported use during this period of methadone and hydromorphone (from a prescription for back pain). [ 63 ] The multiplicity of drugs found in Father’s system may be explained by evidence which Father gave in cross-examination. He testified that when he has been very stressed—such as after C.’s apprehension—that he will buy drugs “off the street”, taking any pills that are offered, not knowing what he is buying. Methadone treatment [ 64 ] Reports from Dr.

Lester do not indicate that Father has been participating in the methadone program in a manner which would be helpful in reducing the use of other drugs. Dr. Lester’s evidence is that methadone maintenance is a therapy “where a safe, legal and highly structured program of opioid prescribing is offered to people diagnosed with Opioid Use Disorder… which replaces a destructive pattern of illicit opioid use.” In well-regulated methadone treatment, patients do not experience “euphoria or any mood altering effect” or withdrawal symptoms. [ 65 ] According to Dr.

Lester, it does not appear that Father has been successful in using the methadone program to stabilize and aV.id the craving for other drugs. Dr. Lester states as follows: • Urine test results indicate that Father has continued to use heroin, cocaine, morphine, in addition to methadone and prescribed hyromorphone. • Father’s has not followed Dr. Lester’s advice to increase his methadone dose to a level which would “maximize success” in avoiding the use of other drugs. He has kept his dose consistently low. • The “accuracy of his ( Father’

s) self-reporting is in question”. Father told Dr. Lester that he was taking only prescribed hydromorphone, when urine test results indicated use of morphine and cocaine. • Father’s “pattern of ongoing illicit opioid and cocaine use in addition to commonly missing appointments may indicate that this client’s drug use is compromising his ability to function”. [ 66 ] Father’s apparently ambivalent commitment to the methadone program may stem in part from the fact that he began

participating in the program as a result of a probation condition. [9] Submissions made by Father’s lawyer in a sentencing hearing in August 2010 indicated that Father had previously participated in a methadone program, in 2007. Counselling at Breakaway [ 67 ] Father testified that he is more motivated to stop his drug use since he started working with Beth Collinson, a therapist at Breakaway, in March 2014. Ms. Collinson meets with Father once a week. She testified that Father is “engaged, motivated, focused and alert” and participates actively. Breakaway programs are guided by a harm reduction philosophy. Ms.

Collinson believes that Father is developing insight into the reasons for his substance abuse, and is optimistic about his potential. [ 68 ] However, it emerged on cross-examination that Father has not been forthright with Ms. Collinson about his past and current drug use. He reported only occasional use of cocaine since C. was born, and made no mention of heroin use (except to say that he had used heroin many years ago). Ms. Collinson agreed that it was important for a client to be open about their actual drug use for counseling to be effective.

Dishonesty about drug use [ 69 ] Father’s lack of honesty about his drug use in his dealings with Ms. Collinson is a pattern he has repeated in what he says on the subject to others—Dr. Lester, Dr. Nam (his family doctor), his probation officer, Mr. Nguyen (his friend and proposed support person), Ms. B., and Society workers. It is a pattern that he repeated in his evidence before the court. • Father often insisted to Society workers that he was not using any non-medically prescribed drugs, even in the face of positive hair test results. • As noted above, Father told Dr.

Lester that he was not taking certain drugs when urine tests showed otherwise. • Father told Dr. Nam that he was not taking any non-medically prescribed drugs during periods when hair and urine tests indicate otherwise. When Dr. Nam confronted Father with his suspicion that Father was taking the hydromorphone prescribed for Mother, Father denied this—although he admitted it to Dr. Lester. • Father told his probation officer in February and March of this year that he was not using drugs and that his drug screens were clear. This was not true. • Although Father’s support person, Mr.

Nguyen, testified in chief that he was aware of Father’s past drug use and was part of his safety plan, in cross-examination Mr.

Nguyen said that he know nothing about Father’s past drug use, did not ask questions, and was unaware that Father was currently using any non-medically prescribed drugs. • Although Father testified that he thought it important to share information about his drug use with Mother, Mother testified that he told her nothing about his drug use, and that –despite the test results--she did not think that he was currently using any non-medically prescribed drugs. 5.7 Effects of Father’s drug use [ 70 ] Mr. Gareri was also qualified on consent as an expert in the effect of drug use on behavior and judgment.

