Court File and Parties

Court File No.: C56989/12

Date: 2013-02-15

Ontario Court of Justice

North Toronto Family Court

47 Sheppard Ave. E., 2nd floor Toronto, ON M2N 5X5

Between:

Children's Aid Society of Toronto

Applicant

Simon Fisch, Counsel for the Applicant

- and -

A.M., mother

Not appearing

S.W., father

A.S.W., paternal grandmother

Adam McIver, Counsel for the father Elizabeth Julien-Wilson, Counsel for the paternal grandmother

Heard: In Writing

Reasons for Decision

Justice H.P. Brownstone

Introduction

1These are my reasons for decision in an amended protection application regarding the child S.M., born […], 2011. The trial proceeded before me on January 30 and February 4 to 7 and 11 and 12, 2013. The trial was conducted as a blended proceeding, as I heard all of the evidence related to both the issues of finding and disposition. I did not consider evidence that went solely to the issue of disposition in determining the issue of whether the child is in need of protection.

2The Applicant Children's Aid Society ("the Society") is seeking an order under s.37(2)(b)(i) of the Child and Family Services Act ("the Act") finding the child to be in need of protection by reason of "a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by that person's failure to care for, provide for, supervise or protect the child adequately". If this order is made, the Society is seeking an order making the child a Crown ward without access, so that the child can be adopted.

3The father and paternal grandmother are seeking an order dismissing the application. If the child is found to be in need of protection, the father is seeking an order placing the child in his care under Society supervision. Alternatively, he is seeking an order placing the child in the joint care of himself and his mother under Society supervision. Regardless of which order is made, his plan appears to be to continue living with his mother. [1]

4The paternal grandmother is seeking an order placing the child in her care under Society supervision. Alternatively, she is seeking an order placing the child in the joint care of herself and her son. Her plan is to live with her son and his fiancée. [2]

5The child's mother filed Answers and Plans of Care on March 31 and December 2, 2011. However, on January 3, 2013 she formally withdrew her Answer and Plan of Care by filing a Form 12 (Notice of Withdrawal). She took no part in the trial.

Decision

6For the reasons that follow, S.M. shall be found to be in need of protection pursuant to s.37(2)(b)(i) of the Act. She shall be a Crown ward without access.

Background Facts

7Within hours of the child's birth on […], 2011, the Peel Region Children's Aid Society ("Peel Society") received a call from the hospital social worker Kevin Mossop, expressing concern about the mother's level of functioning, emotional state and ability to properly handle her newborn baby. The mother left the hospital against their advice, stating that the baby "would be fine with the nurses", and that she would return for the baby the next day. Upon receiving the call from the hospital, Peel Society intake worker Felicia Francis met with the parents and paternal grandmother in their home. At that meeting Ms. Francis obtained the following significant background information directly from the parents:

• The mother has Attention Deficit Hyperactivity Disorder (ADHD) and Fetal Alcohol Spectrum Disorder (FASD);
• The mother's first child, R.M., born […], 2008, had been made a Crown ward [3];
• The father has what he described as "speech delays" and stated that his "lower globe does not work", which affects his short term memory; he is in receipt of an Ontario Disability Support Pension (ODSP).

8Prior to meeting with the family, Ms. Francis had conducted a search on a provincial child protection database called "Fast Track", and was aware of the following additional information:

• The father has been diagnosed with ADHD;
• The paternal grandmother had a lengthy extensive history of Children's Aid Society (CAS) involvement as a parent throughout most of the father's childhood, terminating only when the father turned 18 years of age.

9At the meeting, the parents told Ms. Francis that their plan was to place the child in the paternal grandmother's care. Ms. Francis asked the grandmother about her prior CAS involvement. The grandmother was described by Ms. Francis as "evasive", because she refused to provide basic details or to specify what the child protection concerns had been regarding her parenting, or to explain why her son had been admitted to foster care. She said that her CAS involvement was a long time ago and that her history did not matter as she was a "good mother", and that she had worked as a security guard and had inherited over $1 million from her parents.

10On February 10, 2011 Ms. Francis spoke with the hospital social worker Mr. Mossop, and was told that the paternal grandmother did not engage with the baby and didn't intervene when the mother was improperly holding the baby and allowing its head to "flop around". As Mr. Mossop did not testify at the trial, I am mindful that his comments constitute hearsay. However, his statements were not admitted to establish the truth of their contents, but rather, to establish the basis (in part) of the Society's conclusion that the mother and paternal grandmother were not suitable caregivers for the baby. The Society was entitled to rely upon this information in the formation of its decision to apprehend the child.

11After speaking with Mr. Mossop, Ms. Francis told the mother that the Society had protection concerns regarding any plan that would have the mother, father or paternal grandmother assuming primary care of the baby. The mother proposed her own mother, J.M., as a caregiver. Ms. Francis promptly ascertained from Toronto Society worker Leslie Defretes-Kelly that J.M. also had CAS involvement and was not a suitable caregiver. The precise details of this involvement were not provided to the court, but the Society's allegation that J.M. is not a suitable caregiver has not been contradicted by any of the Respondents. Nor has she been proposed as a kin placement. Accordingly, I accept that the Society was justified in not pursuing a placement with J.M. as an alternative to apprehending the baby.

Apprehension

12The child was apprehended on February 11, 2011 and has remained in foster care since that date. A protection application was issued February 16, 2011 seeking a finding under s.37(2)(b)(i) of the Act, and an order for 6 months society wardship.

13In all of the above circumstances I find that the Society was justified in apprehending the child, as there was considerable risk of harm to this newborn child arising from the mother's past parenting history and the observations made of her by hospital staff. The risk was compounded by the father's cognitive deficits. Given the parents' plan to place the child in the care of the paternal grandmother, and the child's imminent release from the hospital, there was some urgency in apprehending the child. The grandmother's lengthy CAS history and her troubling lack of insight and/or forthrightness as to the reasons for CAS involvement would have made it unthinkable to allow the child to be placed in her care. Apprehension was the only option here, as no other suitable caregiver had been proposed by any family member.

Finding

14The following factors lead to the inescapable conclusion that the child is in need of protection under s.37(2)(b)(i) of the Act:

The mother's past parenting of her first child, who was made a Crown ward on consent on August 19, 2010. That child was apprehended when the mother left her with a babysitter for 3 days without returning or providing contact information. Her parenting deficits stemming from her cognitive limitations, ADHD and FASD created a serious risk of harm for the child, as evidenced by neglect (in particular, poor hygiene in the home and poor choice of babysitters). The evidence in this case indicates no improvement in the mother's parenting skills from that date to the date that this proceeding was commenced. This child would most certainly have suffered the same risk of harm that the mother's first child suffered, had she been placed in the mother's care when the application was commenced.

The father's developmental, cognitive, speech, intellectual and learning disabilities as described in his ODSP application (particularly the comments of Dr. Brendan Malcolm) as well as the numerous and detailed assessment reports attached thereto, which were conducted by various school boards when the father was a student. [5] This evidence is corroborated by the observations of Society personnel who observed his conduct at access visits. It is also corroborated by his presentation (vocabulary, language skills, short term memory problems) during the 2-hour videotaped interview with the police, which occurred on May 22, 2009 (Exhibit 4) [6]. The evidence establishes overwhelmingly that the father's operational deficits rendered him incapable of properly caring for a newborn baby when the application was commenced. The baby would have been at great risk of physical harm due to neglect had she been placed in the father's care when this application was commenced.

The paternal grandmother's lengthy, problematic and recurring [7] CAS history relating to abuse, neglect and risk of sexual abuse [8]. Her CAS involvement occurred with four child protection agencies in Ontario and was fairly constant throughout most of her son's childhood (from 1989 – 2007 [9]). Her son (the father in this case) was admitted to foster care twice – once when he was 4 years old, and once when he was 14 years old. When he was 3 years old he was assessed by the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) team and found to have suffered "chronic neglect" [10]. Significant and ongoing neglect concerns were identified at each stage of her son's development: as an infant, toddler, school-aged child, pre-adolescent, adolescent and teenager [11]. No satisfactory evidence was presented upon which the court could find on a balance of probabilities that the grandmother's profound and longstanding parenting deficits had in any significant way been rectified by the date that this proceeding was commenced. There can be no doubt that, had the newborn child in this case been placed in the paternal grandmother's care when this proceeding was commenced, she would have suffered the same risk of harm that the father suffered in his mother's care throughout his childhood.

