WARNING

The court hearing this matter directs that the following notice should 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 . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

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

(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.—(3) Idem.— A person who contravenes subsection 45(8) (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.

Toronto (North York) Registry No. C47576/09

DATE: 2011·I·26

CITATION: Children’s Aid Society of Toronto v. S.A., 2012 ONCJ 42

ONTARIO COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO,

Applicant,

— AND —

S.A., R.M. and S.R.,

Respondents.

Before Justice Geraldine F. Waldman

Heard on 20-23 and 27 September 2010; 26-28 September 2011; 3 October 2011; and 2 November 2011

Reasons for Judgment released on 26 January 2012

Samantha-Leigh Levenson ....................................................... counsel for the applicant society

David P. Miller ............................................................. counsel for the respondent mother, S.A.

No appearance by or on behalf of the respondent R.M. (older child’s father), even though served with notice

Appearance by the respondent S.R. (younger child’s father) as witness for the applicant society

Karen A. Lindsay-Skynner .............................. counsel for the Office of the Children’s Lawyer, legal representative for the child, E.A.

[1] JUSTICE G.F. WALDMAN:— This trial is about two children: E.A., born […], 2002, and A.A., born […], 2005. Ms. S.A. is the mother of both children. Mr. R.M. is E.A.’s father. He did not file an answer, has not participated in the proceeding and did not attend the trial. Mr. S.R. is A.A.’s father. He did not file an answer but did testify at the trial as a witness for the society. Both fathers are in default.

[2] E.A. was apprehended by the children’s aid society on April 2, 2009, and has been in the care of the society since that date. A.A. was visiting with his father at the time of the apprehension. He has remained in his father’s care. The society is seeking a finding that both children are in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the “Act”). In the case of A.A., it is content that he remain with his father. It is, however, seeking an order of Crown wardship for E.A. with a plan for her to be adopted. Mother, in her testimony in November 2011, acknowledged excessive use of marijuana and that she had experienced a psychotic episode at the time of the apprehension as a consequence of her marijuana use. She is now not opposing the finding sought by the society that the children are in need of protection. She is seeking the return of both children to her care, subject to supervision of the society. Mr. S.R. takes no position in relation to E.A. He is content to have A.A. remain in his care subject to the supervision of the society.

[3] This trial occurred in two parts. The trial began in September 2010 and was completed. At its conclusion, I raised several issues. I then prepared a decision. In the course of my review of the evidence, I became concerned about the lack of evidence about two issues: mother’s mental health and E.A.’s response to and connection with mother. It was and is my position that these two issues were fundamental to the disposition and that I was unable to come to a conclusion about the appropriate disposition for the children, and in particular for E.A., without further evidence.

[4] I asked the society to provide me with further evidence and specifically with a psychiatric assessment of mother and with observations of access visits of E.A. and mother alone. I assumed that this evidence could be obtained reasonably quickly. The trial did not resume until September 2011 and has now been completed.

[5] As a consequence, this decision will reference the two parts of the trial: the first a review and analysis of the original evidence and the second a review and analysis of the new evidence. The conclusions will be based on all of the evidence.

[6] The parties at the outset agreed that the trial would proceed as a single hearing with the evidence as to finding and disposition being heard at the same time. I did not consider evidence that went strictly to the issue of disposition before I considered the evidence relating to the finding.

1: BACKGROUND

[7] The society had been involved with mother previously in relation to her older daughter K., who is now over 18 and who is not involved in these proceedings. There was information about K.’s being sexually assaulted, allegations about K.’s behaviour, including concerns about her being engaged in prostitution, concerns about the fact that K. was not attending school and concerns about mother’s response to these issues. Mother was not co-operative with the society and the file was closed.

[8] The society became involved with mother again in March 2008. Mr. S.R. contacted it with concerns about mother’s behaviour. He told it that he and mother had had a fight the previous night and that mother had left. When she returned the next day, her head was shaved. When he asked her why she had done this, she told him that the Bible told her to shave her head. He advised that he was concerned because he had never seen this type of behaviour before. That same day, he went to the courthouse, saw a justice of the peace and obtained a Form 2 committing mother to a psychiatric facility. Mother was taken to the hospital. She was seen in emergency and admitted and spent three days in hospital. She was released and, according to the documents from the hospital, the psychiatrist attributed mother’s behaviour to her home situation and found no mental health concerns. Mother returned home.

