WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,

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

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

(9) Prohibition re identifying person charged .— 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.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Ontario Court of Justice

DATE: June 6, 2023 COURT FILE No.: Toronto C41811/21

BETWEEN:

Children’s Aid Society of Toronto Applicant,

— AND —

LN Respondent/Mother

And TN Respondent/ Father

And JT Respondent/Stepmother

Before: Justice Debra Paulseth

Heard on: May 30 and 31, 2023 Reasons for Judgment released on: June 6, 2023

Counsel: Katie Skinner................................................................... counsel for the applicant society Oyewande Ayoola.................................................... counsel for the respondent/mother Lauren Israel/Aaron David....................................... counsel for the respondent/father JT................................................................................................................... on her own behalf

Paulseth, J.:

Overview

[1] This proceeding is pursuant to the Child Youth and Family Service Act, 2017 (the Act). The applicant society (CAST) filed a Status Review Application on December 6, 2022, seeking a final custody order of the child, LN, to the father (TN) and stepmother (JT) under section 102 of the Act with supervised access to the mother a minimum of once per week. Father filed an Answer on December 22, 2022 supporting the society’s position. Stepmother supports and is part of father’s plan. Mother’s Answer was filed January 9, 2023, in which she seeks custody of the child, with or without supervision by the society, with unsupervised access to the father. [1]

[2] The child LN, was born on […], 2017. The parents were never in a relationship. The child lived with the mother from birth until August 25, 2021.

[3] Protection proceedings began in September of 2021. The child had been in the care of the CAST since August 25, 2021 under a temporary care agreement(TCA) with the mother. On August 30, 2021, mother served notice of her intention to terminate the TCA.

[4] On October 28, 2021, the court placed the child with the father under a temporary supervision order. The court’s written reasons included the following findings:

(a) Mother’s admitted use of ketamine on an almost daily basis, when she was the sole caregiver for the child, placed the child at great risk.

(b) On admission to care, the child was medically examined and found to be underweight and suffering from eczema. The mother stated that she sometimes used cream to address the skin condition. The court found this response lacking and said that the mother needed to address the concerns in a real way.

(c) A placement of the child with mother, even under terms of supervision, would not adequately protect the child.

(d) The mother did not deny the use of the drug ketamine but denied suffering from any harmful effects from using this drug.

(e) The affidavit of the society worker indicated that she had discussed with the mother on numerous occasions the harmful effects: such as, headaches, and feeling weak and faint. Mother called 911 on two occasions in June, 2021 as she was feeling unwell from taking ketamine. Mother also acknowledged that her bladder/kidney problems were related to her ketamine use.

(f) The father was living with his partner and their two children. He began to visit the child on September 10, 2021, supervised at the society office. The visits went well and the visits to the home indicated that their two children were well cared for. After an extended visit in the father’s home, the society assessed that the child had transitioned well. Father was following up with the school and the child’s medical needs.

[5] On July 15, 2022, the court made a finding in need of protection under clause (b), of section 74(2) of the Act, risk of physical harm, and placed the child with father for a period of six months with society supervision and access to mother at the discretion of the society, a minimum of once per week. These orders were made on consent. The Statement of Agreed Facts to support the orders included the following:

(a) Mother called 911 herself on June 8, 2021 because she had been using ketamine and felt faint and weak. The child was observed by paramedics to have scabs over his arms and legs and mother did not have any cream for his skin.

(b) Mother admitted to using ketamine for over 10 years. The society worked with mother to identify a friend who could care for the child when mother was under the influence of ketamine. By July 12, 2021, this friend advised he could no longer assist the mother.

(c) Mother was given notice by her landlord to vacate the apartment by August 31, 2021.

(d) Mother did not follow through with medical appointments for LN that were scheduled for June 9, 2021, June 22, 2021 or August 19, 2021.

(e) On August 25, 2021, mother placed the child in the temporary care of the society pursuant to a Temporary Care Agreement (TCA) for these reasons:

1. She was pregnant and feeling weak and nauseous.
2. She was unable to care for the child at this time.
3. She had acute cholecystitis and needed surgery.
4. She had to move.
5. She had no extended family to assist her.
6. She had too many things on her plate and needed relief.