The paternal grandmother's lack of forthrightness with the Society workers when asked about her CAS history. She was evasive and dismissive when asked to explain her past involvement with child protection authorities, and she minimized any concerns regarding her past parenting. The grandmother's attitude, as expressed to the Society workers regarding her lengthy and very serious CAS history, constituted a strong indication that she was not motivated to make the necessary improvements to her parenting skills that would have allowed the Society to consider placing the child in her care. As she was being proposed by the parents as the child's primary caregiver, this is a crucial factor militating in favour of a finding that, had the newborn baby been placed with her when this proceeding began, the baby would have been at great risk of harm due to neglect.

At the time this proceeding began, the father was facing a criminal charge of aggravated assault upon a young baby that he was babysitting. He was charged on May 22, 2009 with having, 2 days earlier, inflicted extremely serious injuries including subdural hemorrhaging of both sides of the brain, and bilateral retinal hemorrhaging. In his video police interview (Exhibit 4), he admitted becoming upset when the child would not stop crying after he had "accidentally" stuck his finger half-way down the child's throat. He then admitted to becoming upset and giving the baby "a little shake and his head went back". It is clear that this information was not known to the Society when the proceeding began (the father did not disclose it), and therefore did not form any part of the basis of the Society's decision to apprehend the child and commence a protection application. However, the law is clear that the court may, in determining whether to make a finding that a child is in need of protection, take post-apprehension facts into account (as well as pre-apprehension facts that become known to the Society after apprehension), if those facts are relevant to the issue of whether the child is in need of protection, and if they relate in a meaningful way to the circumstances that existed when the application was commenced: Children's Aid Society of Hamilton v. C.(M.) and H.(R.) (2003), 2003 CanLII 64105 (ON SC), 36 R.F.L.(5th) 46 (Ont.S.C.); Children's Aid Society of Toronto v. R.(J.) (2003), 2003 CanLII 64125 (ON CJ), 39 R.F.L.(5th) 257 (Ont. C.J.); Children's Aid Society of Brant v. T.(J.A.) (2005), 2005 ONCJ 302 (CanLII), 22 R.F.L.(6th) 216 (Ont.C.J.); Children's Aid Society of Niagara Region v. S.(F.) and S.(J.), 2005 ONCJ 556 (Ont.C.J.). Although the father's criminal charge was withdrawn at his preliminary inquiry on May 31, 2012, the fact remains that at the time this proceeding was commenced (February 16, 2011), the father was facing an extremely serious criminal charge in which he was alleged to have caused life-threatening injuries to a baby. It is also a fact that, notwithstanding the withdrawal of the criminal charge, the father has admitted to causing the injuries (albeit not with an intent to cause harm). In these circumstances, it is axiomatic that the child in this case was at risk of serious physical harm if she had been placed in the father's care, or in his home, if there was any possibility that the child might be left in the father's sole care, even for a short time.

15Accordingly, having regard to the above factors, I find that the child is in need of protection under s.37(2)(b)(i), because on the date the application was filed, there was a risk that she was likely to suffer physical harm inflicted by either the mother, father or paternal grandmother (had any or all of them had charge of the child), or caused by their failure to care for, provide for, supervise or protect the child adequately.

Post-Apprehension Chronology

16The matter first appeared in court on February 16, 2011. Justice Kerrigan-Brownridge made a without prejudice temporary order placing the child in the Society's care, with access at the Society's discretion. At no time was an actual temporary care and custody hearing held. Despite the strict timelines in Rule 33(1) and s.70(1) of the Act, this case can only be described has having gone into serious "litigation drift".

17On February 23, 2011 Peel Society worker Anda Gheorghe was assigned as Family Services Worker. On March 15, 2011, a kinship referral was assigned to Peel Society Kinship Services Worker Danielle Ungara, to assess the paternal grandmother's plan to assume care of the child. On June 24, 2011, Ms. Ungara and her colleagues decided not to proceed with a kinship assessment, as they felt the grandmother's prolonged and extensive CAS history, together with her lack of insight into her past parenting problems and consequent lack of motivation to address those problems, precluded her from being considered as a suitable caregiver for the child.

18On August 18, 2011 the Peel Society held a permanency planning meeting and made the decision to seek Crown wardship.

19In early September 2011, the parents separated. [12]

20On October 21, 2011, more than 8 months after the proceeding commenced, the Peel Society filed an amended application seeking crown wardship without access.

21The case continued to drift from one adjournment to the next, until March 21, 2012, when Kerrigan-Brownridge J. made the following orders: (1) the paternal grandmother was added as a party; (2) each parent's access was increased to 2 hours per week, fully supervised at the Society's office. [13]

22On […], 2012 the mother gave birth to her third child, F.M., who is currently the subject of a separate child protection proceeding. The father in this case is not the father of F.M.

23On September 5, 2012, an astounding 18 months after this proceeding commenced, the decision was made by the case management judge in Brampton to transfer this proceeding to the Toronto Children's Aid Society and the Toronto Family Court. The reasons for the transfer were two-fold: (1) the parents and paternal grandmother were by this time living in Toronto; and (2) the child protection case regarding the mother's new baby was ongoing in Toronto.

24On September 19, 2012, Toronto Society worker Dedrie White was assigned as Family Service worker. The matter appeared before Justice Spence on November 6, 2012, who expeditiously sent this case on for trial. On December 18, 2012 Justice Spence made an order for disclosure of the father's and grandmother's police records.

25On January 3, 2013, the mother formally withdrew from this proceeding by filing a Form 12 (Notice of Withdrawal).

26This child has been languishing in foster care for the entire 2 years since she was born. This is an extreme violation of the 12-month time limitation in s.70(1) of the Act. Fortunately, she has remained in the same foster home notwithstanding the transfer of the case from the Peel Society to the Toronto Society. Both Societies are to be commended for having saved the child from being needlessly disrupted. Nevertheless, it is urgent that a permanent placement be established for this child as soon as possible.

Disposition

Concerns with Presentation of the Society's Evidence

27As this child was apprehended at birth, all of the parenting evidence relating to her stems from observations made at access visits. It was therefore obviously very important that the Society personnel who supervised these visits be accurate and fair in recording their observations in their notes and relaying them to the court in their affidavits. Workers should point out both positive and negative aspects of the parents' conduct and interaction with the child, so that the court has a complete and fair picture of the parents' parenting skills.

28Regrettably, the evidence of Peel Society Family Service Worker Anda Gheorghe and Peel Society Case Aide Jennifer Arthur was problematic. Both of these witnesses chose, when drafting their affidavits, to omit numerous positive aspects of access visits that they had written in their notes. Even more disturbingly, they chose to embellish and exaggerate some less positive aspects of the visits by using harsher wording in order to convey a more negative impression in their affidavits than what they had written in their notes. It was only through a painstakingly thorough cross-examination of these two workers by the father's counsel, that these serious discrepancies came to light.

29For example:

• In paragraph 63 of her affidavit, Ms. Gheorghe stated that during the August 8, 2011 access visit, the paternal grandmother "did not engage with S.M. in any way". Her notes from that visit indicate that the grandmother "talked to S.M. for a bit".

• In paragraph 80 of her affidavit, the only thing Ms. Gheorghe chose to mention about the October 18, 2011 access visit was that the father and grandmother arrived 30 minutes late for unexplained reasons. She omitted all of the positive interaction which occurred between the father and child and between the grandmother and child, which she admitted in cross-examination, was more interaction than had occurred at prior visits (in other words, there had been an improvement).

• In paragraph 81 of her affidavit, which deals with the October 25, 2011 access visit, Ms. Gheorghe refers to the father as "harshly" taking away a bib from the child when she started to chew on it. However, in her notes made at that visit, she did not describe the father's action as being "harsh". In cross-examination she could offer no explanation for adding this uncomplimentary descriptive word which was obviously meant to convey a negative impression of the father's interaction with the child.

• In paragraphs 83 and 84 of her affidavit, which deal with the November 22, 2011 access visit, Ms. Gheorghe focuses almost exclusively on the father's disappointment at the mother's absence from the visit. She failed to include several positive parenting tasks that the father had demonstrated (dressing the child, changing her diaper, playing with her), and which she had written in her notes. Further, she said in her affidavit that the father "remained disengaged for the next 30 minutes", even though this was not found in her notes. The impression of this visit conveyed in the affidavit was entirely different – and considerably more negative – than the impression created by Ms. Gheorghe's notes written at the time of the visit or very shortly thereafter.

• In paragraph 86 of her affidavit, which deals with the January 10, 2012 access visit, Ms. Gheorghe said that the father was "disengaged and detached", and that he "stared at S.M. for about 10 minutes without saying a word". In her notes from that visit, Ms. Gheorghe wrote that the father stared at the child for "5 to 10 minutes", and that he did "say a few words to her" and he took her for a walk. The notes also disclose that the father kissed the child goodbye at the end of the visit. This was an important point that ought to have been included in the affidavit, because one of the Society's major criticisms of the Respondents is that they are not affectionate with the child.