[9] Mother contacted the society later that month, on March 24, 2008, and advised the worker who saw her that she wanted to leave Mr. S.R. She told the worker that he was abusive and controlling and accused him of orchestrating the hospital admission. The worker also spoke with father who advised the worker that he did not have concerns about mother’s mental health, and that he had had her admitted to the hospital because of her shaving her head and because he was angry with her.

[10] Mother contacted the society again on April 23, 2008. She asked for its help in leaving Mr. S.R. The worker assisted her and the children in moving to a shelter. Mother commenced a domestic court proceeding and obtained an order with Mr. S.R.’s consent granting her interim custody of the children. Mother remained in the shelter until on or about November 18, 2008.

[11] Ms. Blaze, a worker at the shelter, testified about her contact with mother and her concerns. She testified that she did not have concerns initially but that, starting at the end of June, she began to have concerns about mother and the children. Ms. Blaze testified that mother began missing the weekly meetings. She described mother as not very visible at the shelter. According to Ms. Blaze, mother had a flat affect, rarely spoke and, when she did talk in reply to questions, she would answer with one word. It was Ms. Blaze’s observation that mother and the children spent most of their time in their room. Mother was reluctant to let people into her room and, when she did answer the door, she would open it only a crack. Ms. Blaze was concerned that A.A. did not attend the on-site day-care centre and that he did not have opportunities to interact with other children. Ms. Blaze did not have much contact with E.A. but she testified that, when she saw E.A., the child was very quiet. The only other issue that she noted relating to E.A. was head lice. She did know that mother was having difficulties with K., who was living with her at the time and, in particular, in relation to K.’s attending school.

[12] Mother moved from the shelter with her children and into her own apartment in mid-November 2008. She continued to be the custodial parent. A.A. had regular access to Mr. S.R.

[13] E.A. was admitted to hospital on or about January 24, 2009, and diagnosed with severe osteomyelitis, an acute bone infection. She remained in hospital until March 30, 2009. Dr. Muthalaly, the admitting physician, testified that, when he first saw E.A. in the hospital, she was withdrawn and unkempt. She had sores on her buttocks area and her hair was not properly combed. There was faecal matter in her underwear. E.A. was in a great deal of pain and would not let the nurses touch her and would scream when they tried. He was able to obtain only quite limited information from mother. Given the child’s presentation, he considered the possibility of abuse and contacted the society. He testified that he saw E.A. almost daily during her stay in the hospital for 15 to 20 minutes each day. She would not talk with him at first but was communicating with him by the time of her discharge. However, the bulk of the information he had about E.A. was information that he got from the nurses.

[14] Deborah Watford, one of the nurses who spent time with E.A. during her stay at the hospital, testified about her interactions with and observations of E.A. It was her observation that E.A. was very angry. She noted that E.A. did not display a lot of affection to her family members and observed that there was a lack of interaction with mother when mother visited. She observed that, when mother visited, she would sit in the room or in the lounge while E.A. played and that there was no conversation or physical interaction. She noted that, while mother did visit E.A., she did not call the hospital to inquire about her daughter, participate in her care or speak to the staff about her daughter when she was at the hospital. Mother testified that she visited almost every day and most days she was at the hospital with E.A. twice. She denies a lack of interaction and affection between her and E.A. Mother testified that she did not assist in caring for E.A. because no one suggested she do so or told her what to do.

[15] Ms. Watford observed that E.A. was very hard to get close to at the beginning. She observed a change in E.A. during her stay. At the beginning, she was very unsure of other people. When she left, E.A. was happier, more responsive and gave certain people a hug. She testified that E.A. told her that she did not want to go home and that she wanted to stay in the hospital. She also testified that E.A. said that she was going to kill herself. It was Ms. Watford’s observation that E.A. appeared to need and want a lot of attention.