He testified as follows: • The effects of use of any drug can vary widely, depending, among other factors, on the tolerance which an individual develops for a drug.

The most significant factor to be considered in determining the effect of a person’s drug use on behaviour is the history of his past behavior during periods that he has used the drug. • There are, for example, individuals who use cocaine in a well-regulated manner who are able to function well in their daily lives. • Heroin has a strong sedative effect, and an overdose can lead to respiratory failure and death. • The primary behavioural risks associated with heroin use are profound sedation (e.g., inability to be roused) and a lack of attention

to what is going on in the user’s environment. The strength of the sedative effect depends on the individual’s level of tolerance. • Withdrawal from a drug can be as impactful as use of the drug. Withdrawal from heroin produces stimulant-like behavior— agitation, strong cravings, and drug-seeking behavior. Withdrawal from cocaine can lead to a “crash” period in which the individual is very sedated. This “crash” may look like a hangover. • With Mr. V., one major concern would be the “crash” after withdrawal from cocaine, couple with his use of opioids—heroin and methadone, multiple mediators of sedation. Mr.

Gareri testified that this would be “a concern if small children are in his care”. Third party observations of Father after drug use [ 71 ] Father and Mother both testify that Father does not take drugs in the home. According to Father, he leaves the home when he is going to use drugs, and stays away for a lengthy period – sometimes until early in the morning—out of respect for Mother. [ 72 ] There is no evidence from Dr. Lester or from Beth Collinson or from Dr. Nam, that they have observed “profound sedation” in Father. Father is usually in contact with staff from Dr.

Lester’s office when he gives urine samples weekly (although there have been numerous gaps in attendance). He sees Ms. Collinson weekly. He sees Dr. Nam when he accompanies Mother to appointments. [ 73 ] Contrary to Father’s assertions, Society workers have at times observed behavior in Father that might indicate he is suffering from sedation. For example, at the visit on October 14, 2011, Ms. Chambers observed that Father appeared tired, his eyes were drooping, and he was sweating, shaking his legs constantly, and appeared pale.

Symptoms such as these were never so concerning, however, that a visit was terminated. [ 74 ] Ms. Collinson testified that she is familiar with behavioral indications of drug use—such as problems with concentration, fast speech, loss of focus, or drowsiness. She has not observed these behaviours in Mr. V.. However, Ms. Audet’s observations of Father did reflect some of these behaviours-- speaking very fast and rushing from one activity to another without paying attention to C.’s reactions.

This is behavior similar to that which Mother says Father displays after she “knows” that he has been using drugs—he is on edge, speaks very quickly, and engages in frenetic activity. Mother’s observations [ 75 ] Mother’s evidence on her observations about Father after he has taken drugs is inconsistent, and summarized below. • I don’t know if Father takes drugs now—I don’t see him take any. • I know when Father has been using drugs, and ask him to leave. I “use my son to warn him”, and tell him that he won’t be able to see C. if he uses drugs. • Father’s drug use is in the past, and doesn’t concern me.

I don’t ask him for details. [ 76 ] Mother made it clear, however, that Father was not aggressive to her after using drugs.

Father’s past statements about drug use on sentencing [ 77 ] Father’s statements through his lawyers in sentencing hearings for criminal offences suggest that drug-taking has been connected with criminal activity for him, both as a means to obtain drugs and as a catalyst for violent or disordered activity. • Father’s serious assault on a friend in 2008, which led to a conviction for aggravated assault, was explained by his lawyer as the result of a “drug-fuelled argument” in which Father and his victim were both high. • Father has acknowledged that his use of drugs negatively affected his mental health.

For example, in 2009 Father was taken by police to hospital under the Mental Health Act because he was acting erratically under the influence of drugs. • In his sentencing for assault of Mother in August 2010, Father’s lawyer explained his client’s history as that of someone who has been addicted to heroin and crack, who is trying to stop, but who “steals when he is using”. • In March 2013, Father was sentenced for a series of robberies of i-phones from cars in October 2012. His lawyer explained the offences as “drug-related”. Conclusion

[ 78 ] Father appears to have sufficient control over his drug-taking so that he usually does not appear adversely affected when he has to attend relatively short appointments, such as sessions with Ms. Collinson or visits in the Society offices. His behaviour after drug- taking during longer periods is not known, at least in part because he has not been forthcoming about when those periods have occurred. The evidence does indicate that at times Father’s drug-taking has been linked with past mental breakdown and criminal activity.

