Children’s Aid Society of Toronto v. S.T., 2024 ONCJ 335

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: July 5, 2024

COURT FILE No.: CFO-18-15792-B2

BETWEEN:

Children’s Aid Society of Toronto

Applicant,

— AND —

S.T.

Respondent

Before Justice W. Kapurura

Heard on June 3, 4, 5, 6, 7, 10 & 11, 2024

Reasons for Judgment released on July 5, 2024

Counsel: Chithika Withanage.................................................................. counsel for the applicant society Sage Harvey...................................................................................... counsel for the respondent

JUSTICE W. KAPURURA:

Part One – Introduction

[1] This trial involved two separate protection applications brought by the Children’s Aid Society of Toronto (the society). The first one is an amended protection application regarding the child Iz who is 6 years old. The subject child on the second protection application is J who is 5 months old. They both are currently in the temporary care and custody of the society.

[2] Iz has been the subject of child protection proceedings since the summer of 2018 when he was a few months old (except for a 2-year period between 2021 and 2023). He has been in the care of the society most recently since June 29, 2023.

[3] J was brought to a place of safety at birth in January 2024 and remains in the care of the society.

[4] The family consists of the following members:

i. ST is the children’s mother (the mother).

ii. Iz’s father is deceased.

iii. J’s father is unknown. On April 3, 2024, Justice M. Pawagi made a finding that an individual who had been identified by the mother as J’s father was not a parent within the meaning of section 74 of the Child, Youth and Family Services Act (the Act).

[5] The mother has the following four other children who are not the subject of the two protection applications before this court:

i. AM (13 years old) has remained in the care and custody of her biological father since around September 2011.

ii. R (11 years old) is in the temporary care and custody of Peel Children’s Aid Society (Peel CAS).

iii. A (9 years old) is the temporary care and custody of Peel CAS.

iv. Nv (born in 2017) is deceased. A police investigation into Nv’s death remains ongoing.

[6] At trial, the parties told the court that a suggestion had been made at the trial management stage to have a joint trial involving all four children in the society’s and Peel CAS’ care but there was no agreement between the two child protection agencies on the proposal.

[7] The main protection concerns relate to allegations of the mother’s substance misuse, neglect, inadequate supervision of the children, unstable housing, inability to meet the children’s needs including their developmental and special needs, and a lack of understanding regarding their needs. There are also protection concerns relating to the disappearance and death of Nv.

[8] On January 17, 2024, the parties agreed to an order finding that Iz is a child in need of protection pursuant to paragraph 74(2)(b) of the Act.

[9] The society seeks a finding that the child J is also in need of protection. It seeks an order that both children be placed in its extended society care, with no access (including sibling access).

[10] The mother’s position is that there is no risk of harm to the child J. She seeks a dismissal of the society’s application with respect to J. In the alternative, if the court finds J to be in need of protection, she consents to statutory findings pursuant to subsection 90(2) of the Act and seeks a 6-month supervision order placing both children in her care and custody.

[11] If the children are placed in the extended care of the society, the mother seeks terms of access with the children, including sibling access. She seeks to be an access holder.

[12] Seven society workers testified on its behalf. They provided affidavits for their examination-in-chief. The society also called a police officer and Iz’s current and former foster parents to testify. They testified orally. The society’s witnesses were cross-examined at trial.

[13] The mother provided an affidavit for her examination-in-chief. She testified orally to add to her affidavit evidence. Her four additional witnesses testified orally. The society cross-examined all witnesses at trial.

[14] The parties agreed on the portions of the children’s statements from A, R, and AM that were to be entered for the truth of their contents. The parties also agreed on the portions of police records filed by the society that were to be admitted for their truth.

[15] The court must determine the following issues:

i. Whether J is a child in need of protection?

ii. If so, is intervention through a court order necessary to protect J in the future?

iii. Is intervention through a court order necessary to protect Iz in the future?

iv. What dispositional orders are in each child’s best interests?

v. If an order is made to return the children to their mother’s care, what terms of supervision are in the children’s best interests?

vi. If an order is made placing the children in extended society care, what terms of access for the mother are in the children’s best interests, including who should be made an access holder and who should be made an access recipient, if access is granted?

vii. If an order is made placing the children in extended society care, what terms of sibling access are in the children’s best interests, including who should be made an access holder and who should be made an access recipient?

Part Two – Background facts

[16] The mother immigrated from Jamaica as a child. She identifies J and Iz as Black children.

[17] The court will provide considerable detail below to show the following:

a. The mother’s long history of involvement with child protection agencies.

b. The current protection concerns.

c. Iz’s special needs.

d. The disturbing circumstances surrounding the disappearance and subsequent death of Nv.

e. Services that the mother has been offered by the society, and the ones she is connected to.

f. The facts that the mother has previously agreed to.

2.1 – Statement of agreed facts dated January 10, 2020 (York CAS)

[18] On January 10, 2020, the mother and the Children and Family Services for York Region (York CAS), signed a statement of agreed facts agreeing to the facts below. The matter involved Nv and Iz. She was legally represented.

The child AM

[19] York CAS became involved with the mother in June 2014 when she moved to York Region. Her daughter AM had been removed from her care initially due to allegations of alcohol and marijuana use, as well as neglect of AM. AM was subsequently returned to her care. The Catholic Children’s Aid Society of Toronto (Catholic CAS) had previously removed AM from her care after visiting the home and observing evidence of drug use and unsanitary conditions. On September 8, 2011, AM was placed with her father, on supervision terms. A final custody order was granted to AM’s father on April 18, 2013.

The child R

[20] R was residing with her maternal grandmother. R’s pregnancy was concealed by the mother resulting in limited prenatal care.

[21] The Catholic CAS attempted to support the mother with a plan to move in with the maternal grandmother, but she removed herself and R within a month.

[22] On January 16, 2015, Catholic CAS removed R from the mother’s care after she failed to follow through with appointments with Catholic CAS workers, Public Health, and doctors caring for R. Her home was unsanitary. R had speech delays.

The child A

[23] A was residing with her maternal grandmother. A’s pregnancy was concealed by the mother. In December 2014, Dr. Nishani Umasuthan from the Scarborough Academic Family Health Centre reported his concerns that 4-month-old A was losing weight and that the mother was not following through with weigh-ins.

[24] A child protection worker completed a home visit and observed a baby bath full of water, burning candles in the children’s reach and the mother admitted using marijuana.

The child Nv

[25] Nv’s pregnancy was concealed by the mother. Nv had very limited prenatal care. Nv was taken to a place of safety at birth. York CAS commenced a protection application. Urine toxicology reports for Nv were positive for marijuana at birth.

[26] As a result of Nv not meeting her developmental milestones, her pediatrician, Dr. Gelman, identified concerns regarding global developmental delay. A referral for an assessment through Children’s Treatment Network was made. Nv was enrolled in daycare to assist her with socialization, speech, and language. Nv was non-verbal.

The child Iz

[27] Iz’s birth and pregnancy and birth were concealed by the mother, resulting in limited prenatal care and only one medical appointment following his birth. She gave birth at home. She missed months of access visits with Nv following Iz’s birth. She avoided contact with the society for approximately five months, including not attending visits with Nv. There were concerns about her alcohol and drug misuse.

[28] Iz missed his newborn screening. He was inadvertently exposed to a flesh-eating disease for which he was treated briefly prior to his removal from his mother’s care on August 15, 2018.

[29] On October 4, 2019, the mother’s visits with A and Iz were moved to her home. Safety concerns were raised by access supervisors.

[30] The mother was described as loving and positive with her children, and receptive to suggestions and parenting strategies from her supports and York CAS.

[31] The mother agreed that A and Iz were in need of protection pursuant to subclauses 74(2)(b)(i) and 74(2)(b)(ii) of the Act.

