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.
(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.
(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: 2018-02-20
Court File No.: Toronto C70931/14
Between:
Children's Aid Society of Toronto Applicant/Respondent
— AND —
I.L. (mother) Respondent/Moving party
Before: Justice Robert J. Spence
Heard on: February 8, 2018
Reasons for Judgment released on: February 20, 2018
Counsel
Ms. Justine Sherman — counsel for the applicant society
Mr. Alexei Goudimenko — counsel for the respondent
Judgment
Robert J. Spence, J.:
Introduction
[1] This is a motion seeking leave to bring a status review application. The leave motion is brought by the mother of two children, D., age 6 years, and A., age 4 years. Following a trial, this court ordered both children to be Crown wards on November 12, 2015. The mother now seeks leave so that she can proceed with her status review application, with the hope that she can resume fulltime care of both children or, in the alternative, either of her children.
Litigation History
[2] Following a 12-day trial in which both the mother and the father participated as respondents, this court found the children to be in need of protection pursuant to subsection 37(2)(b) of the Child and Family Services Act (Act), and ordered that the children be made Crown wards, without access to the parents.
[3] The father[1] appealed that order and on August 22, 2016, Wilson, J. dismissed the appeal.[2] No further appeal from the order of Wilson, J. was taken by either of the parents.
[4] On March 30, 2017, the Applicant society (society) advised the parents that the children had been in the continuous care of the same foster parent for more than two years and that the children had not been placed for adoption.
[5] On May 25, 2017, the mother issued her within motion seeking leave to bring the status review application.
Legal Considerations
[6] The mother's motion seeking leave to bring her status review application is brought pursuant to subsections 65.1(4) and (5) of the Act, which provide:
Others may seek status review
(4) An application for review of a child's status under this section may be made on notice to the society by,
(a) the child, if the child is at least 12 years of age;
(b) a parent of the child;
(c) the person with whom the child was placed under an order for society supervision described in 65.2 (1) (a);
(d) the person to whom custody of the child was granted, if the child is subject to an order for custody described in clause 65.2 (1) (b);
(e) a foster parent, if the child has lived continuously with the foster parent for at least two years immediately before the application; or
(f) a representative chosen by the child's band or native community, if the child is an Indian or native person. 2006, c. 5, s. 24 .
When leave to apply required
(5) Despite clause (4) (b), a parent of a child shall not make an application under subsection (4) without leave of the court if the child has, immediately before the application, received continuous care for at least two years from the same foster parent or from the same person under a custody order. 2006, c. 5, s. 24 .
[7] It is important to note that subsection 65.1(5) of the Act does not set out a legal test for the granting of leave. The test for granting leave has developed over time, through case law.
[8] In Catholic Children's Aid Society of Metro Toronto v. F.(B.A.), Justice Douglas A. Bean set out the five criteria which a court should consider in deciding whether to grant leave.
[9] In the absence of any statutory guidance, the court postulated five cumulative criteria to be proved on a balance of probabilities before it would give permission:
The status review application for which permission is sought must be made in good faith and not for some ulterior motive that would needlessly disrupt the stability of the child's foster placement.
Permission should be refused where it is possible to get the relief sought by some less drastic way than a review of the whole Crown wardship order.
There has to be some unusual circumstance to justify the court's intrusion into a continuous and long-term foster placement, especially from a child's perception of time.
The applicant must convince the court that, after two or more years, a status review application now would likely promote the objectives set out in section 1 of the Child and Family Services Act, 1984.
There has to be a prima facie case that, if permission was given, the applicant would probably get the relief sought.
[10] That court held that all five criteria must be satisfied on a balance of probabilities before leave will be granted to proceed with the status review application.
[11] In Children's Aid Society of Waterloo Region v. L.M., 2015 ONCJ 103, the same principle was followed, specifically, that all five criteria must be satisfied before leave will be granted.