[16] Dr. Massabki, a psychiatrist, did an assessment of E.A. prior to her discharge from the hospital. He reviewed the hospital nursing staff notes and met with E.A. E.A. refused to talk to him but he was able to complete the assessment without verbal communication. He testified that, when he saw E.A., she presented as a bright, happy child. She did co-operate with him by making eye contact and nodding her head but she refused to talk. According to the doctor, E.A. indicated that she was afraid to go home. When he talked about going into the care of the society, E.A. nodded her head indicating that she wanted to go into care and that she was not afraid of this possibility. He observed that her development was generally normal and otherwise appropriate for a child her age. Her play was well-organized. She had a very affectionate relationship with the staff. She was generally self-contained and presented as a normally developing child. It was his diagnosis that E.A. suffered from selective mutism. It was his opinion that E.A. suffered from neglect and his recommendation that she be taken into care and not returned home.

[17] The society continued to work with mother during the period of E.A.’s hospitalization. The society was aware of the concerns of the doctors and hospital staff about the child and about mother’s interaction with the child. The society was working with mother and was in the process of having mother sign a voluntary service agreement at the time of the apprehension.

1.1: The Apprehension

[18] E.A. was apprehended from her mother’s care on April 2, 2009. She had been released from the hospital on March 30, 2009. The worker made an unannounced visit to the house on April 2, 2009. When mother answered the door, she had what appeared to be a tin foil hat on her head with a wig on top of the hat. The windows to the house were covered in tin foil. The worker had a voluntary service agreement that mother signed. The worker left with the signed agreement. The worker received a telephone call from Mr. S.R. later that day, during which he raised concerns about mother. He told the society that mother had told him that someone was in her house but there was no one there. She also told him that someone was trying to poison her. As a result of that conversation and the observations of the worker at mother’s home earlier in the day, the society made the decision to apprehend E.A.

1.2: Father

[19] Mr. S.R., A.A.’s father, testified at trial in September 2010 as a witness for the society. He presented as a caring father. He was very talkative and free with information. He was protective of mother. Mr. S.R. testified that he first met mother in 1996-97and that they began living together in 2005 when she was pregnant with A.A. When they lived together, Mr. S.R. worked from 5:00 a.m. to 8:00-9:00 p.m. and sometimes he worked the night shift. He was rarely home, leaving mother with three children: K., E.A. and the baby A.A. According to Mr. S.R., everything seemed okay. His only concern was that mother stayed up late at night and slept late. I am not certain how he knew when mother got up in the morning because, during the week, he left very early. The first time that he had any concern was around the time when mother cut off all her hair in March of 2008 and he had her hospitalized because of concerns about her mental health. He was not certain but the police may have been called by a neighbour the night mother left and cut off her hair, because he and mother had a fight.

[20] Mr. S.R. and mother lived together after she was released from the hospital and he contacted the society to explain that he had exaggerated his concerns about mother’s mental health. After mother left and went to live in the shelter with the children, he consented to her having custody and agreed to access to A.A. on Tuesday and Thursday evenings and every weekend. He denied the allegations of abuse made by mother. He admitted calling the society in March or April 2009 because of concerns that he noted when he picked A.A. up. He testified that mother told him someone was upstairs in the house and he did not see anyone. She also said someone was trying to kill her with rat poison. He saw the tinfoil on the windows. It was his observation that mother was not behaving normally. I note that he was clear that, in both instances when he contacted the society because of concerns about mother’s mental health, it was his observation that the behaviour that he observed was not usual for mother. He noted, for example, that during that period, she had rapid mood changes “like a light switch.”

[21] A.A. has resided with Mr. S.R. since the apprehension. He brought A.A. to the access visits at the society office and remained at the visit with mother and the children until mother objected and he was asked not to stay. He now takes A.A. to see mother and he testified that A.A. enjoys the visits. He has no concerns about mother during these visits. Mr. S.R. testified that he had not seen any of the unusual behaviour by mother recently, being September 2010. He described mother as affectionate to her son during access visits. He testified that E.A. and mother always had a very close relationship. He also testified that E.A. and mother were affectionate with each other. He testified that there were no issues with A.A. behaviourally or developmentally when A.A. came to live with him after the apprehension.