• In paragraph 87 of her affidavit, which deals with the January 17, 2012 access visit, Ms. Gheorghe said that the child was "essentially left alone for the remainder of the one hour". In contrast, her notes from that visit state that there were two periods of no interaction: once for "about 10 minutes" and once for 5 minutes.

• In paragraph 93 of her affidavit, which deals with the February 28, 2012 visit, Ms. Gheorghe said that the father and grandmother "again struggled with having any meaningful interaction with S.M." However, the notes from that visit state that the father walked with the child, brought toys to play with her, and changed her diaper.

• In paragraph 98 of her affidavit, which deals with the April 10, 2012 visit, Ms. Gheorghe said that the grandmother "asked the father for approval" each time she was suggesting a task to be done for the child. Her notes from that date simply say that the grandmother "checked in" with the father. In cross-examination the worker agreed that there is a distinct difference, in terms of impressions conveyed, between "asking for approval" (which connotes that permission was needed) and "checking in" (which connotes an intention to work cooperatively by letting the other person know what you're doing). The worker could not explain why she chose different language in her affidavit than the language she employed in her notes. In addition, this paragraph of the affidavit focuses almost exclusively on parenting deficits, and omits the fact that the father brought food, a blanket and a book to the visit, and that he talked to the child, helped her stand up, changed her and fed her. All of these things were noted in the worker's notes made at the visit, but were curiously left out of her affidavit.

• In paragraph 107 of her affidavit, Ms. Gheorghe said that "during most of the visits, the father left the child alone in a high chair while he was watching TV, engaging in conversations with other clients, watching outside or wandering around to see if or when the mother and her partner arrived for their visit." In cross-examination, the worker was unable to identify a single visit where the father had left the child alone while he watched television.

30In addition to the above flaws in her evidence, Ms. Gheorghe overstated the society's efforts to assist the family:

• In paragraph 109 of her affidavit she said that the Society "conducted a full kinship assessment on the grandmother". In fact, on June 24, 2011 the Society decided not to proceed with a kinship assessment.

• In paragraph 111 of her affidavit she said that, "in addition to providing service through the access visits, a number of other interventions have been offered and considered." She admitted in cross-examination that only one other intervention had been offered: an adult protection worker from Toronto Community Living (the parents declined this referral on August 29, 2011).

31Ms. Arthur, also from the Peel Society, failed to provide a balanced and fair depiction of the Respondents' conduct at access visits, but to a lesser extent than Ms. Gheorghe:

• In paragraphs 13, 14 and 15 of Ms. Arthur's affidavit, which deal with the June 6, 2011 access visit, the impression conveyed is that the visit went poorly. To present a more truthful picture of the visit, Ms. Arthur ought to have included the following statement which she wrote in her notes: "S.M. was happy and smiled and cooed throughout the visit." The fact that the child enjoyed the visit is an important point that the court would want to know.

• In paragraph 18 of her affidavit, which deals with the June 20, 2011 access visit, Ms. Arthur neglected to mention that the father said goodbye to the child at the end of the visit. As the Society has accused the father of frequently failing to say goodbye to the child at the end of visits, it is only fair that the Court should be apprised of any occasions on which he did say goodbye.

• Paragraphs 20, 21 and 22 of Ms. Arthur's affidavit deal with the August 15, 2011 access visit. Nowhere did Ms. Arthur mention that the father greeted and kissed the child at the beginning of the visit, and he said goodbye to the child at the end of the visit. Given the Society's allegation that the father didn't show enough affection to the child, these points ought to have been included in the affidavit, since they do appear in Ms. Arthur's notes from that visit.

• In paragraph 24 of her affidavit, which deals with the September 8, 2011 access visit, Ms. Arthur quoted the mother as saying that the father has been denying paternity. In fact, her notes reveal that the mother was quoting the father's aunt as questioning paternity of the child, NOT the father. This was an important error. Had the father's counsel not noticed the discrepancy in Ms. Arthur's notes, the court could have been left with the impression that the father had at one point questioned paternity, which obviously affects his level of commitment to the child. Errors like this should not happen in child protection proceedings where so much is at stake.

• In paragraph 24 of her affidavit, which deals with the September 8, 2011 access visit, Ms. Arthur stated that the grandmother prepared a bottle for the child, and that when she (Ms. Arthur) tested it for temperature, it was "too hot". However, Ms. Arthur's notes say that the bottle was "a little warm". There is a difference between "too hot" and "a little warm" in terms of risk analysis and parental judgment in feeding a baby. In cross-examination Ms. Arthur could provide no explanation for utilizing more severe wording in her affidavit than that used in her notes.

• In paragraph 25 of her affidavit, which deals with the September 8, 2011 access visit, Ms. Arthur stated that the father did not speak to the child when feeding her. In fact, her notes disclose that he did say her name when he burped her.

• In paragraph 28 of her affidavit, which deals with the March 6, 2012 access visit, Ms. Arthur stated that the grandmother "sat off to the side observing but not interacting with S.M.". Nowhere in Ms. Arthur's notes is there any reference to this. It is not probable that, ten months after the visit, a worker could remember such a detail when writing an affidavit, if that detail was not in her notes. If it was so important to tell the court at a Crown wardship trial that the grandmother "sat off to the side observing but not interacting", why wasn't it important enough to write down at the time she made her notes of the event?

• In paragraph 49 of her affidavit, which deals with the April 3, 2012 access visit, Ms. Arthur said that the father and grandfather did not engage with the child. Her notes say that the father engaged with the child "once in a while".

• In paragraph 86 of her affidavit, which deals with the July 10, 2012 access visit, Ms. Arthur said that the father "became upset" when given direction from the grandmother. There is no reference whatsoever in Ms. Arthur's notes from that visit, of the father being upset. In cross-examination Ms. Arthur could not explain why she chose to convey the false impression that the father behaved inappropriately in front of the child, when she had not made note of this at the time of the event.

32When a Society worker chooses to focus almost exclusively on the negative aspects of the parent's parenting skills and deliberately omits important positive aspects, this distorts the picture that is being painted for the court of the parenting capacity in question. Such distortion diminishes the value of the Society's evidence. The worker's lack of completeness makes his/her evidence less trustworthy than if he/she were being totally forthright and presenting a more fair, balanced, truthful picture. In this regard, the wise words of Justice Stanley Sherr in Children's Aid Society of Toronto v. B.H., [2007] O.J. No. 2446 (Ont.C.J.) resonate strongly (at paragraphs 54 to 56):

The direct evidence from the society witnesses was provided by lengthy affidavits. I was troubled and disappointed that these affidavits inordinately focused on the negative aspects of the grandparents' plans. In Ms. Malik's 26-page affidavit, there were only four short paragraphs with positive statements about the grandparents. Ms. Penton's 30-page affidavit was virtually devoid of anything positive to say about the grandparents. In Ms. Oren's 23-page affidavit, there were only two short paragraphs that spoke positively about the grandparents. Yet, when cross-examined, it turned out that there was significant positive evidence they gave in support of the grandparents' plans…. This evidence should not have to be elicited in cross-examination. For instance, nowhere in Ms. Oren's affidavit does she speak about how B.K. was able to listen to and incorporate advice about parenting problems and improve her interaction with the children. Ms. Malik omitted her positive observations about how well R.K. has done in B.K.'s care or her view that B.K. is more likely to work cooperatively with the society. Ms. Penton omitted virtually all of her positive evidence given on cross-examination about all of the grandparents. This is all very important evidence for the court to have.

This court has to make a major decision for these children and their families that will have a huge and permanent impact on their lives. The society is a powerful institution and with such power comes great responsibility. The goal of a state litigant is justice. It is not about winning. The society's role in presenting a case to the court is not merely to present evidence that justifies their position, but to present all relevant and probative evidence, including that not favourable to their position, to ensure that the best possible decision for children can be made. It is important that society workers understand this. Society counsel can only put forward the evidence that the workers provide to them. It is important to educate the workers about their responsibility to provide a balanced perspective of the case to the court and not only provide information that justifies their position. It is not good enough to say that it is the job of the parents' lawyers to produce this evidence. Parents' counsel (if the parties even have counsel) rarely have the resources of the society and should not have to chase after this information. Child protection trials are not, and should not, be a game.

From a practical perspective, this made the evidence of the society workers less reliable. How could I fully trust that they were providing me with the full context when they were giving me their evidence, when they chose to present their negative observations in such a disproportionate manner? This did not mean that I rejected their evidence, but it did mean that I treated it with more caution.