[12] However, there is a different line of cases which holds that the court's discretion ought not to be fettered by an absolute adherence to all five criteria. In S.R. v. Catholic Children's Aid Society of Toronto, 2011 ONCJ 11, this court took a somewhat more flexible approach, focusing more on the merits of the leave application than on the necessity of satisfying all five criteria. A similar approach, focusing more on the merits of the leave motion, was taken by the court in Children's Aid Society of Brant v. A.C., 2015 ONCJ 436.
[13] The continuing emphasis on a flexible approach and the need to focus more on the merits of the moving party's plan, was more recently discussed by Justice Stanley B. Sherr in The Children's Aid Society of Toronto v. S.C., 2017 ONCJ 240.
[14] This court prefers the line of cases which focuses more on the flexible approach, rather than the requirement that the moving party satisfy all five criteria as first propounded in Catholic Children's Aid Society of Metro Toronto v. F.(B.A.), supra.
[15] During the course of argument, I asked both counsel which approach this court ought to take in deciding whether to grant leave. Both counsel submitted that the court should decide the motion primarily on the basis of the merits of the mother's proposed status review.
[16] For the foregoing reasons, that is the approach this court takes in deciding the motion.
Analysis of the Mother's Proposed Status Review Application
a. The Trial Decision
[17] At trial, the parents took the position that the children should be returned to their joint care and custody under a society supervision order. Their alternative position was that the children should be returned to the mother alone under a society supervision order.
[18] The court rejected both positions. As to the parents' primary position, the court's findings can be summarized as follows:
(1) The children had very specific and demanding special needs. The father was adamant that he was in disagreement with the recommendations of the children's medical professionals.
(2) The father's attitude was very rigid in rejecting the opinions of medical specialists, instead, preferring his own opinions which were not supported by any evidence, other than those opinions.
(3) The father not only disagreed with the medical professionals, but he did so with disdain, rudeness and outright hostility.
(4) The father was demonstrably ungovernable, having disobeyed a number of court orders. He had not only failed to attend court in criminal proceedings, but he had also disobeyed at least one court order in the child protection proceeding. He had outright disdain for the society workers. That ungovernability made the possibility of a supervision order unrealistic.
(5) Despite the society's attempts to foster a more positive parenting style for the parents by instituting therapeutic access, the parents made it clear that they had nothing they needed to learn from a therapeutic access regime.
(6) Despite the overwhelming evidence of domestic violence by the father toward the mother, the father absolutely denied the existence of that violence.
(7) The father demonstrated no remorse or insight into his own inappropriate behaviour. Instead he insisted all of his actions were justified and his opinions ought to carry more weight than the opinions of everyone involved with his children, including all of the medical and social work professionals.
(8) The court found that the father was substantially lacking in credibility regarding many of the statements and assertions he made during the trial.
[19] As to the parents' alternate position, namely, that the children be returned to mother's care alone, the court made a number of findings which ultimately required that position to be rejected by the court:
(1) The court found that mother's life was "inextricably entwined with the father" such that she could not imagine herself living apart from him for any extended period of time.
(2) Mother was critical of the medical advice the professionals were recommending for her children.[3]
(3) Despite the strong evidence of domestic violence, the mother demonstrated no insight into her own victimization, and the need to remain away from the father. In fact she characterized one of the assaults as merely a "verbal exchange with my husband." She also made comments such as "I believe it was a misunderstanding" and that "sometimes he offended me psychologically but never physically".
(4) Despite evidence of her having made a number of statements to the police and to the society workers, at trial she outright denied making many of those statements.
(5) The mother was very critical of the society during the course of her testimony, at one point, stating, "I am in shock about that team of professionals who work there".
(6) Mother's credibility at trial was found to be as lacking as the father's credibility. For example, during cross-examination she was shown an affidavit she had sworn earlier in the proceedings. Instead of admitting the obvious, namely, that the statements in that affidavit were hers, she "concocted an unbelievable story"[4] by stating that her lawyer had placed blank pages in front of her, telling her to sign the blank last page, and afterwards the lawyer filled in the body of the affidavit which contained assertions, later shown at trial to be harmful to the mother's case.
(7) Her credibility was undermined by much of the evidence she gave at trial, including her denial of having missed important medical appointments for the children, when the evidence was clearly otherwise.