(f) LN was observed by the society doctor, on admission to care, to be underweight with severe eczema. He was not being seen by medical professionals.

(g) When mother learned that father was visiting the child and expressing an interest in caring for LN, mother gave notice to terminate the agreement.

(h) Since the child’s placement with father on October 28, 2021, the child had adjusted well to living with father, stepmother, and two half siblings. He attended school regularly and is making friends. Father had taken the child to the dentist and pediatrician. The child was behind on his vaccination schedule.

(i) Mother had not made progress with any of the recommended supports provided by the society. She continuously denied she has a substance use problem and says she did not require a parenting program.

(j) Mother’s visits were once a week and were fully supported. When the visits were extended by an additional 30 minutes, mother would often arrive late or use her phone to watch videos with the child. Mother has also made negative comments about the father and stepmother in front of the child.

Issues before the court

(a) Is a court order necessary to protect the child in the future? (b) If so, what disposition is in the best interests of the child? (c) Which corollary orders relating to information, government documents, and travel are in the child’s best interests? (d) What access order is in the best interests of the child?

Evidence for the Society

[6] The family service worker from January to April of 2022 gave evidence. A summary of the important parts of her evidence is included in the Statement of Agreed facts outlined above. In addition, the court noted the following:

(a) This worker offered mother several resources to support her access visits with the child, including a special family support worker who provided mother with guidance around setting routines and structure for the visit. These tips were given in order to encourage the mother to use videos less during visits and have more interactive play.

(b) Mother gave consent for this worker to confirm she had signed up for the free online course for parenting a child with special needs through the Family Hope Centre.

(c) The stepmother showed this worker several text messages that mother sent to her, which included mother calling the father and stepmother derogatory names and making false allegations of neglect against them.

[7] The family service worker from April of 2022 until the current time gave evidence. A summary of her evidence includes the following:

(a) Mother denied using ketamine and offered to do drug testing. When this worker attempted to obtain consent to speak to mother’s doctor about administering the drug test, mother refused.

(b) Mother accused this worker of triggering her into using more ketamine and referred to herself as an addict. During a home visit on February 8, 2023, this worker saw white substance around mother’s nostrils and chin. Mother said it was Vitamin B12 powder.

(c) On March 18, 2023, mother emailed this worker saying: “ what the fuck is your issue with my substance abuse…if I can afford this shit I can afford LN”.

(d) On May 3, 2023, this worker noticed a white substance around mother’s nostrils and then cancelled the visit. Mother shouted profanities and left.

(e) On many occasions this worker discussed possible resources for mother with her and attempted to connect mother with these organizations- Jean Tweed, John Howard, CAMH, the Ketamine Clinic, and her family doctor. Mother did not follow through with any of these resources.

(f) Mother asked if someone could go with her to some of the organizations to which the society had referred her. This worker volunteered to go with her but when the worker tried to follow up, mother refused.

(g) Mother gave this worker a copy of a certificate for a four hour online parenting program from Logan Social Services.

(h) This worker supervised many of the weekly visits from April until September of 2022 and again since April of 2023. Mother would always attend with food for the child. The consistent challenge for mother was engaging with the child and often she would resort to watching videos. There are long periods of no conversation.

(i) Despite the child’s obvious discomfort, mother would often denigrate the father and stepmother during the visits.

(j) In the last two visits in May of 2023, this worker observed very little interaction between mother and child. The child brought a Mother’s Day gift and tried to engage mother but mother was unresponsive. There was minimal conversation.

(k) Mother said she used to work for a massage studio but now works for a spa for men only. She works full time and only has Wednesdays off.

[8] The coordinator of the society’s access program gave evidence. She supervised approximately 25 visits from September of 2022 until March of 2023. The access through this program is semi-supervised. A summary of her evidence is:

(a) On two visits, November 30 of 2022 and February 1 of 2023, this worker observed white powder around mother’s nostrils.

(b) The visits had been going fairly well through October and November of 2022. Mother would arrive on time, bring food and items of interest for the child. Mother would demonstrate concern for the child.

(c) Since the beginning of 2023, however, the visits have deteriorated. There has been little verbal interaction. Mother increasingly relied on her phone to occupy the child.

