WARNING

The court directs that the following notice shall be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Court File No.: Toronto C47728/09

Date: 2012-05-04

Ontario Court of Justice

Between:

Jewish Family and Child Service of Greater Toronto

Applicant

— AND —

M.F.

Respondent

Before: Justice Curtis

Heard on: 19-22, 26, 27 September; 4 October; 22 November 2011; 12, 13, 15, 28 March; 2-5 April 2012

Reasons for Judgment released on: 04 May 2012

Counsel:

Lorne Glass, Stephanie Giannandrea for the applicant Jewish Family and Child Service of Greater Toronto

Joseph Kary for the respondent M.F.

CURTIS, J.:

Index

1. Introduction
2. Background Facts
3. Litigation History
4. The Test on a Status Review Application
5. General Concerns about the Mother's Parenting
6. The Mother's Mental Health Disorder -- Paranoid Personality Disorder -- and the Risks Associated with her Parenting: The Expert Evidence
7. J.F.C.S.'s Evidence of Consistent Protection Concerns over Time
8. The Mother
9. Is S.N. still in Need of Protection? The Evidence
10. Disposition Legal Principles
11. Crown Wardship
12. Access
13. Conclusion and Orders

1. Introduction

[1] This is the decision in a 16 day trial of a status review application for crown wardship regarding the child S.N., now three years old (born 2008).

[2] The Jewish Family and Child Service ("J.F.C.S.") is seeking crown wardship, no access, for the purposes of adoption. The mother opposes this and asks that the child be returned to her care. The father offered no plan, was noted in default, and did not participate in the trial.

[3] The trial dealt only with disposition. On 12 October 2010, Zuker, J. made an order on the J.F.C.S. motion for summary judgment finding that the child was in need of protection under s. 37(2)(b)(i), 37(2)(g), and 37(2)(g.1) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended ("C.F.S.A."). The appropriate statutory findings about the child were made on 18 October 2010 by Zuker, J.

[4] The issues for decision are these:

1. Does the child continue to be in need of protection and, as a consequence, require a court order for his protection?

2. Is it in the child's best interests to be made a crown ward, or can some less intrusive protection order be made?

3. If the child is made a crown ward, is access between the child and the mother meaningful and beneficial to the child, and if so, would access impair the child's future opportunities for adoption?

2. Background Facts

[5] The mother is M.F. ("the mother"), born 1976 (36 years old). At trial, she had been working part-time and irregular hours at a clerical job at the Hincks-Dellcrest Centre since fall 2011.

[6] The father is N.B. ("the father"), born 1974 (37 years old). On 31 July 2009, Zuker, J. made an order that there was no male parent of S.N. within the meaning of the C.F.S.A.

[7] The finding that there was no male parent under the C.F.S.A. resulted because the mother did not provide J.F.C.S. with any information about the father's name or address, despite repeated requests from J.F.C.S. However, in mid-trial, in November 2011, J.F.C.S. learned that there was a consent child support order for S.N. in the Circuit Court of Montgomery County, Maryland, dated 15 July 2009. The father then had to be located and served. On 22 November 2011, this trial was adjourned, originally to January 2012, and eventually to 12 March 2012, to allow J.F.C.S. to bring a motion for disclosure of information regarding the father (and other matters), and to serve the father. These steps resulted in considerable delay, and a four month break in the middle of the trial.

[8] The father was served with the status review application on 8 December 2011. On 5 January 2012 Waldman, J. made a disclosure order for information from a variety of sources. The father was noted in default by Waldman, J. on 25 January 2012.

3. Litigation History

[9] The mother became involved with J.F.C.S. around the time that S.N. was born (2008), due to their concerns about the mother's paranoia, her vulnerable mental health, her isolation and her lack of community supports. There was a voluntary services agreement in place from 6 August 2008 to 6 November 2008. After this agreement expired, the mother continued to work voluntarily with J.F.C.S., although she continued to deny that there were any protection concerns and she refused consent to allow J.F.C.S. to contact the service-providers of the programs she said that she had attended.

[10] On 1 April 2009, the mother was hospitalized at St. Joseph's Hospital on a 72 hour form, following an altercation with shelter staff, so that she could be assessed and stabilized. The child was apprehended then and was in care for three days. On 23 April 2009 J.F.C.S. brought a protection application for a finding that the child was in need of protection and for a six months supervision order with the mother. The concerns identified were the mother's mental health, her isolation in the community, being overwhelmed at times by her parenting responsibilities, and recent instability in housing.

[11] On 30 April 2009, the mother consented to a temporary without prejudice supervision order with terms and conditions. One of the conditions was that she was to "remain in her current housing situation and shall not vary her housing situation, or specifically, move to a shelter, without consultation with J.F.C.S., unless an emergency situation arises".

[12] On 27 July 2009 J.F.C.S. apprehended the child with a warrant. The mother had moved to a shelter with the child. Her housing situation had become increasingly unstable and she was unable or unwilling to adequately prepare her apartment for a pest control service to spray for bedbugs.

[13] On 31 July 2009 the mother consented to a temporary without prejudice order placing the child in the care of J.F.C.S., with access to be at J.F.C.S.'s discretion, at least two hours, twice per week. S.N. has been in care continuously since then.

[14] Following the summary judgment motion and the protection finding on 12 October 2010, the original protection application was set for trial. The disposition of the original protection application settled on 9 November 2010 at a Settlement Conference with Sherr, J. and the mother consented to the following orders:

a) Five months society wardship, pursuant to an extension of time under s. 70(4) C.F.S.A.;

b) specified access for the mother, a minimum twice per week for three hours each visits;

c) the mother to attend Beyond the Basics program starting 5 January 2011, to continue working with her therapist and to attend with the child and a J.F.C.S. representative at the child's speech therapy assessment at Branson Hospital and developmental assessment at Hospital for Sick Children; and,

d) the mother and the child to enter the Therapeutic Access Program ("T.A.P.") and to enter the three day intensive program at Interface.

[15] J.F.C.S. brought a status review application for crown wardship no access on 28 March 2011.

4. The Test on a Status Review Application

[16] It is not the function of a status review hearing to retry the original finding that the child is in need of protection. The question to be determined by the court is whether there is a need for a continued order for protection: Catholic Children's Aid Society of Toronto v. M. (C.), [1994] 2 S.C.R. 165 (S.C.C.), pp. 40-41.

[17] The examination that must be undertaken on a status review application is two-fold: Catholic Children's Aid Society of Toronto v. M. (C.), [1994] 2 S.C.R. 165 (S.C.C.), p. 42:

The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his protection; and,

The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need for protection.

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

Finding in Need of Protection

[19] The J.F.C.S. position is that the child continues to be in need of protection due to the mother's paranoia, her vulnerable mental health, her isolation and her lack of community supports. It is the position of J.F.C.S. that very little has changed for the mother in the nearly three years since S.N. was bought into care.

Disposition: Plans Proposed at Trial

[20] There were two plans proposed at the trial:

a) J.F.C.S.'s plan is that the child be made a crown ward without access for purposes of adoption; and,

b) The mother's plan is to have the child returned to her care, and if necessary, with a supervision order.

5. General Concerns about the Mother's Parenting

[21] These are the concerns about the mother's parenting:

a) The mother has a mental illness, paranoid personality disorder, which contributes, perhaps in combination with other causes, to her inability to provide adequate care and stability for the child;

b) The mother's mental health disorder:

i. Is pervasive and enduring;

ii. Contributes to her consistent instability with respect to housing, personal relationships and employment; and,

iii. Makes it extremely difficult for the mother to accept support from family, friends, or community service agencies to mitigate these harmful effects;

c) The expert evidence about the characteristics of paranoid personality disorder and the effects this disorder has on a person's life is consistent with the observations by J.F.C.S. staff of the mother's parenting, general behaviour and personal history over a long period of time;

d) While the child has been in care, repeated patterns have been observed in the mother's parenting behaviours that show a significant impairment in her ability to attend to the child's emotional and physical care needs with sensitivity and predictability;

e) The mother made choices that have placed the child at risk of harm, and she has consistently struggled and even been unable to understand and effectively respond to his physical and emotional needs and to place them ahead of her own needs;

f) The mother is very vulnerable and isolated and she has and would isolate herself with the child if he were in her care;

g) The mother's plan is for her to be the primary care-giver with some assistance from her mother M.D. ("maternal grandmother"). Her plan would not protect the child from harm, nor provide for his healthy development if he were in her care.