(8) She persistently denied and obfuscated during the course of her testimony. She refused to acknowledge she had been assaulted; she refused to acknowledge that she might benefit from domestic violence counselling; she refused to acknowledge that her ongoing relationship with the father was a source of concern for the society.
[20] Importantly, the court concluded at paragraph 287:
The mother's lack of candour in this trial – denying that she swore certain affidavits, accusing the society workers of lying, calling into question their professionalism, all suggest that – quite apart from the nature of her relationship with the father – she is a poor candidate to be a custodial caregiver pursuant to a supervision order.
b. What Has Changed Since Trial, According to Mother
[21] In assessing the merits of the mother's plan, this court must ask what has changed since the trial decision in November 2015. According to the mother, much has changed such that now, the court ought to consider seriously the merits of her plan to have the children returned to her.
[22] First, the mother states that she separated from the father on September 1, 2016. He is no longer in her life. She has become a more independent person, someone who is able to function in Canadian society[5] without the father's involvement in her life.
[23] She states that she now fully understands and accepts the society's concerns, and the concerns of the court in a number of areas that she had previously disputed. For example, she now has insight into the children's needs to be attended to by medical professionals, and she states that she will take recommendations from those professionals seriously.
[24] She states that she has accepted responsibility for the apprehension of the children, and that she has insight into the factors leading to that apprehension, including domestic violence and its negative effects on the children; the power imbalance between herself and the father; her poor judgment regarding her stance on Canadian medical services and her lack of cooperation with the society's professional workers.
[25] She states that on June 17, 2017 she successfully completed a 10-week parenting course.
[26] On July 13, 2017 she attended a psychological assessment of her emotional/mental wellbeing and of her insight into the protection concerns. The psychologist, Dr. Gabidulina issued a report in which she concluded:
(1) Mother does not suffer from any mental disorder or any psychic ailment;
(2) Mother will be able to be an effective parent, maybe initially being supervised by the society;
(3) Mother has insight into the protection concerns and her insight is deep;
(4) Mother has insight into the negative effects of domestic violence on the children;
(5) Mother has separated from the father and she is doing well; and
(6) Mother will cooperate with the society and follow the rules.
[27] Mother has continued to gain independence within Canadian society, including expanding her English language skills by attending courses regularly. She has obtained part-time employment and is now on a waiting list for subsidized housing.[6]
[28] She states that she will ensure there is no contact between the children and the father unless expressly permitted by the court.
[29] She states that although she has had some "occasional and telephone contact" with the father since the date of separation, she has turned her life around and she is no longer dependent upon the father the way she was when this matter was before the court.
[30] In effect, mother argues that she is no longer the same person who she was two years ago. And because of this, she is fully capable of caring for her children.
c. Beneficial Changes
[31] The court must give due consideration to assessing the positive changes in mother's life since the date of trial, particularly those changes which could likely provide a realistic foundation for a successful status review application.
[32] One change which the court recognizes is mother's completion of the 10-week parenting program. While it is difficult for the court to assess the concrete benefits of that program for mother, she is to be commended for participating in the program.
[33] Mother's 19-year-old son[7] lives with mother and he has indicated his willingness to be a support person for mother if the children are returned to her care.[8]
[34] The court commends mother for improving her English language skills and for having obtained some part-time employment.
[35] The court recognizes the benefit to mother for continuing to develop some level of independence within Canadian society.
[36] However, despite these positives, the rest of what mother has to say, the promises she is making, the insights which she now professes to have acquired since the trial, are all dependent upon her credibility. As the next section of my reasons reveal, her substantial credibility deficits continue to far outweigh the mother's beneficial changes.
d. Mother's Credibility
[37] At trial, the most critical factor for the court's conclusion that the children could not be returned to mother alone, was her lack of credibility and her lack of candour with the court.
[38] The essence of any supervision order is cooperation between the parent and the society. Unless the parent can demonstrate on a balance of probabilities that she will cooperate with the society, a court cannot have confidence that a supervision order will operate effectively.