2.2 – Supervision order

[32] On January 21, 2020, York CAS and the mother agreed to a finding that Iz and Nv were in need of protection. They agreed to have Nv and Iz returned to the care of the mother, pursuant to a supervision order, for a period of eight months. As part of the supervision terms, the mother was required to reside with Naomi Scott. On March 13, 2020, Justice Douglas made a final order pursuant to the consent dated January 21, 2020.

[33] In July 2020, York CAS brought an early status review application as the mother was no longer residing with Naomi Scott (which was a requirement of the supervision order).

2.3– File transfer from York CAS to the Children’s Aid Society of Toronto (the society)

[34] In September 2020, the file involving Nv and Iz was transferred from York CAS to the Children’s Aid Society of Toronto (the society) as the mother had moved to Toronto with Nv and Iz.

2.4 – Statement of agreed facts – March 2021

[35] In March 2021, the mother and the society signed a statement of agreed facts agreeing to the facts below.

[36] Due to Covid-19 pandemic, Nv and Iz were not registered in daycare. They were registered to attend the Church Street Daycare commencing April 1, 2021.

[37] Nv was connected to support through Surrey Place. On March 23, 2021, Nv was presented to the clinical team at Surrey Place. She had been approved for service coordination and autism services.

[38] The mother had established a good working relationship with her family service worker.

[39] On March 31, 2021, Justice M. Pawagi terminated the supervision order dated March 13, 2020, in accordance with the parties’ statement of agreed facts.

2.5 – 2023 (new protection application)

[40] On June 16, 2023, the society brought a new protection application regarding Nv and Iz. It sought a 6-month supervision order placing the children with their mother.

[41] The society’s concerns pertained to the following allegations:

i. Lack of supervision of Iz.

ii. The mother’s alcohol misuse and adult lifestyle.

iii. Nv’s whereabouts were unaccounted for. She had been last seen in the mother’s care in June 2021.

iv. The society was unable to connect with the mother to discuss its protection concerns.

[42] On June 23, 2023, Justice M. Pawagi made a temporary order placing Nv and Iz in the care of their mother, with the condition that she was to attend court with both children at the return date of June 27, 2023.

[43] On June 27, 2023, neither the mother nor the children attended court. Justice Pawagi then varied her June 23, 2023, order and placed both children in the temporary care of the society.

[44] On June 29, 2023, the Toronto Police Service informed the society that a deceased child found in a dumpster in Rosedale in May 2022, had been identified as Nv.

[45] On October 10, 2023, the society amended its protection application to seek an order for extended society care regarding Iz. It discontinued its claims regarding Nv.

[46] The mother filed an Answer and plan of care dated November 6, 2023, seeking to have Iz returned to her care. She also sought sibling access between Iz and his sisters R and A who are in the care of Peel CAS.

2.6 – 2024

[47] On January 17, 2024, the mother and the society executed a statement of agreed facts, agreeing to a finding that Iz is in need of protection pursuant to subclauses 74(2)(b)(i) and 74(2)(b)(ii) of the Act. The mother agreed to the following facts regarding her deceased daughter Nv:

In September 2023, the mother provided the police and the society with an explanation for when she last cared for Nv. She acknowledges she was struggling to care for Nv, who was diagnosed as being on the Autism Spectrum. She reports she was approached by two individuals at Tim Hortons, who offered to help her care for Nv. The next day, she placed Nv in the care of these two individuals, knowing only their first names and their phone number. She reports she had no further contact with Nv after this date.

[48] On January 17, 2024, Justice Pawagi made a finding that Iz is in need of protection pursuant to paragraph 74(2)(b) of the Act. She also made statutory findings for Iz pursuant to subsection 90(2) of the Act.

[49] In January 2024, the mother gave birth to J. He was brought to a place of safety at birth.

[50] The society filed a separate protection application regarding J on January 30, 2024. On the same day, Justice Pawagi made a temporary order placing J in the temporary care and custody of the society.

Part Three – Credibility and reliability

[51] The court found the evidence of society workers to be both credible and reliable, except for the few specific examples provided below.

[52] The evidence of the society workers was balanced. They set out the mother’s strengths and acknowledged the children’s positive relationship with her.

[53] The society workers all provided their evidence in a calm and straight-forward manner. They answered questions directly.

[54] It was not appropriate for the society to accuse the mother of not registering Iz and Nv in daycare since March 13, 2020, when they were returned to her care. On March 25, 2021, the society signed a statement of agreed facts when it terminated its involvement in which it acknowledged that the children had not been registered in daycare due to challenges associated with the Covid-19 pandemic. However, the society’s workers were credible that after the children became registered to attend the Church Street Daycare, which was to start on April 1, 2021, the mother did not follow through as the children did not attend.

[55] The society called Detective Constable Noreen Gordon (DC Gordon) from the Toronto Police Service. She works in the homicide and missing persons unit. She has been a police officer for 16 years. She has extensive training in interviewing children. She interviewed R and A on June 30, 2023 (that is, after the police identified Nv as the deceased child). She also interviewed AM on November 3, 2023. She answered questions clearly. Her evidence was also consistent with that of Mr. Michael Wilson, the society’s worker who observed her interview with R and A from a different room. She was credible and reliable.

[56] The court will give weight to the children R, A, and AM’s statements given to DC Gordon.

[57] The court will give less weight to the children R and A’s statements given to Mr. Michael Wilson on July 31, 2023. Mr. Wilson described R and A’s statements as similar. He testified that their responses gave him the impression that they were rehearsed.

[58] The society’s witnesses, Ms. JR (Iz’s current foster mother) and Ms. JS (Iz and Nv’s previous foster mother) were both credible and reliable. They both gave an account of their involvement with the children, highlighted the children’s challenges when they came into their care, and each also provided positive aspects about the mother.

[59] The mother’s witness, Angela Watson, was credible. She was able to identify some of the society’s protection concerns with the mother, including housing, neglect of the children, and inability to properly care for the children. She was candid in her responses during questioning.

[60] The mother’s witness, Ms. Aleathea Ellis was credible. She was able to state details of the mother’s life that she is aware of, and details that she does not know. However, her evidence was limited. She did not know exactly what this trial was about. She was not aware of the circumstances leading to Nv’s disappearance. She did not know that R and A were in the care of Peel CAS. She did not know the reason Iz and J are in the care of the society. The mother had only told her of her willingness to have her children back in her care but had not shared with her the reasons the children were in care.

[61] The mother’s witness, Mr. Warrick Carr, was neither credible nor reliable. He admitted that he has difficulty with his memory. He appeared reluctant to discuss the mother’s challenges and was not willing to provide any details. When he was asked if he knew what happened to Nv, his response was that he had not discussed that with the mother as he did not want to “go deep into stuff”. When asked about what the mother had told him about Nv’s disappearance, he stated that he did not have a great memory. However, on January 23, 2024, he told a society worker, Ms. Tharsi Selvaratnam, that the mother had disclosed to him that one of her children died in a car accident (after he was asked if he knew what happened to Nv). At trial, he recanted, stating that he did not recall making the statement. During cross-examination, he struggled to answer Ms. Withanage’s question about the reason the mother’s children were not in her care. When he was asked whether the mother had told him why Iz and J were in care, he answered, ‘Yes’. When asked about what exactly she had told him, he responded stating that he did not have great memory.

[62] The mother’s witness, Mr. Clive Spence, was neither credible nor reliable. During cross-examination, he answered several questions with, “possible” and “I don’t remember”. During his testimony, he stated that he does not think that the mother has any challenges with her caregiving. However, he previously disclosed to a society worker the following about the mother:

i. He did not like what he saw at her home.

ii. Something with her was wrong ‘upstairs’.

iii. Something was wrong with her, she talked too much.

iv. It seemed she was on something.

v. He did not like that Iz was not in school.

vi. He was disappointed that she would have another baby when three of her children were already in care.

[63] The mother was largely not credible and unreliable. Her evidence was mostly contradicted by police records and statements of agreed facts that had been filed in support of prior court orders.