(d) On February 1, 2023, this worker observed white powder on mother’s nostrils and chin. When confronted about this, the mother aid she did it on purpose to show the society she could still function. She said she had been an addict for 10 years and requires ketamine to manage her anxiety.

(e) On March 8, 2023, mother persisted in making negative comments about father, while the child cowered in a corner with his coat on. Mother told the child “get up get up if you don’t get up you won’t go home with me” and she walked out of the visiting room to the kitchen. Mother was increasingly agitated and started yelling at the ceiling saying “don’t touch my stuff” multiple times. Mother then yelled at the child about his play with a certain toy that she thought was dangerous. At the end of the visit the child refused to give mother a hug.

(f) On March 15, 2023, mother attended for the visit but the child remained facing a wall with his coat and hood on. A few moments later, this worker had to go into the room as mother was crying and hitting the wall. The child was removed and mother could be heard loudly crying and screaming.

(g) Mother was becoming increasingly agitated in the visits and using an aggressive tone with the child. LN was becoming increasingly disengaged during the visits. As a result this worker recommended in March of 2023 that the visits return to fully supervised.

(h) The visits have been fully supervised from April of 2023 until now.

Evidence for the Father and Step-mother

[9] The father and stepmother are both parties to the proceeding and share the same position. They support the recommendations of the society.

[10] A summary of father’s evidence is:

(a) He and mother were never in a relationship. Since the birth of the child, he gave the mother $100 a week. He found it difficult to organize parenting time with the mother. He tried to see the child whenever mother would let him. Often mother and the child would move and he didn’t know where they were living.

(b) Mother often made false allegations against the father that he was neglecting and abusing of the child.

(c) Father was concerned about mother’s drug use and on one occasion, before these proceedings began, called the police about it.

(d) Father works full time in the construction business. Recently he became a self-employed contractor so he has a little more control over his time. He has a work permit to be in Canada.

(e) Father lives in a large home with his partner and their three children, aged 3, 2, and a new baby. His partner’s parents live in the main part of the home. He and his family live in a three bedroom basement apartment. His partner is currently on maternity leave.

(f) Mother has made many disparaging and disturbing allegations against father and his partner on social media.

(g) Mother also sends text messages that use language that is violent and threatening.

(h) Since the society contacted father, he has been completely engaged in this process. He and his family have cooperated fully with the society. His entire family enjoy time with LN. LN has thrived in their care. LN follows structure and routine and his eczema has improved.

(i) LN is in senior kindergarten. His report card describes him as coming “to school each morning with a smile on his face and happily greets his teachers and peers.”

(j) The child LN loves his home and his half siblings.

(k) Father has ensured the child has seen a dentist and doctor and is now up to date with his vaccinations. The child is making gains with his weight.

(l) The children are all involved with the Vietnamese school on Saturdays and the family as a whole is involved with the local Vietnamese Catholic Church.

(m) The family is financially stable and has a strong support system of both family and friends. Father also ensures that LN sees his maternal grandmother and maternal great-grandmother. Recently, LN spent several days with the maternal grandmother in St Catharines.

(n) Father proposes regular parenting time for the mother but supervised due to the mother’s drug addiction and her volatile nature. Their communications are very strained due to the large number of derogatory comments and text messages made by the mother about him and stepmother.

(o) Father and stepmother wanted to take the children on a family holiday but mother refused to give them the child’s birth certificate and refused consent to travel. The court made an order on July 14, 2023 requiring mother to provide the identification documents within 48 hours and made an order that father could obtain any and all future documents for the child and travel outside of Canada without notice to nor the consent of the mother. Father would like these orders on a permanent basis.

[11] Stepmother gave evidence and the following is a summary:

(a) She was born in Toronto and all of her family live here. She met the father in 2016 and they became partners in 2018. They now have three children and LN

(b) She is self-employed as a translator: English/Vietnamese, but is now on maternity leave.

(c) She describes father as a great partner, extremely hard-working, and a loving father. When he returns from work at the end of the day, all of the children run to him.

(d) Since LN joined the family in October of 2021, step-mother has been a full time parent. She had to work very hard with LN to establish routines and behaviour expectations. LN’s communications’ skills have also improved and he is able to let them know if he is upset and why. LN is very talkative now at home. He enjoys playing and will share his toys with his siblings.