[39] Much of what the mother has to say in her leave motion is dependent on the court's ability to accept her statements as credible, including:
(1) That that father is no longer a part of her life, except for occasional contact;
(2) She has gained insight into the need to respect the advice of Canadian medical professionals;
(3) She has gained insight into the negative effects of domestic violence on children;
(4) She has gained insight into the concerns expressed by the society's social workers; and
(5) She will now follow all of the rules and conditions imposed by the court in the context of a supervision order.
[40] Regrettably for mother, her credibility has not gained in strength since the trial. If anything, it may be even further diminished since then.
[41] On August 25, 2017 the foster mother deposed in her affidavit that, contrary to the court's no-access order, both parents had attended at the foster home on October 30, 2016 and that they had left certain items on the porch. The foster mother went on to depose:
I advised the society that my husband and I went outside to speak with [father and mother] and advised them to bring the belongings to the society. When my husband and I approached [father and mother], I observed that [mother] was upset and crying.
[42] The foster mother also deposed in the same affidavit that, contrary to the no-access order of the court:
(1) On December 4, 2016, bags and boxes were left on our porch;
(2) On January 6, 2017 . . . more items had been left on our porch for [the children]; and
(3) On February 5, 2017, gifts were left at our home for D.'s birthday.
[43] This is what the mother deposed in her affidavit sworn September 28, 2017 in response to what the foster mother said about the October 30, 2016 attendance at the foster home:
[foster mother's] allegation that she saw me at her residence on October 30, 2016 is not accurate. On October 30, 2016 I was out of the country. I have attached as Exhibit "A" to this Affidavit a print-out of my airplane ticket showing the departure date as October 29, 2016 and return date as November 5, 2016.
[44] Exhibit "A" clearly purported to be an Air Canada ticket with those departure and return dates shown, as deposed to by mother.
[45] However, the society subsequently made direct inquiries from Air Canada, following which the society filed an affidavit on October 2, 2017, which stated that based on those inquiries Exhibit "A" was not in fact a true copy of a ticket with departure and return dates as shown on Exhibit "A".
[46] Immediately following that evidence from the society, the mother filed a 14B motion form on October 28, 2016 wherein she asked for leave to "amend her affidavit of September 28, 2016", and more specifically [my emphasis]
That the second and third sentences in paragraph 4 of her affidavit of September 28, 2017 be struck out[9] . . . . and that Exhibit "A" – a ticket print-out attached be permitted to be withdrawn.
[47] In her affidavit in support of her 14B motion form, mother stated that she had [my emphasis]
mistakenly attached the wrong print-out that I found amongst some of the travel documents that I had received from the agent . . . and that given the mix-up in the travel dates I cannot be 100% sure that I was not in Ontario on October 30, 2016.
[48] The court denied the mother's request to strike out that previously-filed affidavit evidence.
[49] Mother had tried to explain the "mistake" by stating that she had simply found and used the "wrong print-out" amongst her many travel documents.
[50] However, that so-called mistake turned out not to be a mistake at all following an affidavit which was subsequently filed by Air Canada counsel on November 22, 2017. In that affidavit, Air Canada counsel deposed [my emphasis]:
(1) Air Canada has no record of any booking or any travel by [mother] on October 29 and November 5, 2016.
(2) The document . . . is for travel in June 2017, not October or November 2016; and
(3) The date of issue of the ticket appears on this document as June 4, 2017. This is not possible for a ticket that would have been purchased for travel in 2016.
[51] When confronted with this evidence at the hearing of the motion, mother's counsel conceded that Exhibit "A" was not an authentic travel document at all. He conceded that Exhibit "A" was obviously a fraudulent document.
[52] Having now been confronted with the obvious, namely, that mother did not make a "mistake", she then submitted that it was open for the court to conclude that her agent, rather than the mother herself, had forged the travel document.
[53] The court asked counsel what possible motive could there be for her agent to have created a fraudulent document which mother would then just happen to have lying around in a drawer and which she would just happen to later come upon to be used as an exhibit in an affidavit. Not surprisingly, counsel was unable to answer that question.[10]
[54] As I noted earlier, during the course of trial, when mother was confronted with another highly incredible scenario, instead of acknowledging the truth of what she had done, she "concocted an unbelievable story". Mother's attempts to scramble and look for a way around the Air Canada ticket fiasco resulted in the same thing, a concocted unbelievable story.