33In this case, not only did two Peel Society workers omit to include many positive details. They also embellished, exaggerated and at times fabricated some of the Respondents' behaviours at access visits to convey an unfairly negative impression of their parenting skills. This is disappointing and unacceptable, and rendered their evidence almost useless.

34The Society has the burden of proof throughout every aspect of this case, with the exception of the reverse onus in s.59(2.1)(access for a Crown ward). In carefully considering and weighing the Society's evidence, I have significantly reduced the value and weight of the evidence of Peel Society workers Ms. Gheorghe and Ms. Arthur. Their evidence relating to their observations of access visits has been disregarded except insofar as it has been corroborated by other witnesses. Notwithstanding this, and after thoroughly reviewing all of the evidence, including the testimony of the father and paternal grandmother, I find that the Society has met the heavy onus upon it to establish that the least intrusive option for the child that would be in her best interests, is to make her a Crown ward. I accept the Respondents' assertions that their interactions with the child were more positive than described by the Peel Society workers. However, even after discounting the overly-negative descriptions of their conduct at access visits, the evidence clearly establishes beyond any doubt that neither the father nor the grandmother, individually or in combination, possess the necessary parenting abilities to adequately meet the child's needs in a sustained, consistent and stable way.

35Another embarrassing issue arose with respect to Peel Society worker Ms. Gheorghe. She received her Bachelor of Social Work degree (BSW) from the University of Bucharest in Romania. Her degree was assessed by the Canadian Association of Social Work (CASW) and found to be the equivalent to a Canadian BSW. However, in a letter dated September 12, 2003 from the CASW (Exhibit 7), it was made clear to Ms. Gheorghe that she was not permitted to add the letters "BSW" to her name. Despite this fact, Ms. Gheorghe's business card, which was tendered in evidence by the father's counsel as Exhibit 8, shows the letters "BSW" after her name. This is unethical, dishonest and misleading, and reflects poorly on her integrity and on the reputation of the Society which employs her. Such conduct certainly does not enhance a Society worker's credibility.

The Father's Plan

a) Father's Background and Special Needs

36The father wishes to raise his daughter on his own, while living with his mother and fiancée, and with their support. In the alternative, he wishes to raise the child jointly with his mother, with the assistance of his fiancée, who will also be living in the home.

37The father is a pleasant, attractive, soft-spoken, likeable 23 year old who has had a difficult life so far. His childhood was relentlessly punctuated with chronic neglect and abuse. He was assessed by the SCAN team for suspected abuse or neglect on three occasions [14]. For quite some time he suffered so severely from head lice that his scalp was bleeding and he was turned away from school, and was refused service by his dentist. His mother testified that he attended 22 different schools over a period of eight years. The first CAS referral was made the day after he was born, and he remained the subject of CAS involvement almost continually from the age of 3 years old until his 18th birthday, when he became an adult and his file was closed. He was twice admitted to foster care. The most recent apprehension (on November 16, 2004) arose from his complaint at 15 years of age that he was being physically and sexually abused by his step-father. He spent 6 months in foster care, followed by a 10-month placement with his aunt and uncle, after which he chose to return to his parents' home at the age of 17 years. The summary [15] of child protection concerns that persisted throughout his childhood is heart wrenching. Suffice it to say that this young man had very little, if any, positive parenting role modeling as a child upon which to develop his own parenting skills.

38Quite apart from his disadvantaged childhood, this gentleman has had to contend with a number of serious limitations. He suffers from global developmental delays in the areas of cognitive functioning, memory and speech. This young man with special needs did not receive the caregiving he needed to maximize his full potential. He is permanently disabled and receives an ODSP pension [16]. His ODSP application documents disclose that he has significant difficulty carrying on the activities of daily living and has an IQ below the 0.1 percentile. Given the repeated concerns expressed by the Society workers regarding the father's personal hygiene [17], it seems clear that the father has enough difficulty trying to take care of himself, let alone a young infant. [18]

39I had the opportunity to see and hear the father testify. I carefully observed his comportment, body language, tone of voice, inflection, and general presentation. It would be a serious understatement to say that his level of functioning is considerably lower than the norm. He presents as much younger than his 23 years, and expresses himself in an almost childlike way. He readily admitted to his disabilities, saying "I can't read or spell…I read at a grade 2 or 3 level [19]…What you say to me now I won't remember tomorrow." It was clear that he had very little recollection of the Society's evidence. It was also abundantly clear that he had no recollection of the version of events he gave the police on May 22, 2009 regarding the events leading up to the hospitalization of the child he was babysitting two days earlier. The version he gave the court at the trial bore almost no resemblance to what he told the police; worse yet, in the version he told the court, he absolved himself of any responsibility whatsoever for the child's injuries and actually attempted to portray himself as a hero who saved the child's life.

40The most startling revelation of the father's impaired functioning came during his testimony when he announced that last week he became engaged to a woman that he has known only two weeks. When he was asked his fiancée's name, it took him seven seconds to say "Kaitlyn". During this seven-second period it was obvious that he was desperately trying to remember her name. He said he didn't know her last name. He said that she has three children, neither of whom are in her care. At the court's suggestion, pursuant to s.49 of the Act, Kaitlyn was reached by telephone and asked to come to the court to testify. She is unemployed but has worked as a personal support worker. She stated that she has known the father for three months (not two weeks), and that she has two children (not three). Her daughter has been in the care of a paternal aunt for the past 18 months, and her 2-month-old son was apprehended at birth by the Catholic Children's Aid Society of Toronto (CCAS) and is in foster care, pursuant to an ongoing protection application. She said that the protection concerns identified by the CCAS revolve around her alleged drug use, even though she claims to have been drug-free for the past four years. She has only supervised access to her children at the CCAS office. Her plan is to assist the father in any way she can in raising the child. She agrees that the father's mother will live with them even though she only met her once, one week ago. The fact that the father would propose such a person as a co-parent to his child speaks volumes about his intellect, common sense and judgment. The father's own lawyer frankly admitted to the court that he had no idea about the existence of the father's fiancée until he testified!

A parent's disability is relevant only insofar as it affects his/her parenting capacity. In my view the father's disability has the following impact on his plan of care for his daughter:

• He has no insight into the significant child protection concerns that plagued the parenting he received as a child in his mother's care. In fact, he told Toronto Society worker Dedrie White on November 23, 2012 that he could not remember why his family was involved with Native Child and Family Services, [20] even though this involvement began when he was almost 15 years old, and led to his removal from his parents' home for a lengthy period of time. In his testimony, when asked about his childhood, he said, "I wasn't cared bad, I was cared good… I was taken to restaurants, movies, baseball games and trips… My stepdad took very good care of me." His lack of insight into the dismal parenting he received in his mother's care prevents him from appreciating the significant risk that she poses as a caregiver for his child. This is important, as the father plans to raise the child in his mother's home. Moreover, the fact that he would suggest, as his alternative plan, that his mother play a role in caring for his child, speaks volumes about his lack of insight into the horrendous parenting he received at her hands.

• He has no insight into the child protection concerns that have been consistently identified by both Societies over the past two years since the child was born [21]. He has not demonstrated any understanding of why the child was apprehended and has remained in foster care all this time. For the most part he does not acknowledge the parenting deficits that have been consistently observed over the past two years at access visits. This is important, as the father does not recognize the risks posed to the child by his own and his mother's limitations. For example, he stated that at access visits, "sometimes my brain is somewhere else for a second or two and then I come back", but he had no understanding of the risk that this would pose for any child in his care. When asked if his short term memory problem would pose a problem for him in caring for his child, he said, "No, I'll keep a calendar for her appointments". He did not appreciate the fact that keeping a calendar would constitute only a tiny part of what would be expected of a person with such a severe memory problem if he is to successfully meet a child's needs.

• His global developmental delay includes a significant learning disability and short term memory problem, which renders him unable to synthesize, retain and apply learned information in a consistent, sustained way. This conclusion is drawn from the myriad of examples set out in the observations of access visits by Society workers [22]. Viewed longitudinally, the father made very little progress in reading the child's cues and meeting anything more than her basic instrumental needs on a sporadic basis at access visits over the past two years.