6. The Mother's Mental Health Disorder -- Paranoid Personality Disorder -- and the Risks Associated with her Parenting: The Expert Evidence

[22] There was evidence from two experts dealing with paranoid personality disorder, the mother's diagnosis, and the effects such a diagnosis might have on parenting.

Dr. Malat

[23] The mother was diagnosed with paranoid personality disorder on 14 November 2009, by Dr. Malat, a psychiatrist at the Centre for Addiction and Mental Health, who assessed the mother's mental health at the request of her lawyer following the child's apprehension. At trial Dr. Malat was qualified as an expert in the areas of general psychiatry and diagnosing mental health disorders, including paranoid personality disorder.

[24] Although the mother does not accept this diagnosis, she called no evidence, expert or otherwise, to refute or even to respond to it. She merely stated she does not accept the diagnosis.

[25] Dr. Malat provided the following information about paranoid personality disorder generally:

a) Paranoid personality disorder's primary feature is mistrust;

b) The mistrust must be a chronic and persistent pattern, and must affect one's life in multiple settings and over a period of time;

c) The effect on one's life of paranoid personality disorder can be:

i. One is isolated and alone;

ii. One does not form any, or very few, significant intimate relationships, and,

iii. One has difficulty functioning in the workplace and in other settings;

d) In severe cases, paranoid personality disorder can lead to many conflicts in a person's life; and,

e) Personality disorders are ingrained and chronic. The treatment recommendation is long-term psychotherapy, although it is difficult for those with paranoid personality disorder to form a trusting relationship with a therapist.

[26] Dr. Malat provided the following impressions of the mother:

a) There was a seemingly enduring and pervasive pattern of mistrust, suspiciousness, isolation and conflict with others, occurring across multiple settings and situations, that is causing significant impairment in occupational and personal functioning;

b) The mother was overwhelmed and in need of significant help and support, but unfortunately, very reluctant to accept the help of others as a result of her mistrust; and,

c) The mother appeared to have limited insight into her condition.

Dr. Perlman

[27] Dr. Perlman, a clinical psychologist, conducted a parenting capacity assessment of the mother pursuant to an order under s. 54 C.F.S.A. made 3 March 2010. Her report was dated 29 May 2010 and she gave extensive evidence at trial for two days. At trial Dr. Perlman was qualified as an expert in the areas of mental health disorders, parenting and attachment issues and the assessment of parenting capacity.

[28] Dr. Perlman's findings can be set out under these topics:

a) The mother's paranoid personality disorder impairs her parenting;

b) Treatment recommendations are limited and have a poor chance of success; and,

c) Dr. Perlman observed problematic parenting behaviours by the mother during her assessment.

The Mother's Paranoid Personality Disorder Impairs Her Parenting

[29] Dr. Perlman found in her report and in her evidence that the mother's diagnosis affected her parenting as follows:

a) Paranoid personality disorder is associated with excessive mistrust and suspiciousness of others to the point that it interferes with major aspects of a person's daily functioning. The condition is pervasive, and involves difficulty relating to other people, whether socially, with family, or with service providers. The condition often creates a vicious cycle because a person with paranoid personality disorder can be confrontational or combative in responding to others, thereby receiving negative responses in turn. People with paranoid personality disorder are often hypersensitive, sometimes misread social cues, and are sensitive to issues of power and social position. Paranoid personality disorder tends to be long-term. It involves a maladaptive supportive cognitive framework that hardens over time;

b) The question in assessing parenting capacity is how the individual person manages any mental health problem. Dr. Perlman explained that paranoid personality disorder may interfere with a person's interaction with service providers at any level, including with respect to housing or education. It tends to isolate the person with the child, and thereby prevents or inhibits the integration of the child into the community. A parent with paranoid personality disorder is likely to restrict and isolate the child and create instability with respect to family life, in areas such as housing or schooling (emphasis added);

c) At the time of the assessment, the mother had many problems, including rigidity, suspicion, vulnerability and isolation, and absolutely no insight into her problems;

d) Dr. Perlman did not have any observations of the mother that were inconsistent with the diagnosis of paranoid personality disorder;

e) Persons with paranoid personality disorder often need to control those around them. They tend to be rigid and have difficulties accepting or understanding the other person's perspective. This interferes with social interactions. This is also likely to interfere with the development of her relationship with her child, and in turn, may interfere with the child's social and emotional development. The mother's vulnerable mental health and her poor internal and external resources are likely to stress her relationship with her child and interfere with his development;

f) Dr. Perlman found that paranoid personality disorder affected the mother's life in major ways, culminating in the apprehension of her child. The mother did not take any responsibility for her own role;

g) Dr. Perlman did not observe any features of the mother's life or her presentation, such as internal or external support mechanisms, good memories or a good job, that would mitigate the effects of paranoid personality disorder;

h) While other mental health diagnoses may contribute to the mother's difficulties, the problems that have been observed dealing with service providers and isolation are consistent with the diagnosis of paranoid personality disorder. As S.N. develops, his mobility, curiosity and need to interact with other children and adults will increase. This is likely to distress his mother (emphasis added); and,

i) It was Dr. Perlman's opinion that without fundamental change there would be no point considering reunification of S.N. into his mother's care.

Treatment Recommendations are Limited and have a Poor Chance of Success

[30] Dr. Perlman found in her report and in her evidence that the treatment recommendations she could make for the mother were limited, and had little chance of success, and she made the following findings:

a) Dr. Perlman's primary recommendation for a support which might be beneficial to the mother would be long-term, intensive psychotherapy over a number of years, and such psychotherapy would be difficult, as it requires motivation and willingness to be challenged with the dismantling of one's defenses. Dr. Perlman said that the motivation to change requires an ability to accept responsibility for the problems one faces (emphasis added);

b) Dr. Perlman felt that long-term, in-depth psychotherapy would be difficult for the mother and would require a very skilled and patient therapist;

c) The mother's lack of insight into her mental health problems and her mistrust of others prevent her from accessing and benefitting from the supports available in the community;

d) Even if the mother became involved in counselling, therapy and other support services, change would not be immediate. It is not possible to predict how long it would take for such changes to take place; and,

e) Involvement in therapy could have a positive effect on the mother and her parenting, but the court would have to hear from her therapist in order to make this determination.

[31] The mother gave evidence that she has been seeing a therapist Marika Pollak ("Ms. Pollak") since 2009. Ms. Pollak did not testify at the trial, and no letters or reports from her were tendered in evidence (other than a curriculum vitae provided by the mother). Ms. Pollak did her undergraduate work in Romania, holds a Canadian M.S.W., and has a clinical practice that includes counselling and psychotherapy. The mother's evidence about the therapy was very limited. She said that her trust in Ms. Pollak had increased over the years, perhaps, she said, because there was no assessment being completed. The mother said she was comfortable during the therapy sessions as Ms. Pollak was non-judgmental and independent.

Dr. Perlman's Observations of Problematic Parenting Behaviour by the Mother

[32] Dr. Perlman observed the mother with S.N. during two access visits. She described the mother as gentle, sweet and loving towards the child. However she identified two examples as very problematic parenting behaviour.

a) Dr. Perlman observed the mother try to have S.N. lie down and go to sleep at the end of one visit. Dr. Perlman said this was highly unusual, even in the context of a parent whose child is in foster care and who therefore has limited time to spend with the child. Dr. Perlman concluded that the mother's reading of the child's clues was very faulty; and,

b) Dr. Perlman observed that the child wanted to go and play with other children in the room, and that the mother physically restrained him in a corner. There was no affection. There was no supportive redirection, nor effort to make S.N. feel comfortable. S.N. clearly wanted to go and was held back. Dr. Perlman described this as a problematic restriction of the child's movement, in which the child was uncomfortable, the mother was tense, and Dr. Perlman herself was uncomfortable observing it. The mother denied that this occurred. Dr. Perlman noted that this kind of restriction on the child's independence will only become more problematic as the child gets older.

[33] Dr. Perlman observed that the mother had consistent difficulty over-all reading the child's cues. She agreed that there was affection between the mother and the child, but that the affection was solely driven by, and dictated by the mother's own needs, rather than the child's.

The Mother's Reaction to Dr. Perlman's Findings

[34] The mother did not agree with Dr. Perlman's conclusions, and thought that her report was biased and inaccurate. Although the mother questioned Dr. Perlman's methodology and disagreed with her conclusions, she called no expert evidence to critique the report, nor to respond to or refute the findings or conclusions.