(e) LN calls this witness “mom” and calls his biological mother “momma”. LN is also very close to her parents. He loves her mother’s cooking.

(f) LN is very social and has a lot of friends at school.

(g) She facilitates both visits and video call with maternal grandmother. As recently as early May 2023, she and father dropped LN at maternal great grandmother’s home for a visit for a few hours.

(h) When LN first came to live with father, he would get excited about visits with mother. If the visit didn’t go well, the child would be stubborn and silent afterwards. He would “shut down” and pull his hood over his head. Now if the visit does not go well, LN ‘s behaviour does not change. He is comfortable in father’s home.

(i) This witness actively considers how to include mother in LN’s life. This has proved difficult though when mother is sending numerous vitriolic messages and criticizing step-mother and father over social media.

Evidence for the Mother

[12] Mother gave evidence. She readily admits to having a drug problem, having used ketamine for over 10 years for anxiety. She says she does not need a treatment centre as she has studied addictions and can treat herself.

[13] Mother denies that LN had any health problems, such as eczema and low weight, when he was admitted to care.

[14] Mother admits to sending countless text messages and emails threatening, ridiculing, and making bizarre and ugly allegations against society workers, father, and stepmother, up to and including the weekend before the trial started. She regrets sending some hurtful messages now

[15] Mother refers to herself as a victim.

[16] Mother would like to share the child 50-50 with father. She is afraid that father will cut her off from the child. Father and stepmother make no effort, according to mother, to include her in LN’s life.

[17] Since birth, mother has been the sole caregiver for LN and claims that father had no interest in him.

[18] Mother said she did her best to apply creams to the child’s eczema, but it would still flare up from time to time. The COVID lockdowns prevented her from attending at doctor’s offices or clinics.

[19] Mother says she enjoys her visits with LN but also finds them emotional, as she wants LN back in her care and it is hard to leave him.

[20] According to mother she was receptive to the society’s recommendations but some resources did not call her back and others had long waiting lists. She says she has a diploma in Mental Health and Addictions.

[21] Mother is prepared to cooperate fully with the society and any recommendations made to her.

[22] A long time friend of the mother’s gave evidence. He is a 44 year old mortgage broker who has known mother for about 10 years. He has babysat LN in the past when mother had to run to the grocery store and never had any concerns for mother’s care of the child.

[23] He always observed food in the home and mother encouraging LN to eat.

[24] He does not know father nor has he seen LN since the child went into the care of the society in summer of 2021. He has never seen the mother use drugs but was not surprised to learn she had been a ketamine user for over 10 years.

Legal Framework

Continuing Need for Protection

[25] The case of Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482 confirmed that the court, when determining disposition, must first determine if a protection order is necessary to protect the child in the future (subsection 101 (1) of the Act). The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time.

[26] Determining that a protection order is necessary to protect a child in the future is not the same thing as finding the child in need of protection under clause 74 (2) of the Act.

[27] Father and step-mother and the society agree that there is a continuing need for a protection order. Mother does not agree.

[28] It is very clear that there is a continuing need for an order to protect the child in the future because:

(a) If the society terminates its proceeding, the person who had charge of the child immediately before intervention would resume custody. That person is the mother.

(b) Mother continues to have the same high risk lifestyle as she did when the child came into the care of the society; namely an untreated drug addiction and an inability to recognize and meet the needs of the child.

(c) Despite many opportunities and at least the last year and a half, mother has not been able to address the concerns.

(d) Mother has difficulty even acknowledging the concerns.

(e) This combination creates an ongoing and escalating risk for the child.

The Paramount Objective

[29] The CYFSA requires a careful balancing of the paramount objective to promote the best interests, protection and wellbeing of children, with the value of maintaining the family unit. The legislation does not emphasize parental rights but rather recognizes the importance of maintaining the family unit as a means of fostering the best interests of children.

[30] The values and purposes outlined under section 1(2) of the Act must always be evaluated in contemplation of what is best for the child. A child-centred focus must not be lost at any stage of a protection hearing, see Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165.

[31] There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. Children’s Aid Society of Brockville, Leeds and Grenville v. C. [2001] 2001CarswellOnt 1504.

