WARNING

The court hearing this matter directs that the following notice be attached to the file:

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

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: June 19, 2015

Court File No.: Toronto CFO 12 10278 A3

Between:

Children's Aid Society of Toronto, Applicant

— AND —

M.M., Respondent

Before: Justice B. M. Scully

Heard on: June 16, 17, 18, 20, 24, and 25, 2014; July 8, 2014; September 8, 9, 2014; October 8, 2014; January 12, 13, 2015; February 5, 2015

Reasons for Judgment released on: June 19, 2015

Counsel:

Ms. Martha Chamberlain — counsel for the applicant society

Ms. Julie Ralhan — counsel for the respondent

SCULLY, B. M. J.:

I. Introduction

[1] The Children's Aid Society of Toronto seeks an order of Crown Wardship without access for the child N.M., born […], 2012.

[2] The mother of the child, Ms. M.M., seeks the return of the child to her care under Society supervision, or in the alternative, that she be granted access to the child. Ms. M.M. has two other children: M.M. born […], 1999, sixteen years of age, and S.M., born […], 2014, eleven years of age. Mother and her two daughters lived with and were supported by the maternal grandmother until 2009. Since May 2009, Ms. M.M. has been the primary caregiver of these girls. While she has received the assistance and support of the Children's Aid Society of Toronto with regard to her two daughters, these children were never apprehended and Ms. M.M. has never been subject to a supervision order for her daughters.

[3] Due to concerns pertaining to Ms. M.M.'s cognitive limitations and history of domestic violence, Ms. Giselle Mara, a family services worker with the Society, had been working on a voluntary basis with the M. family since January 29, 2010.

[4] Upon the discharge of Ms. M. and her son, N., on March 12, 2012, from the hospital, Ms. Mara met with Ms. M. at the apartment she was sharing with Mr. O.M., father of the child, and the two girls, M. and S. Following a conversation with Mr. O.M. and appreciating the lack of support available to Ms. M. should she continue to reside there with her three children, Ms. Mara advised Ms. M. that she would need to find alternate accommodation with support.

[5] Ms. M. and her three children moved into the maternal grandmother's residence. That accommodation was crowded as Ms. M.'s sister and her husband were also sharing that residence with the maternal grandmother.

[6] The child, N, was apprehended on March 23, 2012, due to concerns that the child was losing weight and neither his mother nor extended family members were able to provide sufficient basic care of the child.

[7] Pursuant to an Agreed Statement of Facts, filed May 17, 2012, Justice H. Katarynych found the child in need of protection under section 37(2)(b) of the Child and Family Services Act (CFSA), made the child a ward of the Children's Aid Society of Toronto and placed the child in the care of the Society for a period of four months with access to the child to be at the discretion of the Society.

[8] The parties agreed that the order was in the best interest of the child as Ms. M. lacked basic parenting skills to provide care to her son at that time. Ms. M. had shown a commitment to learning how to care for her son and was participating in programs. Her ability to learn skills, retain information, and apply information as N.'s developmental needs change was being assessed during her access visits. Ms. M. was eager to develop her parenting skills and have N. returned to her care. However, the Society believed that returning N. to her care at that time would place him at increased risk of harm, given N.'s vulnerable age and Ms. M.'s further need to acquire and demonstrate appropriate parenting skills.

[9] The Society filed a Status Review on October 11, 2013, seeking an order of Crown Wardship with no access.

II. The Evidence

Society's Evidence

[10] Dr. Kathyleen McDermott, Ms. Giselle Mara, Ms. Shannon Deacon, Ms. Kim McLean, Ms. Moira Billard, Ms. Ellen Sabasta, Ms. Gulmar Manji, Ms. Susan Oley and Ms. S.P. testified for the Society.

A. Dr. Kathyleen McDermott

[11] Dr. McDermott, a clinical psychologist, was qualified as an expert in the field of cognitive assessment on consent and after a review of her qualifications.

[12] Dr. McDermott was asked to assess Ms. M.'s intellectual and cognitive functioning, strengths and weaknesses in that functioning, language and communications abilities and her emotional functioning and its impact on her ability to learn.

[13] Dr. McDermott met with Ms. M. on one occasion in December 2012. The meeting lasted for three hours. For the first two hours Dr. McDermott took a history from Ms. M. and then, after a lunch break, conducted some statistical testing with Ms. M. for one hour. On January 8, 2013, Dr. McDermott provided the Society with the results of her psychological testing. The information was not shared with Ms. M. nor with Ms. M.'s counsel. On January 31, 2013, Dr. McDermott asked for and then received affidavit material from the Society. She did not request any documentation from Ms. M. or her lawyer. Following the receipt and review of the affidavit material from the Society, Dr. McDermott did not conduct a further interview with Ms. M. or any collaterals.

[14] In her report, dated March 14, 2013, Dr. McDermott described Ms. M. as a very warm and affectionate woman who, due to her very low intellectual functioning, engages in simplistic thinking. She found that while Ms. M. may accumulate and retain information, she would have difficulty evaluating what is important and necessary. Dr. McDermott noted that Ms. M. would likely have a problem with logical progression, generalizing from one situation to another. Reading at a kindergarten level, Ms. M. could rely on her children M. and S. as they are of an age to read things for her and help her exercise judgement and make decisions. Dr. McDermott further opined that while Ms. M. can negotiate her way around the community and knows that her children need to get up and go to school, she may not appreciate when routines need to change. Dr. McDermott's report was filed with the court.

[15] Dr. McDermott concluded her testimony with the observation that persons functioning at Ms. M's intellectual level are capable of parenting but would need a solid partner or support.