[35] The mother says that her mistrust of others is rooted in her upbringing in eastern Europe, and that her instinct is to not trust agencies of government authority, such as J.F.C.S. social workers. She say her reactions to them should be understood in the context of Eastern Europe, where ideology dictates that the state should take care of the citizen and accommodate her needs, while practice shows that agents of the state are self-aggrandizing and should never be trusted. The mother says that the governments pathologized dissent, treating opposition to government policies as a mental illness resulting in incarceration in a hospital, and that it is not surprising that someone from the old Eastern bloc would feel uncomfortable with a diagnosis of a psychological disorder.

The Thistletown Assessment

[36] The Intensive Family and Community Resource at Thistletown ("Thistletown") is a comprehensive assessment service. The goal of the program is to try to keep families together by offering solutions that may have been missed during earlier child-protection involvement.

[37] Catherine Borland-Kerr ("Ms. Borland-Kerr") is a Senior Child and Youth Therapist and was one of the three assessors who assessed the mother's parenting in the Intensive Family Therapy Unit at Thistletown. In addition to Ms. Borland-Kerr, the mother's assessment was completed by a clinical therapist and a senior child and youth therapist.

[38] At trial, Ms. Borland-Kerr was qualified as an expert in the assessment of parenting capacity, attachment relationships, and treatment and interventions directed at deficits in these areas.

The Agreement to the Thistletown Process

[39] The mother's experience at Thistletown was very difficult for her, so much so that she was reluctant to even begin answering questions concerning it in the course of her examination in chief. She described the process that sent her there as an ambush, and said that she agreed under duress. She was uncomfortable with the Thistletown process and with discussing it at the trial.

[40] There was quite a lot of evidence given about the agreement to and the entry into the Thistletown assessment process. At the settlement conference before Sherr, J. on 9 November 2010, the mother agreed to participate in the Therapeutic Access Program at J.F.C.S., which would be planned in consultation with the Intensive Family and Community Resource at Thistletown, with a view to the mother participating in the three day intensive program at Thistletown in January 2011. The intention of the agreement was for the mother to have more time to parent S.N. in order to determine whether she could parent him full-time. T.A.P. was incorporated into the plan so that she would have longer visits, and teaching and training aimed at improving her parenting and care of S.N., in preparation for the three day assessment. Thistletown was involved throughout the T.A.P. process.

[41] Before entering into this agreement the mother discussed T.A.P. and the Thistletown program with both her lawyer and with the J.F.C.S. worker and lawyer. The mother and her lawyer called a representative from Thistletown while at court during the settlement conference to learn more about the program. She later received a tour of the Thistletown assessment site, and attended a meeting, with her lawyer, where she was involved in creating the goals and outlining the plan for T.A.P. The mother agreed to participate in the assessment program after taking some time to consider it in consultation with her lawyer.

[42] Waldman, J. in her endorsement regarding the s. 54 assessment noted that the mother might need some accommodation to assist her in completing that process. The J.F.C.S. worker was aware that accommodation would be required to respond to the mother's need for privacy. Ms. Borland-Kerr testified that efforts were made to ensure that the mother was informed and understood the T.A.P. program and the Thistletown Assessment before agreeing to participate in this voluntary program.

[43] The goals and expectations for T.A.P. were formulated at the 23 November 2010 meeting at Thistletown. The identified goals were related to organizing S.N.'s environment throughout the visits and responding appropriately to his cues.

[44] Ms. Borland-Kerr testified that the mother had to be continually refocused during the 23 November 2010 meeting. As the meeting progressed, her antagonistic presentation made it difficult for the team to present the therapeutic access plan in its entirety as each point was challenged. The mother was unusually focused on bias and external blame. The mother required redirection during a meeting on 17 January 2011 prior to the three day assessment at Thistletown, during which she was easily distracted to topics that included receipts, reimbursements from J.F.C.S., grocery shopping for the house, the reason for the referral and protection concerns.

[45] Despite these accommodations and planning of the Thistletown Assessment, the mother testified that she was there "under duress" and that she "didn't have time to consult one hundred child protection lawyers and other experts." The mother did not accept responsibility for any of the conclusions of the Thistletown Assessment.

[46] Ms. Borland-Kerr testified that while the mother disagreed with the reasons for the referral to the Thistletown program, she agreed to participate and gave her consent after being informed of the risks and benefits of the assessment process and after having time to consider the process and to discuss it with her lawyer. Furthermore, the mother signed the Intensive Family and Community Resource Service Agreement on 17 January 2011, indicating that she agreed to participate in the assessment having knowledge of the associated risks and benefits. The mother testified that she did not know what this meant. She said she did not have enough input into how to deal with her court case. She talked about wanting to have "dozens of lawyers" and other supports before signing these documents. The mother did not, however, decline to follow through with the Thistletown Assessment, as many parents do. She knew that this assessment presented a chance for her to regain custody of her son.

[47] Ms. Borland-Kerr testified that the team was aware of the mother's diagnosis of paranoid personality disorder and made attempts to accommodate her throughout the assessment process. For example, the therapists spent more time than usual in their office, limited the use of cameras and two-way mirrors, included legal counsel in preliminary meetings, and engaged with the mother in a predictable and sensitive way. The mother initially did not want the therapists to provide intervention, and the therapists complied with this at the outset, until they felt that intervention was necessary due to S.N.'s distress. One of the assessment questions was whether teaching could occur in a way that mitigated the effects of paranoid personality disorder, and so the therapists were aware of this in their approach to the assessment.

The Mother made Gains in T.A.P.

[48] The mother participated in T.A.P. from 9 December 2010 to 18 January 2011. The J.F.C.S. family services worker supervised all of the T.A.P. visits and worked with the mother on developing the skills necessary to meet the identified goals. The mother did reasonably well in T.A.P. She made gains throughout the program and was able to address many of the identified goals. However, the J.F.C.S. worker did not describe a dramatic improvement. She testified that the mother showed enough learning and ability to accept feedback to be accepted into the three day Thistletown program.

Thistletown Assessment Recommended Long-Term Planning for S.N., and Identified Significant Impairments in the Mother's Parenting

The Evidence from the Thistletown Assessment

[49] The Thistletown team recommended long-term placement for S.N. outside of the mother's care. Ms. Borland-Kerr's evidence and the Thistletown Assessment Report (dated 2 March 2011) can be divided into three main categories:

a) Problematic parenting in all categories;

b) Disorganized and insecure attachment relationship is a risk to S.N.'s development; and,

c) The mother could not integrate feedback to change her parenting.

Patterns of Problematic Parenting Identified by Thistletown: The Evidence from the Thistletown Assessment

Problematic Parenting Behaviours in All Domains

[50] The Thistletown report and the evidence of Ms. Borland-Kerr identified the following problematic parenting behaviours:

a) the mother could not problem-solve effectively and at times left S.N. unsupervised and unattended;

b) the mother could not effectively organize S.N.'s day;

c) significant role reversal was observed in the parent-child relationship; and,

d) The mother was observed to promote distress in S.N. and "once S.N. was distressed, she was unable to effectively comfort him and regulate his distress."

[51] This is the evidence about these problem areas:

a) the mother could not problem-solve effectively and at times left S.N. unsupervised and unattended; the mother left S.N. alone in the living room with a baby monitor while she vacuumed the kitchen with the door closed. S.N. stood outside the kitchen door crying while his mother could not hear him. The mother had previously received some training and redirection in this area from the J.F.C.S. worker. The mother could not attend to S.N. and complete an instrumental task at the same time, and was observed to attend to the task instead of S.N., despite the stress that this created for S.N.;

b) the mother could not effectively organize S.N.'s day; Ms. Borland-Kerr testified that the mother was given a detailed schedule from the foster mother setting out S.N.'s normal daily routine, which was intended to create an opportunity for parents to be successful. The mother did not follow any schedule or routine. She did not give S.N. his vitamins, put him to sleep very late, did not get him down to nap, and provided minimal structured play time. The mother took several hours to prepare his meals, during which time S.N. was left in a high chair or on a blanket in the kitchen for almost two hours at a time. The mother denied that she failed to give S.N. his vitamins. She acknowledged that she was not able to put S.N. down for a nap, but said it was likely because he was not used to her authority. She blamed many of the difficulties identified by Thistletown on the fact that she had not been taught these tasks.

c) significant role reversal was observed in the parent-child relationship; the mother asked S.N. to make decisions about his bath time and nap time. She expected S.N. to "organize his own emotional and physical needs with inconsistent input from his mother." Ms. Borland-Kerr testified that when a parent defers to a child in this way the child becomes confused and disorganized; and,

d) The mother was observed to promote distress in S.N. and "once S.N. was distressed, she was unable to effectively comfort him and regulate his distress"; Ms. Borland-Kerr testified that the mother was not always able to calm S.N. and that he would eventually either calm himself or look to a therapist, and that the therapists were able to calm him relatively easily. Ms. Borland-Kerr highlighted two examples:

i. S.N. was not scared when he entered the pool area, but the mother repeatedly told him that he did not need to be "scared," and then he "became resistant to going in the pool and he began to cry." Ms. Borland-Kerr testified that S.N. "became exceptionally distressed over time." The mother was not able to soothe S.N.'s distress, and she "initially attempted to isolate him from the therapists by taking him into the change room"; and,

ii. The mother also promoted confusion and distress for S.N. when his foster mother came to pick him up at the end of the three-day assessment. When S.N. went to greet his foster mother, the mother physically held him back and repeatedly told him that it was okay and not to be sad.