[22] Mr. S.R. has changed his position concerning mother several times. After her first hospitalization, he telephoned the society and told it that he had at least exaggerated mother’s problems because he was angry with her. The lawyer for the society asked Mr. S.R. about concerns about mother he had purportedly discussed with it. He either did not recall these conversations or denied the allegations when asked by the society lawyer during his testimony. I accept that he told the society many things that caused concern about mother that he did not repeat in his evidence at trial. It is unclear whether he was in fact exaggerating during his first telling or minimizing during his evidence.

[23] I do, however, accept his evidence that the incident in March 2008 caused him to be concerned because it was atypical of mother. Prior to that time, he was away most of the time at work and I accept his evidence that he had no concerns about mother and her care of the children. It was his evidence that he began staying at home more when he became concerned about mother’s behaviour. I also accept his evidence that he again became concerned in April 2009 when he contacted the society again about mother’s behaviour. The evidence surrounding these events supports his observations and concerns. He has acted in a responsible manner towards A.A. and I am satisfied that he would not have left the children with mother if he had concerns about her mental health.

1.3: A.A.

[24] While A.A. is also the subject of this litigation, there was very little evidence presented about him. He now lives with his father and has resided with him since the apprehension. The society is seeking an order placing A.A. in the care and custody of his father subject to supervision and has expressed no concerns about either the child or the care that he is receiving from his father.

[25] Mother was his primary caretaker from birth until the apprehension in April 2009 when he was about three-and-a-half years old. According to the evidence, for the period from birth until about 18 months, Mr. S.R. was rarely around because of his long work hours. The evidence before the court is that A.A. is a normal, healthy boy. He enjoys his visits with his mother whom he sees on weekends when his father takes him to mother’s apartment. He also enjoys visiting his mother and sister at the society office and has a close relationship with his sister E.A.

1.4: E.A.

[26] The evidence presents a somewhat confusing picture of E.A. because the concerns and issues become more significant with time. I note that the society became involved with mother in March 2008 and that the worker saw mother and E.A. regularly. There were, however, no serious concerns raised about E.A. until November 2008.

[27] The evidence about E.A. changes dramatically after November 2008. The first concerns about E.A.’s “mutism” and possible neglect came from the principal of the school she began attending after the family left the shelter in November 2008. The first concerns about neglect of E.A. were made by the doctors and nurses at the hospital after E.A. was admitted in January 2009. The foster mother presents even more concerns about behavioural and emotional development when E.A. came into care in April 2009. There are no parallel concerns raised about A.A. throughout that period while he resided with his mother and no behavioural or developmental concerns relating to A.A. after he went to live with his father.

[28] When E.A. was admitted to the hospital in January 2009, there were concerns about neglect based on her presentation at the emergency ward. She was described as dirty and unkempt with matted hair. There was faecal matter in her underwear. She had a rash on her buttocks. Mother testified that E.A. was dirty and unkempt because she had been so sick and mother did not want to impose on E.A. while she was in so much pain.

[29] This concern of physical neglect became part of the narrative. However, there is no evidence of physical neglect of any of the children up to this point. Both children were with mother at the shelter for the period April to November 2008. The concerns of the shelter staff related to mother’s lack of communication and co-operation, her flat affect and the isolation of the children, and not to issues of neglect except perhaps chronic head lice. There is no evidence that the school E.A. attended while at the shelter or her previous school had concerns about her appearance or demeanour. In his evidence in chief, Mr. Hadley, the principal of the school that E.A. began attending in November 2008 after the family left the shelter, testified that he had concerns about E.A.’s looking unkempt and coming to school unclean. However, Mr. Hadley admitted in cross-examination that he did not complain to the society about E.A.’s smelling of urine, being unkempt or unclean. I am satisfied that the evidence does not support concerns about physical neglect of E.A.