Best Interests

[32] Once it has been determined that an order is necessary to protect LN in the future, the court must make an order that is in his best interests. Best interests is defined in the Act in subsection 74(3) with a non-exhaustive list of considerations.

[33] The court must consider the least restrictive alternative consistent with the child’s best interests. CAS Peel v. W., 1995 14 RFL (4th) 196 (OCJ).

[34] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child.

[35] Subsection 101(4) of the Act requires the court to consider alternative placement with a relative, neighbor, or other member of the child’s community or extended family, with their consent, before considering society care and custody. In this case, the father came forward and worked with the society to have the child placed with him and his family. The child has been there since October 2021.

[36] In determining what order is required to meet the child’s best interests, the court must consider the degree to which the risk concerns that prompted the original order still exist. This must be examined from the child's perspective. Catholic Children's Aid Society of Toronto v. M. (C.), (1994), 2 S.C.R. 165 (S.C.C.).

[37] The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child’s life with the result that in giving the parents another chance, the child would have one less chance: Children’s Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man.C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. Children’s Aid Society of Brockville, Leeds and Grenville v. C. [2001] 2001CarswellOnt 1504.

The Child

[38] The child is described by father and stepmother as talkative and social. He enjoys school and has made friends. He is very close to his half siblings.

[39] The child is meeting all of his developmental milestones. He sees the family doctor and dentist regularly.

Duties of Society

[40] Pursuant to section 35 of the Act, children’s aid societies are tasked with a number of functions, including the investigation of allegations that children may be in need of protection, and the protection of children. Part of their mandate is to provide guidance, counselling and other services to families for protecting children or to prevent circumstances requiring the protection of children. Children’s aid societies are also required to adequately supervise, when required to do so. See: Catholic Children’s Aid Society of Toronto v. T.T.L., 2019 ONCJ 530

[41] In accordance with section 1(2) of the CYFSA, the Society has a duty to consider and provide services, including early intervention services and community support services. The services are to build on the family’s strengths. The Society is also to provide clear expectations to the family to assist them to address the issues before the Court. See: Catholic Children’s Aid Society of Toronto v. K.R., 2018 ONCJ 288.

[42] Mother has been referred to many resources to assist her with addiction and parenting issues: Jean Tweed, CAMH, and the Ketamine Clinic.

[43] The society has provided a family service worker, a family support worker and special semi-supervised access program to assist with visits. Initially the child was in foster care and treated by the society medical doctor.

[44] Mother was unable to make any real use of the resources made available to her.

[45] The court finds that the society has met its obligation to provide services to the mother and to the child.

Credibility and Reliability of the Parties

Mother

[46] Mother, at times, appeared to dispute the facts that she agreed to when the first order was made finding the child in need of protection and placing him with the father and step-mother under supervision for 6 months, with conditions attached.

[47] Mother says she does not have an addiction but then agrees that she does. She disputes that she needs a program to get off ketamine. Mother believes she can do it by herself as she received a diploma in mental health and addictions.

[48] Mother’s denial that the white powder on her face during the visit was ketamine was feeble. Her evidence that it was a vitamin powder was not believable. Her drug addiction makes mother unreliable.

[49] Mother says she doesn’t need a parenting program or counselling, although she sees herself as a victim and clearly struggles to engage the child during access visits.

[50] Mother cannot point to any real change since the making of the last order.

[51] Mother actually doesn’t dispute that the child is well cared for by father and step mother.

Father and Stepmother

[52] Both father and stepmother provided their evidence in a forthright and sensitive manner

[53] Neither of them were defensive in any way.

[54] Their evidence was consistent with the evidence of the society.

[55] When they were uncertain about how to handle a particular issue or situation, such as inviting mother to the religious baptism, they sought advice from the society and followed the advice.

[56] There was no reason to doubt any of their evidence

Strengths of the Mother

[57] Mother almost always arrives for her visit on time and with food for the child. She may also bring a toy or a gift.

Mother’s Plan

[58] Mother proposes a return of the child to her care and custody. She would enroll the child in a local Catholic school.

[59] Mother is not opposed to the father having regular visits with the child and, in fact, she says she would share the child with father, in her words: “ 50-50”. She gave no details as to how this this would be implemented and certainly no reason as to why it would be in the child’s best interests.