Father use of drugs may be related to other evidence indicating mental health problems on his part (e.g., his hearing “voices” which interferes with his concentration [10] ), but this was not explored in his evidence. 5.8 Father’s criminal history [ 79 ] In August 2010 a judge reviewing Father’s record before sentencing described it as “an addict’s record”. Many of Father’s offences involve thefts, fraudulent use of credit cards, or administration of justice offences, such as failure to comply with bail conditions.

Some charges involve possession of controlled substances (the last being possession of cocaine in April 2011). Some are violent offences—in 2003, possession of a dangerous weapon; in 2005, aggravated assault; in 2008, another conviction for aggravated assault; and in 2010, 2011 and 2013, assaults against Mother. [ 80 ] The record does not support Father’s assertion that his involvement with the criminal justice system has significantly abated since Mother was pregnant with C. He has been found guilty of twelve offences since 2011.

All counsel agree that Father’s record, stretching back 20 years, means that he is likely to be detained rather than released if charged again with an offence. [ 81 ] Father has spent much time in jail, either detained prior to a resolution or incarcerated after findings of guilt. Since 2008, Father has been incarcerated for 553 days. In the winter of 2013, he was incarcerated for 60 days. [ 82 ] Mother’s evidence was that she was not aware on most occasions of the reasons that Father was in jail.

She testified that in 2008 when Father was in jail for more than three months, her two main concerns were: • That he be at home to help her if she is sick, because she doesn’t know English well and can’t talk to the people at the hospital, and • That he “change” when he is out. Speaking of the present, Mother stressed that she now wants him at home to “care for the baby”.

Mother said that Father’s criminal record is “his own business”, in the past, and doesn’t have anything to do with Father as a parent. 5.9 Relationship of the parents [ 83 ] There have been many indications that the relationship between Father and Mother is unstable, and marked by violence. • Father has been convicted and pleaded guilty to assaulting Mother three times—on June 10, 2010, July 21, 2011, and February 1, 2013.

The parents at trial explained these incidents as “mistakes” resulting from misunderstandings because of their poor English, and Father says that he pled guilty on these occasions in order to get out of jail more quickly. I note that an interpreter assisted Father on all these occasions, and that Mother was present on the last occasion and assisted the Crown with information as to the impact of the offence on her.

For example, Father agreed that he struck Mother in the head on February 1, 2013, after she threw his father’s picture at him, and threatened that he would “let you die” if she called police. • Father told workers that he had separated from Mother at least ten times before C. was born, and that after C.’s birth there were occasions on which he was tempted to assault her, but he did not, for the child’s sake. • Mother told workers on more than one occasion that Father had physically abused her, and that she had lied in the past about the cause of her injuries to protect him. • The parties separated in October 2012.

Mother was upset when Father was arrested and detained for a series of thefts, and did not permit him to return home when he was released. • When Father was sentenced on March 25, 2013 for assaulting her, Mother advised the court through Crown submissions that she did not wish to reconcile, but that she wished to be able to have contact with him because she was dependent upon him for help in her everyday activities. The court imposed a no -contact provision, but allowed contact if Mother gave written revocable consent subsequently.

She quickly gave her consent. • Despite probation orders providing that Father should complete a PARRS program, he has not done so. He was enrolled again in such a program at the time of trial.

[ 84 ] There appears, however, to have been a change for the better in the parents’ relationship. There have been no reports of separations or violence or significant conflict between the parties since September 2013, when Mother had her last surgery. Dr. Giacobbe had reported that Mother’s seizure condition caused psychotic-type behaviour, and that both parents told him that this behavior had ceased, and that their relationship was much improved. What the parents told Dr.

Giacobbe on this point was mirrored in their evidence before me, and I accept that evidence. [ 85 ] I conclude that the parents’ relationship is much more stable than it was prior to Mother’s surgery. Father has been devoted to Mother, at least since the time she became pregnant with C.. He has taken her to numerous appointments, cared for her after her frequent seizures, and been there throughout the months as she waited for surgery, started the preliminary processes, and the time since the surgery when she was often incapacitated by pain.