[30] Mr. Hadley contacted the society because of concerns observed at school, specifically, that E.A. would not talk, that she had chronic head lice that did not appear to have been treated, that her mother was not available to talk to the school when contacted and did not return the school’s calls. E.A. had been to at least two previous schools in the period of the society’s involvement, one before the separation and one while she was staying at the shelter. Neither of these two previous schools had contacted the society with concerns about E.A.

[31] The concerns of the nursing staff as expressed by Deborah Watford, one of the nurses who cared for E.A. in the hospital, were E.A.’s refusal to talk at all at the beginning and then the fact that she would talk to only certain people, her presentation as angry and emotionally needful and the lack of affection and connection between E.A. and her mother. The observations of the nursing staff were supported by the diagnosis by Dr. Massabki, the psychiatrist, of selective mutism.

[32] Ms. D.K., the foster mother, testified about E.A. as she was when she arrived at her home after the apprehension, her progress and how she was in September 2010. She testified that, when E.A. arrived, she looked very scared, was very dirty and her hair was a mess. She did not make eye contact and did not speak. E.A. started talking about her fears, about the devil under her bed and the devil trying to grab her and kill her. She would not play with other children, had trouble sleeping, was behind in school and was afraid to try new things. She had limited self-help skills and was not able to dress herself or to brush her teeth. She did not know how to brush her hair or her teeth, or how to use a facecloth. She had trouble adjusting to school and would run away and hide between classes, requiring the school and foster mother to develop a safety plan. Her behaviour was difficult to manage because she was not able to accept limits and would threaten to run away or kill herself if she was told no.

[33] The foster mother also testified about E.A.’s being very frightened of the devil or Satan and talking about Satan getting her and about E.A.’s talking about the devil and Satan in a manner that was very frightening to another child in the foster home. According to the evidence, these fears and concerns fall outside of the realm of normal child fears and fantasies. The reasons given for this, in part appear to relate to the religious beliefs of the foster family and their response to discussions about the devil or Satan. While I understand the issue, I cannot conclude, based on the evidence, that these fears in fact transcend normal childhood fears and fantasies and the fact that the label is devil or Satan seems irrelevant. The suggestion appears to be that the child has somehow imported these fears from mother but, quite frankly, there is no evidence to support this and, even if A.A. made similar statements, I could not come to any conclusion about mother on the basis of this evidence.

[34] While I have no reason to doubt the evidence of the foster mother about E.A., I find it interesting that this evidence is not consistent with that of the other witnesses. E.A. was released from the hospital late on March 30 and was apprehended April 2, 2009. She had been at home for less than 72 hours. She left the hospital clean and had had her hair washed and treated for lice repeatedly in the hospital. Ms. Watford, who brought E.A. her breakfast from her home on occasion and was present when E.A. ate meals at the hospital in the period from the end of January until the end of March, did not testify about anything unusual about E.A.’s eating habits or table manners. She also did not testify about anything unusual about E.A.’s self-help skills or inability to brush her teeth. It is the case that the evidence is that E.A. is very shy and anxious and that she does not speak to strangers or indeed to many people. The principal of the school she attended before she was apprehended by the society was concerned because E.A. did not speak. However, she was not running away or hiding. Dr. Massabki did make the diagnosis of selective mutism but he also testified that E.A. presented as a bright and happy child and that her development was otherwise generally normal and appropriate for a child of her age. There are inconsistencies and lack of coherence in the observations of E.A over this short period of time.

[35] According to the foster mother, E.A. improved significantly in the period from April 2009 until September 2010. In her evidence in September 2010, she describes E.A. as a happy child who had friends, enjoyed activities, had good self-help skills, took pride in her appearance, and took pleasure in choosing her clothes and doing her hair. The foster mother testified that E.A. continued to have academic challenges when she started school in September 2010.

[36] E.A. continued to live in the same foster placement for the year between the two parts of the trial. Ms. D.K., the foster mother, came to court again to provide up-to-date information. She testified that E.A. has continued to make progress, particularly at school. She now is in a regular class and is functioning at grade level. She testified that E.A. practices good personal hygiene, is careful about her grooming and has good table manners. According to the foster mother, E.A. is more affectionate with the foster family and now will spontaneously give her hugs. She noted, however, that E.A. continues to be very anxious and very shy and that she continues to “shut down” around strange adults.