B. Ms. Giselle Mara

[16] Ms. Giselle Mara, filed three affidavits in the course of the trial, the first dated May 16, 2004, the second upon the resumption of the trial, dated September 4, 2014, and the third on the further resumption of trial, dated January 6, 2015. Ms. Mara testified on June 16, 2014, June 20, 2014, June 24, 2014, September 8, 2014 and January 12, 2015.

[17] Following N's apprehension on March 23, 2012, Ms. Mara met with Ms. M. on March 27, 2012. Ms. M. told Ms. Mara that she would co-operate completely and take any training offered to allow for the return of her son to her care.

[18] An access schedule was initiated affording mother visits every Wednesday and Friday from 10 a.m. to 12 p.m. Mother was observed to be affectionate, appropriate and consistent. Mother's daughters M. and S. came to visits during the summer months after the completion of the school year. M. was observed to be very caring and affectionate with her younger brother, N.

[19] Noting an improvement in mother's ability to provide basic care for her infant son, a referral was made to the Society's Therapeutic Access Program on August 23, 2013, to teach Ms. M. about child development. Access at that program began on October 11, 2013, each Tuesday and Thursday between 10 a.m. and 2 p.m. The children, M. and S., were integrated into the Therapeutic Access from November 2012 through January 2013 between the hours of 4 p.m. and 6 p.m. At an access review meeting involving mother, Ms. Mara and Ms. Shannon Deacon, Program Co-ordinator for the Therapeutic Access Program, on January 10, 2013, it was noted that Ms. M. was doing very well attending to N.'s basic needs and play to allow for his proper development. Ms. M. was observed, in access, to be nurturing and calm, able to recognize when something did not go well.

[20] In March 2013, on the basis of Ms. M.'s ability to care for N. during access and her willingness and capacity to take instruction and model, a decision was made by the Society, despite the limitations noted in Dr. McDermott's report of March 14, 2013, to move access to mother's home.

[21] In April 2013, Ms. Moira Billard, a family support worker with the Society and Ms. Susan Oley, a foster parent support worker, reported that the day access visits in the home were going well. On that basis and the progress that mother had made, a decision was made at court on May 7, 2013, to commence overnight visits, Monday 10 a.m. to Tuesday 2 p.m. as of June 3, 2013. Society workers would be available in the home for four to eight hours in that twenty-eight hour period to assist the family. A second weekly visit was scheduled Thursdays. The plan was to integrate N. with his family by July 15, 2013.

[22] On April 24, 2013, five weeks prior to the first scheduled overnight visit, Ms. S.P., N's foster mother, reported that over the course of the month of April, N. had been sick and teething, resulting in him losing weight. She also noted that he was very picky as to who fed him. On June 3, 2013, the first scheduled overnight visit, Ms. S.P. reported that N. had been ill over the weekend, taken to the hospital and prescribed three different medications for an ear infection. To assist mother in noting when to administer the medication twice a day, a chart was developed showing a sun for the morning and a moon for the evening. With this assistance, mother was able to follow the chart.

[23] In the first month of overnight visits, June 3 to July 3, 2013, mother's access to N. was deemed to be uneven. On June 10, 2013, Dr. Cohen, the Society's paediatrician noted good weight gain in the previous week. On June 12, 2013, after N. had an overnight visit with his family, Dr. Cohen noted a loss of weight from 10.51 kilograms to 10.48 kilograms. On June 14, 2013, Ms. M. reported a concern that N. was not eating enough while in her care. On June 19, 2013, Ms. Oley expressed concern about mother's ability to plan dinner. Ms. Oley also reported that mother required kitchen utensils, sheets, pillows, lamps and a microwave. On June 27, 2013, Ms. Oley reported that the visit went well, that mother was processing what she had learned the previous week and that, generally, she was very impressed with mother's progress. On July 3, 2013, finding a bottle of sour milk in the home, Ms. Oley reported that she was concerned that mother did not recognize when milk was sour.

[24] Based on these observations, the Society decided on July 15, 2013, to delay the re-integration of N. to his family.

[25] On July 23, 2013, Ms. Mara visited the home. Mother and all three children were present. N. had eaten really well for two days, the family doctor reported that N. was doing well and that the child would be seen weekly. The apartment was now well equipped with utensils and plenty of food. N. was observed to be very connected to mother, following her around the apartment.

[26] On July 24, 2013, Ms. Mara accompanied mother to the furniture bank to select furnishings for the apartment to be delivered July 26. On August 15, 2013, Ms. Mara noted that the apartment looked good with the furniture, S. was engaging very well with her little brother and the family enjoyed a visit to the local library where they engaged in the services offered.

[27] On August 20, 2013, Ms. Oley reported that Ms. M. was now cooking food for the family.

[28] On September 1, 2013, Ms. M. called the Society to cancel N.'s visit as she had discovered that the furniture from the furniture bank was infested with bed bugs. Virtually all the furniture in the apartment had to be thrown out and Ms. M.'s landlord refused to allow her to replace that furniture from the furniture bank. Mother advised that she would not be able to continue overnight access visits until the spraying had been completed to rid the unit of bed bugs and she had the opportunity to obtain a new crib and mattress for N.

[29] Prior to mother having the opportunity to resume overnight access, the Society determined to seek an order of Crown Wardship allowing for the adoption of N. This decision was based on the perception that mother did not have sufficient support to parent N.

[30] Ms. M.'s access continued to be at minimum eight hours a week, unsupervised in the home, until six weeks before the commencement of trial. At that time, the Society unilaterally reduced mother's access to five hours a week.