Disorganized and Insecure Attachment Relationship is a Risk to S.N.'s Development

[52] All of the mother's problematic parenting behaviours were observed by the Thistletown therapists to be damaging to S.N. The therapists observed a disorganized attachment relationship. Ms. Borland-Kerr testified that of all of the insecure attachment relationships, disorganized attachment is the one that worries experts the most. It is indicative of parenting behaviour that has been confusing or exceptionally unavailable. The therapists observed multiple examples of S.N. being unsure of whom to approach when distressed. They saw S.N. arch his back and run away from the mother. As the assessment progressed, Ms. Borland-Kerr observed that S.N.'s situation deteriorated throughout the three days, and that there were "more interactions that looked increasingly problematic between the mother and the child."

[53] When asked about the risks that the mother poses to S.N., Ms. Borland-Kerr identified: lack of safety and supervision, ongoing emotional disregulation, and elevated upset and distress. She testified that children who experience this are at higher risk for social, emotional, and mental health issues as they get older, including attention and impulsivity issues.

The Mother Could Not Integrate Feedback to Change her Parenting

[54] Although training is an integral component of the Thistletown three-day assessment process, the therapists concluded that "treatment is not effective in promoting consistent change as the mother's experience of her parenting of S.N. and her understanding of how he experiences her, reflect her idea that she is effectively meeting his needs." Ms. Borland-Kerr testified that the team does not look for dramatic improvement over the three days, but rather for predictors that improvement is possible.

[55] Ms. Borland-Kerr explained that a parent must identify something that they want to improve. Without this, there is no entry point for teaching because the parent does not agree that anything is problematic. Ms. Borland-Kerr testified that when she and her team met with the mother and the J.F.C.S. workers in November 2011, the mother did not agree with any of the concerns of J.F.C.S.

[56] Ms. Borland-Kerr said that the team faced difficulties in providing feedback to the mother. She said that the mother's "perception was acutely different" from the therapists'. The mother was receptive to feedback, and in fact occasionally looked to the therapists for teaching and guidance, but could not utilize it. She responded to feedback in one of two ways: most of the time, she either had a different experience of her parenting, and did not agree that her behaviour was problematic, or otherwise, she attempted to implement feedback but then would not agree or understand that she did not do so properly.

[57] Ms. Borland-Kerr stated that opportunities for teaching were explained and provided to the mother both at the beginning and during the assessment. The mother said that she did not need to learn anything and that she was not worried about any aspect of her parenting. The specific teaching modality was selected based on what the mother said she wanted.

[58] The mother denied this. She testified that nobody at Thistletown ever told her that there would be teaching, and that when she asked about teaching she was told that there would be none. However, the mother signed the Intensive Family and Community Resource Service Agreement on 17 January 2011, and initialled on this form that she understood that ongoing intervention and teaching would be provided.

[59] Ms. Borland-Kerr identified a range of options for teaching and improving parenting, and testified that she did not feel that anything would be effective for the mother.

[60] The mother was not oppositional, but was not aware of the deficiencies or problems in her parenting and their impact on her son.

The Mother's Response to Thistletown

[61] The mother says that at the time of the Thistletown evaluation, she had no experience being the caregiver to an active toddler. The activities they reviewed (e.g., putting him to sleep at night, caring for him while doing chores) were things she had not done with him since he was a baby, yet she was being graded on them.

[62] The mother says that the structure of the experiment (e.g., cameras, microphones, two-way mirrors, constant observation) were an added stressor on someone who values her privacy greatly.

[63] The mother said that the combination of constant staff intrusion, video cameras and an unfamiliar setting affected both mother and child negatively, and that rather than creating a fair and realistic picture of the mother's parenting abilities, in fact, the conditions made failure likely.

7. J.F.C.S.'s Evidence of Consistent Protection Concerns over Time

The Mother has Placed the Child at Significant Risk of Harm

[64] Various J.F.C.S. workers gave evidence of their observations of the mother with the child. That evidence can be set out in several categories:

a) the mother was isolated, and had difficulty accepting support from J.F.C.S. and from other community agencies, and family;

b) there was significant risk associated with the mother's frequent use of shelters, due to the fact that staying in shelters was thought to destabilize her mental health, which had eventually led to the child's second apprehension; and,

c) the mother did not accept any responsibility for her difficult circumstances. This unwillingness or inability to accept reasonability is the very feature of paranoid personality disorder that makes it difficult for the disorder to be successfully treated.

The Mother was Isolated, and had Difficulty Accepting Support

[65] The mother did not accept the validity of the J.F.C.S. concerns about her parenting. She maintained that the only assistance she wanted from J.F.C.S was financial, and was consistently dissatisfied with the level of financial help provided (even though there was financial support offered on several occasions, including cleaning her apartment).

[66] The mother entered a voluntary service agreement with J.F.C.S., but did not work co-operatively with service providers, which may be a result of her paranoid personality disorder. She would not sign the usual consents for J.F.C.S. to contact other service providers, like the public health nurse. She would not allow the public health nurse to come to her home, but asked the public health nurse to baby-sit S.N. when she went out. She worried that her future employment would be affected by her involvement with J.F.C.S. as she feared that confidential information would be shared.

[67] She repeatedly told the court she had attended the Beyond the Basics parenting program, but did not go to this program until it was court ordered.

[68] The mother had difficulty accepting help from family and friends and appeared to be quite isolated. She told J.F.C.S. that she had no family or friends that could help her. She said that she was worried that if her mother or other family members or friends baby-sat the child that they would not return him to her. She was asking J.F.C.S. for babysitting.

[69] J.F.C.S. was quite concerned about her profound level of mistrust. The mother described her relationship with her parents as difficult. She would not allow the psychiatrist at St. Joseph's Hospital to contact her parents, when she was hospitalized there. She refused to allow anyone to speak to her father in order to access support for her.

The Mother's Housing was Unstable and There was Significant Risk Associated with her use of Shelters

[70] In her evidence, the mother described long-standing housing instability. She described moving around a lot beginning in high school. She did not have an adequate place to stay when S.N. was born in 2008, and chose to stay in a shelter, despite the fact that she had her own apartment at the time.

[71] The mother's reasons for wanting to move to a shelter were primarily financial, and she felt that she could access services available only to shelter residents. J.F.C.S. tried to assist her in applying for financial assistance to supplement Ontario Works. She admitted that she was not paying rent.

[72] When the mother was released from St. Joseph's Hospital after S.N.'s first apprehension in April 2009, the hospital psychiatrist recommended that she not go to a shelter and that she stay in her own housing.

[73] The mother acknowledged that the Robertson House shelter was an "adverse environment" and that being in the shelter was like being in an "imprisonment camp."

[74] In the mother's case the prospect of living in a shelter was more than stressful, it was destabilizing. It presented a significant risk to S.N. The mother continuously wanted to stay in shelters, despite her acknowledged profound dislike of the shelter environment and J.F.C.S.'s serious concerns about the destabilizing effects of the shelter environment on her mental health. J.F.C.S. did not consider staying in a shelter to be a protection concern of itself, but the circumstances were quite different in the mother's case because of the risk that the shelter environment would be destabilizing for her.

[75] Despite the mother's acknowledgement that she did not like staying in shelters, and her consent to a condition of the 30 April 2009 temporary supervision order that required her to stay in her apartment unless there was an emergency, she continued to tell J.F.C.S. between April and July 2009 that she wanted to go to a shelter with S.N. She did move to a shelter and S.N. was subsequently apprehended on 27 July 2009.