• The father does not have a meaningful understanding of the child's special needs. At a meeting on November 23, 2012 with Toronto Society worker Dedrie White, both he and his mother were asked to explain what they understood to be the child's developmental needs. Both answered, "takes spoon and eats by herself", "walk a bit", "crawls quite a bit", "some toys", and "plays ball". [23] Given the number of meetings, access visits and court appearances that had occurred by that date, at which the issue of the child's special needs would most certainly have been discussed, it is telling that neither the father nor the grandmother were able to articulate anything approaching a reasonable response to Ms. White's question. Moreover, it is highly indicative of a parent who has virtually no understanding of his child's special needs and moreover, no capacity to even begin to address them. This was made even more abundantly clear during the father's testimony, when he was unable to remember anything meaningful that the child's developmental pediatrician, Dr. Kim, had to say when she testified about the child's special needs.

b) Father's Parenting Skills: Strengths

41The father has many strengths:

• He loves the child and shows her affection with some regularity, although not as frequently as would be reasonably expected. In particular, there have been some visits when he has failed to greet the child at the beginning of visits and/or say goodbye to the child at the end of visits.

• He has a good attendance record for access visits [24] and almost always arrives on time [25]. In fact he often arrives early for visits. That being said, he did not always avail himself of all the time offered to him for visits. On occasion he declined make-up visits when access visits were cancelled. [26] On occasion he declined extended access visits that were offered to him when the mother cancelled her visits or was late. [27]

• He has brought appropriate food and toys for the child at access visits.

• For the most part, his behavior in front of the child has been appropriate. He is polite with Society staff and has never challenged the workers' suggestions or argued with them. Even when he was in the process of separating from the child's mother, and even when he has demonstrated stress in his interaction with his mother, he has not exposed the child to any harmful behavior. He does not have substance abuse or anger management problems.

• He has made some use of the communication book at access visits, although his notations in the book have been minimal and he has not followed through with the foster mother's suggestions for appropriate stimulation-play to aid the child's motor skill development.

• Over time he has acquired some basic instrumental care skills (changing a diaper, dressing and feeding the baby), with less prompting and assistance than he required when access visits began.

• He has demonstrated the ability to properly engage and stimulate the child for short periods of time during access visits.

c) Father's Parenting Skills: Deficits

42Notwithstanding the above strengths, the father's significant parenting deficits far outweigh his strengths and render him unsuitable as a custodial parent for the child. There is no question that the father loves his child and has the best of intentions. He would never intentionally harm or neglect her, any more than he intentionally harmed or neglected the child he babysat and seriously injured in 2009. The tragedy of this case is that this is a man who has tried his very best to be the very best parent that he can be, to the best of his abilities. Sadly, his best is nowhere near good enough and never will be. This is because the father's parenting deficits are not his fault. They stem from his profound cognitive disability.

43My conclusions regarding the father's inadequate parenting skills stem largely from the observations noted by Society staff at access visits. Although I disregarded the evidence of the Peel Society workers' access observations except insofar as their observations were corroborated by other witnesses, I found that much of their observations were in fact corroborated by the evidence of Toronto Society worker Dedrie White. I found Ms. White to be a credible and reliable witness and I accept her evidence. Despite a grueling cross-examination, and the very reasonable concessions she made therein, she satisfied me that her observations of the Respondents at the access visits she supervised were complete, truthful, balanced and fair. Her evidence reinforced the conclusions drawn by the Peel Society, which had carriage of this case for the first 18 months of the child's life. Simply put, despite the extraordinary efforts made by Society workers, at weekly access visits over the past two years, to teach him how to adequately care for and interact with his child, the father is not capable of parenting his child without constant supervision by a reliable adult with good parenting skills.

44There have been dozens of access visits over the past two years. Throughout that time, the father has been able to demonstrate occasional, sporadic appropriate care and stimulation for the child for short periods. He did eventually acquire basic instrumental care skills such as diaper changing, dressing and feeding – although even in this respect there were numerous incidents when he needed to be prompted, instructed or cautioned by Society staff. For example, as recently as February 1, 2013, after almost two years of intensive instruction by Society workers at dozens of access visits, the father still had to be reminded to test the temperature of the child's food to ensure that it wasn't too hot.

45In addition, the father has demonstrated that he can show affection to the child and interact and play with her for short periods of time. He can stimulate and engage with her sporadically for short periods of time. However, he has never managed to do so consistently throughout an entire access visit, because he is easily distracted and has great difficulty maintaining his focus. Notwithstanding the fact that the visits last only two hours and occur only once per week, the father has not been able to sustain the necessary minimum parenting skills in order to properly meet the child's needs for the duration of a visit. Clearly, if he cannot manage to meet the child's needs for two hours per week, it would be unthinkable to expect him to do so on a full-time basis, particularly given the fact that the child will continue to grow and her needs will evolve and become more complex throughout the developmental stages of her childhood.

46Quite apart from the above-mentioned concern regarding the consistency and sustainability of the father's parenting skills, there is an equally serious concern regarding the quality of the father's interaction with the child. This is a child with special needs: she is globally developmentally delayed and requires active caregiving designed to stimulate and promote her gross motor and speech/language skills. The father's interaction with the child is fairly infantile [28] and not meaningful and beneficial to her in terms of aiding in her development. It is extremely doubtful that the father could ever meet the needs of a normal child (i.e. a child with no developmental delays). A fortiori, he most certainly does not have the capacity to meet the special needs of a child struggling with global developmental delay.

d) Father's Level of Cooperation and Forthrightness with the Society

47Although the father is consistently polite and respectful with Society staff, he has been less than forthright. At his meeting with Toronto Society worker Dedrie White on November 23, 2012, he claimed to have little or no memory of his own child protection history as a child. Yet, in his interview with the police, he readily stated, "I had a bad experience when I was little, with my Mom." [29]

48More importantly, when, at the same meeting, Ms. White asked the father whether he'd had any police involvement, or been arrested, charged or convicted of any criminal offence, the father said "I don't think so, have I mom?" Neither the father nor his mother mentioned that he had been charged with aggravated assault in 2009. After hearing the father testify, it is hard to know whether his responses to the Society worker's questions on November 23, 2012 reflect an honest inability to remember his involvement with the criminal justice system, or whether he was lying. I suspect a little of both. And frankly, even if it were true that the father was unable to remember that an event as important as a preliminary inquiry on a serious criminal charge had occurred a mere six months before the question was asked, this factor in and of itself would raise very serious doubt about his having the necessary cognitive abilities to raise a child.

49It is noteworthy that the father was not forthright with the police when he was interviewed two days after the child he babysat was severely injured. It was not until 1 ¾ hours into the interview that the father finally admitted that he had stuck his finger half-way down the baby's throat, and it was not until 2 hours into the interview that he finally admitted becoming upset, trying to do CPR and giving the baby "a little shake". Regardless of the father's cognitive disabilities, there is no question that he does not readily admit information that he feels might be detrimental to his interests. It is also noteworthy that the father's version in his testimony of this tragic event was completely different than the version he gave the police; in his testimony he absolved himself of any responsibility whatsoever for the child's injuries, and attempted to portray himself as a hero who saved the child's life.

50After considering all of the evidence, I find that the father has not been honest with the Societies about important events in his past which impact on his parenting capacities. If the child were placed in his care, either solely or jointly with his mother, he could not be trusted to be honest and truthful in relaying important information to their Society worker regarding the child. As discussed below, the same conclusion has been reached regarding the grandmother.

e) Relationship Between Father and Paternal Grandmother

51The father and grandmother live together. It is clear that this is an arrangement that suits them. Although each of them is seeking sole custody of the child as their first preference, they want to continue living together, and they are requesting joint custody as a second choice. Regardless of whom the child is formally placed with, it seems clear that if the child is living in that home, both of the Respondents will have a lot of parenting involvement. Accordingly, it is important to examine the dynamics of that relationship in order to determine whether they can provide a happy, loving, harmonious home for the child, and also whether they can work well as a team.

52Despite the father's protestations to the contrary in his testimony, the evidence suggests that there is considerable tension in the relationship between the father and grandmother. We know from the Agreed Statements of Facts filed, that there was a period of time when the father lived with his aunt and uncle as a teenager, and for at least part of that time he did not want access to his mother. [30] The father also told the police on May 22, 2009 that he'd moved in with the mother of the baby he injured because he and his mother "got into an argument, into a fight". [31]

53During access visits there were numerous incidents where the father repeatedly ignored his mother's suggestions for taking care of the child, or answered her rudely [32]. There were very few, if any, access visits where the father and grandmother were working together as a team to appropriately interact and engage the child. The father explained his refusal to follow his mother's suggestions by saying, "I can't do two things at once", despite the fact that at no time during any access visit was he asked by anyone to do two things at once. The unmistakable impression created by the evidence is that the father and his mother do not get along well and would not be able to co-parent the child. Moreover, there is no doubt that if the father had sole custody, he would not accept his mother's guidance, direction and assistance.

54I also found it noteworthy that for the entire duration of the trial, the father and grandmother sat at opposite ends of the courtroom. This only served to underscore the Society's position that the Respondents do not work well as a team and could not join forces to meet the child's needs.