[31] In the period October 2013, to May 2014, Ms. Mara noted concerns about adequacy of food in the home and budgeting. It was observed that the M. family relied on take-out food, which was expensive, as mother had not developed sufficient cooking skills. However, N. was observed to be generally happy and engaged well with his sisters and mother. He referred to his mother as "mommy", the girls as "sissy" and his maternal grandmother as "nana".

[32] Access in September 2014 was very successful. N. enjoyed the visits with his family and interacted easily with his mother.

[33] At the October 23, 2014, visit, Ms. Mara noted that mother was learning to cook soup and omelettes at cooking classes. S. was participating in football, swimming, drama and taking violin lessons at school.

[34] Commencing November 18, 2014, each weekday access was expanded to full day from 10 a.m. to 4:30 p.m.

[35] At a visit on November 25, 2014, Ms. Mara noted that both girls were doing well at school and each had agreed to prepare one dinner per week for the family. Ms. P.A., a family support worker and close friend of the family, who has offered to support Ms. M., was present for the visit. At the conclusion of the visit, N. hugged everyone, waved and blew kisses as he left and then cried.

[36] When Ms. Mara arrived to visit with the family on December 18, 2014, she found M. caring for N. while Ms. M. retrieved S. from school. She noted that when N. saw his mother and sister, S., on the television monitor entering the front door, he became very excited and met them with smiles and giggles. As of January 2015 both M. and S. have the support of the Big Sisters Program.

[37] At the conclusion of her evidence on January 12, 2015, Ms. Mara stated that Ms. M.'s visits have been loosely supervised. The weekday access was expanded to six and half hours each day as there was no noticeable concerns while N. was in his mother's care.

C. Ms. Shannon Deacon

[38] Ms. Shannon Deacon, Program Co-ordinator for the Society's Therapeutic Access Centre, filed an affidavit, dated May 14, 2014. Ms. Deacon testified on June 24, 2014.

[39] Ms. M. was admitted to the Therapeutic Access program on August 17, 2012. Her first visit was on October 11, 2012, and she completed the program on April 30, 2013.

[40] Ms. Deacon supervised ten visits with Ms. M. She noted that Ms. M. always was on time and arrived with everything she would need for the visit. Mother established a routine with her son, played successfully with him, encouraging mobility and explorations. She soothed and nurtured him when needed and talked to N. constantly to help him learn about his environment. Ms. M. was always pleasant and co-operative with the workers and was able to successfully complete many physical parenting tasks independently.

[41] In an email to Ms. Mara on January 23, 2013, Ms. Deacon noted that Ms. M. managed care routines with N. really well and was successful, when her daughters attended, to manage all three children at once. Ms. Deacon further noted to Ms. Mara that although she was aware of mother's limitations, Ms. Deacon had not observed that these limitations impeded Ms. M. from having insight with regard to her children's needs and from accessing support when required. Ms. Deacon described Ms. M. as frankly honest, seeking out support usually before she makes decisions.

[42] Ms. Deacon recommended that Ms. M. move out of the Therapeutic Centre, in April 2013, to assess whether she could transfer the skills learned at the centre to full time parenting.

D. Ms. Kim McLean

[43] Ms. Kim McLean, a child and youth worker with the Society largely echoed Ms. Deacon's testimony. Ms. M. was able to establish and manage a routine for N. Mother chose appropriate toys to provide teaching opportunities for the child and allowed and encouraged him to explore on his own while making sure he was safe. Ms. M. was committed to having her son returned to her care, was nurturing and affectionate, patient when he cried and spoke lovingly to him. Ms. M. was highly motivated to learn how to properly care for her son.

E. Ms. Ellen Sabasta

[44] Ms. Ellen Sabasta, has been the Children's Services Worker for N. since his apprehension. She filed an affidavit, dated May 14, 2014 and testified on June 24, 2014.

[45] Ms. Sabasta described N. as very sensitive, a child who reacts strongly to change and new people. He has always been a picky eater, particular about where he eats and is sensitive to people watching him eat.

[46] Ms. Sabasta testified that weight loss was a concern to the Society when N. was transitioning to his mother's care in June 2013. Ms. Sabasta was aware that N. had been sick and teething over the course of the month of April 2013. She was aware that N. was reported to have a fever on May 28, 2013 and had an ear infection in early June. She further acknowledged that in early June 2013, when Dr. Cohen saw N., his weight loss was noted to be as a result of illness. It was noted on June 12, 2013, that N. had lost weight over the course of two days while in mother's care.

[47] As N. continued to exercise overnight access with his mother and sisters in June, July and August, his weight was noted to be increasing. On September 11, 2013, days prior to the Society amending its position to seek Crown Wardship and to terminate overnight access, Dr. Cohen noted that N. had been gaining weight and she was no longer as concerned about that issue.

[48] Ms. Sabasta testified that Ms. M. always arrived early for visits with N. and was very nurturing. Ms. Sabasta observed that N. smiles when he sees his mother and that Ms. M. makes eye contact with her son and is gentle and soothing with him.

F. Ms. Moira Billard

[49] Ms. Moira Billard, a Society family support worker, was involved with the M. family from February 28, 2013, to July 10, 2013, and then again from October 15, 2013, to April 1, 2014. Ms. Billard filed an affidavit dated May 20, 2014 and testified on June 24, 2014.

[50] Ms. Billard's initial involvement with the M. family was to assist in the integration of N. with his mother and sisters. On June 2, 2013, Ms. Billard reported that Ms. M. was able to follow direction and apply teaching. When she left for vacation on July 10, 2013, extended visits had been very positive and the plan was to work towards N. going home. She had anticipated that upon her return in September, N. would be at home or at least continuing towards that goal. She was surprised to learn in September that the plan had changed. Ms. Billard was not present at the meeting on September 20, 2013, when the decision was made to seek Crown Wardship.