[76] There was also a problem with bed bugs in the mother's apartment and she was not following through with the necessary steps to prepare the apartment to be sprayed by an exterminator, despite assistance provided by J.F.C.S. The bed bugs themselves were not considered to be a protection concern, but the fact that she was not following through to clean the apartment for spraying was considered to be a concern.

[77] J.F.C.S. workers consistently observed (between July 2008 and March 2012) that the mother's apartments were quite cluttered (including a terrible odour; the kitchen sink, counter and oven were covered in dirty unwashed dishes and pans; in the main living area there was a mass of seemingly full plastic bags, some pails, and other materials; there was clutter in the bedroom and bathroom, and overall, there was little room to move throughout the apartment due to the massive amounts of clutter everywhere). Following a visit on 1 November 2011, J.F.C.S. paid for a cleaning service to clean the apartment. Despite this, as recently as 7 February 2012 (during the trial) the J.F.C.S. worker found that considerable clutter continued to be an issue, such that the apartment was not suitable for S.N. to visit during an access visit.

[78] The mother acknowledged that J.F.C.S. claimed that there was clutter in her apartment. She blamed this on her low income level and related inability to buy more furniture. She said that she would have to get shelves and furniture to address the clutter. She also said that while she was taking out one bag of garbage per day, this was not productive and that she would require the assistance of a garbage disposal company in order to address the clutter.

The Mother does not Accept any Responsibility for her Circumstances or Actions

[79] Throughout J.F.C.S.'s involvement, the mother consistently blamed others for any problems relating to her circumstances. She did not accept any responsibility. This is a common feature of paranoid personality disorder, and it has prevented her from accepting supports that may have improved her ability to care for S.N. For example:

a) on 11 February 2009, J.F.C.S. staff discussed with the mother the recommendation from Dr. Malat that she attend counselling. She said that she was not interested in counselling and that it was normal to have some mistrust, and that this was a positive thing;

b) the mother blamed J.F.C.S. for treating her unfairly due to the fact that she was not eligible for financial assistance. She was reluctant to apply for Ontario Works because she did not think she would be treated well. She later told J.F.C.S. staff that she did not want to apply for Ontario Works because there were too many meetings, which was time-consuming for her;

c) When the mother was hospitalized in April 2009 she thought that it was because of her involvement with Dr. Malat and J.F.C.S., and she said that everyone was biased and that if she had more money she would not have been hospitalized. She did not take any responsibility for her own actions. She believed that she did not have any mental health problem, and that the police and ambulance staff had been unprofessional and should be questioned;

d) When J.F.C.S. staff tried to speak to the mother about the importance of paying rent so that she would not be evicted, she said that she did not have to pay rent and that her rights were not being respected. She became quite angry and screamed that Employment Insurance had ripped her off and that she was being treated like "shit." She did not take any responsibility for the choices that she was making. She did not accept any responsibility for her failure to prepare her apartment for pest control; and,

e) In her evidence the mother repeatedly commented that J.F.C.S. did not provide her with sufficient financial assistance during this time.

J.F.C.S.'s Evidence of the Impact of Paranoid Personality Disorder on the Mother's Functioning

[80] The current family services worker (since August 2011) and the access supervisor gave examples of the mother's persistent paranoia, interpersonal problems, and her unwillingness to accept any responsibility for any of her problems.

a) The mother told the worker that she did not want to use a telephone at the J.F.C.S. offices because she was worried that people would be listening to her conversations. She believed that J.F.C.S. had provided security staff in the J.F.C.S. building with a photograph of her. She complained that building staff were rude and dismissive in response to various demands and complaints;

b) The mother demanded that she be present if J.F.C.S. met with the maternal grandmother and said that her mother, and in fact everyone, would say things to put her down while making themselves look good;

c) The condition of the mother's apartment during the unscheduled home visit on 23 August 2011 (only a few weeks before the trial started) was deplorable, and she consistently denied responsibility for every part of this. She attributed the terrible odour in her apartment to the poor ventilation system in the building and the smell of the laundry room across the hall. She attributed her own strong body odour to faulty washing machines and poor ventilation in the apartment (the mother's body odour has been very strong during access visits, and S.N. has even complained about it). She blamed the dirty dishes in the kitchen on insufficient water supply. She blamed the overall mess in the apartment on her mother, the court case, the size of the apartment, the small amount of furniture, the high cost of rent, and issues with provincial social assistance programs and Toronto Community Housing. At no time did she suggest that she had any responsibility for the state of the unit;

d) On two occasions, the mother told the access supervisor that she was being treated like she was in "Nazi Germany". On another occasion she yelled at the access supervisor about cleaning the access room and complained about "paying for the workers' mansions and nannies". She has repeatedly said that cleaning the access room should be the janitor's job; and,

e) The mother has asked security staff at the J.F.C.S. building (where the visits have been held) to carry her bags, has refused to sign in and has falsified her name, and has been rude and abusive to staff at the adjacent community centre. When these reports were relayed to the mother she said that she would no longer attend visits at the J.F.C.S. building. Her hostile and obstinate behaviour threatened to interfere with her visits with her son.

The Expert Opinions are Confirmed by J.F.C.S.'s Access Observations

[81] There have been many examples of problematic parenting observed during the mother's access visits at the J.F.C.S. Over more than two years that S.N. has been in care, patterns of behaviour have emerged during the mother's access visits that are reflective of the limits on her parenting abilities that have been highlighted by the expert witnesses. The most consistent problematic aspects of the mother's access visits have been her inability to respond appropriately to S.N.'s cues and her inability to consistently attend to S.N.'s needs before her own.

Parenting Problems

[82] The access supervisor's evidence set out a variety of concerning interactions between the mother and S.N., including:

a) Frequently lying down during three-hour visits while S.N. was playing and wanting to play with her, and trying to have S.N. lie down with her;

b) Frequently and repeatedly struggling to understand or accept that S.N. is not interested in hugging or cuddling, which causes confusion and distress;

c) Causing significant discomfort, confusion, and stress for S.N. when he was potty training, due to unrealistic and unreasonable hygiene concerns. The mother's evidence suggested that S.N.'s discomfort during this incident was caused by his being "very conscious of his privacy," demonstrating her failure to understand a typical three-year old's reaction to this situation;

d) Requiring S.N. to wear knee pads during his indoor access visits, against his wishes;

e) Inappropriately redirecting S.N. during play;

f) Using age-inappropriate language with S.N.; and,

g) Telling S.N. that she is sad and will miss him and asking him if he wants to see her on the weekend. The mother saw S.N.'s asking her not to be sad as a positive indication that he understands her feelings and wants to soothe her, rather than an obvious sign that her reaction to the situation caused stress for S.N. and a deferring of her parenting role to him.

[83] The J.F.C.S. family services worker also noted the following concerning behaviour during access visits, including during T.A.P.:

a) Lack of supervision while S.N. was eating;

b) Not allowing S.N. to direct play;

c) Consistent failure to recognize or respond appropriately to S.N.'s cues;

d) Frequently interrupting S.N. with unwanted hugs, cuddling;

e) Lying down to rest during short visits, and trying to have S.N. lie down;

f) Age-inappropriate language and negotiation;

g) Struggling to say goodbye to S.N. The mother's unwillingness to say goodbye to S.N. has been a consistent problem during her access visits at the J.F.C.S. premises; and,

h) Arguing with the maternal grandmother in front of S.N.

[84] The mother testified that she thought her ability to read S.N.'s cues was "above-average". Her evidence was that she was learning not to pressure S.N. and that she felt that she could read his cues. She said that she needed to spend more time with him in order to learn and adapt, but that she makes a conscious and unconscious effort to observe him and be in tune. She said that she listens to S.N. when he says "I don't need help".

[85] The mother continues to have a difficult time responding appropriately to S.N. The J.F.C.S. worker noted examples of the mother's continuing difficulty responding to very clear indications regarding S.N.'s wishes.

a) The mother has asked the J.F.C.S. worker to instruct S.N. to accept "comfort" from her in order to satisfy her own need to comfort him; and,

b) As recently as 7 February 2012, during the trial, S.N. swatted her away by hitting at her when she reached out to him. He shrieked and started to whimper and cry. The mother held him and he resisted. She continued to hold him and he started protesting physically by pulling away and kicking. He protested verbally by shrieking and saying "no". The mother resisted the worker's redirection. She asked S.N. repeatedly "can I hug you?" and "I'll make it better". He whimpered "no" and he looked at the worker. She said "don't you want comfort?" He said "no." She told him he needed to learn to accept it.