In the short time that C. was at home with them, he was the child’s primary caregiver; he has continued to fulfill that role on visits. . [ 86 ] Mother values Father as a supportive partner. She is happy that Father “stays home” more than he used to, and that he is now enrolled in the PARRS program and reporting to his probation officer. Mother testified that she sees Father as her main, really her only support. [ 87 ] Mother said that Father still tries to accompany her to her medical appointments, because he wants to be there “in case I faint”. He does the shopping.

He helps her when she is communicating with English-speakers. Mother testified that, “I have all the help I need—all I need is the opportunity for him to learn to be a good father”. Having said that, Mother was clear that she will separate from Father if a separation would mean that C. would be placed in her care. 5.10 Alertness to protection concerns [ 88 ] The Society argues that the parents persist in a belief that it is only Mother’s seizure disorder that causes the Society to refuse to support a return of C. to their care.

That argument is disputed by the parents. [ 89 ] In my view, both Mother and Father have said, although reluctantly, that they know that Father’s criminal record and drug use are reasons why the Society takes the position it does; they simply do not agree with the Society’s position.

Father does not believe that these issues are barriers to him being a good parent—he says that C. has never been harmed in his care, and, besides, that he has changed his lifestyle. [ 90 ] Mother is ambivalent—at trial she testified that from her perspective, Father’s drug-taking and criminal activity are not a current problem, and do not put C. at risk if in their care. Within just a few minutes, she testified that Father, “has to change” his drug- taking if he wants to ”stay with me and the baby….he can “move out” if he won’t do this.

Mother state that she believed that by “looking at the baby” when he is home that Father will be able to change. 6. Analysis 6.1 The parents’ plans 6.1.1.Positive aspects of parents’ plan [ 91 ] The plan which Ms. B. and Mr. V. present has many positive aspects. • If C. is placed with Ms. B. and Mr. V., he will be raised within his biological family, by parents who love him very much. • If C. is placed with Ms. B. and Mr. V., he will be raised in a home in which he has significant positive emotional ties to at least one parent, his father.

C. looks forward to visits with his Father, goes to him when he needs comfort, and cries when he leaves the room. • If C. is placed with Ms. B. and Mr. V., the placement will provide some continuity of care. C. lived with his parents for the first six weeks of his life, and has seen them on visits regularly since his apprehension. • If C. is placed with Ms. B. and Mr. V., there is evidence that Father will be able to meet some of his developmental needs. Many (but not all) the workers who observed visits found that Father has been able to read C.’s cues and provide him with appropriate stimulation. Although Ms.

Audet was critical of Father’s atunement to C.’s emotional needs, she found that he showed an interest and ability in learning to improve his parenting [11] . • If C. is placed with his parents, he will be raised in a home which reflects his cultural background (Vietnamese) and his parents’ religion (Buddhism)

6.1.2 Negative aspects of parents’ plan [ 92 ] The negative aspects of the parents’ plan, however, are very significant, and are discussed below. Mother cannot parent alone [ 93 ] The evidence does not establish that Mother can safely parent on her own. The confidence that Dr. DelCampo initially expressed in Mother’s ability from a medical perspective to care for a child was premised on her being seizure-free, and, even then, his evidence was that it would “perhaps “ be advisable to have another responsible adult assist her. He testified that if Mother was raising a child alone, he would “have concerns”.

He also testified that if Mother was not seizure-free, then the cessation of certain anti-epileptic medications which he had recently ordered could cause a deterioration in her condition. [ 94 ] Even if Mother was now seizure –free, in my view she would not be able to care independently for C.. Mother’s lawyer acknowledged as much in his submissions that a further period of Society wardship would be in order to allow Mother to “fully recover”. Mother currently sleeps 9-10 hours nightly and naps 1-2 hours each day.

Given the demands of an active toddler, such as C., another adult must be present to care for the child while Mother gets the rest she needs. [ 95 ] Even when Mother is awake, the evidence is that she cannot adequately supervise C.. Workers observing Mother with C. note consistently that she is so concerned with cleaning the surfaces in his vicinity on a constant basis that she is unable to adequately monitor his activity. Mother has demonstrated little ability to read C.’s cues and structure appropriate activity.