[64] The mother was evasive during cross-examination. On several occasions, she had to be reminded by the court to answer the question as she went into long explanations about events irrelevant to the question. She could not provide simple and straightforward answers during cross-examination.

[65] When the mother was asked about places she once lived since 2020, she provided a series of answers that were convoluted and vague. When she was asked about services or programs that she completed, she was unable to provide a clear answer to the question.

[66] The mother appeared to be clearly hiding details. Her inability to request, retain, and provide important identification information of important individuals in her life was unfathomable. She once lived in the same home with an individual by the name of Sheldon (they were in different units of the home). Sheldon used to babysit for her. She had a child with him, her son J. However, she told the court that she did not know his last name and had no further details about him. She told the court that she gave Nv away to John and Mary. She did not know their last names. She currently resides in her uncle’s home. When asked about his full name, she told the court that she does not know his first and last names, she only calls him by his nickname.

[67] The mother could not remember salient factors in previous court orders. On March 13, 2020, she was ordered to reside with Naomi Scott as part of an 8-month supervision order that placed Nv and Iz in her care. She moved out in breach of the order and did not notify the society in advance. During cross-examination, when asked why she moved out in breach of the order, she stated that she was not obligated to stay in the home. When she was presented with the statement of agreed facts that she signed and the order that was made, she stated that she was not aware of the clause and did not know. She admitted that she was assisted by a lawyer when she signed the statement of agreed facts but had not asked her lawyer about the details of the document.

[68] The mother was able to provide granular details about events that happened a decade ago but could not remember specific details about recent and significant events. She was able to provide detailed information pertaining to the time her daughter AM was taken to a place of safety around 2010 and 2011. However, she could not remember the date she last saw her daughter Nv. She could not provide any helpful details about her meeting with the two individuals she gave Nv to before her disappearance.

[69] The mother asserted that she never hid any of her pregnancies from the society. However, in a statement of agreed facts she signed on January 10, 2020, she admitted concealing the pregnancies of her children R, A, Nv, and Iz, from the society.

[70] In her trial affidavit, the mother stated that in 2021, Nv was receiving services through Surrey Place. During cross-examination, she could not name what services Nv received. She only remembered an intake appointment, followed by a missed appointment. She was unable to explain the reason it was not rescheduled. She could also not explain why she rushed to give Nv away to two strangers.

Part Four – Risk of physical harm

4.1 – Legal considerations

[71] The Society has the onus to prove on a balance of probabilities that the child is in need of protection. See Children’s Aid Society of Toronto v. RM, 2019 ONSC 2251 para. 19.

[72] If the court finds that the child is not in need of protection, then that is the end of the society’s protection application. See Catholic Children's Aid Society of Toronto v. N.N., 2019 ONCJ 8 para 116.

[73] Clause 74(2)(b) of the Act provides as follows:

74(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[74] The risk of harm under paragraph 74 (2) (b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273 (Ont. Fam. Ct.).

[75] Harm caused by neglect or error in judgment comes within the finding. See: Children’s Aid Society of the Niagara Region v T.P., [2003] O.J. No. 412 (Ont. Fam. Ct.).

[76] A child may be at risk even if the conduct is not directed specifically towards that child. See: Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), 1995 ONCJ 6216; Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251.

[77] Clause 74 (2) (b) involves a risk of physical harm to the child. The risk is that the child is likely to suffer physical harm. “Likely” to suffer has the implied connotation of “more probable than not”. There are three separate circumstances which may qualify for a finding on (b) grounds. The risk may be a likelihood that

(a) the physical harm is inflicted by the person having charge of the child; or

(b) the physical harm is as a result of the failure of the person having charge in adequately caring for, providing for, supervising or protecting the child; or

(c) the physical harm is a result of a pattern of neglect by the person having charge in caring for, providing for, supervising, or protecting the child.

See: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, paragraphs 17 and 18

[78] Subsection 93(1) of the Act provides as follows:

93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

4.2 – Analysis

[79] The court agrees with the society that J is in need of protection for the reasons provided below.

[80] The society received two referrals on March 25, 2023, and March 26, 2023, one from a paramedic and one from the Toronto Police Service, that Iz had been found unsupervised in the community. The mother does not dispute that Iz was found outside her home.

[81] The mother stated that at one point (around May 2023) she went to a party at night and brought a male stranger into her home with the children. The male stayed for three days. She did not know his name and did not introduce him to her children. She does not appear to appreciate the risk to her children of having a stranger in her home for such an extended period.

[82] When the mother went out at night to a club or to attend parties (around 2023), she left her children in the care of individuals whom she could not fully identify.

[83] The evidence also reflects the following challenges about the mother:

i. She cannot independently parent the children without support. Her current visits are fully supported.

ii. She has exhibited a serious lack of judgment leading to devastating consequences such as Nv’s disappearance and death.

iii. She has lack of insight into her actions.

iv. The risks to the children that led to them being placed in the society’s care remain.

[84] The evidence of risk of harm to Iz and J is overwhelming.

[85] The court finds that J is a child in need of protection pursuant to paragraph 74(2)(a) of the Act. [1]

[86] For the same reasons provided above, the court finds that it is necessary to protect J and Iz in the future.

Part Five- Findings of facts

[87] The evidence shows the following strengths of the mother:

i. She has been open to teaching and support from the society workers during her visits.

ii. She has attended scheduled meetings with her society workers.

[88] Nv had been diagnosed with global developmental delay and autism spectrum disorder (ASD) before her death. The diagnosis was made while she was still in the care of the society and was placed with Ms. JS at the time.

[89] Iz has special needs. On November 3, 2023, he was diagnosed with level 3 autism spectrum disorder (ASD). As per the society’s evidence, level 3 ASD is considered the most severe and requires substantial support. He is in a modified school program. He is nonverbal.

[90] The court finds that when the society became involved in 2023, the mother was not cooperating with its investigation. Mr. Patel made several attempts to contact her, but she was not forthcoming.

[91] The evidence supports the society’s position that the mother is unstable as a parent, for the following reasons:

i. She was willing to hand over her child to strangers.

ii. When she went out at nighttime (around 2023), she left her children in the care of Sheldon, who lived in the basement of her home. She did not know his last name.

iii. At one point, she brought a male stranger home, and he resided in her home with the children for three days. She did not know his name. She did not introduce him to the children.

iv. She has an extensive history of child welfare involvement.

v. Between January 2020 and June 29, 2023, she changed her residence about five times.

[92] The evidence supports the society’s allegations that the mother provided inadequate care to her children, and was not properly supervising them for the following reasons:

i. On March 25, 2023, Iz was found in the community by himself, unsupervised.

ii. On March 26, 2023, Iz was found in the community by himself, unsupervised.

iii. AM disclosed to DC Gordon that when she was about 8 or 9 years old, her mother asked her to look after her younger siblings when she went out.

iv. AM told DC Gordon that when people came to her mother’s home and were drunk, it frightened her.

[93] The mother is unable to meet the needs of her children. Neither Nv nor Iz attended school or daycare for the entire time they were in the mother’s care. Iz had visible developmental challenges prior to the most recent society involvement (that is, prior to June 2023). He was nonverbal. The mother had not taken him for an assessment and was not seeking help in addressing his challenges. Iz was not potty-trained as of June 2023 (at 5 years old). Iz’s birth was never registered and he has no birth certificate.

[94] The court finds that the mother is unable to meet Iz’s developmental and special needs. Despite Iz’s challenges with speech and language, she did not connect him with services. Ms. JR, Iz’s foster mother, observed the following challenges when he came into her care:

a) He was five years old and was not potty-trained.

b) He was aggressive towards other children.

c) He did not respond to his name.

d) He was non-verbal.

e) He did not make eye contact.

f) After going to bed, he took 30 to 40 minutes to get to sleep.

g) He did not nap during the day.

h) He was ‘super-busy, just running around’.

i) He was not sitting still when watching television.

j) He required continuous supervision in the home.

k) His diet was very limited. He had challenges eating a variety of foods, preferring only chicken nuggets and fries.

l) He was not able to communicate if he wanted anything.

m) His hair had a lot of sand.