[51] When Ms. Billard resumed working with the M. family in October 2013, the Family Support Program had changed its focus to teaching parents and assessing their ability to improve their skills. Ms. Billard worked with the family under the amended access for four hours, twice a week. The focus was on teaching, budgeting and food acquisition and preparation.

[52] Working with Ms. M. and her daughters, Ms. Billard would demonstrate how to cook certain items. She noted that the children really enjoyed this activity and they all had a lot of fun. Ms. Billard observed that Ms. M. was able to learn how to cook but required help with budgeting to allow for efficient shopping.

[53] On January 28, 2014, Ms. Billard discussed with Ms. M. a concern that arose when her daughter, M., had stayed at a friend's home from December 26 to January 1, 2014, without telling her mother where she was. At that time, M. did not have a cell phone. Ms. Billard worked with Ms. M. to allow mother to assert herself as "chief" in the home.

[54] In February 2014, access changed such that Ms. M. was alone with N. from 2 p.m. to 4 p.m. at which time the girls would join with Ms. Billard for the period from 4 p.m. to 6 p.m. Mother and children really enjoyed working together as a family unit. Ms. M. began to assert her position as mother, organizing things and cooking dinners.

[55] Ms. Billard testified that N. was very close and affectionate with his mother and sisters. Ms. M. loved her children deeply and they loved her. Ms. Billard enjoyed her working relationship with Ms. M. and was sorry that it had to end.

G. Ms. Gulnar Manji

[56] Ms. Gulnar Manji, a case end worker with the Society, filed an affidavit, dated June 2, 2014, and testified on June 24, 2014, and June 25, 2014.

[57] In her affidavit, Ms. Manji noted very little positive about Ms. M. This was in stark contrast to the other workers who filed affidavits and testified. She noted that Mother needed constant reminders about little things. Ms. Manji referred to numerous occasion when she observed N. turning his face away from his mother and on occasion from his sister, S.

[58] Under cross-examination, Ms. Manji acknowledged that she did not use any of the following adjectives to describe Ms. M. and her relationship with her children: co-operative, affectionate, strongly bonded, patient, engaging or motivated. Remarkably, on May 20, 2014, when N. was expressing a temper tantrum, she offered the option to the two-year-old to make a decision as whether he wished to remain at the visit to wait for his sister S. to arrive from school or return to the foster home. Mother was not even mentioned as an option.

H. Ms. Susan Oley

[59] Ms. Susan Oley, a foster parent support worker, was involved with the M. family from May 7, 2013 to December 20, 2013. Ms. Oley testified on June 29, 2014 and September 8, 2014.

[60] Ms. Oley described N. as a very insecure child who requires constant routine and a predictable environment. She noted that in the period when an effort was being made to integrate N. with his family with overnight access, N. would take some time to become comfortable on the first day and then would settle by the second day. She felt he was not ready for the transition to the family at that time.

[61] Ms. Oley testified that Ms. M. is comfortable within the community she is familiar with. In that context she can manage routine very well. N. never missed a meal when in mother's care. Ms. M. had no problem picking her daughter up from school and returning her after the lunch break. Ms. M. had no problems navigating the subway. However, Ms. M. needed support in responding to a note from school about one of her daughters or replacing light fixtures.

[62] To assist mother with her budgeting, Ms. Oley asked Ms. M's adult protection worker to help. At the end of Ms. Oley's involvement with the family, December 2013, the issues of budget and shopping were being addressed. An arrangement had been made for someone to help plan meals for a week and shop with Ms. M.

[63] Ms. Oley noted that Ms. M. loves her children, speaks positively about them, spoke lovingly to them and demonstrates concern for them. She is eager to learn, co-operates and takes direction. To assist her in parenting all three children, Ms. M. needs help when there is a change in routine. With ongoing teaching and support from her physician, Ms. M. could manage medication issues for the family.

I. Ms. S.P.

[64] Ms. S.P., N.'s foster mother from the time of his apprehension, testified on September 8, 2014. She described N. as a very shy, introverted child who likes routine. He has been developing normally with regard to developmental guidelines. While shy around new adults, he does not have a problem interacting with other children. Ms. S.P. believes that N. will need a slow transition out of foster care.

Evidence for Ms. M.M.

A. Ms. Cheryl Bedard

[65] Ms. Cheryl Bedard, a psychotherapist with Surrey Place testified on September 8, 2014. Surrey Place, situated in Toronto, provides assessments and clinical services for persons with developmental disabilities. Ms. Bedard has worked with person with developmental disabilities for a period of thirty years. She has been employed by Surrey Place as a therapist for the last twenty years.

[66] On referral, Ms. Bedard met with Ms. M. on four occasions, commencing March 5, 2014. Ms. Bedard consulted with Ms. Laura Lee Edminston, Ms. M's Adult Protection Services Worker for Community Living in Toronto.

[67] Ms. Bedard met Ms. M. every two weeks to address Ms. M.'s stress occasioned by her son's apprehension and her efforts to reunite her family. Ms. Bedard testified that Ms. M. presented as coping well with the stresses in her life in the periods between these sessions. Ms. M. impressed her as very pleasant, empathetic, easy to communicate and work with. Ms. Bedard felt that meeting every two weeks was sufficient support for Ms. M. While therapeutic services were not available to clients of Surrey Place on weekends or holidays, Ms. Bedard did not believe that Ms. M. required that level of support.