As Mother has noted, C. has grown up speaking English, and her facility with English is poor; she needs Father to help her communicate with the child. Who are Mother’s supports? [ 96 ] If Mother cannot parent alone, who can be the other responsible adult who can care for C.? [ 97 ] Although Mr. Ngyuen, Father’s friend, offered to be a support for Mother on occasions when Father cannot be present, he was not offering to be a full-time caregiver. Further, despite Mr. Ngyuen’s good intentions, it is unclear how well he could work with Mother. There is no evidence that Mr.

Ngyuen has ever acted as a support to Mother or to Father in the past—even though Mother and Father have just gone through a very stressful three years in which support would have been welcome. Father not a reliable support [ 98 ] Mother testified that she needs no supports, other than Father Unfortunately, Father, despite his valiant efforts to assist Mother, cannot be seen as a reliable and safe support. [ 99 ] Father’s evidence is that he uses drugs to cope during periods of stress— when he worries about Mother’s health and or about C. being in care.

If C. returned home now and Father was responsible for insuring the child’s safety as well as monitoring Mother’s condition, that would undoubtedly be stressful for him. Based on all the evidence, I find that it is likely that Father’s use of non-medically prescribed drugs would at least continue if not increase if C. was returned home. [ 100 ] Father’s lawyer argues that use by a parent of non-medically prescribed drugs does not a priori pose a safety risk to a child, and points to a prior decision ( Children’s Aid Society of Toronto v.

Y.B. [12] ) to illustrate that in some situations a young child may be placed with a parent who uses drugs, if a careful safety plan is developed. She argues that her client’s behavior indicates that his drug- taking has little or no negative effect on his ability to parent, and that any risk involved could be managed with a good safety plan in a supervisory order. [ 101 ] I agree with counsel that use of non-medically prescribed drugs should not automatically exclude a parent from being allowed to care for a child, even a young child.

In determining whether that parent can safely provide care, careful consideration must be given to a number of factors, such as the number, type, and amount of drugs used; whether the parent has a stable relationship with a treatment provider; whether the parent is honest about the extent of his drug use with that treatment provider; whether the parent’s use of drugs involves him in the criminal justice system; whether the parent’s use of drugs is linked with violent behavior or a mental health breakdown; and other evidence of that parent’s behavior during or after the use of any drug(s).

Risks posed by Father [ 102 ] In my view, Father’s continued use of a multiplicity of drugs presents a safety risk to C. on a number of fronts, and a threat to the stability of any joint plan with Mother.

• Use of some of the drugs which appear consistently in Father’s test results carry the risk of death from overdose and entail a risk of profound sedation, a very concerning issue for a parent who is charged with monitoring a three year old. Placement of C. with his parents would require Father to be a capable caregiver more than a few hours a week. If inadequately supervised, C. would be at risk of physical injury or even death. • Father’s pattern of drug use involves absenting himself from the home for hours or overnight.

He thus would not be present to support Mother. • For Father, drug use has been connected with criminal activity, which has resulted in his absence from the home for months. If absent, Father could not be a support to Mother, or be a consistent presence in C.’s life. • Father’s drug use has been associated with both violent activity towards others and a mental health breakdown. Although these incidents are not very recent (2008 and 2009), they are not so dated as to be of no concern.

Is a supervision order appropriate? [ 103 ] Father’s lawyer submits that a supervision order with conditions that Father continue treatment with Dr. Lester and Ms. Collinson could adequately manage the risk posed by Father’s drug use. I do not agree. [ 104 ] What would be the objective of such a supervision order? It would not be to monitor abstinence. Father is not saying that he will stop drug use, only that he will continue his efforts to do so. [ 105 ] If the objective of supervision is simply to insure that Father continues his current relationship with Dr. Lester and Ms.

Collinson, I have already found that C. would be at risk in his Father’s care, despite these therapeutic relationships. Father has not been honest with either Dr. Lester or Ms. Collinson about his drug use and has not been regular in attending urine screens.