[95] The court finds that the mother was unable to follow through with recommendations that were made to her. Despite several years of involvement with child protection agencies, she has not completed any program to address her challenges.

[96] The court finds that the mother is unable to parent her children independently and safely without support. Her visits remain fully supported at the society’s offices.

[97] The mother failed to comply with the order dated March 13, 2020. On consent, she was ordered to always reside with Naomi Scott, as part of a supervision order that placed her children Iz and Nv with her for eight months. She left the residence before the expiry of the eight months and York CAS had to bring an early status review application.

[98] The mother exhibited an unwillingness to acknowledge her past errors. She vehemently denied having any current or past substance misuse issues. However, in the statement of agreed facts (SAF) signed on January 10, 2020, she admitted that her daughter AM was previously removed from her care due to allegations of alcohol and marijuana use. She also admitted in the SAF that when Nv was born, urine toxicology reports for Nv were positive for marijuana at birth. In her evidence at this trial, she stated that she had attended a program through Jean Tweed, an organization that treats and supports individuals experiencing substance use and mental health challenges. She also stated that her previous support person was Sharon Thomas from Addiction Services York Region.

[99] The court finds that the mother handed over her daughter Nv to strangers. After the strangers disappeared with the child, she did not report the disappearance to the police.

[100] The mother appears not to fully understand the depth and impact of Nv’s disappearance and death on her parenting capability.

Part Six – Disposition

6.1 – The society’s evidence at trial

[101] The society takes the position that the circumstances surrounding Nv’s disappearance and subsequent death raise serious concerns about the mother’s decision-making as a caregiver. It argues that these circumstances alone, justify all its requests regarding a finding in need of protection, disposition and access.

[102] The society’s evidence was that Nv was a child with special needs and she required constant supervision. Nv’s former foster parent, Mrs. JS testified on behalf of the society. Nv was placed in her care at 5 days old in 2017 and remained in her care for almost three years. Following placement, Ms. JS started noticing that Nv’s social skills were delayed. She stated that Nv was not communicating and was unable to articulate her needs or communicate words. At two years old, Nv was diagnosed with global developmental delays. Just before she went back to her mother’s care, Nv was diagnosed with autism spectrum disorder (ASD). Mrs. JS stated that Nv required constant supervision as she did not have a sense of danger. While in Mrs. JS’s care, Nv attended speech and language therapy, did early intervention with a specialist, and was attending daycare.

[103] Mrs. JS testified that Iz came into her care when he was five months old (and joined his sister in her home). She stated that physically he was meeting his milestones but verbally, there were perceived delays. After the children returned to the mother’s care on March 16, 2020, Mrs. JS and her husband maintained a relationship with the mother, assisting her with groceries, furniture, and other items that the children had used when they were in their home.

[104] The society’s intake worker, Mr. Hiren Patel, testified. He became involved on March 27, 2023, following the referrals. His evidence was that he made several attempts to contact the mother and was unsuccessful.

[105] Mr. Patel stated that on May 14, 2023, the society received a call from an anonymous caller raising new child protection concerns with respect to the mother. He made several attempts to contact her but was unsuccessful. On May 29, 2023, he inquired with the Toronto District School Board (TDSB) whether Iz was registered with the board. TDSB told him that they had no records about Iz.

[106] Mr. Patel’s continued efforts to contact the mother were unsuccessful. On June 16, 2023, the society commenced its protection application. On June 27, 2023, Justice Pawagi placed Nv and Iz into the temporary care of the society.

[107] After the police identified Nv (on Jun 29, 2023) as the deceased child whose body had been found in a dumpster in Rosedale in May 2022, the society’s worker, Michael Wilson, became involved. He observed R and A’s interviews with Detective Constable Gordon (DC Gordon) conducted on June 30, 2023. In the interview, the children provided the following statements:

i. R did not know who lived in her mother’s house, it was just some housemates, and she did not know their names.

ii. R stated that her mother went out at nighttime and one of her housemates, Sheldon, watched them.

iii. R stated that her mother and her brother, Iz, made her feel safe. She missed Iz.

iv. A stated that ‘Tall Man ’ watched them when their mother went out.

v. A stated that she felt safe with her mother.

[108] Mr. Wilson testified that on September 29, 2023, the mother provided the following details regarding Nv’s disappearance. In 2021, she was at Tim Hortons. Two individuals approached her and introduced themselves as John and Mary. They were in their 40s. The individuals told her that they were godparents and that they worked with autistic children and had free facilities for autistic children like homes. They told her they would be able to care for Nv. She met with John and Mary the next day and handed Nv over to them. They did not provide any further details. Nv did not resist going with them. She watched them drive away. The next day she called them and never heard back from them.

[109] After the children were ordered into care by Justice Pawagi on June 27, 2023, Iz was placed with Ms. JR on June 30, 2023. He remains in her care. Ms. JR testified on behalf of the society [see paragraph 94 above]

[110] The society’s evidence was that the mother was not meeting the children’s needs while in her care.

[111] Ms. Stephanie Briskin, the society’s children’s services worker, testified that when Iz came into care in June 2023, he had significant needs. Her evidence was that while in the mother’s care, he was supposed to have had an autism spectrum disorder (ASD) assessment, but it had not taken place. When she met with him on July 5, 2023, his language skills were significantly behind. He was unable to communicate well using words. He was not engageable in any social-based play and showed limited interest in toys. He focused more on repetitive play such as spinning a plastic ring. He was not responsive when Ms. Briskin called him by name. According to Ms. Briskin, Iz preferred a limited diet such as snacks. He was not enrolled in school or daycare. After the society enrolled him in school, the school described him as having “extremely high safety needs” and he was put on a modified school program.

[112] The society’s worker, Tharsi Selvaratnam, became involved with the family ten days before J’s birth. She testified about the steps she took trying to assist the mother with her plan of care and support. She also testified about the steps taken by the society in trying to locate J’s father.

6.2 – The mother’s evidence at trial

[113] The mother is concerned that if placed in extended society care, the children will lose their Jamaican Canadian and African Canadian heritage.

[114] The mother states that she worked cooperatively with the society in 2020 and 2021 leading to the society terminating its involvement on March 31, 2021.

[115] The mother does not understand the reason the current protection application for Iz was amended. The society initially sought a 6-month supervision order and subsequently amended it to seek an order for extended society care. Her evidence was that she has always been willing to agree to a supervision order to have her children out of the society’s care.

[116] The mother accuses the society of failing to obtain birth certificates for Nv and Iz. She states that the only government-issued documents she received when Nv and Iz were returned to her care were their health cards. According to the mother, due to a lack of government-issued identification documents, and the shortage of family doctors, she had to rely on walk-in clinics for Iz and Nv. Hence, without a family doctor or a pediatrician, she was unable to get Iz assessed for autism. She states that she was also unable to seek or receive services for him for the same reasons.

[117] The mother described her daughters, R and A, who are in the care of Peel CAS, as feeling safe when they are in her care. The mother’s evidence was that she is also cooperating with Peel CAS, and they have expressed an openness to have her daughters R and A returned to her care.

[118] The mother testified that she has continued to attend medical appointments for Iz and J after they were brought into the care of the society.

[119] The mother states that her current access visits have gone very well. She states that she has also been able to meet J’s instrumental needs during her visits.

[120] The mother accuses the society of making unfounded allegations about alcohol and substance misuse. She also accuses the society of making unsubstantiated allegations regarding adult lifestyle.

[121] The mother states that she was forthcoming about her pregnancy with J and sought appropriate support.

[122] According to the mother, the police have been aware of Nv’s death for almost a year and have no reason to charge her with any criminal offences.

[123] The mother disagrees with the society’s allegations that she was not meeting Iz’s developmental needs while he was in her care. She states that she was present during Iz’s developmental assessment at the Hospital for Sick Children.