[60] In the alternative, mother proposes a gradual increase in her access to full weekends

The Society/Father/Stepmother Plan

[61] Father’s plan has essentially been road tested over the last 18 months.

[62] The child attends the local Catholic school. He is picked up by the step-mother or her parents and usually one or more of the half-siblings. The children have a snack and then play until dinner time. On Saturdays the child takes Vietnamese language lessons. The family is very active in their local Catholic Vietnamese Church.

[63] Stepmother is currently home on maternity leave. She is the primary caregiver but father helps too and comes home early from work when needed.

[64] Father and stepmother have provided a structured, consistent, and child focused environment for LN.

[65] The child is thriving in this environment.

Best Interests of LN

LN’s physical mental and emotional level of development and needs

[66] When LN first came into the care of the society, there was concern about his low weight and language development.

[67] LN is now very talkative and his family doctor indicates that his weight has improved.

[68] Stepmother has a consistent method of treating LN’s eczema, which is proving successful.

[69] Father and stepmother ensure the child is regularly attending school and is punctual.

[70] Father and stepmother ensure the child attends for all necessary medical and dental appointments.

[71] The child presents to the society workers and to the school as happy and comfortable with the father and stepmother.

[72] In recent visits, the child’s emotional well being has been threatened by mother’s volatile conduct and her comments to the child that he is responsible for their current separation. His response is to shut down and he will stand and face the wall. Stepmother has noticed his subdued affect after some of these disastrous visits.

[73] The child does not experience mother to be emotionally safe for him.

[74] The court finds that father and stepmother are better able to meet LN’s needs.

[75] The child’s gains would be threatened by changing his environment.

ES’s race and heritage

[76] All of LN’s family members are Vietnamese Canadians and Roman Catholic.

[77] LN is being raised within this community.

Importance of a positive relationship with a parent and a secure place as a member of the family

[78] LN has had the security of a consistent, positive placement while in the care of the father and step-mother.

[79] Mother’s anxiety, drug use, and volatile behaviour is adversely impacting on the child’s sense of security.

[80] Mother’s constant criticism of father and his family has a very negative impact on this young child

Relationships with other family members

[81] LN has a secure place in the father’s family and extended family.

[82] Father and stepmother also ensure the child connects with the maternal extended family.

[83] Mother has no insight on the impact of her behaviour on the child.

[84] It is important that a parent be able to protect a child from adult conflict. Father and stepmother do this for LN. Mother cannot.

Delay

[85] Delay is a very serious issue in this case. Given some of mother’s statements to the child during visits, the child must be unsure whether he is returning to mother or not. Almost two years has gone by since he was moved from mother’s home.

[86] A permanent plan is absolutely essential for LN.

The importance of continuity

[87] LN has thrived in the consistent care of father and step-mother. Mother cannot point to any concern.

[88] Father and his family have developed a consistent, committed, and growing relationship with LN.

Risk of harm

[89] To return LN to the home that was not able to meet his needs in the past would be to repeat the risks of the past.

[90] The evidence about mother’s inability to make any change informs the court that the risk of harm remains just as high today- too high to place with the mother.

[91] Mother has not been able to develop any insight into the impact of her own actions on LN; for example, the description of the recent disastrous visits with mother screaming and trying to cover up the white powder around her nose and chin are heartbreaking.

[92] Sadly, mother testified that she was trying to prove to the society that she could function after taking ketamine.

[93] Every day is a struggle for mother to manage her own life. She is not able to safely manage a child on her own.

[94] Mother’s access has been increasingly negative for the child. It has had to return to fully supervised visits.

Conclusion on Disposition

[95] Based on the whole of the evidence, it is clear that it is in LN’s best interests that he be placed in the custody of his father and step-mother, pursuant to subsection 102 of the Act.

[96] In particular, the court notes that:

(1) Mother has been unable to overcome her addiction to ketamine. (2) Mother is increasingly unable to recognize and meet the child’s emotional needs. (3) Mother currently can only have supervised access. This is the only method that protects the child. It would be disastrous for the child for mother to suddenly progress from supervised access to a share parenting arrangement. (4) The child is with family who love him and have demonstrated over the past year and a half that they are able to meet his needs.