[68] Over the course of her sessions with Ms. M., Ms. Bedard became aware of a potential conflict of interest. As a result, Ms. Bedard referred Ms. M. to Dr. Linda Klevnick, a psychologist and therapist with Surrey Place.

B. Ms. Linda Wise

[69] Ms. Linda Wise testified on September 8, 2014 and January 12, 2015. She has worked as a Parenting Enhancement Therapist at the Surrey Place Centre for the last fourteen years. Prior to working at Surrey Place, Ms. Wise worked in the Family Assessment Unit at Thistletown Regional Centre for seventeen years. While at the Interface Program at Thistletown, Ms. Wise's unit received referrals from mental health agencies and Children's Aid Societies to conduct assessments of families, in a home environment, at the Thistletown Centre. Some of the parents assessed were persons with developmental disabilities.

[70] Ms. Wise testified that Surrey Place is a community based non-profit organization servicing developmentally disabled individuals of all ages. The Centre has medical and audiological staff, speech and language pathologists, psychotherapists, counsellors and home visitors to serve their clientele.

[71] Ms. Wise works as a home visitor in the Adult Services Division. The mandate of their program is to work with parents who are the primary caregivers for children under the age of eight years. The focus for these parents with cognitive limitations or developmental disability is to assist them in becoming the best parent they can be. Assistance is provided to parents that can't read and to help them access community resources, register for daycare and respond to schooling. Ms. Wise observed that many of the parents she works with cannot read or write.

[72] A worker with the Parenting Enhancement Program typically would visit with the client family once a week for a period of one to three hours. One or two further visits per week may be accommodated to assist the family with medical appointments, day care issues and schooling. Home visits are scheduled from 9 a.m. to 5 p.m. Monday, 9 a.m. to 9 p.m. Tuesday through Thursday and 9 a.m. to 7 p.m. on Friday. Telephone support is also provided to the clients of the service.

[73] Typically, referrals to the Parent Enhancement Program are based on perceived risk to the child or children in the home. If a child welfare agency refers the mother, the Enhancement Worker meets with the parent and Society worker to identify and discuss concerns. Any concerns pertaining to the safety and security of the child or children that may arise during the course of the involvement of the family in the Enhancement Program would be reported to the welfare agency.

[74] Ms. Wise met with Ms. M. on August 8, 2014. As N. is not in Ms. M.'s primary care, the focus has been on Ms. M.'s daughter S. Should N. be placed with Ms. M., Ms. Wise would continue to work with the family for at least three years with the possibility of an extension if needed. Ms. Wise would work with all collaterals supporting the family, including the family and children's services worker focusing on N.'s best interests. When Ms. Wise met with Ms. M., mother showed her the documents pertaining to this case to allow Ms. Wise an understanding of the Society's concerns.

[75] Ms. Wise met with Ms. Mara on September 30, 2014. Ms. M., her two daughters, M. and S. and Ms. P.A., an individual offering support to Ms. M., were present. Ms. Mara noted that the Society's concerns were N.'s health and safety and his proper development. In her testimony, Ms. Wise noted that Surrey Place offers families programs and resources to address issues of health and safety and devotes a lot of attention and time to the issue of child development. All of the families that Ms. Wise is presently assisting are involved with child welfare agencies.

[76] In working with S., Ms. Wise has never noticed any child development issues. Ms. Wise observed that S. was very active in extracurricular activities as a member of her school swim team and choir as well as learning to play the violin. In her January 2015 testimony Ms. Wise stated that S.'s report card was one of the best report cards she had ever seen from any of the families she had worked with. S. is reported to be doing very well academically and in all aspects of her life. To address M.'s challenge in mathematics, Ms. Wise attended a meeting at M.'s school with Ms. M. She reported that the meeting went well. Both girls have been placed with a mentor through the Big Sisters Program as of January 2015.

[77] Ms. Wise observed that M. and S. interact well with their mother. In the late summer both girls and their mother organized a routine and schedule in preparation for the children's return to school in September. As of January 2015, that routine and schedule was working well. Ms. Wise has not experienced S. having to take on the role of parent. Ms. Wise has not observed Ms. M. relying on her daughters to explain how things work. Mother has not had to seek Ms. Wise's assistance with regard to money concerns for her daughters. Aware that Ms. M. has been the primary caregiver to her daughters since 2009, with some support from the Society and how well her daughters, particularly S. are presenting, Ms. Wise testified that Ms. M.'s parenting has succeeded and there is real hope for N. should he be returned to the family.

[78] Ms. Wise testified that she continues to assess Ms. M.'s challenges as a parent. Poverty and how it affects accessing services remains an issue.

[79] To address Ms. M.'s difficulty in having reliable cell phone service, Ms. Wise has obtained a phone for her and was negotiating with Bell Canada to resolve usage.

[80] To address Ms. M.'s ability to prepare meals for the family, Ms. Wise assisted Ms. M. in enrolling in a program that taught her how to prepare and cook a healthy, nutritional meal. Ms. M. attended four sessions, each lasting three to three and a half hours. Ms. M. enjoyed the experience, was an active participant in the classes, socialized well and asked appropriate questions.

[81] As with the other families that she works with, Ms. Wise focuses on schooling, routine and problem-solving with Ms. M. If N. was returned to Ms. M., Ms. Wise would work with the family until N. was at least six years of age. If an extension was required beyond of the normal mandate of three years in the program, she would be prepared to advocate for such an extension for the M. family. The Parenting Enhancement Program has the flexibility to allow for such an extension.