[86] The mother used language that was confusing for S.N., and was not age-appropriate, and that directly asks that S.N. attend to her needs instead of his own. These three events took place during the trial, and the J.F.C.S. worker's evidence was that:

a) on 5 December 2011, when S.N. did not want to try on a shirt that the mother brought, she told him that he had a "mistaken notion about clothing". She then told him that it was "not nice not to try things on when people give you a present";

b) On 22 December 2011, the mother said to S.N., "Mommy wants to comfort you. Mommy has a need to comfort you. Please accept my comfort". S.N. went to play with his cars, and the mother asked the worker to tell him to accept her comfort. Shortly after that, S.N. was throwing cars and laughing. He jumped up and laughed and then landed on his bottom. The mother came over and said "let me comfort you. I wish you would let me comfort you"; and,

c) The mother gave confusing testimony relating to her belief that while S.N. may not always want to show affection, he should be taught to comfort her and accept comfort from her. The worker gave evidence that during a visit on 26 October 2011, S.N. told the mother that he did not like to dance, and the mother told him that this hurt her feelings.

8. The Mother

The Mother does not Attend Access Visits Consistently

[87] This is the J.F.C.S. worker's evidence of the mother's inability to put S.N.'s needs ahead of her own, or to organize her life in order to be available for her son, as reflected in her record of attendance at access visits:

a) The mother's attendance at access visits remained poor even after her unsuccessful motions in July 2011 and in January 2012 to increase access;

b) the mother admitted that Waldman, J. had told her at the July 2011 motion that her access might be increased if she were to demonstrate the ability to consistently arrive on time. The mother wanted J.F.C.S. to accommodate her schedule in arranging access visits. She said that she was not able to attend visits on Thursday mornings at that time because she had a dance class the night before and a parenting class in the afternoon. The mother admitted that Waldman, J. spoke about the importance of prioritizing visits and the relevance of regular attendance at access visits to potential full-time parenting responsibilities;

c) Between 1 September 2011 and 2 March 2012 (in the pre-trial period and during the trial), out of 53 access visits that had been scheduled, 31 took place (58%). Of the 31 visits that occurred, five were shortened at the mother's request by various amounts of time, ranging from 95 minutes shorter to 15 minutes shorter. The mother was responsible for 20 of the 22 visits that were missed;

d) When the trial resumed on 12 March 2012, the mother had not seen S.N. since 9 February 2012, despite the mother telling the J.F.C.S. worker that she was not employed during that time. The mother's evidence was that she had regained her job on 13 February 2012, but that she had not advised the worker that this occurred;

e) The mother accepted no responsibility for these missed visits. She rather focused on her belief that she was "owed" a significant number of make-up visits, and used this language repeatedly in her evidence; and,

f) The mother testified that half of the visits she missed in February 2012 were caused by her failure to call to confirm the visits in advance. The mother considered J.F.C.S.'s expectations regarding planning and calling to confirm access visits, which were clearly explained to her in writing, to be an "unreasonable hardship". The mother's evidence was that J.F.C.S. workers should have called her on the morning of each visit to provide a "friendly reminder" that the visit was to occur.

[88] The mother said that she had difficulty confirming appointments in the morning because for a time she was not able to afford a phone.

The Mother's Plan of Care

[89] The mother has not presented a suitable or workable plan to care for S.N., and has not presented evidence that she is capable of caring for S.N. or of complying with a supervision order if S.N. were returned to her care.

The Mother's Plan of Care is not Realistic

[90] The mother described her plan to live at her current apartment and not to return to work if S.N. were to be returned to her. However, later in evidence she said that she would get a babysitter or nanny, and place S.N. in daycare while she worked. She said that she had some help with housework from a personal support worker and that she was on a waiting list to receive more housekeeping support.

[91] The mother's evidence is that the maternal grandmother would be helping her to care for S.N. She said that her mother would travel from Mississauga "some" days each week to help take S.N. to daycare. She described the visits with S.N. that had been attended by her mother as positive. She said that she and her mother disagree about certain notions regarding how to raise S.N., and that she (the mother) calls the shots.

[92] The mother has not allowed J.F.C.S. to properly investigate and assess her plan. She has consistently prevented J.F.C.S. from sharing any information about her with the maternal grandmother, despite the fact that the maternal grandmother forms a significant part of her plan to care for S.N. She tried to prevent the J.F.C.S. worker from meeting with the maternal grandmother without her.

[93] If the mother and her mother are to co-parent in any way, the maternal grandmother should be fully aware of the mother's mental health condition and the risks that it creates, and should be willing and able to manage these risks, as well as her relationship with the mother. The mother has never told the maternal grandmother that she had been diagnosed with paranoid personality disorder, the reason that S.N. was in care, or that J.F.C.S. was seeking to make S.N. a crown ward without access.

[94] The mother does not have regular contact or even very much contact with the maternal grandmother. The mother said that the relationship with her mother has at times been conflicted and difficult. She testified that her mother has never once been to her current apartment, where she has lived for more than two years. She said that in the last 18 months, she had seen her mother about five times. By 5 November 2009, and continuing to June 2011, the maternal grandmother told the J.F.C.S. worker that she had no way to contact the mother and did not know where the mother lived.

[95] The mother is isolated. She does not rely on friends or family for support. Her relationship with her mother is strained. A friend of the mother, R.P. ("R.P.") testified on the mother's behalf. She was the only witness called by the mother. She lives in Richmond Hill, has three children (the oldest is five years old), and she works full time running a food business. She had not had any contact whatsoever with the mother from around the time of S.N.'s apprehension until very recently (March 2012).

Conflict in the Relationship between the Mother and the Maternal Grandmother

[96] Both J.F.C.S. workers gave evidence of the significant difficulties present in the relationship between the mother and the maternal grandmother.

a) The maternal grandmother talked openly with the J.F.C.S. worker about the challenges in her relationship with the mother. The maternal grandmother described the mother as extremely demanding and inflexible. She repeatedly said that she would need a mediator to help to build a relationship with the mother, to facilitate a good working relationship between the two, and to manage the mother's expectations. She said that she wanted to help, but that she could not manage her daughter's expectation that she be her "slave". The maternal grandmother is afraid of the mother;

b) The J.F.C.S. worker met with the maternal grandmother only one week before the beginning of this trial, and again on 1 November 2011. The maternal grandmother had virtually no knowledge of the mother's expectations of her regarding helping to care for S.N. She said that the mother does not talk to her about taking care of S.N. but rather talks with her about cleaning or running errands. She did not know why the mother was in court, but suspected it was because J.F.C.S. wanted to take S.N. away;

c) The J.F.C.S. worker received over 45 telephone calls and voicemail messages from the maternal grandmother over the course of her involvement with the mother. The maternal grandmother called J.F.C.S. repeatedly to report concerns about her daughter's vulnerable mental health and possible neglect of S.N. She repeatedly described excessive mess and bags of things at both her and the mother's homes. She described the mother as being "violent", "wild", and aggressive towards her. The maternal grandmother was trying to help the mother, but was afraid to visit her alone because the mother was violent towards her. She would sometimes leave items outside the door of the mother's apartment. She described the mother as being demanding of her and insensitive to her own physical health problems and "terrorizing" her;

d) The maternal grandmother begged the J.F.C.S. worker for help in dealing with the mother. The J.F.C.S. worker was unable to offer services because the mother refused to allow the worker to share any information with the maternal grandmother, or to meet with the worker and the maternal grandmother; and,

e) In meetings with the J.F.C.S. worker, the mother was very demanding about her expectations of the maternal grandmother. The mother was very focused on her insistence that her mother should clean her apartment, and that this was a component of her plan of care for S.N. She also wanted J.F.C.S. to tell the maternal grandmother to be at her disposal, and repeatedly said that her mother should not get a "day at the spa" and that her mother needs to do hard work.

The Maternal Grandmother's Failure to Testify Should Support an Adverse Inference

[97] The mother's plan of care involves considerable involvement by the maternal grandmother. The mother did not call the maternal grandmother as a witness. The mother did not present her own evidence regarding her relationship with the maternal grandmother or the manner in which she planned to care for S.N. with assistance from her mother.

[98] The failure to call this relevant evidence allows this court to draw an adverse inference with about the mother's plan to involve her mother in the care of S.N.: Children's Aid Society of Ottawa-Carleton v. K. (L.), 1995 CarswellOnt 2148, [1995] W.D.F.L. 1422.

[99] Any plan requiring the mother and the maternal grandmother to work together to parent S.N. is unrealistic and would be unworkable.