Access

[97] Section 104 of the Act permits the court to attach an order of access that is in the best interests of the child to an order made in child protection proceedings.

[98] The same definition applies as set out above for best interests of a child.

[99] The society and father and stepmother seek to continue the supervised access regime that has been in place since April of 2023. The supervision would be through a provincial government sponsored centre or a private resource. The cost would be split between mother and father. A minimum number of hours would be set.

[100] Mother wants to see a change in the current regime. She would like to progress to unsupervised visits and then to full weekends. Her plan is linked to time rather than any changes on her part.

[101] Communication amongst the parents is very challenging:

(a) Mother is very angry with the society and with the father and his family.

(b) Mother cannot control her emotions in front of the child or when dealing with the society or father and his family. In her own words, she “vents”.

(c) There are numerous examples of text messages, facetime posts, and emails from mother using very ugly and threatening language against everyone involved in this case. These emails continued through the weekend before this trial began (see exhibit 5-18).

[102] Mother has been unable to make any changes. She can occasionally acknowledge she needs some help but then denies any problems. She needs therapeutic, medical, and practical supports.

[103] Mother’s problems are also longstanding. She herself has said repeatedly over the last few years that she has been addicted to ketamine for 10 years. She refers to being given ketamine when she had an abortion as a teenager. She is almost 35 years old now. These issues cannot be alleviated in the short term, if at all.

[104] Mother’s behaviour in the access visits has deteriorated in the last 6 months:

(a) She has at least twice come with ketamine powder on her face.

(b) She has broken down crying and screaming in front of the child.

(c) She has blamed the child for the situation she is in.

(d) She cannot stop making negative comments about the child’s current home and family.

[105] The impact of this conduct on the child has been devastating:

(1) He cowers. (2) He faces the wall. (3) He puts his hood up. (4) He withdraws.

[106] For a child his age, LN’s response is loud and clear.

[107] Based on the best interests of this child, including the indicators as set out above, mother’s access cannot be expanded in any way and must remain supervised.

[108] The court agrees with the proposal of the father, step-mother, and the society:

(a) Mother shall have access to the child a minimum of once per week for three hours at an APCO Centre or an alternative access centre agreed upon by the father and mother.

(b) The date and time for the access shall be agreed upon by the father and mother, taking into account the child’s schedule and the availability of APCO or the alternate access centre agreed upon between the parents.

(c) The father and mother shall share the cost of the access centre equally.

Information, Documents and Travel

[109] Because of the extreme communication challenges that mother presents, father and stepmother need to have full control of the child’s identifying documents.

[110] There has already been a motion about the travel issue. The court agrees with the order of Justice Szandtner that father and stepmother need to be able to travel outside of Canada without notice to nor with the consent of the mother.

[111] Both the father and stepmother will need and shall have direct access to all information about the child, including school, health, and general welfare, without notice to nor consent of the mother

Final Orders

1. The child, LN, born December 26, 2017 shall be placed in the custody of his father and step-mother, pursuant to section 102 of the Child Youth and Family Services Act, 2017.
2. The father and stepmother shall be permitted to travel with the child outside of Canada without the consent, or notice to, the mother or any other person.
3. The father and stepmother shall be permitted to obtain or renew government documents, such as passports, health cards, SIN numbers, birth certificates, and applications for name changes for the child without the consent of or notice to the mother or any other person.
4. The father and stepmother may consult with and obtain information, records, and report cards directly for the child from teachers, doctors, and any other professionals involved with the child about his health, education, and general welfare without the consent or signature of the mother or any other person.
5. Any person seeking to change this order shall serve the society.
6. The mother shall have access with the child, LN, a minimum of once a week for three hours at APCO or at an alternative centre agreed upon by the father and the mother.
7. The date and time of the access shall be agreed upon between father and mother, taking into account the child’s schedule and the availability of the access centre.
8. The father and mother shall be equally (50/50) responsible for the cost of the access centre

The draft order provided has been signed and is attached to these reasons. It can be issued by the court.

Released: June 6, 2023.

Signed: Justice Debra Paulseth

[1] At trial, mother proposed a 50-50 equal parenting time with father.