C. Ms. P.A.

[82] Ms. P.A., a close friend of Ms. M. testified on January 12, 2015. Ms. P.A. is employed as a support worker with the Visiting Homemakers Association. She has worked for that service for fourteen years providing home care to persons with disabilities and mental health issues. She provides ambulatory care, bathing and dressing services as well as safety planning and implementation. Ms. P.A. works five days a week, Monday to Friday in split shifts. In the morning she starts work at 8:30 a.m. with the occasional start at 7:00 a.m. She completes her day shift at 3:30 p.m. or 4:00 p.m. She works early evening hours from 7 p.m. to 8:45 or 9:00 p.m. She does not work weekends.

[83] Prior to working for Visiting Homemakers Association, Ms. P.A. worked in a daycare centre for five years.

[84] Ms. P.A. met Ms. M. ten years ago when they lived in the same building. She is married and presently lives ten to fifteen minutes from the M. residence. She would be available to Ms. M. by telephone twenty-four hours a day, seven days a week. She never turns her cell phone off. Her husband is aware of Ms. P.A.' offer to assist Ms. M. to effect the return of N. to her care and is fully supportive of the commitment.

[85] Ms. M. asked Ms. P.A. if she would be willing to provide personal support services to Mr. M. and her children last August. Ms. P.A. has visited with Ms. M. and her daughters at least once a week. Her visits normally last about two hours. She has supported Ms. M. with advice on curfew for M., planning and purchasing clothing and supplies for the children's schooling and grocery shopping. Ms. P.A. commented that she enjoys shopping with Ms. M. She enjoys her company.

[86] As of January 2015, Ms. P.A. had arranged to visit with N. on three occasions in the home.

[87] Ms. P.A. would be pleased to abide by conditions of a supervision order, should N. be returned to his mother's care. She would commit to come to the M. home three to four times each week and for a full day on the weekend. During the week, Ms. P.A. would support the M. Family in their home from 4:30 p.m. to 6:30 p.m. and then would return to check in with the family at 9:30 p.m. after her evening shift. She would report any concerns with regard to risk immediately to Ms. Mara, the family services worker.

D. Ms. M.

[88] Ms. M. testified in […], 2015. She is thirty-seven years of age and resides in mid-town Toronto in a two-bedroom subsidized apartment with her two daughters, M. aged sixteen and S. who just celebrated her eleventh birthday. M. has just completed Grade Ten at Central Technical High School. S. will graduate from Grade Five at Hillcrest Public School next week. S. attends a day care that is situated in her school.

[89] Ms. M. supports her family on the income that she receives from the Ontario Disability Support Program, Child Tax Credit, Trillium grant and G.S.T. refund, a total of $2,180 per month. After her rent payment, cell phone bill for herself and M., she is left with approximately $1800 for clothing, food and household supplies. At the time of her testimony, Ms. M. reported that she had $350 in the bank.

[90] Ms. M. testified that when M. was born in 1999, she lived with her mother. Her mother supported her in the care of M. and helped her budget her money. She continued to reside with her mother and enjoy her support when S. was born in 2004. In May of 2009, Ms. M. moved out of her mother's residence and has been the primary caregiver for M. and S. for the last six years.

[91] Since moving out on her own with her daughters, Ms. M. has had the support of Ms. Laura Lee Edminston, her Adult Protection Services Worker. Ms. Edminston assists her in securing support services, budgeting and reminds her of appointments. Ms. M. also noted that she had benefitted from the support of Ms. Giselle Mara on issues of budgeting, schooling and communication.

[92] Ms. M. acknowledged that for a period of time she had difficulty setting and enforcing a curfew for M. However, with the supports that she now has, it is no longer a problem. M. is very supportive. When Ms. M. is required to go to court, M. retrieves S. from day care.

[93] Should N. be returned to her care, Ms. M. testified that he would sleep in a toddler bed in her room. Ms. M. has already acquired the bed and mattress for N. Her daughters would continue to share the second bedroom. Ms. M. has secured a subsidy for N.'s day care and is on a waiting list for a day care spot. To address the discomfort from the heat that N. and the rest of the family experienced in the summer of 2013 when N. was coming to the home for overnight units, Ms. M. obtained a window air conditioning unit last summer.

[94] Ms. M. acknowledged that she had experienced difficulty in maintaining her cell phone due to her poor credit rating. She had lost service in September 2012, May 2013, January 2014, December 2014, and had been without service for the two weeks since December 30, 2014. She was pleased that this issue was going to be resolved, with the assistance of Ms. Wise, the week of her testimony.

[95] Ms. M. seeks the return of N. to her care on a supervision order with the Society. She recognizes that she continues to need the assistance and support of the Society and is committed to working co-operatively with the Society's workers, particularly Ms. Mara. Ms. M. itemized the supports that she now has to assist her in the care of her children, particularly N. Ms. Edminston will continue to help her with budgeting and maintaining support services. She will continue counselling with Dr. Klevnick at Surrey Place. She will continue to work with Ms. Wise and enjoy the services of the Parenting Enhancement Program until N. is at least six years old. She appreciates the commitment that Ms. P.A. has made to her and her family and will enjoy her assistance with the children and shopping. She will contact Ms. P.A. should there be an emergency. Ms. M.'s sister, C. from whom she was estranged for a period of time, has reconnected with the family and enjoys seeing Ms. M.'s daughters. M. visits with her aunt C. for weekends on occasion. Ms. M.'s daughters, M. and S. have been offered mentors through the Big Sisters Program as of January 2015.

III. The Law

[96] The child, N. M., was found to be a child in need of protection pursuant to section 37(2)(b) of the Child and Family Services Act on May 17, 2012.