[55] It would have been much easier for mother to simply acknowledge that she had violated the no-access order by attending at the foster mother's home as the foster mother had deposed. She could have then attempted to explain her motivation for doing so. She could have decided to do something different than what she repeatedly did at trial, namely, to engage in outright deception and actively misleading the court.
[56] Instead, she engaged in one series of lies after another so that by the time the last lie was told, she had dug a hole so deep that it became impossible for her to climb out. She went to whatever lengths she felt she had to go to in order to deceive the court into believing that she was now a changed person.
[57] Furthermore, the facts demonstrated that she had not effectively severed her connection with the father. While she may have decided to put on a show for the court by no longer living with him under the same roof, she was clearly still very much involved with him. She actively connived to meet up with him and deliver packages to the home of the foster mother on October 30, 2016, as well as on the additional dates deposed to by the foster mother in her affidavit sworn August 25, 2017.
[58] The father continued to remain very much involved with the mother and with the children by returning repeatedly to the foster mother's home to drop off packages.
[59] I refer again to the foster mother's affidavit sworn August 25, 2017. She deposed that on April 14, 2017 she saw the father walking up her driveway and that she spoke directly to him. She told father that he was not permitted to drop off gifts at her home. She asked father whether he had received the society's cease-and-desist letter specifically telling him to stop this conduct. The father replied "yes" and that he did not want any trouble.
[60] The mother deposed that her lawyer had received the cease-and-desist letter from the society, clearly advising that the mother was continuing to breach the no-access order. Mother stated that she hadn't been previously aware of this. The court finds this response to be entirely improbable and contrary to the evidence.
[61] Mother says that she subsequently contacted the father and told him not to visit the foster home any further. She said the father agreed to do so.
[62] Notwithstanding this, the father continued to visit the foster home in direct contravention of what he knew to be a no-access order. The latest evidence of father's visit comes from an incident report dated November 24, 2017, filed by the society. In that incident report made by the foster mother, the father was captured on security camera footage having attended at the foster home once again to deliver a number of packages which were left on the porch of the foster home.
[63] Neither the father nor the mother has much respect for court orders. Despite having clear and unequivocal knowledge of the no-access order, despite having been warned by the society, the parents were both determined to act in accordance with their own personal agenda.
[64] What all of this tells the court is that in the same way father demonstrated his complete disregard for, and disdain of court orders at trial, he continues to do so even two years later. It doesn't matter to him what orders the court has made, what he has been told by the foster parent, what the society continues to tell him about staying away from the foster home, the father will do what he wants to do. The supercilious and self-righteous attitude which the father displayed at trial[11], and which the court specifically commented on, continues to appear on full display.
[65] It is equally obvious to the court that despite the mother's assertions that she has effectively severed her relationship with the father, she continues to remain very much involved with him, regardless whether they are continuing to live under the same roof.
[66] Moreover, for the mother's within motion, the sad but unfortunate truth is that very little of what the mother has said in her evidence in support of this motion can be accepted by the court. The mother is determined to accomplish her objectives by whatever methods she deems necessary, including actively misleading the court.
[67] And by continuing this way, she has effectively destroyed any opportunity she might otherwise have had to persuade the court that she has changed.
[68] Mother's counsel argues that even if the court finds that mother has lied and has committed fraud, that should not be the end of the inquiry. In support of that proposition, counsel cites the case of Hohol v. Canada (Citizenship and Immigration), 2017 FC 870. That case was an application for judicial review of a decision made by the Refugee Protection Division (RPD) of the Immigration and Refugee Board. In that case the RPD had found that two documents submitted by the Applicant were fraudulent and gave no weight to other documents submitted by the Applicant. In that case – and in immigration cases generally – entirely different considerations apply. Neither that case, nor the principles enunciated about credibility in the context of an immigration proceeding have any applicability to the present case.
