Court File and Parties

CITATION: Valoris for Children and Adults of Prescott-Russell v. C. T., 2017 ONSC 7032

DIVISONAL COURT FILE NO.: DC-16-2229

DATE: 2017/11/24

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: VALORIS FOR CHILDREN AND ADULTS OF PRESCOTT-RUSSELL, Applicant/Respondent in Appeal

AND:

C.T., Respondent/Appellant

BEFORE: Swinton, Linhares de Sousa and Favreau JJ.

COUNSEL: Sophie Côté Langlois, for the Respondent in Appeal Valoris

Cedric Y.L. Nahum, for the Appellant C.T.

HEARD at Ottawa: November 22, 2017

ENDORSEMENT

BY THE COURT

[1] The Appellant mother appeals from the final order of Roger J. dated June 29, 2016, granting an order for Crown wardship with no access for the purpose of adoption of the child V.

[2] The grounds for the appeal submitted by the Appellant are the following.

[3] She argues that the trial judge erred in finding that the child was in need of protection. While acknowledging that the trial judge stated the test for determining risk of harm correctly, she submits that he applied the test incorrectly. The Appellant argues that the trial judge did not have before him evidence that the child had actually suffered harm or that there was risk of actual harm to the child. Rather, the concerns revealed by the evidence were that some of the mother’s parenting during the access visits went no further than causing the child temporary discomfort rather than putting the child at risk of real harm, as is intended by the legislation.

[4] On this point, we disagree with the Appellant. Based on all of the evidence before the trial judge, he could reasonably have come to the conclusion, on a balance of probabilities, that he was persuaded there was a “real risk that the child is likely to suffer physical harm resulting from the mother’s failure to adequately care for, provide for, supervise and protect the child” (para. 84.) We can find no palpable or overriding error.

[5] The Appellant submits that the trial judge improperly applied the evidence of Dr. Worenklein by adopting the expert’s opinion about the future capacity of the mother to parent V. when the Court had given directions to Dr. Worenklein to limit his opinions to the mother’s capacity as of the time of the assessment. We see no merit to this argument. The Court qualified Dr. Worenklein as an expert in two areas. He was permitted to testify as an expert witness regarding his psychological assessment of the mother and how the psychological traits and results of the testing may impact on her parenting abilities at the time of the assessment. (Transcripts of the Proceedings, Volume 6, pages 45 and 46.)

[6] From all of the evidence before the trial judge, including that of Dr. Worenklein, he could reasonably have made the inference and come to the conclusion, as he did at paras. 83 and 84, that the mother demonstrated a lack of insight into the child’s needs which negatively impacted her ability then and into the future to meet the needs of the child in a sufficiently consistent manner.

[7] The Appellant submits that the trial judge erred in putting too much weight on the evidence, much of it historical, relating to her mental health. We reject this argument. It is evident from his reasons that the trial judge was aware of the historical and more recent evidence relating to the mother’s mental health including her hospitalizations. This information is included in the judge’s recitation of his factual overview. However, the trial judge clearly stated at para. 74 that whether or not the mother was suffering from a psychiatric condition was in no way determinative of the issues before him. It is clear from the balance of the trial judge’s reasons that his factual conclusions, in applying the legal tests he was required to consider, are grounded on the evidence relating to the mother’s parenting of her child and how she responded to Valoris’ efforts to assist her with the parenting of V. In our view, the trial judge demonstrated a balanced view and assessment of all of the evidence in determining what was in the best interests of this child.

[8] The Appellant further submits that the trial judge erred in substantially disregarding evidence that demonstrated the likelihood of positive change on the part of the mother regarding her efforts to become an appropriate parent as well as establishing solid roots in her community and parish. As an example, the Appellant submits that the Court did not address the fact that by the time of the trial, she had completed a Triple P parenting program. She also had her cognitive functioning assessed close to the completion of the parenting program and was shown to be functioning within the average to superior range in all areas.

[9] Again we disagree with this submission. The trial judge was clearly aware of the efforts of the mother to establish herself actively and solidly in her community. He recognized the support she enjoyed in that community, but he also rightly recognized the limited impact such efforts and developments were having on her parenting abilities because her parenting deficiencies continued to be observed by those who were in a position to observe her interactions with her son (paras. 48 to 58 of the Reasons for Judgment.)

[10] With respect to the mother’s completion of the Triple P parenting course, we note, as the trial judge was also aware, that the completion of this course came more than two years after the child was apprehended. Valoris had been recommending that she pursue a parenting course from almost the very beginning of its involvement with the family. As a result there was little, if any evidence, before the trial judge, that despite the mother’s intelligence, her completion of this course impacted in any substantial way her parenting abilities.

[11] The Appellant submits that the trial judge placed undue weight on the mother’s failure to cooperate with Valoris and in so doing incorrectly dismissed the viability of a supervision order as being in the best interests of the child. It was her position, that while she recognizes the tension between herself and Valoris, the mother has always shown herself to respect and obey court orders. Consequently, if such a court order existed she would comply with all of the conditions, including working with Valoris.

[12] The trial judge had before him evidence of the long history of the negative working relationship between the Appellant and Valoris as well as with other service providers and others who were in authority and with whom the Appellant for one reason or another disagreed. Based on that evidence, we can find no error in the trial judge coming to the conclusion that there was a real doubt about whether the Appellant could productively work within an ongoing relationship with Valoris in the best interests of the child.

[13] Finally, the Appellant submits that Valoris did not fulfil its legislative responsibility to seek out alternate kinship and community placement plans before resorting to the most intrusive plan of Crown wardship. This submission also fails. After examining the trial transcript of the various witnesses who spoke to this point, we find that the trial judge could reasonably have come to the conclusion, as he did at para. 94 of his Reasons for Judgment, that Valoris made reasonable efforts to present plans for community and kinship placement. The mother was clearly opposed to placing the child with members of her family, who also did not come forward to present a plan. The mother was aware that she could have presented a plan from someone in her community, but this too did not result in the actual presentation of a plan for the child.

[14] It is evident that Valoris has been unable to find a plan for the child that will necessarily encompass the mother’s unique combination of Hare Krishna faith lived in the context of a Catholic community, despite their efforts to do so. This, however, is only one factor to be considered in determining what is in the child’s best interests. In choosing a foster home and a future permanent home, Valoris attempted to meet this factor by finding a placement in the mother’s chosen Catholic faith community.

[15] The child’s permanency planning is a continuation of the placement with his current foster parents, who are potential adoptive parents. He has enjoyed continuity of care, and by the time of the trial, he had formed an attachment with this family.

[16] For these reasons, we cannot find any grounds to interfere with the trial judge’s decision to order Crown wardship without access and with a plan for the adoption of this child. He correctly stated the law, which was not disputed.

[17] With respect to his findings of fact and the application of those facts to his conclusions, we cannot find any palpable or overriding error. There was ample evidence for him to conclude that an order for Crown wardship was the only viable plan that would protect this child and be in his best interests. For these reasons, the appeal is dismissed.

Swinton J.

Linhares de Sousa J.

Favreau J.

Date Released: November 24, 2017