The Mother has been Deceitful and Unco-operative

[100] The mother has openly deceived J.F.C.S. regarding the identity of the father. She knew his name and whereabouts in early 2009, and yet she did not provide this information to J.F.C.S. when asked and in fact, during the trial, openly refused to tell J.F.C.S. and the court who he was or where he was.

[101] The mother did, however, give information about the father to Toronto Social Services for the purposes of her child support application. The mother knew the father's name, address, job and even information about property owned by him. However, she gave inconsistent information about whether or not he was the father. The mother had a lot of information about the father that she never provided to the court or to J.F.C.S.

[102] On 9 July 2009, a consent child support order was made in Maryland. When J.F.C.S. learned, in the middle of the trial, that child support was being paid, the issue of the father's role in the crown wardship case was raised on 22 November 2011. The mother was told that the father must be served, and she was asked by the court to provide his name and address. The mother continued to refuse to provide any the father's name, contact information for the father, or information about the existing court order.

[103] The mother also deceived Ontario Works (and Toronto Social Services) regarding the fact that S.N. was not living with her and had been brought into care. She repeatedly signed sworn documents while S.N. was in the care of J.F.C.S. which stated that S.N. was living with her. She admitted that she only told Ontario Works that S.N. was in foster care at some unidentified point during 2011. Despite this, she signed an application for Ontario Works on 3 June 2011 which listed S.N. as a dependant living with her.

[104] The mother openly and repeatedly lied to those in authority (Ontario Works, J.F.C.S., the court) about the father, when it suited her to do so. She openly refused to provide this information, even in the middle of the crown wardship trial, and even when asked to do so by the court.

The Mother's Strengths

[105] The mother clearly loves the child and wants very much to be part of his life. The access supervisor's evidence included many examples of positive interactions between the mother and S.N. There was, for example, imaginative play that kept S.N. engaged, and examples of appropriate discipline. The mother brought healthy foods for S.N. and meal times were generally positive for S.N. Dr. Perlman described the mother as gentle, sweet and loving towards the child.

The Status of the Mother's Mental Health

[106] There was no evidence at all from the mother regarding her current mental health. There was no evidence at all regarding the mother's therapy other than her brief evidence about it. There was not even a letter of confirmation from the therapist that she was seeing the mother for therapy, or stating how long she had seen the mother or how often. The mother said that she chose not to have her therapist testify in order to preserve the privacy of the therapeutic relationship.

[107] There was no information offered as to whether the therapist was dealing in therapy with the mother's diagnosis of paranoid personality disorder, or was dealing with other issues. This is particularly relevant in light of the mother's position that she does not have paranoid personality disorder.

The Mother's Response to the Evidence about her Parenting

[108] The mother's lawyer says she is a devoted, intelligent and attentive mother who is able to work with J.F.C.S. staff, and other service-providers, to learn from them, and incorporate her learning into her on-going interactions with her child.

[109] The mother says that the risks identified by the J.F.C.S. (isolation, unstable housing, unwillingness to accept responsibility, hostility to workers and staff) are, if true, causes for concern and reasons to investigate and provide support only, but are not risks to the child in and of themselves, and are not protection concerns.

[110] The mother says that the diagnosis of paranoid personality disorder, although she does not accept the diagnosis, does not disqualify one from parenting. She says that she shows devotion to her child, steady improvement in her child-rearing skills, and a willingness to work with J.F.C.S. She says that the child appreciates his contact with her and is bonded to her. She says that their bond should not be severed for speculative reasons, or because of the incidences of poverty.

[111] The mother's lawyer described the mother this way: there are times when she can be difficult and angry, sometimes given to hyperbole and dramatic exaggeration, but overall she is willing to listen, to communicate, and to incorporate the suggestions of others into her behaviour.

The Mother's Evidence and Behaviour during the Trial

[112] Features of the mother's diagnosis of paranoid personality disorder were present in her evidence, and in her general demeanor and behaviour throughout the trial, even when she was not on the witness stand. Although generally polite and soft-spoken, she was combative and confrontational. She was suspicious, assertive, and aggressive. She repeatedly challenged the purpose of the court process, including repeatedly challenging proper questions asked of her, even many questions asked of her by her own lawyer. She repeatedly demanded explanations of the relevance of questions, again, including those questions asked by her own lawyer. She often addressed the court from counsel table, when she was not giving evidence, and demanded information from the court (generally information she should have and could have got from her own lawyer).

[113] The mother was openly and repeatedly critical of her own lawyer, telling the court over and over that she had given certain information or productions to him a long time ago and that she wanted them to be introduced at trial. To his credit, her lawyer did not rise to the invitation to respond to her criticisms. He behaved very professionally in declining to do so, and showed his professional commitment to his client in this behaviour.

[114] The mother's behaviour is even more notable when seen in the context of the intelligent, thoughtful and articulate woman she clearly is, a woman who has been in child protection litigation for three years, and during which time has been represented by the same lawyer.

9. Is S.N. still in Need of Protection? The Evidence

[115] There is ample evidence that S.N. continues to be a child in need of protection under s. 37(2)(b)(i), 37(2)(g), and 37(2)(g.1) of C.F.S.A. The evidence that this child is still in need of protection is over-whelming, easily supports such a finding, and is set out below. S.N. continues to be in need of protection for these reasons:

a) The mother has a mental illness, paranoid personality disorder, which is pervasive and enduring, the primary feature of which is mistrust, which is a chronic and persistent pattern, and affects one's life in multiple settings and over a period of time;

b) The effect of paranoid personality disorder can be that one is isolated and alone; one does not form any, or very few, significant intimate relationships; and one has difficulty functioning in the workplace and in other settings. In severe cases, paranoid personality disorder can lead to many conflicts in a person's life. For the mother, there is a seemingly enduring and pervasive pattern of mistrust, suspiciousness, isolation and conflict with others, occurring across multiple settings and situations, that is causing significant impairment in occupational and personal functioning;

c) The mother's mental health disorder contributes to her consistent instability with respect to housing, personal relationships and employment, and contributes to her inability to provide adequate care and stability for the child;

d) The mother's mental health disorder makes it extremely difficult for her to accept support from family, friends, or community service agencies to mitigate these harmful effects. The mother was overwhelmed and in need of significant help and support, but unfortunately, very reluctant to accept the help of others as a result of her mistrust. She is very vulnerable and isolated and she has and would isolate herself with the child if he were in her care;

e) The mother's paranoid personality disorder impairs her parenting. While the child has been in care, repeated patterns have been observed in the mother's parenting behaviours that show a significant impairment in her ability to attend to the child's emotional and physical care needs with sensitivity and predictability;

f) The mother made choices that have placed the child at risk of harm, and she has consistently struggled and even been unable to understand and effectively respond to his physical and emotional needs and to place them ahead of her own needs;

g) there was significant risk associated with the mother's frequent use of shelters, due to the fact that staying in shelters was thought to destabilize her mental health, which had eventually led to the child's second apprehension;

h) Personality disorders are ingrained and chronic. Treatment recommendations are limited and have a poor chance of success. The treatment recommendation is long-term psychotherapy, although it is difficult for those with paranoid personality disorder to form a trusting relationship with a therapist.

i) The mother appeared to have limited insight into her condition. The mother could not integrate feedback to change her parenting. The mother did not accept any responsibility for her difficult circumstances. This unwillingness or inability to accept responsibility is the very feature of paranoid personality disorder that makes it difficult for the disorder to be successfully treated;

j) The most consistently problematic aspects of the mother's access visits have been her inability to respond appropriately to S.N.'s cues and her inability to consistently attend to S.N.'s needs before her own;

k) The mother's attendance at access is inconsistent, even during the crown wardship trial. The mother's inability to put S.N.'s needs ahead of her own, or to organize her life in order to be available for her son is reflected in her record of attendance at access visits;

l) Almost nothing has changed for the mother since the child came into care in July 2009; and,

m) The mother has not presented a suitable or workable plan to care for S.N. The mother's plan is for her to be the primary care-giver with some assistance from her mother. The mother's plan is not realistic. There is considerable conflict in the mother's relationship with the maternal grand-mother. The mother has not presented evidence that she is capable of caring for S.N. or of complying with a supervision order if S.N. were returned to her care.

10. Disposition Legal Principles

[116] Once a finding is made that the child is in need of protection, the court must determine what order for his care is in his best interests.