The Paternal Grandmother's Plan

a) The Paternal Grandmother

55The paternal grandmother is asking for an order placing the child in her sole care under Society supervision. Alternatively, she is asking for an order placing the child in the joint care of herself and the child's father. Regardless of which order is made, she and her son wish to continue to reside together. She appeared to be supportive of her son's marriage plans and smiled throughout her future daughter-in-law's testimony.

56The paternal grandmother is a pleasant, strong-willed, opinionated, outspoken person who is not afraid to speak her mind, albeit in a polite and courteous way. She described herself as "retired", but she has a needlepoint business and works part-time as a truck driver. She is financially secure and lives in a home which the worker described as clean and tidy. No expert evidence was presented regarding the level of her cognitive functioning. She stated that she is very offended by the suggestion (by the Society I assume) that she is "mentally challenged". In my opinion there is no evidence to suggest she is "mentally challenged", and I told her so when she completed her testimony.

57In fact the Society workers did express some concerns regarding a possible mental health issue affecting the grandmother [33]. There are some allegations of bizarre behavior. For example, on June 27, 2011, the father told Peel Society worker Anda Gheorghe that his mother asks him to help her get dressed when she is naked, that she asks him to get into the shower with her and that she asks him to sleep with her. [34] On November 1, 2012, the grandmother told Toronto Society Worker Dedrie White that she was convinced that the foster mother was feeding the child only water, despite the worker's assurances that the child was being properly fed, [35] and despite the fact that the child was known to be a good eater [36]. After hearing the grandmother testify, I appreciate these concerns, and would agree to the extent that she appears to be somewhat eccentric – but that is true of many people, and not necessarily indicative of a mental health problem. I am unable to conclude on a balance of probabilities that the grandmother is suffering from a mental illness, personality disorder or cognitive disability.

b) Past Parenting

58The paternal grandmother's lengthy child protection history throughout her son's childhood does not bode well for her plan to play a caregiving role for her granddaughter. I am acutely mindful and have cautioned myself of the law regarding the limited use which should be made of past parenting evidence, particularly if it is dated: Children's Aid Society of Waterloo v. C.(R.), 1994 CanLII 4520 (ON CJ), [1994] O.J. No.2955 (Ont.C.J.); Children's Aid Society of Toronto v. L.L., 2010 ONCJ 49 (Ont.C.J.); Catholic Children's Aid Society of Toronto v. S.(S.), 2010 ONCJ 656 (Ont.C.J.). Although the grandmother's unsatisfactory parenting skills throughout her son's childhood are relevant to her plan for this child, her past parenting history would not in and of itself have precluded her from obtaining custody (or joint custody) of her granddaughter. However, in order for this to be a realistic possibility, the court would have to be satisfied that: (1) the grandmother has developed insight into her past parenting deficits so that she is motivated to improve her parenting skills; and (2) she has demonstrated sufficient improvement to her parenting skills so that she can provide the child with adequate care to meet her needs and best interests.

59Unfortunately, the grandmother has gained no insight into her past parenting problems because she has never acknowledged any protection concerns [37]. At no time over the past two years has she been forthright and honest to the Society workers about her lengthy CAS history and the reasons for their protracted and at times intensive involvement in her life. She told Peel Society intake worker Felicia Francis on February 9, 2011 that she could not remember why her son had been in foster care, and that her CAS history did not matter as she was a "good mother". [38] On March 24, 2011, she told Peel Society Kinship Services worker Danielle Ungara that none of her past records would be of concern because she was an ex-security officer and had a first aid certificate. [39] On November 23, 2012, when asked by Toronto Society worker Dedrie White why she'd been involved with child protection agencies, she responded "I don't know, they were useless. I went to 5 or 6 parenting courses; they didn't help us; one was a cooking course…I cannot recall why we were involved with them." [40] At that same meeting she was asked if there was anything she felt she needed to learn about parenting, and she answered, "I don't think so." [41]

60In submissions, counsel for the grandmother argued that the court should infer that the grandmother may not have understood the questions that the Society workers were asking about her CAS history, and/or she may not have understood the importance of those questions in terms of her plan of care for the child. I do not agree that any such inferences should be drawn because: (1) the questions being asked of the grandmother were simple, and she was adamant in her testimony that she has no "mental challenges"; (2) the grandmother never told a Society worker or the court that she did not understand the questions or the reason why they were being asked; (3) the grandmother was asked virtually the same questions when she testified and she clearly had no difficulty understanding and answering them.

61At the trial the grandmother categorically denied the existence of any past parenting problems. When asked about her CAS history she said, "It was a bunch of lies." When specific incidents were raised with her in cross-examination, she either claimed to have no memory of them, denied them or minimized them. She said she had no idea why the CAS was involved in her life for so many years, saying "I was able to meet my son's needs."

62In submissions the father's counsel argued (and in cross-examining Toronto Society worker Ms. White, the grandmother's counsel seemed to be suggesting) that too much emphasis was placed on the grandmother's past parenting, without taking into account the fact that much (if not most) of her parenting problems stemmed from the presence of her husband Mr J. in the home. Mr. J., who was the father's step-father, died in 2008 and is therefore no longer a stressor in the Respondents' lives. Counsel asserted that, now that Mr. J. is gone, the grandmother's parenting would be much better, and that there would be no risk to the child if placed in her care.

63I agree that Mr. J.'s absence is likely a good thing in terms of minimizing the stress to the Respondents. However, I cannot agree that this factor significantly reduces the child protection concerns regarding the grandmother's plan. My reasons are as follows:

• The grandmother's CAS history began the day after her son was born, which was several years before Mr. J. came into her life.

• If it is indeed true that Mr. J. was responsible for the longstanding abuse and neglect that the father suffered, it was incumbent on the grandmother, at some point during the child's 18-year childhood, to take reasonable action to protect the child from him. She had multiple opportunities to get the assistance she needed in this regard, as she had numerous CAS workers assigned to her over the years.

• At no time over the past two years did the grandmother tell any of her Society workers that her CAS history stemmed from Mr. J.'s presence in the home. And at the trial she praised her deceased husband's parenting skills, saying "he was a very good father".

• If in fact Mr. J. had been the primary cause of her past parenting problems and CAS history, one would have expected that the grandmother's parenting skills at access visits would have been much better than they were. However, as the next section of these Reasons sets out, the grandmother's parenting skills are as weak as the father's. Mr. J. can certainly not be blamed for that.

64Accordingly, I have taken into account that some of the grandmother's past parenting problems raising her son stem from the presence and conduct of her deceased husband. However, I reject the suggestion that the child protection concerns arising from her longstanding history of poor parenting – including her history over the past two years at access visits - should be significantly diminished by this factor.

c) Current Parenting Skills

65Unfortunately, the grandmother's conduct at access visits was not much better than the father's. Throughout the plethora of evidence describing dozens of access visits that occurred over the past two years, the grandmother has consistently taken on the role of a disengaged and passive observer. There were sporadic instances at each visit when she engaged with the child, helped dress or feed the child, and showed the child love and affection, but these instances were far too few and far between to demonstrate adequate full-time parenting skills. At the trial the grandmother stated that the reason for her passivity at access visits was that she had been "traumatized" by her relationship with the child's mother, who had forbidden her from touching the child. This explanation makes sense to some extent [42] relating to the initial period at the beginning of this case when the child's mother was attending access visits with the father and grandmother (from February to September 2011). However, since September 2011 the mother has not been present at access visits and ought to have had no influence on the grandmother's conduct and interaction with the child at visits.

66Moreover, it is abundantly clear that the grandmother is unable to exercise the necessary degree of influence over the father when he fails to respond to the child's cues, ensure her safety and comfort, or keep her appropriately engaged and stimulated. Nor has she demonstrated that she can pick up the slack by doing these things herself when the father doesn't follow her suggestions. In her testimony the grandmother gave the distinct impression that the father doesn't really need her to help with the child. She said that her son is capable of taking care of the child on his own "because of his experience at access and he used to babysit". It is nothing short of astounding that she would consider the son's babysitting experience to be a positive indicator of his parenting skills, given his videotaped confession to the police on May 22, 2009, which I'm told the grandmother had the opportunity to view.

67Even in the rare instances when the grandmother did attempt to provide basic instrumental care, she required just as much prompting and supervision as the father. For example, as recently as February 1, 2013, the grandmother was feeding the child noodles, and the forkfuls were so full that the child was coughing. The Society worker had to tell the grandmother three times to put less food on the fork so the child wouldn't choke. The grandmother kept responding "I know, I know", but then would not do it. It is extremely concerning that, after almost two years of supervised access visits at which the workers were diligently teaching and guiding the Respondents, they were still unable to complete relatively simple tasks without active intervention.