[124] The mother acknowledges that Iz has made significant gains while in care. She states that she accepts feedback from society workers.

[125] The mother denies leaving Iz unattended or lacking supervision. She states that she asked R and A to watch him while she was doing household chores. Iz then climbed out through the window and was located alone in the community. After the two incidents, she bolted the windows to prevent Iz from climbing out.

[126] It was the mother’s evidence that she gave Nv to Mary and John as she was looking for additional services for Nv. She states that she made a mistake. She intended to place Nv with John and Mary temporarily, but she never heard back from them after they took her. She states that she did not contact the police or the society as she has not had a positive relationship with the police and the society. She states that the last time she contacted the police for help, she was arrested.

[127] The mother started attending counseling at Roots Community Services in April 2024. She has attended five sessions.

[128] The mother plans to have the children continue with the same services they are receiving while in care, provided the services will remain available to her.

[129] The mother’s plan of care is to have Iz and J returned to her care. She will have co-parenting assistance from Mr. Warrick Carr (her main support person). She will reside with Mr. Carr. She does not plan to reside at her current address with the children. She will look for a multi-bedroom unit where she will reside with Mr. Carr and the children. She is in receipt of social welfare benefits. She stated that the social welfare benefits office has confirmed that she will receive additional funding once the children are returned to her care.

[130] Mr. Carr testified on the mother’s behalf. He has known her for more than four years. He has attended some of her supervised visits with R and A. He met the children R, A, and Iz before they went into care. He played basketball with R and A. He never met Nv. He works full-time from 7:00 a.m. until 4:00 p.m. doing powder coating. Sometimes he works on weekends if requested by his supervisor. He confirmed that he plans to reside in the same home with the mother as part of her plan of care. He is awaiting her to secure rental accommodation for them. He will assist her financially. He will help the children with their day-to-day activities, including taking them to school and helping them with their homework.

[131] Mr. Clive Spence has known the mother for about two years. He testified on her behalf. He stated that he will provide transportation to appointments and children’s activities. He will also assist her with taking the children to the park and their activities.

[132] Ms. Angela Watson has known her since around 2017. They communicate over the phone ‘a couple of times a month’. The last time they met in person was in 2022. She stated that she will provide her with emotional support.

[133] Ms. Aleathea Lewis lives in Mississauga and has known the mother through the church since she was a child. She stated that she will be available as a ‘listening ear’ by telephone. She will provide emotional support to the mother. She has other care responsibilities towards her father.

6.3 – Legal considerations

[134] Subsection 101(1) of the Act provides that where a court finds that a child is in need of protection it must first satisfy itself that intervention through a court order is necessary to protect the child in the future.

[135] Subsection 101 (8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act.

[136] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[137] In determining if a protection order is necessary to protect the child in the future, the ties between a child and the child’s caregiver are an important consideration. In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, the Supreme Court expressed, at para. 37, that the Child and Family Services Act “seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the time recognizing that the best interests of the child must always prevail”. Because of this goal, the best interests of the child is “an important and, in the final analysis, a determining element of the decision as to the need of protection”. 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. See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[138] If a court order is determined to be necessary to protect a child in the future, the court shall make one of the orders set out in subsection 101 (1) or section 102 of the Act in the child’s best interests. These read as follows:

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

[139] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part V of the Act.

[140] 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. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[141] Subsection 101 (4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.

[142] In determining the appropriate disposition, the court must decide what is in the children’s best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) 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,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) 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,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[143] An extended society care order is probably the most profound order that a court can make. The judge must exercise this only with the highest degree of caution, only on the basis of compelling evidence and only after a careful examination of possible alternative remedies. See: CAS Hamilton v. M., 2003 O.J. No. 1274 (UFC), Catholic Children’s Aid Society of Hamilton v. V.C. et al., 2017 ONSC 5557 (Ont. S.C.J.)

[144] Consideration should be given as to whether the Society has given the parent an opportunity to parent. Where the Society frustrates contact with the parent and offers no services, this consideration must come into the equation. See: Children and Family Services for York Region v. A.W. and M.M., [2003] O.J. No. 996 (Sup. Ct.); Catholic Children’s Aid Society v. P.A.M., [1998] O.J. No. 3766 (OCJ); CAS of the United Counties of Stormount, Dundas and Glengarry v. C.K., [2001] O.J. No. 128 (Sup. Ct.); CAS v. H.Z., 2023 ONSC 2030.

[145] In Children’s Aid Society of Toronto v. S.B., 2014 ONCJ 518, this court discussed the importance of a parent providing a child with a safe, stable and secure home as follows:

[112] The major protection issue is the mother’s ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.

6.4 – The children

[146] J was taken to a place of safety following his birth. The society’s evidence is that he is a happy, socially interactive, easy-to-engage child. He has good head and neck control and is meeting his developmental milestones. He eats and sleeps well. There are no current concerns about his health and development.

[147] Ms. JR, Iz’s foster mother testified that Iz has made significant gains since he came into her care. She stated that he requires one-on-one attention in any environment. She described him as an active child who does not sit still when doing things. He enjoys jumping. She purchased a Skyzone trampoline pass for him. She stated that his applied behavioural analysis (ABA) therapy is helping with his attention and focus. If he is struggling with focus, she gives him a break and invites him to do something else. She has educational toys in her home that are geared towards autistic children.

[148] Ms. JR testified that Iz is non-verbal. He points out to things to communicate, such as pointing outside if he wants to go play outside.

[149] Iz is also receiving additional support as provided in detail under section 6.5 below.

6.5 – Services provided to the family

[150] Ms. Selvaratnam testified that on January 23, 2024, she encouraged the mother to connect with Roots Community Services (“Roots”), as it was a cultural match. She also encouraged her to connect with Breaking the Cycle for wraparound support such as assessments of children, counseling, relapse prevention, home support, pregnancy support, and parenting support. The mother said she would connect with them after she had the baby.

[151] The mother was also encouraged to connect with Healthcare Connect so she could be assigned a family doctor in her area.

[152] On January 26, 2024, Ms. Dona Robinson from Peel CAS confirmed that Peel CAS would make a referral to Roots for the mother.

[153] In her evidence, the mother testified that she is attending Roots on a weekly basis. She attended six sessions. She stated that during her sessions, they have discussed mainly Iz’s autism diagnosis. Her evidence was that Roots will help her with referrals for the children’s developmental needs.

[154] The society has also provided the following services to the mother and the children:

a. It provided a children’s services worker.

b. It obtained a replacement health (OHIP) card for Iz as he did not have one.

c. Iz had a medical examination when he came into its care.

d. Iz’s birth was never registered by the mother, and he has no birth certificate. The society started a delayed registration process for him.

e. Iz had a feeding assessment completed due to his limited diet.

f. Iz had a speech and language assessment completed.

g. Iz had an autism assessment completed. On November 3, 2023, Dr. Shouldice diagnosed him with level 3 autism spectrum disorder.

h. It enrolled Iz in school.

i. The children’s services worker advocated to have Iz receive the support he requires in school.

j. It arranged for Iz’s occupational therapy through Erin Oaks Kids.

k. Iz had a hearing test and dental checkup done.

l. It attempted to apply for Iz’s funding through the Ontario Autism Program. However, he requires a birth certificate to access programming and funding through the program.

m. Iz attends ABA therapy twice per week.

n. Iz attends speech and language sessions twice per month.

o. Iz receives one-on-one support from a child and youth worker for eight hours per week.

p. It assigned a worker (Mr. Wilson) to remain involved with the family regarding Nv’s death investigation.

q. J has been receiving regular medical check-ups.

r. J received his immunizations and there are no reported concerns about his health or development.

6.6 – Community and family plan

[155] The court finds that the society has met its obligation to explore alternate family and community plans for the children.

[156] On July 7, 2023, Ms. Briskin (children’s services worker), spoke with the mother about alternate caregivers for Iz. She reported that there was no one.