[69] Counsel also relied on an appeal to the Court of Appeal in a securities case, Rahimi v. SouthGobi Resources Ltd., 2017 ONCA 719. In that case, the Court of Appeal allowed an appeal from the motions judge below because the motions judge
Erred in law in treating the motion as a mini-trial in which his function was to determine contentious issues of credibility. (paragraph 51)
[70] The Court of Appeal stated
Where there are contentious issues of credibility that impact on the decision to grant leave, the motion judge must ask herself whether [the credibility issues] can be resolved on the existing record. (paragraph 49)
[71] Doubtless, where there are "contentious issues of credibility" that cannot be resolved on affidavit evidence alone, it would be dangerous for any court to decide those issues on the existing affidavit evidence.
[72] And in this case, mother's counsel suggested that the credibility issues were in fact contentious and, because of that, mother should effectively be given the benefit of the doubt by allowing her to proceed with her status review application so that her evidence could be tested in a trial.
[73] While the principle in Rahimi, supra, is valid, it does not apply to the present case, simply because the issue of mother's credibility is far from contentious, for the reasons I have previously discussed.
[74] Mother's almost complete lack of credibility in this motion reveals to the court that she has not changed since the trial, and that she cannot be trusted by the court to follow the terms of a supervision order.
[75] Unfortunately, mother remains ungovernable.
[76] In my view, having made these credibility findings about the mother, and her ungovernability by the court, I do not need to proceed further. Lies about past behaviour and incredible promises to do things in the future cannot possibly form the basis for a supervision order.
[77] Nevertheless, I do wish to comment on other aspects of the evidence on this motion for leave. In the court's view, this additional evidence reinforces the court's ultimate conclusion that the mother's plan is without merit.
e. Mother's Psychological Evidence
[78] The mother relied heavily on the psychologist's report and the conclusions in that report which seemed to support mother's position. However, the court makes the following observations about that report:
(1) The psychologist was given very little of the documentary evidence which the mother relied upon in this leave motion. More specifically, despite the substantial evidence filed by the society, the mother provided the psychologist with only one affidavit, namely, the affidavit of Doreen Pinto sworn June 15, 2017.
(2) In her assessment report the psychologist failed to address many of the deficits which the mother revealed during the course of trial, including the court's findings about her credibility and her lack of understanding and insight into the society's protection concerns, apart from the following bare conclusory statement:
(Question for the psychologist): Does mother have insight into the child protection concerns due to which the children were apprehended . . . and placed into the care of the society? What is the quality of this insight? (Answer from the psychologist): Yes, she does have insight into those concerns and it is a deep insight. I am sure she will follow all the rules in the future.
(3) The psychologist did not carry out a parenting capacity assessment.
(4) The psychologist did not see the mother and the children together.
(5) The psychologist saw mother only once.
(6) The psychologist sought no direct input from the society or any of the social workers or other persons who worked with the family prior to the Crown ward trial. In effect, the assessment, such as it was, was a one-sided engagement between the mother and the psychologist.
(7) The psychologist did recommend psychological counselling (16 sessions initially) with focus to be on a wide range of problems including personal, family and parenting issues. And in this regard, it is noteworthy that mother provided no evidence of engaging in that recommended psychological counselling.
f. The Children
[79] The children both have very special and unique medical needs. These needs were canvassed extensively in the trial decision.
[80] A.'s needs are particularly unique and demanding. I extract the following from the affidavit of Marlo Drago, the society's child protection worker, sworn June 13, 2017, beginning at paragraph 32 of her affidavit:
A. continues to have extensive medical needs that require 24 hour care and the intervention of many specialists to meet his needs.
A. has a diagnosis of Cerebral Palsy Spastic Quadriplegic; Axial Hypotonia and Peripheral Spasticic, Hydrocephalus with VP shunt, Chiari Malformation Type 1 Diagnosed, Global Developmental Delay, Strabismus / CVI Cortical Visual Impairment (Eyes) Phase 2/ Level 7, Severe Hearing Loss Left side at High Pitch requiring Hearing Aid, Clonus (legs) Random shaking in legs and Chronic Lung Disease due to Prematurity / Asthma.