This limits the utility of their assistance and the validity of any information they could share with the Society. [ 106 ] Given the very serious potential harm C. could suffer in Father’s care because of indiscriminate drug use on only one occasion, I would not be protecting the child if I relied on the protections provided by a supervision order.. [ 107 ] Mother cannot be counted on to mitigate any risk posed by Father’s drug use. Although she says that she would tell Father to leave if she knew he was using drugs, she is at the same time reluctant to acknowledge that his drug use is a risk.

Did the Society fail in its duty to assist? [ 108 ] I do not agree with the submission of Father’s counsel that the Society failed in its duty to provide Father with sufficient supports to deal with his substance abuse. Father consistently insisted to workers that his drug problem was in the past, that he was not using any illicit drugs, and that his methadone treatment would guard against a relapse. Very recently, when Father had to participate in another hair test, he told the Society that he had “slipped” on three occasions only, and consumed cocaine.

The hair test showed that his consumption of cocaine was far more than he admitted, and that he had used a number of other drugs during that period.

If an individual consistently fails to admit that he has a problem with substance abuse, I do not see that the Society can be criticized for not providing sufficient support for treatment. [ 109 ] With respect to the submission that the Society did not do what the Act requires to assist the parents with the problems caused by Mother’s seizure disorder, I note that the Society did make robust efforts to assist the parents initially, and provided further in-home support was provided in the summer of 2013 through a family support worker.

Mother’s medical condition prevented her from being able to take advantage of further supports until recently, when the Society began providing assistance from a family support worker again. Mother’s counsel argues that the Society’s failure results from its refusal to agree that the family support worker be continued under continued Society wardship for 3-6 months. The Society says that given the lengthy time that C. has already been in care and the other protection concerns in this case, that further the Society wardship cannot be justified.

As will be seen below, I agree with the Society on this point. 6.2 The Society’s plan [ 110 ] There are negative aspects to the Society’s plan. • There will likely be a disruption to C.’s continuity of care during the period the Society works to secure an appropriate adoptive home.

Although C.’s foster parents have expressed some interest in adopting him, it is not certain that they will put forth a plan, or that if they do that the plan will be approved. • There is no evidence that the Society is likely to secure an adoptive home which reflects C.’s cultural heritage or religious background. • The Society’s plan for Crown wardship without access means that C. will have no contact with his biological parents. His contact with Father, with whom he has a warm and positive relationship, will be terminated. This termination is likely to cause the child at least short term emotional distress.

[ 111 ] The positive aspects of the Society’s plan are, however, overwhelming. C. is a healthy, active child, who is meeting his developmental milestones. There is no question that C. would be attractive to potential adoptive families. An adoptive family will give C. permanency-- the opportunity to develop a secure place as a member of a family. The adoptive parents will be chosen with a view to providing C. with parents who can meet his physical, emotional and mental needs. Conclusion [ 112 ] Ms. B. and Mr. V. want very much to raise C. as a family.

They have each worked very hard in their own ways to put themselves in a position to be able to do so. I regret to say that the plans which they present still fall very short of what would be in C.’s best interests. [ 113 ] The parents cannot safely parent C. together or alone. A plan placing C. with them or with Mother alone would put C. at unacceptable risk as to his physical safety and his long term development. [ 114 ] Further, it cannot be said that it is in C.’s best interests for a further period of Society wardship to be ordered.

C. has been in the temporary care of the Society for 36 months, a period which is three times the statutory time limit. It is possible over time that Mother’s medical condition will stabilize to the point that she can safely care for C. alone, that further work by Mother with Ms. Audet will strengthen the relationship she has with the child, or that Father will be able to make significant progress in his efforts to stop use of non-medically prescribed rugs. There is no evidence, however, which persuades me that any of these eventualities is likely to occur within a period of a few months.

C. should not be expected to wait any longer to have a permanent place in a family. [ 115 ] The Society’s plan offers C. the best chance of a future in which he is in a stable and secure home with parents who can meet his needs. For that reason, I order that C. be made a ward of the Crown. Access [ 116 ] Section 59(2.1) of the Act provides that there is a presumption against an order for access to a Crown ward, and sets out a stringent two-pronged test that those seeking an order for access must meet:

(2.1) A court shall not make or vary an access order made under

section 58 with respect to a Crown ward unless the court is satisfied that, (

a) the relationship between the person and the child is beneficial and meaningful to the child; and (

b) the ordered access will not impair the child's future opportunities for adoption. [ 117 ] The Society relies on this presumption and opposes any order for access between C. and either parent. [ 118 ] In a prior decision [13] I summarized the caselaw about the test in s. 59 (2.1): “There has been extensive judicial comment on section 59(2.1) I summarize comment on the first branch of the test below.