[157] Before J was born, the society was under the impression that the mother was proposing Mr. Carr as kin. The society was willing to assess the plan. However, when she met with Ms. Selvaratnam on January 23, 2024, it became clear that she was presenting a co-parenting plan as opposed to a kin plan. The plan was not approved as it turned out that it involved the mother as the primary caregiver.

[158] At one point, the mother proposed her maternal uncle as kin. However, she did not want the uncle to know anything about her involvement with the society, including the fact that her children were removed from her care. She is no longer presenting this plan.

[159] The society tried to inquire about J’s father, who had only been identified as Sheldon by the mother. When Ms. Selvaratnam asked about his contact information, she was hesitant to provide a phone number, explaining that she did not want him to hear about her child protection case and share information with others. She told Ms. Selvaratnam that Sheldon could not care for the baby and did not have family in Canada. The mother did not know his last name and did not want the society to contact him.

[160] Subsequent attempts by the society to locate, identify, and connect with Sheldon were unsuccessful.

[161] The society’s kinship department has been unable to identify any other viable family or community placement.

6.7 – Plan of care

[162] The society’s plan is to place Iz and J in its extended society care. It will make best efforts to locate a suitable adoptive family or families to provide them with the security and permanency they need. It will also make best efforts to place the siblings in the same adoptive home. The society’s ‘wish list’ for a suitable family includes the following:

a. Open to a sibling group of two.

b. Open to a child with developmental delays and special needs.

c. A family who shares the racial and cultural heritage of the children.

[163] The mother’s plan is to have both children returned to her care, with terms of supervision by the society for a period of six months. She will reside with Mr. Carr. Currently, she does not have appropriate accommodation for the children. Her plan is to continue with her counseling through Roots. She will obtain referrals for programs and services through Roots.

6.8 – Analysis

[164] Supervision orders should not be made if the parent is ungovernable. [2] It has also been held that for a supervision order to be a meaningful and effective instrument of risk management, the parent subject to the supervision order must meet a minimum threshold of co-operation and reliability. [3]

[165] The court considered the society’s plan of care for each child pursuant to section 100 of the Act. The society’s plan is consistent with the position it took in this case.

[166] The court considered the mother’s most recent Answer and plan of care dated March 1, 2024. The Answer and plan of care is not consistent with the position she took at trial. In her Answer and plan of care, she sought an order placing the children into the care and custody of Mr. Warrick Carr. She sought placement with her as an alternative request.

[167] At trial, she sought the return of her children to her primary care.

[168] The mother has an extensive child welfare history involving the Catholic CAS, Peel CAS, York Region CAS, and the society:

i. Her older child, AM, was removed from her care twice and was placed with her father in September 2011. She remains in his care.

ii. Her daughters R and A were removed from her care in 2015 and eventually placed with the maternal grandmother. They were brought into care by Peel CAS after June 29, 2023.

iii. Her deceased daughter Nv was brought into society care in 2017, soon after her birth.

iv. Her son Iz was taken to a place of safety soon after his birth.

v. Her son J was taken to a place of safety at birth.

[169] The mother states that she did not do anything wrong, and her children should be in her care.

[170] The most profound and concerning issue in this matter is Nv’s disappearance and subsequent death. What is shocking is the mother’s involvement and reaction. Her story about Nv’s disappearance raises serious questions about her judgment as a parent. There were several options available to her other than handing over a non-verbal 4-year-old child to strangers, including the following:

i. She had registered with Surrey Place for services to assist her with Nv’s ASD diagnosis. She could have contacted them for help.

ii. Nv’s former foster parents, J and DS, had expressed their willingness to continue supporting her. In fact, they provided furniture, diapers, and groceries for the children. They were checking on her. At no time did she disclose to them that she was struggling to care for Nv.

iii. She could have contacted the society seeking support or help.

iv. If she did not trust this society, Peel CAS was still involved with her. She could have contacted them for support.

[171] The mother was disingenuous when she stated that she made a mistake when she gave Nv away to strangers. To the contrary, she appears to justify her actions and blames her deceased daughter, Nv. On December 21, 2023, she told Ms. Briskin (the children’s services worker), that Nv used to put her hands around Iz’s neck. She went on to say that this was the reason she gave Nz to other people because she was worried about Iz. At trial, she described Nv’s conduct towards Iz as “cruelty”.

[172] In her interactions with the society and in her testimony, the mother made allegations of discrimination and racial profiling against the society. She also testified about her request for a worker who was a racial match. [4] During cross-examination, she admitted that John and Mary, whom she gave Nv to, were not a cultural or racial match. She did not ask for their addresses or other additional contact information. She only received their phone number. She did not receive any other identification information and did not verify any details about the two individuals or the plan they were presenting for Nv.

[173] It is even more concerning that on November 29, 2021 (after Nv had disappeared), DS texted the mother asking her how the children were doing. Her response was that “everything is OK”. She did not mention that Nv had disappeared.

[174] The mother testified that she did not notify the police or the society of Nv’s disappearance because of her negative experience with both institutions. In 2022, after Nv had disappeared, she had interactions with the police. She did not notify them that her daughter had disappeared. It appears from her explanation that she was more concerned about her own well-being than the well-being of her daughter. This is a serious lack of judgment.

[175] The mother testified that one of her strengths as a parent is that she does not give up easily. However, she gave up on her daughter’s disappearance by not reporting it.

[176] The court finds that the mother does not meet the minimum threshold of cooperation and reliability. In her own evidence, she admitted that she did not comply with supervision orders of March 13, 2020, and July 30, 2020. The terms were not onerous. She had to ensure Nv and Iz were enrolled in daycare, she had to reside with Naomi Scott and had to take the children to medical appointments.

[177] The mother’s request for a 6-month supervision order is not in the children’s best interests. Her actions relating to how she relinquished care of Nv to strangers raise serious questions about her judgment and decision-making as a parent.

[178] Any child in the mother’s care would be in an extremely high level of risk. She has exercised horrific judgment. No child can safely be put in her care. Nv was in her most vulnerable state when she was given away by her mother to strangers: she was a child, she was four years old, she was nonverbal, and had been diagnosed with ASD. When her body was found in a dumpster, it was wrapped in her favourite blanket.

[179] The mother cannot be trusted.

[180] Counsel for the society, Ms. Withanage, described the circumstances leading to Nv’s disappearance as “a horrific tale of abysmal parenting”. The court agrees.

[181] The court finds that the least disruptive alternative, consistent with the best interests of Iz and J, is to place them with the society in extended society care for the following reasons:

a) The risks of the children suffering physical or emotional harm if placed with the mother remain high.

b) Previous placements with the mother alone failed.

c) The mother shows a lack of insight into why the society is involved.

d) Iz has endured considerable disruption in his life due to the mother’s instability. He made significant gains in his growth while in Ms. JS’s home. He regressed after he was returned to his mother on March 16, 2020. After being placed with Ms. JR in June 2023, he has made significant gains.

e) The society’s plan to place Iz and J for adoption will best meet their physical, mental, and emotional needs.

f) The society’s plan will best meet their physical, mental and emotional level of development.

g) The society’s plan will best meet Iz’s special needs.

h) The society’s plan will best meet their need for continuity and stability.

i) The risk of placing them with the mother is unacceptably high.

j) The society’s plan will better address their needs than the plan proposed by the mother. It is the only viable plan before the court.

k) This case should not be delayed any further and the children should receive permanency as soon as possible.

Part Seven – Access

[182] The mother seeks an order granting her access with the children. The specific details of the access she is seeking are not clear. She also seeks sibling access between Iz and J, and these two children’s sibling access with their sisters, R and A who are in the care of Peel CAS.

[183] The mother is currently having access at the society’s offices twice a week, for two hours. Her visits are fully supported.

[184] The society opposes any order for access, including sibling access.