[117] Section 57(1) of the C.F.S.A. sets out the types of orders available to the court after a child is found to be in need of protection:

57. (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, in the child's best interests:

Supervision order

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

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 or a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

[118] The decision process on a disposition hearing, following a finding that the children are in need of protection, has been set out recently by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 (Ont. Sup. Ct.), para. 25, as follows:

1. Determine whether the disposition that is in the child's best interests is a return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

[119] Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. J.F.C.S. was involved with the mother from around the time of S.N.'s birth, through a voluntary services agreement, then voluntary work with her, then eventually an apprehension and a supervision order. There were numerous and repeated efforts by J.F.C.S. to try to support the mother in caring for the child and in learning new skills to care for the child, especially the participation in the Therapeutic Access Program, and the extensive access to S.N. over a nearly three year period.

[120] Section 57(3) of the C.F.S.A. requires the court to consider less disruptive alternatives than removing a child from the care of the person who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For the reasons articulated below, returning the child to the mother, even with a supervision order, would not be adequate to protect the child in this case.

[121] Section 57(4) of the C.F.S.A. requires the court to look at community placements, including family members, before deciding to place a child in care. There are no alternative or family placements for S.N. None were proposed.

[122] Section 57(1) is limited by section 70 of the C.F.S.A., which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, unless the time is extended as provided in section 70(4) of the C.F.S.A. S.N. has been in care for a total of about 32 months at trial. He is well beyond the prescribed time limits permitted for him to remain in foster care with no permanent placement. A further order for society wardship is not available for him. The only options now available for S.N. are to return to his mother's care (or someone else's care) under a supervision order, or a crown wardship order.

[123] In applying these provisions, the court must determine what is in the best interests of the child. The criteria to determine the child's best interests are set out in s. 37(3) of the C.F.S.A.:

Best interests of child

37. (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 take into consideration those of the following circumstances of the case that he or she considers relevant:

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

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

c) The child's cultural background.

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

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

f) 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.

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

h) 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.

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

j) The effects on the child of delay in the disposition of the case.

k) 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.

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

m) Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3) .

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

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

[126] An order for crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of the child who becomes a crown ward, and it changes forever the life of the parent. No-one in the family is untouched by this order, and no-one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all the options available for the child. Crown wardship is the capital punishment of family law. It is a decision that is the most serious and important decision any court can make.

11. Crown Wardship

Crown Wardship Analysis

[127] These are the options available regarding disposition for S.N.:

a) An order for crown wardship no access of purposes of adoption;

b) An order for crown wardship with access to the mother; and,

c) An order placing the child in the care of the mother, with or without supervision.

Examination of the Disposition Options

[128] The mother has repeatedly lied to J.F.C.S. and to the court about the father, and has intentionally withheld and kept pertinent information from J.F.C.S. Any plan for the return of the child to the mother would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the supervising agency and the person supervised (and therefore, the court) is an essential element of a supervision order. There is no foundation for a working relationship or a supervision order under the circumstances in this case. Any supervision order involving the child and the mother would be an ineffective instrument for the protection and safety of the child. The mother is not a suitable candidate for a supervision order, which requires a sense of co-operation and a willingness to work with J.F.C.S.

[129] The child is entitled to certainty, finality and to grow up in a safe and stable family, where he is valued and protected from harm. He will not have this if he is returned to the mother.

[130] It is not in the best interests of S.N. to delay his permanent placement any longer. He has been in care for 32 months, long past the statutory time permitted for staying in foster care.

[131] It is not in the child's best interests for the court to choose a disposition that will continue the litigation, leave the door open to the mother claiming a future return of the child, or risk that there might have to be another trial to determine the proper future disposition. The proper disposition for this child now is clear. The mother is not capable of caring for this child and he should not be returned to her care.

[132] It is not in the child's best interest, in these circumstances, for the court to choose a disposition that is in any way uncertain or not final. The only option that meets these criteria is crown wardship.

12. Access

Access Legal Principles

[133] The test for access to crown wards is set out in s. 59 (2.1) of the C.F.S.A.:

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

(b) the ordered access will not impair the child's future opportunities for adoption.

[134] The process for a decision regarding access, following a decision that the children should be made crown wards, was also set out recently by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., supra, 2010 (Ont. Sup. Ct.), para. 25, as follows:

1. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1) (a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

2. Determine whether the access would impair the child's future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.

3. Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58).

[135] Once there has been an order for crown wardship, the legislation reflects an intention to shift the focus away from providing services to facilitate the re-integration of the child back to the natural family, towards a focus on long-term, permanent placement, preferably through adoption: Children's Aid Society of Ottawa v. R.L., 2004 CarswellOnt 3080, 132 A.C.W.S. (3d) 718, [2004] O.T.C. 665 (Ont. Sup. Ct.), para. 57; Children's Aid Society of Niagara Region v. C. (J.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

[136] There is a presumption against court ordered access for a crown ward in order to facilitate permanency planning: Children's Aid Society of Niagara Region v. C. (J.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

[137] Once the decision is made in favour of crown wardship, the burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is an extremely difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children's Aid Society of Toronto v. M.(C.), [1994] 2 S.C.R. 165 (S.C.C.), p. 50; Children's Aid Society of Toronto v. D.P., 2005 CarswellOnt 4579, [2005] W.D.F.L. 4375, [2005] W.D.F.L. 4373, 19 R.F.L. (6th) 267, 202 O.A.C. 7, 93 A.C.W.S. (3d) 853, [2005] O.J. No. 4075 (Ont. C.A.).

[138] Access is the exception and not the rule in the context of a crown wardship order. Section 59(2) of the C.F.S.A. creates a presumption that any right of access is revoked: Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. L. (M.), [1998] 2 S.C.R. 534, 230 N.R. 201, 204 N.B.R. (2d) 1, 520 A.P.R. 1, 165 D.L.R. (4th) 58, 41 R.F.L. (4th) 339, [1998] S.C.J. No. 52, 1998 CarswellNat 557 (S.C.C.), para. 44.

[139] The onus is on the persons seeking access to a crown ward to prove on a balance of probabilities that:

(1) the relationship between the person and the child is meaningful to the child;

(2) the relationship between the person and the child is beneficial to the child; and,

(3) access will not impair the child's future opportunities for a permanent or stable placement.

The parent has the onus of establishing all three portions of the test in section 59 (2.1) of the C.F.S.A. This is a very difficult test for the parent to meet: Children's Aid Society of Niagara Region v. C. (J.), supra, 2007 (Ont. Div. Ct.).

[140] The meaning of the phrase "beneficial and meaningful" was considered in Children's Aid Society of the Niagara Region v. M.J., 2004 CarswellOnt 2800, [2004] W.D.F.L. 510, 4 R.F.L. (6th) 245, [2004] O.T.C. 634, [2004] O.J. No. 2872 (Ont. Sup. Ct.), para. 45-47:

What is a "beneficial and meaningful" relationship in clause 59 (2) (a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

I read clause 59 (2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

Access Analysis

The Mother's Access

[141] The mother's access has been irregular, inconsistent and sometimes not successful. Her access has been supervised. She has not made access a priority and has missed many visits. She could not even make access a priority during the trial. She was unable to put access to her child first in her life, even when she knew the court would be watching and scrutinizing her behaviour. Her actions speak volumes about her commitment to the child.

[142] The mother's access to S.N. is not beneficial or meaningful from the child's perspective. While the access may be enjoyable, there is insufficient evidence that there is a bond between them that is important to S.N. The access and the relationship are not significantly advantageous to the child.

[143] Even if the access were beneficial and meaningful to the child, the court must be satisfied that access will not impair the child's future opportunities for a permanent placement. S.N. is adoptable. He is in a foster placement with foster parents who are not presenting a plan for his adoption. He will need to be moved to another placement following this trial. Given his age, and his adoptability, the mother cannot establish that access would not impede a permanent adoption plan for him.

[144] The mother is not a suitable candidate for adoption with an openness order. Neither party asked for this order, although the mother's lawyer mentioned it for the first time in closing argument. However, given the mother's suspicion and mistrust and her personality, she would not be able to function in an environment which required a great deal of trust and co-operation between her, the adoptive family and J.F.C.S. Any such arrangement would not succeed.

[145] The mother has not met the onus on her to rebut the presumption against access to a crown ward outlined in subsection 59(2) of the C.F.S.A. The mother cannot meet the onus in s. 59(2.1) C.F.S.A. regarding access to the child.

[146] The mother's claim for access to the child is dismissed. There shall be an order for no access to the child.

13. Conclusion and Orders

[147] These are the orders resulting from this trial:

a) S.N. is to be a crown ward; and,

b) There will be no access to S.N., in order that he is available for adoption.

4 May 2012

Justice Carole Curtis