A person seeking access must provide evidence which rebuts both elements of the test. [14] The claimant must demonstrate that the relationship is meaningful and beneficial from the child’s perspective. [15] A “beneficial and meaningful” relationship for a child is one that is brings “significant positive advantage” to the child. More is contemplated than love between parent and child and some pleasant interactions on visits [16] .

With respect to the second prong of the test, until recent amendments to the Act it was virtually impossible for a parent to establish that an outstanding access order would not impair a child’s opportunities for adoption, as the Act did not allow adoption placement if there was an outstanding access order.

Section 141.1 of the Act now allows a Society to place a Crown ward who is the subject of an access order for adoption. On notice of a society’s intent to place a child for adoption is given, then any person with a right of access may apply for an openness order. These amendments did not change the provisions of section 59(2.1). A person seeking access to a Crown ward must still establish that not just that the order will not prevent an adoption, but that it will not “diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption” [17] .

However, it has been recognized that the amendments allowing the possibility of an openness order for an adoptive child do affect the analysis to be conducted on the second prong of the 59(2.1) in some respects, in that a court does not have to choose at this stage between adoption and some contact between a parent and biological family [18] . A court asked to make an access order for a Crown ward will be aware that the order will open the door to an openness application when a society proceeds with its plan for adoption [19] .

The possibility of that litigation and such an order may restrict a child’s opportunities for adoption.” [ 119 ] The Society argues that neither parent satisfies either prong of the test. I do not agree with that submission, as regards C.’s relationship with Father. • C. identifies Mr. V. as “Daddy”. All agree that the child looks forward to visits with Father, and enjoys any time they spend

together. • C. runs to Father when he needs comfort, and cries when Father leaves the room. • Most Society workers who have observed C. with Father say that Father is generally attentive to his physical needs and that he is alert to his cues. • C.’s relationship with Father has been consistent since his birth. [ 120 ] The Society asserts that for C., a history of three years of almost uniformly positive contacts with his father is “merely enjoyable” and does not rise to the level of being “meaningful and beneficial”.

When asked what other evidence—other than a psychological assessment—might be required of a parent to meet this standard, Society counsel was at a loss. The court should not require a professional assessment from a parent to establish that his or her relationship with a child is “meaningful and beneficial”. In my view, Father has satisfied the first branch of the test. [ 121 ] Mother loves C. very much, and the relationship she has with the child is the best thing in her life. The test, however, is based on the relationship which C. has with Mother from the child’s point of view.

Although there have been positive aspects of the visits which C. has had with Mother, the evidence does not indicate that the child has developed a strong parent/child relationship with her. Mother was distressed about this, and asked Ms. Audet to help her establish such a relationship.

I do not find that Mother satisfies the first branch of the test. [ 122 ] With respect to the second branch of the test, the Society asserts that Father cannot meet the test because of his clear hostility to C.’s adoption, if an order of Crown wardship is granted. [ 123 ] Although Father and Mother have had a cooperative relationship with C.’s foster parents in most respects, that cooperation was jeopardized after Father was advised by the Society that the foster parents might wish to adopt C. if the child was legally available, and would consider an openness agreement.

Father responded that he “would rather die” than have C. adopted. The adoptive parents withdrew their tentative plan. Father testified that he has since apologized to the adoptive parents and assured them of his appreciation of their care of C., and that the relationship has been mended. [ 124 ] However, Father’s evidence before me established that he would be unable to support C.’s placement in an adoptive home, and, in fact, might work to undermine that home. Father testified that if C. as adopted, that he would tell the child that he would continue to do anything to “get him back”.

He also testified that he could not, in good conscience, do anything to help C. settle into a new home. [ 125 ] I cannot find that an order of access to Father would not interfere with C.’s opportunities to be placed, or to settle securely, in an adoptive home. I decline to make an order for access between C. and Mother or Father. Released: August 18, 2014 Signed: Justice E. B. Murray