[185] J and Iz are placed in two different foster homes. The mother continues to have both children in her visits. On March 21, 2024, the society had to come up with a safety plan for the visits after it was observed that Iz was being physically aggressive towards J during visits. The safety plan included having Iz’s one-on-one therapist remaining in the room to provide additional support.

[186] On February 6, 2024, Iz, J, and their sisters R and A, had an all-sibling access visit. Currently, there is an arrangement for Iz and his sisters R and A to have sibling access twice a month in the community. The visits are for about 90 minutes.

7.1 – General legal considerations

[187] Section 104 of the Act sets out the court’s powers in relation to access. It reads as follows:

Access order

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[188] Section 105 of the Act deals with access when a child has been removed from a person who had charge of the child.

[189] Subsection 105 (4) of the Act states that where the court makes an order that a child be in extended society care, any order for access is terminated.

[190] Subsection 105 (5) of the Act sets out that in considering the issue of access to a child in extended society care, the court must consider the child’s best interests. The court may not order access to such a child unless it is satisfied that the order would be in the child’s best interests.

[191] Subsection 105 (6) of the Act sets out additional factors to be considered in determining whether an access order would be in the best interests of a child in extended society care. These are:

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

[192] Pursuant to subsection 105 (7) of the CYFSA, the court must specify who is an access holder and who is an access recipient in making its extended society care with access decisions.

[193] The Act does not preclude the court from making an access order if these criteria are not met. They are only two of many criteria to be considered in the ultimate determination of best interests. Children’s Aid Society of Niagara Region v. B.P and B.W., 2018 ONSC 4371.

[194] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 the Court of Appeal wrote the following:

(a) The changes to the access test are significant (par. 47).

(b) The changes are not just semantics. They represent a significant shift in the approach to access for children in extended society care (par. 48).

(c) The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities (par. 49).

(d) Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant (par. 49).

(e) This means that it is no longer the case that a parent who puts forward no evidence will not gain access (par. 49).

(f) Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests (par. 49).

(g) The court should reference the best interest considerations in subsection 74 (3) of the Act in making its decision (par.53).

(h) The “presumption against access” to “Crown Wards” test no longer exists (par. 53).

[195] In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, affirmed on appeal at 2020 ONSC 4993, the court summarized the benefits of access for a child in extended society care as follows:

[1] It is very important for children to know their story, their history and where they come from.

[2] Many children will want to search out their birth parents at adolescence if they have no contact. It can help them remove any fantasy about their birth parents and have a more realistic understanding of who they are.

[3] It can help build a child’s identity – to know who they are.

[4] It can help a child be more secure in where they have come from and where they are going. It might provide the child with a greater sense of security moving forward.

[5] It helps the child understand their roots, heritage, culture and religion – about foods and events that are important in their culture.

[6] It helps the child understand why decisions were made about them and why they live where they live. It can inform them that they were and are loved by the birth parent.

[7] It definitely promotes self-esteem and can help meet the emotional needs of the child.

[8] It can provide the child with readier access to medical information. This can be very important if genetic concerns develop. This is also important information for the adoptive family to have.

[9] It allows the adoptive family to reinforce the child’s ability to understand their story and their history.

[196] Different principles apply to sibling access. Under section 104 of the CYFSA (formerly section 58 of the CFSA), a child who is in society care may apply for access to a sibling and this ability continues even after the child making the application is placed for adoption. The prohibition against access applications under subsection 104 (7) does not apply to an application brought by a child who has been placed for adoption. See: Children’s Aid Society of Niagara Region and J.C., 2007 ONSC 8919 (Div. Ct.).

[197] The court has discretion to order sibling access for a sibling in care to a sibling not in care absent consent from the parent. See: M.A.R.P. (Litigation Guardian of) v. Catholic Children’s Aid Society, [1998] O.J. No. 2023 (Gen. Div.). However, the court should be cautious in making such an order as it might be impossible to enforce. Further, the court should consider the best interests of the children not in care. See: Jewish Family and Child Service v. S.K., 2015 ONCJ 246.

[198] In T. H. v. Huron-Perth Children’s Aid Society of Toronto, 2021 ONCJ 457, the court noted that pursuant to subsection 105 (4) of the Act any existing order is terminated once an extended society care order is made. If the court wants a parent or siblings to have a right to bring an openness application in the future it has to make a new access order and make the sibling or the parent an access holder. The two younger children were placed in extended society care and given access to their two older siblings who were the access recipients. At a later trial, the two older siblings were placed in extended society care. This terminated the access order for the two younger siblings. The court made a new order granting reciprocal rights of access – the siblings were made both access holders and recipients and were entitled to bring openness proceedings.

7.2 – Beneficial and meaningful

7.2.1 – Legal considerations

[199] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the court wrote that the new access test makes the child’s best interests predominant in determining access and emphasizes the importance of preserving indigenous children’s cultural identity and connection to community. A mother who cannot adequately provide primary care may still have a meaningful and beneficial relationship with her children such that access is warranted.

[200] In Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415. The court set out the following:

b) In considering whether a relationship is beneficial and meaningful the court can consider any factor, whether past, present or future. This would include the prospect of an openness order.

c) The child’s best interests clearly are not static. This is confirmed by the wording of s. 74(3) which requires the court to consider: (i) any other circumstance of the case; (ii) the child’s development of a positive relationship; (iii) continuity in the child’s care and the possible effect on the child of disruption of that continuity; (iv) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent [Emphasis added].

d) The underlined words all demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future.

e) The “beneficial and meaningful” test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child’s best interests.

f) The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.

g) A child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission, and the exercise is not assisted by determining what the onus is or where it lies.

The court concluded with these comments:

The Act requires a new approach to determining access. I note too that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes.

[201] In J.G., the trial court gave the mother six supervised access visits a year to a 15-month-old child, based on the child’s best interests. The mother was a courteous and respectful person with parenting limitations. There was no evidence that access would impair the child’s opportunities for adoption.

[202] The challenge in making an access order for a child in extended society care is finding the fine balance between what will preserve a relationship in the best interests of the child and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the child in their new adoptive home. See: Children’s Aid Society of Ottawa v. J.B., 2017 ONSC 1194.

7.2.2 – Analysis (re beneficial and meaningful)

[203] J is five months old. It is difficult to assess how meaningful a relationship is for a 5-month-old child. However, there is a possibility that as he ages, the situation may be different.

[204] Iz is a 6-year-old child, with special needs.

[205] The society’s evidence shows the following positive aspects regarding the mother’s access visits:

a. Her visits are viewed as generally positive.

b. She has attended access consistently.

c. She arrives on time.

d. She is attentive to the children.

e. She expresses her love for the children both physically and verbally.

f. She feeds the children.

g. She listens to feedback and can integrate some feedback into her visits.

h. She reads the comments in the communication book for J and responds.

i. She has brought age-appropriate books to read with Iz.

[206] The evidence also shows the following challenges with respect to the mother’s visits:

a. She has experienced some challenges managing both children at the same time, leading to Iz engaging in unsafe behaviours towards other children in the access centre. She minimized his interactions with the other children.

b. Her lack of insight into Iz’s ASD diagnosis is impacting her visits. She has expressed that Iz never touched other children when he was in her care and is surprised about his behaviour towards other children following his placement into care.

c. Her visits remain fully supported. On February 28, 2024, a one-on-one society worker became involved in working with Iz as additional support during the visit.

d. She has continued to attribute Iz’s challenging behaviours such as hitting, grabbing, and overall aggressiveness to her deceased daughter, Nv. Nv had special needs and had been diagnosed with ASD.

e. Despite frequent redirections, she has been observed to frequently engage Iz in YouTube online videos while he eats and after his meals.

f. She has been encouraged to have Iz eat his meals on his own to develop independence and for him to continue the routine of school and foster home. She continues to feed him.

