The aid society took SM into protection on several occasions and supervised her mother, CM, on parenting skills. On consent, SM was made a ward of the society 1989. Throughout the wardship, the society continued to work with CM and facilitated regular visits with SM, however, bonding between mother and daughter remained minimal. In December 1989, after a second four-month wardship, the society brought a status review application seeking an order of Crown wardship without access for the purposes of adoption. CM opposed the motion and the matter was dealt with sporadically throughout 1991. In February 1992 the Ontario Provincial Court ordered that SM be returned to CM on the basis that court intervention was no longer necessary to protect the child. The judge considered CM capable of acquiring the skill to care for her daughter adequately. The society obtained a stay of the order and unsuccessfully appealed to the Ontario Court (General Division). The Court of Appeal granted a stay of the order for return pending appeal and a motion for the introduction of fresh evidence. The new evidence concerned the consistent and repeated assertions of the child that she regarded her foster family as her real family, that she did not want to see her birth mother and that attempts to implement access visits with CM had become almost impossible because of the child's negative reactions - emotional, psychological and physical. It allowed the appeal, set aside the order for the return of the child to the mother and ordered that the child be made a Crown ward without access for the purposes of adoption. CM appealed to the Supreme Court.
- Does the child need continued protection?
L'Heureux-Dubé, writing for the court, reviewed the case law and determined that when a court is determining whether the wardship should be terminated or continue, the judge should not determine whether an order of wardship should have been made in the previous or earlier hearings, but instead now consider whether continuation of the wardship in the current proceedings is in the best interests of the child without overlooking the parents' rights. The review hearing is not about retrying the original need for a protection order, but rather the court should determine the circumstances of the parents or parent since the last order as it relates to the situation with respect to the child's custody, including their physical, mental and emotional state since that time and also whether there is now a lifestyle, including attitudes of the parent, that warrants the child being returned to the parent or to wardship.
She lays out a two part test:
- Does the child continue to need protection and require a court order for protection?
- The children's aid society must continue to justify its intervention by showing that a court order is necessary to protect the child in the future. This does not mean that an absence of proof of a deficiency in the parent's parenting capacity is enough to return the child to the parent. A court order may be necessary to protect the child from emotional harm which would result in future if the child were taken from its psychological parents.
- What is in the best interests of the children?
- This should be decided through a balancing of the considerations such as the importance of the continuity of care, the child’s physical/emotional/psychological needs, the benefit of a child's bond to his/her biological parent, as well as psychological bonding of child to his/her foster family.
- The furtherance and protection of the child’s best interests must take priority over the desires and interests of the parent.
- The question is not merely whether the parent has seen the light and is now prepared to be a good parent, but whether or not the parent has, in factk turned a new leaf and whether he or she is now able to give to the children the care they require?
Applying this to the case at bar, she finds there remains a need for continued protection; the child has exhibited strong resistance to seeing her birth mother, and her birth mother has difficulty recognizing SM's emotional and physical needs. Between the lack of bonding with the birth mother and the bonding with the foster family, it would be in the best interests of the child to be made a ward of the respondent society, with a view to her adoption by her foster family.
Two stage test for review of a protection order.