68The grandmother demonstrated considerably more understanding of the child's special needs than the father. She stated that the child is developmentally delayed and needs physiotherapy, occupational therapy and speech therapy. However, she would not want the child to continue receiving services at Erin Oak Centre for Treatment and Development because it's too far from her home and she feels the Hospital for Sick Children would provide better services. It is rather ironic that the grandmother appears to have a better understanding of her grandchild's special needs than she ever demonstrated with respect to her own son's special needs. Notwithstanding her son's own testimony regarding his cognitive disabilities [43], she was confident that he is fully capable of taking care of his child on his own.

The grandmother told Society workers that she was prepared to hire a nanny to take care of the child during the day (not live-in). [44] Neither she nor her son made any mention of this when they testified. I was told by the grandmother's counsel in submissions that this offer is still being made, although their preference would be to place the child in daycare. Regardless of whether the child is in daycare or in the care of a daytime nanny, these options do not address the protection concerns that would arise at night when the child would presumably be in the care of the grandmother, her son and his fiancée. And, as Ms. White points out in paragraph 41 of her affidavit, "nannies can come and go, they sometimes quit, sometimes they are fired." Continuity of adequate care cannot be assured with an employee.

d) Level of Commitment to the Child

69Like the father, the grandmother has for the most part attended access visits regularly and on time. However, she has never come to visits without the father. When he was unable to attend, she did not avail herself of the opportunity to attend on her own. Nor did she ever request access visits on her own even though she was offering herself as the primary caregiver with the parents' consent. That being said, it would have been advisable for the Society to schedule access visits for the grandmother alone, so they could assess her parenting skills without anyone else present. More will be said about this further in these Reasons.

e) Forthrightness with the Society

70As mentioned above, the grandmother was not forthcoming to the Society at any point when asked to explain her CAS history. Nor did she tell the Society workers about her son's criminal justice system involvement. [45] Her testimony speaks for itself in terms of her cavalier attitude towards her extensive CAS history. In talking about her son's childhood, she said "the system let him down", but took no responsibility for the part she played in her son's turbulent childhood. Unfortunately, the same concerns mentioned at paragraph [50] relating to the father's forthrightness with the Society apply even more to the grandmother because: (1) she is not suffering from the same cognitive deficits as her son and therefore has no excuse for failing to remember and disclose important details from her past; and (2) she swore an affidavit on November 23, 2011 (Exhibit 28) in furtherance of her claim for joint custody with her son, in which she provided a great deal of background information about herself, but nowhere did she mention her CAS history or the fact that her son was facing a charge of aggravated assault upon a baby.

71Accordingly, for the above reasons, the parenting plans proposed by the Respondents are rejected because they would not be adequate to address the serious protection concerns that form the basis for the finding that the child is in need of protection.

The Society's Plan

72The Society takes the position that the least intrusive option that would meet the child's best interests is to make the child a Crown ward without access so that she can be adopted. The Society has adduced an affidavit from adoption worker Susan Froehlich setting out the basis for their position that the child is adoptible. The Respondents have conceded that the child is adoptible.

The Child

73By all accounts the child is a beautiful, happy, healthy, affectionate and very sociable 2-year-old little girl who is well bonded to the foster family with whom she has resided since birth. The foster mother testified that she is engaging and interacts very well with the other children in the home. According to her developmental pediatrician, Dr. Marie Kim, the child has mild global developmental delay in three areas: gross motor skills, fine motor skills, and speech. Although she is 24 months old, she functions at the level of a 12 to 15 month old. It is too soon to say if she is permanently disabled.

74Dr. Kim testified that, in order for the child to develop to her fullest potential, she needs a structured preschool program. She has been referred to a pediatric pre-school rehabilitation team for physiotherapy, occupational therapy and speech therapy. Dr. Kim emphatically stated that the child requires caregivers who will actively work with her in a "structured, enriching environment…the caregivers must be in tune with the child's needs and the environment must promote her development…they must be able to follow through with the recommendations made, not just bring the child to appointments." In my view, given the evidence referred to above, neither of the Respondents, individually or together, or with the assistance of the father's fiancée, could be relied upon to meet the child's special needs in a sustained way on a long-term basis.

Best Interests Analysis

75In arriving at a disposition that will be in accordance with the child's best interests, the following factors in s.37(3) of the Act are in my view the most important:

1. The Child's Physical, Mental and Emotional Needs, and the Appropriate Care or Treatment to Meet Those Needs

76Despite two years of intervention, modeling and instruction by Society workers at access visits, the Respondents still require prompting and supervision in feeding the child. In addition, the evidence of the Respondents' conduct at access visits demonstrates beyond any doubt that neither of them has the ability to provide the child with the necessary affection, stimulation and interaction on a sustained and consistent basis.

2. The Child's Physical, Mental and Emotional Level of Development

77As stated above, the child has special needs and will need a variety of services to promote and hopefully accelerate her development. The Respondents' plans do not adequately meet the child's special needs.

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

78The child has been living in the same foster home her entire life. She sees her father and grandmother once weekly for two hours. There is no significant attachment or bond between the child and the Respondents because: (1) the access schedule is very limited; and (2) the quality of the interaction and engagement between the father and grandmother and the child at access visits is poor.

79The child has a half-sibling, born […], 2012. That child is in foster care and is the subject of a separate child protection proceeding. There was no evidence as to whether there has been any contact between these children. It is hoped that the Society can find adoptive parents who may be open to sibling access. In any event, given the urgency in this case due to the extreme violation of the time limitation in s.70(1) of the Act [46], the child's permanent placement with suitable caregivers who are committed to meeting her needs must take priority over sibling access at this time: Family, Youth and Child Services of Muskoka v. C.(N.), L.(W.) and B.(M.)(No.1), 2002 CarswellOnt 5704 (Ont.S.C.).

7. The Importance of Continuity in the Child's Care and the Possible Effect on the Child of Disruption of That Continuity

80The child has resided in the same foster home since birth. She is well bonded to the members of her foster family. As they are not planning to adopt the child, she will have to be moved to an adoptive placement when the most suitable caregivers have been found who will best meet her needs. The child is emotionally healthy. There is no evidence to suggest that she will not be able to adjust to this inevitable disruption to her life. In any event, Crown wardship for the purpose of adoption is the least intrusive and disruptive option that will be in the child's best interests. The benefits of adoption will hugely outweigh the disruption caused by a change of placement, provided the Society's adoption department finds the right adoptive parents. The evidence of Susan Froehlich satisfies me that the Society will not have difficulty in this regard.

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

81The Society is proposing to place the child for adoption. The undisputed evidence is that the child is adoptible. For the reasons set out above, I find that this plan is the best and least intrusive plan that will meet the child's best interests.

10. The Effects on the Child of Delay in the Disposition of the Case

82A review of the chronology of the litigation leads to the inescapable conclusion that the system has let this child down. She has been a Society ward for twice the length of time that the law permits. It is beyond urgent that a permanent "forever family" be found for her. Any further delay in this case by way of an extension under s.70(4) of the Act (keeping the child in the Society's temporary care for up to another 6 months to give the Respondents more time to acquire the necessary parenting skills) would be unconscionable. Nor would such an extension be beneficial, as there is no reason to believe that the Respondents will ever acquire the necessary parenting skills to raise a child. In any event, neither Respondent requested such an extension.

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

83The protection concerns that justified the finding that the child is in need of protection still remain very much alive. Although the father's criminal charge was disposed of by way of a discharge at the preliminary inquiry, this in no way affects this court's conclusion that the father's cognitive disabilities, poor judgment and lack of common sense (as evidenced in his description of events in his police interview) would render him totally unsuitable to parent this or any child. The grandmother's lack of insight into her own parenting deficits, combined with the poor parenting skills she demonstrated at access visits, makes her an unsuitable caregiver for this or any child. Although I understand the Respondents' position that they have tried their best to show acceptable parenting skills, I must regrettably conclude that the child would be at great risk of harm if placed with either or both of them.

Society's Efforts to Assist the Family

84In accordance with s.57(2) of the Act, I am required to inquire as to the efforts made by the Society to assist the children before intervention occurred.

a) Efforts by Peel Society

85The Peel Society made the following efforts to assist the family:

• Constant teaching, intervention and role modeling during access visits.

• They offered the Respondents a referral to Toronto Community Living, which provides support services for disabled adults. [47] This offer was declined.

• They began conducting a kinship assessment of the grandmother, but discontinued the process once they discovered her lengthy CAS involvement and her total lack of insight into her past parenting problems. The Society was correct to do this. A kinship assessment of the grandmother, given her history, her attitude towards it, and her conduct at access visits, was doomed to fail and would have been a waste of time.