[97] This trial is occasioned by a Status Review Application brought pursuant to section 64 of the Act. On a Status Review, the court may terminate any existing order or make such further order pursuant to section 57 or 57.1 of the Act.

[98] Given the time limit imposed by section 70 of the Act, I must make an order pursuant to section 57, in the child's best interests:

A: Terminating the order of Society Wardship and returning the child to the care and custody of Ms. M.; or

B: Placing N.M. with Ms. M. subject to supervision for a period not less than three months nor more than 12 months;

C: Making N.M. a Ward of the Crown and placing him in the care of the Society.

Ms. M. did not seek an order pursuant to section 57.1 of the Act

[99] Prior to making one of these orders, I am required to:

A: Consider the least disruptive alternative available for N.M., and

B: Consider placing N.M., where possible with a relative, neighbour or other member of the community or extended family with the consent of that person. The latter consideration is not applicable in this case as no such person is available to plan or care for N.M.

[100] In making an order in N.M.'s "best interests", I am required by section 37(3) of the Act to take into consideration those of the following circumstances of the case that I consider relevant:

1. The child's physical, mental and emotional needs and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent in a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child's disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, we turn 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.

Any other relevant circumstance

[101] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J) (1997) 23 R.F.L. (4th) 79 (SCJ- Family Branch).

[102] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

[103] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters should be child-focused. Children's Aid Society of Toronto v. D.S..

[104] Should I determine to make N.M. a Ward of the Crown, section 59(2.1) directs me not to make an order for access unless I am satisfied:

A: The relationship between Ms. M. and her son is beneficial and meaningful to the child; and

B: The ordered access will not impair the child's future opportunities for adoption.

[105] In the context of section 59 (2.1) a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is "significant'. Positive aspects to the relationship between parent and child is not enough. The relationship must be significantly advantageous to the child. Even if the relationship is beneficial and meaningful, the court must weigh the benefits of access versus no access before making an order. Children's Aid Society of Niagara Region vs. M.J., K.S., and S.S., [2004] O.J. No. 2872 (S.C.J.).

[106] The person seeking access must establish that an access order will not diminish, reduce, jeopardize, or interfere with the child's future opportunities for adoption.

IV. Analysis

[107] The evidence reveals that N. is meeting his developmental milestones. He is an insecure child who does not adapt well to change or adult strangers. While travel and transition have been difficult for him, he is able to settle in both his mother's home and his foster placement. His foster family has provided him with stability and security. He is bonded to his mother and has a strong attachment and love for his siblings M. and S.

[108] The Society has worked very hard at supporting Ms. M. in her plan to re-integrate N. to his family. Despite that effort and Ms. M.'s willingness and commitment to co-operate and provide care for her son, the Society argues that Ms. M. does not have sufficient supports to allow for N. to be returned to her care.

[109] While presenting with shyness and insecurity, N.'s capacity to bond with his foster and biological family allows for the conclusion that he would likely be a good candidate for adoption. Whether placed for adoption or returned to his family, N. will require a period of transition.

[110] To determine the merits of Ms. M.'s plan for her son, I must assess what supports are presently available to mitigate the risk that justified the finding that N. was a child in need of protection and decide whether those identified supports are sufficient to allow N. to be returned to his mother's care.

[111] For a period of three years prior to N.'s birth, Ms. M. had been the primary caregiver to her daughters M. and S. Ms. M. lost the support of her mother in the parenting of these children and moved out of her mother's apartment when M. was ten and S. was five years of age. Ms. M. struggled with the issues occasioned by her cognitive limitations, choice of partners, domestic violence, stable housing and budgeting. With essentially only two supports, Ms. Mara, with whom she worked voluntarily, and Ms. Edminston, Ms. M. was able to parent her daughters such that the Society never felt the need to apprehend or seek a supervision order.

[112] Immediately following N.'s birth on […], 2012, Ms. M. was compelled to move out of the apartment that she shared with N.'s father. After a very brief period residing with her mother, sister and sister's partner, she was forced to quit that residence as well.

[113] N. was apprehended from mother's care on March 23, 2012, due to concerns that the child was losing weight and neither her mother nor extended family was able to provide basic essential care.

[114] Housing remained an issue until December 2012, when Ms. M. secured a subsidy and moved with her daughters into a two-bedroom apartment. She remains in that residence. It is located in mid-town Toronto within walking distance of all services necessary to support her family. Ms. M. has acquired a bed and mattress for N. It is now appropriately furnished to accommodate Ms. M. and all three of her children.

[115] Ms. M. has committed herself to focus on the parenting of her children. She has not engaged in a relationship since N.'s apprehension. Poor choice of partners and domestic violence are no longer risk factors. To support herself in that focus and to address stress issues inherent in parenting, Ms. M. initiated counselling through the Surrey Place Centre in Toronto in March 2014. She continues to attend for counselling with Dr. Klevnick, a psychologist at that centre.

[116] Ms. Wise, a Parenting Enhancement Therapist at Surrey Place, has worked with and provided support to Ms. M. and primarily her daughter S. since August 2014. Should N. be returned to Ms. M.'s care, Ms. Wise testified that she would be available to work with the M. family and visit at minimum once per week until N. was at least six years old. Ms. M. shared documents with Ms. Wise to allow her an understanding of the Society's concerns. Ms. Wise met with Ms. Mara and testified that virtually all the developmentally challenged primary care parents she works with are involved with child welfare agencies. Ms. Wise committed to work with the Society should N. be returned to Ms. M.'s care. Noting how well Ms. M.'s daughters were presenting and the fact that Ms. M. had been their primary caregiver, with some assistance from the Society since 2009, Ms. Wise observed that Ms. M.'s parenting had succeeded and there is real hope for N. should he be returned to the family.