[207] The court finds that the following factors militate against making an order for access with the mother:

a. After Nv disappeared, she did not disclose to the children that their sister had disappeared. Rather, she misled them that Nv was with her godparents.

b. In June 2023, she became aware that Nv had died. She did not disclose to her children about Nv’s death until around April 2024.

c. The lack of information about Nv’s disappearance had a significant impact on Nv’s siblings, particularly AM, R, and A. They barely remember Nv. They barely speak of her. According to the mother, when she told them about her death, they did not show any emotions.

d. She has not provided any useful information about J’s father. She only provided his first name and appeared reluctant to provide any further details.

e. There are several important individuals whom she has been involved with and who have played a role in her children’s lives, but she cannot provide their full identity. She only provides their first names or nicknames.

f. She conceals important details about her life:

i. Iz’s birth and pregnancy and birth were concealed by the mother, resulting in limited prenatal care and only one medical appointment following his birth. She gave birth at home. She missed months of access visits with Nv following Iz’s birth. She avoided contact with the society for approximately five months, including not attending visits with Nv.

ii. Her five pregnancies were not disclosed to any child protection agency, and yet she was involved with child protection agencies at the relevant times.

iii. She did not want her older daughter AM’s father to know about her involvement with the society. She became upset and angry after she was told that the society was going to contact him.

iv. In an apparent reference to Nv’s death, she told Mr. Carr that one of her children had died in a motor vehicle accident.

v. On January 24, 2024, she told her society worker, Ms. Selvaratnam, her plan was to reside with Mr. Carr, but they were to reside in his niece’s home. She stated that she did not want the niece “too involved” and stated that the niece was not aware of the reason her children were in care.

g. At this trial, the mother was largely neither credible nor reliable. She was evasive in answering questions during cross-examination. Her evidence was mostly contradicted by police records and statements of agreed facts that had been filed in support of prior court orders. There is no guarantee that she will be truthful in the future when sharing the children’s stories and background information with them.

h. She has a history of not complying with court orders.

[208] The above factors play an important role as they reflect the mother’s dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child. See Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, para. 168.

[209] The above factors also show that the mother has a chaotic lifestyle. Persons with this background may be difficult to deal with and their personal issues may result in there being difficulty in making arrangements with them for contact. See Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631, para. 132.

[210] For the above reasons, the court finds that her access with the children is not meaningful and beneficial.

[211] The court finds that it is in both J and Iz’s best interests to preserve and maintain a relationship between them.

[212] The mother’s other two children, R and A are in the care of Peel CAS. Very limited evidence was provided to this court about their relationship with their siblings, J and Iz. No one from Peel CAS was called at this trial to provide details of their current circumstances. However, Ms. JR, Iz’s foster mother, described Iz’s interactions with R and A as positive.

7.3 – Impairment of future possibility of adoption

7.3.1 – Legal considerations

[213] In Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631, Justice Zisman commented on the dearth of evidence about impairment to adoption being presented at trials, most of the evidence being anecdotal. For instance, what level of access is likely to deter adoptive parents from coming forward? She also commented that it is necessary for evidence to be led about how access would work after an access order is made and the society is no longer involved. Will a supervised access centre accommodate sporadic visits? Who will pay for the visits and how will they be arranged? Are complicated arrangements likely to deter adoptive parents from coming forward?

[214] The phrase “impair the child’s future opportunity for adoption” means more than just impairing a child’s opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717.

7.3.2 – Analysis

[215] Circumstances surrounding Nv’s disappearance, death, and how her deceased body was discovered will weigh heavily in any potential decision to adopt.

[216] The fact that the mother has a deceased daughter who, before her death, disappeared for several months without being reported to the police by her mother, will be a factor that any potential adoptive parent would have to consider. Potential adoptive parents will also have to consider the fact that Iz and J have a sibling who died under unknown circumstances (with her body being found in a dumpster), and that her death remains an open police investigation.

[217] An access order in favour of the mother means that any adoptive parent must comply with the access terms. They may also have to comply with any subsequent openness orders if made.

[218] According to Ms. Lyndsay Dale, the society’s adoption worker, Iz’s pool of potential adoptive parents is very limited given his developmental delays and special needs associated with his ASD diagnosis. Any potential adoptive family would also have to access community support and services for him and attend frequent appointments to address his special needs.

[219] Over and above the history regarding Nv’s disappearance and death, Iz’s special needs present an additional layer of factors to be considered by potential adoptive parents.

[220] The mother’s history of child protection involvement has resulted in instability to the children. As per the evidence, most of the gains that Iz made while in Mrs. JS’s care were lost after he returned to his mother’s care. He has since made significant gains following his placement in care in June 2023.

[221] J has remained in care since birth.

[222] Both children must have the stability, security, and permanency they need. Any impairment to future adoption will be devastating to the children.

[223] The court finds that an access order in favour of the mother would impair the future possibility of adoption.

[224] There is no evidence that Iz and J’s sibling access will impair future opportunities for adoption.

[225] There is no evidence that sibling access between Iz and J, and their sisters, R and A, will impair future opportunities for adoption.

7.4 – Other considerations (regarding access)

[226] The court considered the children’s racial and cultural background. However, the risks and challenges associated with any future contact with their mother far outweigh any benefits of access.

[227] The society’s evidence was that it would give priority to a placement that would support the children’s racial and cultural background.

[228] In addressing the access issue, the court must consider the importance of continuity in a child’s care and the possible effect on the child of disruption of that continuity. The society’s evidence was that Iz and J have settled well in care and their needs are being met. The mother’s instability and chaotic lifestyle pose a risk of instability to the children.

[229] The degree of risk that justified findings that Iz and J are in need of protection remains high.

[230] The court finds that the mother’s access with Iz and J is not in the children’s best interests.

[231] For the reasons above, the court will dismiss the mother’s claim for access.

[232] The court must consider a 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.

[233] Ms. JR, Iz’s foster parent, described Iz’s visits with his siblings, A and R, as positive.

[234] During her interview with DC Gordon in June 2023, R stated that she missed her brother, Iz.

[235] The court finds that sibling access between the children is in their best interests. However, given J’s very young age (five months old), and Iz’s significant needs, the court will order the access to occur at a minimum of six times a year. The society shall have discretion with respect to frequency, location, duration, and level of supervision. Both children shall be mutual access holders and access recipients.

[236] The court will make an order for sibling access involving Iz and J, and their siblings in Peel CAS’ care (R and A). It will make Iz and J the access holders. Given the limited evidence presented at this trial regarding R and A, the court will make them access recipients. The access shall occur at a minimum of six times a year. The society shall have discretion with respect to frequency, location, duration, and level of supervision.

Part Eight – Orders

[237] A final order shall go as follows:

[238] Pursuant to subsection 90(2) of the Act, statutory findings regarding the child J are made as set out at the top of page 3 of the society’s protection application issued January 30, 2024, except for the stated name of the child’s male parent.

[239] J is in need of protection pursuant to subclauses 74(2)(b)(i) and 74(2)(b)(ii) of the Act.

[240] J and Iz are placed in the extended society care of the Children’s Aid Society of Toronto.

[241] J and Iz shall have sibling access at a minimum of six times a year. The society shall have discretion with respect to frequency, location, duration, and level of supervision. Both children shall be mutual access holders and access recipients.

[242] J and Iz shall have sibling access with R and A at a minimum of six times a year. The society shall have discretion with respect to frequency, location, duration, and level of supervision. J and Iz shall be access holders. R and A shall be access recipients.

[243] J and Iz shall not have access with the mother. The mother’s claim for access with them is dismissed.

[244] All other claims are dismissed.

[245] The court thanks all counsel for their professional presentation and detailed materials filed for this trial.

Released: JULY 5, 2024 Signed: Justice Wiri Kapurura

[1] There is already a finding that Iz is in need of protection per the consent order of Justice Pawagi dated January 17, 2024.

[2] See Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227 (Justice S.B. Sherr) – para 59

[3] See Catholic Children’s Aid Society of Toronto v. P.N.S., 2016 ONCJ 164 (Justice C.Curtis) – para 122

[4] The mother immigrated from Jamaica as a child. She identifies J and Iz as Black children.