Developmentally A. is at approximately 6-8 months as per ErinOak specialist assessments.
A. Utilizes the following resources on a frequent basis:
• ErinOak Kids – Physiotherapy, Occupational Therapy, Speech therapy, Oral Motor team, Seating Clinic, Orthotics, and Developmental Paediatrician, Botox injections for Spasticity, Low Vision Clinic.
• Surrey Place – Vision Therapy.
• Hospital Sick Kids – Neurosurgeon / Neurology, Sleep Disorder Clinic, ENT, Sleep Studies, Ophthalmology.
• Holland Bloorview Kids Rehabilitation Hospital – Feeding Clinic, Sleep Assessments, Respirology, Oxygen Monitoring.
• Community – Eyes, Hearing, Dental.
• Peel Inclusion Resource services, Resource worker Day Care
• 1:1 CYW Student once per week attend Early Years Centre.
A. Also utilizes the following assistive devices: bath seat, special tomato seat for feeding, bumbo chair, specialized pediatric wheelchair/stroller, highlow base, therapy balls, therapy bench, Go to Seat, Child Rite Seat, Stander, orthotics, hearing aid, iPad and Switch, Courtney bed.
[81] The children have both been in the same foster home since they were brought into the society's care in May 2014, a period now close to four years.
[82] The children will be a challenge to place for adoption. However, and significantly for these children, the foster family has indicated a willingness to continue to care for the boys until they are adopted.
[83] The foster family's now-intimate knowledge and understanding of the children's needs and the children's extensive demands ensure that the children will be cared for as best as possible until such time as an adoptive family can be found.
[84] The mother has not had any contact with the children since the trial decision in November 2015. While the mother understandably loves the children and seeks their return to her care, the mother cannot possibly have any real understanding, knowledge or expertise in caring for the children in the same way that the foster family has developed over the past almost four years.
[85] The society is of the view that reintroducing the mother to the children after more than two years without any contact would threaten the children's stability and possibly jeopardize the gains they have made while in care.
[86] The society's view in this regard is not disputed by evidence before the court. Furthermore, from the court's perspective, it is a view which accords with the likely reality of the situation.
Conclusion
[87] As I noted at the outset of these reasons, the stricter line of cases would require the mother to satisfy all five criteria which Justice Bean originally propounded in Catholic Children's Aid Society of Metro Toronto v. F.(B.A.), supra. However, this court prefers the more flexible approach, focusing primarily on whether the mother is able to satisfy the court that she has a meritorious plan, that she has a prima facie case for relief.
[88] In this regard, I have attempted as much as possible to consider the mother's plan without imposing on myself undue constraints of inflexibility.
[89] For all of the foregoing reasons I have necessarily concluded that mother's plan to reunite with one or both of her children pursuant to terms of a supervision order is without merit. She has not satisfied the court that she has a prima facie case for relief.
[90] The mother's motion seeking leave to bring a status review application is dismissed.
Released: February 20, 2018
Signed: Justice Robert J. Spence
Footnotes
[1] The mother did not participate in the appeal.
[2] Children's Aid Society v. V.L., 2016 ONSC 5114
[3] Albeit somewhat less critical than the father
[4] The court's words in its reasons for judgment, in describing the mother's testimony
[5] She had earlier immigrated to Canada from Russia.
[6] Or that she has now actually obtained such housing. The evidence on this point was unclear, but in any event nothing in this decision turns on that particular issue.
[7] From a prior relationship
[8] This is not a material change from the trial as the son testified to the same willingness at trial. However, the son is now two years older and, presumably, more mature than he was as a 17 year-old.
[9] These were the sentences in which the mother absolutely denied attending at the foster home, stating that her attendance at the foster home was an impossibility given that she was out of Canada at the time.
[10] This is not a criticism of counsel, but merely a recognition that when faced with something that is white, it is impossible to somehow suggest it is black.
[11] See paragraph 221 of Children's Aid Society of Toronto v. I.L., 2015 ONCJ 646