[117] Weight regulation continued to be a concern when the effort was made to re-integrate N. with his family in the summer of 2013. Dr. Cohen noted a loss of thirty grams over the course of two days while N. was in his mother's care. Given that weight loss was a triggering factor in N.'s apprehension, it is understandable that this caused the Society concern. However, on a review of all the evidence for that period involving the child's illness and teething issues, it is not clear as to what degree Ms. M. was responsible for that loss. In any event, weight regulation is no longer a concern. While N. continues to be described as a picky eater, he never misses a meal when he is in Ms. M.'s care. Ms. M., with the support of Ms. Billard and Ms. Wise, has acquired the skill to cook some healthy, nutritional meals. M. and S. have committed to assist in meal preparation with each agreeing to cook one meal each week. Ms. Edminston assists Ms. M. with budgeting and Ms. P.A. accompanies Ms. M. shopping.

[118] The loss of furniture occasioned by the bed bug infestation during the period of attempted re-integration has been resolved. As noted previously, Ms. M.'s residence is now appropriately furnished to accommodate N.'s return to her care. To address the heat experienced in her apartment in the summer months, Ms. M. secured an air conditioning unit last summer.

[119] To follow a schedule and properly administer medication to N. when he was residing overnight with Ms. M. in June 2013, Ms. Oley developed a chart system with signs for Ms. M. Ms. Oley testified that with ongoing teaching and support from her physician, Ms. M. could manage medication issues for the family.

[120] Ms. P.A., with the support of her husband, has committed to daily visits in the late afternoon for two hours and again after 9:30 p.m., three or four days a week. She also committed to a day visit each weekend. As Ms. P.A. is employed as a personal support person for individuals with disabilities, I deem her to be a strong support for Ms. M. Ms. P.A. testified that she would welcome her service commitment to the M. family as a condition of supervision.

[121] M. and S. are reported to be regular in their attendance at school. While M. has a mild intellectual delay, she is managing her courses. S. is excelling both academically and in extra-curricular activities. Both girls have the support of the Big Sisters program. M. and S. love their brother and are committed to helping their mother in his care. M. has been a great assist to her mother in picking up S. from school when Ms. M. is at appointments. Issues of curfew with M. have been resolved by Ms. M. with the support that she has in place.

[122] At the time of N.'s apprehension Ms. M. had two supports, Ms. Mara and Ms. Edminston. Her daughters were ages thirteen and eight. Should N. be returned to her care, Ms. M. now has the additional supports of counselling with Dr. Klevnick, Ms. Wise from Parenting Enhancement Program and Ms. P.A.. A day care subsidy has been secured by Ms. M. for N. Her daughters are older and more capable of assisting Ms. M. in the care of their brother. They are committed to that care of their sibling and want him home.

[123] While a number of issues that posed a risk to N. at the time of apprehension have been resolved, Ms. M.'s cognitive limitations continue to pose a risk for her son. However, a review of all the evidence and the strong supports that are now in place, persuades me that N. ought to be returned to the care of his mother under conditions of supervision. Given N.'s sensitivity, I agree with Ms. S.P.'s perception that a period of transition will be required. As N. has been enjoying liberal day access with his mother and siblings in their home, I expect that the transition ought to be accommodated within a period of two to three weeks. As both M. and S. are now completing their school years, they are in an ideal position to help their mother in the transition, welcoming their brother home.

[124] Taking into consideration the principles of the Child and Family Services Act and the evidence in this case, return of N. to his family is clearly in his best interests.

V. Disposition

[125] Pursuant to section 57 of the Child and Family Services Act, the child N.M. born […], 2012, shall be placed in the care and custody of his mother N.M. subject to the supervision of the Children's Aid Society of Toronto for a period of twelve months with the following conditions:

1. Ms. M. shall enroll N. in a daycare program

2. Ms. M. shall take N. to monthly visits with the family's physician. Ms. M. will notify the Society should N. be prescribed medication.

3. Ms. M. shall continue to meet with Ms. Edminston, her Adult Protection Worker at a minimum of twice monthly.

4. Ms. M. shall continue to meet with Dr. Klevnick at Surrey Place Centre on a schedule as recommended by Dr. Klevnick.

5. Ms. M. shall apply for the inclusion of N. in the Parenting Enhancement Program at Surrey Place Centre and continue to meet with Ms. Wise at minimum once per week to support her in the care of N.

6. Ms. P.A. shall meet with Ms. M. and N. in the M. home at minimum four times per week. One of these visits shall be on Saturday or Sunday. These visits shall be on days other than days when Ms. Wise attends the M. home, unless so arranged.

7. Ms. M. shall meet with Society workers as deemed appropriate by those workers. Ms. M. shall allow announced and unannounced visits to her home and allow private meetings with N.

8. Ms. M. shall advise the Society of any change in her income or residential status.

9. Ms. M. shall maintain a telephone to allow for contact with the Society, Ms. Wise, Ms. P.A. and to accommodate emergencies.

10. Ms. M. shall sign releases to allow the Society to communicate with all the collaterals involved in her care of N.

VI. Concluding Remarks

[126] I would like to express my appreciation for the dignified and excellent manner in which both Ms. Chamberlain and Ms. Ralhan advocated their respective positions. I would further like to commend the Society for the support that they have provided to the M. family since 2010. Ms. Mara, in particular, is commended for the respect she has always demonstrated to Ms. M. and the support that she has provided to this family.

Released: June 19, 2015

Signed: Justice B. M. Scully