• They asked the Respondents to propose alternate family placements. The Respondents proposed an aunt and uncle, neither of whom contacted the Society. The Respondents did not give the Society any contact information for the aunt and uncle. Society worker Anda Gheorghe spoke with a cousin, who declined to become involved.

• They asked the child's mother to propose alternate family placements. No one proposed by her was considered suitable to care for the child due to prior CAS involvement.

• They considered conducting a parenting capacity assessment but decided it would not be necessary. They were correct. The court did not require the assistance of expert opinion evidence regarding the Respondents' parenting skills. In this case the facts speak for themselves.

• They considered enrolling the Respondents in the Therapeutic Access Program but decided that this would not be necessary, given the intensive instruction the Respondents were already receiving from Society staff at access visits. The Society was correct in this decision.

b) Efforts by Toronto Society

86The Toronto Society made the following efforts to assist the family:

• Constant teaching, intervention and role modeling during access visits.

• They made inquiries of the Respondents regarding the possible involvement of the same aunt and uncle that were mentioned to the Peel Society. The aunt and uncle have not contacted the Society.

• They made inquiries to determine whether the father would be eligible for an adult protection worker due to his cognitive disabilities. Unfortunately they learned that, because the father lives with his mother, he is not eligible for this assistance. Only disabled adults who live alone are eligible.

c) Society's Obligation to Assist Parents with Special Needs

87Both of the Respondent's counsel argued that neither Society did enough to assist their clients to acquire the necessary parenting skills in a way that would meet their special needs [48]. It is true that, where a parent has a learning disability (or any disability for that matter), the Society must make reasonable accommodations to assist the parent to overcome any obstacles that might impede his/her access to services or opportunity to learn the necessary parenting skills.

88In this case the Society workers regularly instructed, intervened and modeled the appropriate parenting skills for each situation that arose at each access visit. They tried to show the Respondents what to do by hands-on demonstrations, explanations and coaching. This occurred over 24 months, without much sustained success. If the Respondents were taking the position that the Societies ought to have employed different techniques or accessed different resources to assist their clients to learn parenting skills in a way that would best meet their needs, it would have been helpful had they presented some evidence of a pedagogical technique for teaching parenting skills that has been proven successful on parents with cognitive disabilities. In the absence of such evidence, I must conclude that the Society made all reasonable efforts to convey the necessary instruction and guidance to the Respondents.

89Another point must be made here. In cross-examining Toronto Society worker Ms. White, the father's counsel suggested that she ought to have intervened more often when he did something wrong, or when he failed to do something he ought to have done – for example, when he didn't say goodbye to the child at the end of access visits. Frankly, if a parent's intellectual and cognitive functioning is so low that he needs to be told to say goodbye to his own child at the end of an access visit, he clearly does not possess the necessary intuitive abilities to raise a child. Any child in such a parent's care would be at risk of emotional harm.

90The degree of intervention, confrontation and instruction that counsel was suggesting that the Society workers ought to have engaged in during access visits would have excessively disrupted the access visits and possibly undermined the parent-child relationship that the Society was trying to encourage and promote. It also would likely have undermined the working relationship between the workers and the Respondents.

91In cases such as this (where a parent has cognitive disabilities), the Society workers at access visits must strike a balance between (1) teaching parenting skills, and (2) sitting back to observe how the parents apply their skills, in order to assess whether they can parent the child on their own. In my opinion, the correct balance was struck by the workers in this case.

92It must also be said that, while a lot of intervention and teaching is appropriate in the early stages of the case when access is just beginning, the need for such instruction should decline with the passage of time, as the parents should be learning and making gains by properly applying the skills they've been taught. They should not need as much instruction after two years as they did two years ago. In this case the Respondents continued to require a great deal of coaching and prompting even after two years of attending access visits where essentially the same instrumental parenting tasks were being conducted. If they are asking to parent the child on their own without live-in help from a suitable caregiver, they must show that they can meet the child's needs without constant supervision and instruction. The Respondents failed to do so.

d) Society Ought to Have Offered Grandmother Access on Her Own

93As mentioned above, neither Society offered the grandmother an opportunity to visit with the child alone, without her son. Even though the grandmother never asked for this (and she should have), the Societies ought to have offered it. Any time a party's plan seeks sole custody, he/she ought to be given an opportunity to visit the child on his/her own so that the Society can assess that person's parenting skills without the presence and possible interference of the other party. This was especially important in this case, given that tension had been observed between the father and his mother. If the grandmother had demonstrated good parenting skills on her own without her son present, it is possible (though admittedly not likely) that the Society might have supported her plan (which might or might not have incorporated her son living with her). This being said, the preponderance of the evidence satisfies me on a balance of probabilities that, even if the grandmother had visited with the child alone, she would not have succeeded in meeting the child's needs significantly better than the father.

94In all of the circumstances I find that both Societies made reasonable efforts to assist this family.

Alternative Family or Community Placements

95Section 57(3) of the Act requires the Court to select the least disruptive alternative that will protect the child and meet her best interests. Section 57(4) of the Act requires the Court to consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family. In this case both Societies made reasonable efforts to identify any family or community placements for the child. They received virtually no assistance in this regard from the Respondents. No family or community member has come forward in the past two years to propose a plan or even request a visit with the child. I find that there is no viable kinship plan for the child.

Disposition

96For all of the above reasons, the least disruptive alternative that will meet the child's best interests is that she be a Crown ward.

Access

97Section 59(2.1) of the Act prohibits the granting of access 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.

98It takes more than pleasant encounters to constitute a "beneficial and meaningful" relationship for a child; the child must be bonded and emotionally attached to the parent before the first branch of the test in s.59(2.1) of the Act can be satisfied: Children's Aid Society of Niagara Region v. J.C. (2007), 2007 CanLII 8919 (ON SCDC), 36 R.F.L.(6th) 40 (Ont.Div.Ct.); Children's Aid Society of Owen Sound and Grey County v. T.T. (2005), 2005 CanLII 24909 (ON SC), 16 R.F.L.(6th) 235 (Ont.S.C.). As Sherr J. wrote in Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803 (Ont.C.J.) at para. 45, "even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child."

99The child sees her father and grandmother for 2 hours once per week in fully supervised visits. Given this fact, and having carefully considered the nature and quality of the access visits, I have concluded that the relationship between the child and her father and grandmother is not "beneficial and meaningful" to her in the way contemplated by the legislation and jurisprudence.

100As the first branch of the test in s.59(2.1) of the Act has not been met, it is not necessary to address the second branch of the test. In any event the onus is on the Respondents to show that an access order would not impair the children's future opportunities for adoption. They must satisfy the court that access will not diminish, reduce, jeopardize or interfere with the children's future opportunities for adoption; this is a heavy onus: Catholic Children's Aid Society of Hamilton v. S.(L.), 2011 ONSC 5850 (Ont.S.C.), paras 419 – 421 and 427. The Respondents led no evidence to address this issue and accordingly did not meet their onus.

101Accordingly, no access to the Respondents shall be ordered.

Sibling Access

The child has a half-sibling, F.M., born […], 2012. Although the evidence is silent in this regard, I suspect that these children are complete strangers to one another. Hopefully the Society will rectify this in due course so that these half-siblings will be able to have a relationship. However, the primary concern at this point must be to provide the child with a permanent placement in a stable, happy and loving home; this must take precedence over sibling access at this time: Family, Youth and Child Services of Muskoka v. C.(N.), L.(W.) and B.(M.)(No.1), 2002 CarswellOnt 5704 (Ont.S.C.). For this reason, and also because no evidence was adduced to address the issue of what is in the best interests of both children regarding contact with one another, I am not making any order specifying sibling access: CAS Niagara Region v. J.(M.) (2004), 2004 CanLII 2667 (ON SC), 4 R.F.L.(6th) 245 (Ont.S.C.). However, the law is clear that the Society has inherent discretion as legal parent of the child to arrange contact with anyone they deem appropriate as being in the child's best interests: CAS Toronto v. P.(D.) (2005), 2005 CanLII 34560 (ON CA), 19 R.F.L.(6th) 267 (Ont.C.A.).

Order

1. There shall be an order setting out the statutory findings in accordance with the further amended protection application issued October 21, 2011 (Trial Record, tab 4);

2. The child shall be found to be in need of protection pursuant to s.37(2)(b)(i) of the Act;

3. The child shall be a Crown ward.

Conclusion

67Finally, I wish to thank counsel for their professionalism, sensitivity, efficiency and child-focussed approach throughout this trial.

The Honourable Mr. Justice H.P. Brownstone

Released: February 15, 2013