[37] It was the foster mother’s observation that E.A. is anxious before the access visits and that she will sit on the couch and chew her nails when she waits to be picked up. The foster mother also testified that E.A. looks forward to all of the visits but is more animated before and after the visits with her mother and A.A. together. According to the foster mother, E.A. thinks about her mother between visits and is very concerned about having appropriate gifts and cards for mother and A.A. for special occasions such as Christmas and birthdays. It is the foster mother’s observation that the visits with mother are important to E.A.

[38] The foster mother testified that E.A. was very upset when a visit with her mother was cancelled unexpectedly and that E.A. cried.

[39] Maria Vlachopoulos, E.A.’s teacher since September 2009, also testified. She told the court that she first saw E.A. when she came to the school in April 2009 and that E.A. appeared withdrawn and unhappy. She became E.A.’s teacher in September 2009. It was her observation that E.A. was very shy and withdrawn when she first came into her class. She would sit with her head down and would barely speak. She had very low self-esteem. She refused to speak even when called upon and refused to answer questions. She was behind academically and was below grade level in mathematics and language.

[40] Ms. Vlachopoulos testified that, as a strategy, she paid as much attention to E.A. as she could, both in and out of class, and eventually the child connected with her. E.A. now smiles, lets the witness hug her and speaks with her. E.A. now has friends in class. She has made great improvements academically. Ms. Vlachopoulos described the change “like day and night between September 2009 and today. She is like a completely different child. She smiles, holds her head up, talks and is happy.” Ms. Vlachopoulos did note, however, that E.A. continues to be an anxious child and that E.A. is still emotionally fragile.

[41] Ms. Vlachopoulos does not feel that E.A. is overwhelmed by the typical expectations of a nine-year-old in a classroom. She does not agree that E.A. is non-compliant and oppositional. She does not agree that E.A. is a high-needs child.

[42] It was her observation that E.A. needs structure and routine. It was also her observation that E.A. has difficulty trusting adults and that it takes time and work for an adult to develop a relationship with her.

[43] Dr. Fitzgerald, a psychologist, prepared two reports: one in 2010 and an updated report with examination dates of May 27 and August 11, 2011. He noted that intelligence testing puts E.A. in the borderline range. It was his conclusion, unlike that of E.A.’s teacher, that she struggles with her ability to exert control over her emotions, her thinking, and her behaviour and that she appears to be overwhelmed by the typical expectations of a child of her age at school.

[44] E.A. is seeing a therapist, Sandra Meyerovitz, at Aisling Discovery. Ms. Meyerovitz has been a therapist for 19 years and as a consequence has a lot of experience. She impressed the court as highly qualified and able. Ms. Meyerovitz began therapy with E.A. in September 2010 and described the therapy as very difficult. At the beginning, E.A. would not speak at all. E.A. would sit in the chair and watch everything but she was not responsive. She got E.A. to play games with her but progress has been slow. E.A. began communicating to her through pictures that she would draw, instead of an X or O in the game. She gradually began to speak with the therapist.

[45] According to Ms. Meyerovitz, E.A. knew about court and, when asked if she wanted the therapist to tell the court that E.A. wanted to stay in her current foster placement, E.A., while not responding in words, indicated that she wanted to stay in her placement.

[46] When asked about adoption, Ms. Meyerovitz testified that, if E.A. were moved, it would cause her a lot of anxiety. She noted that it has taken 40-plus sessions with the therapist to develop a trusting relationship with the child and to see progress.

[47] The adoption worker, Allison Hannah, testified that she had not yet met with E.A. about adoption because it was not time. She testified that E.A. would need a lot of preliminary work before the issue of adoption was raised with her. She also acknowledged that an openness order, which would allow E.A. to continue to have access to her mother and brother, was a possible scenario in this situation.

1.5: Conclusion

[48] E.A. is clearly a child with very complex needs. She is a highly anxious child who has extreme difficulty adjusting to new people and new situations. She withdraws and refuses to talk. E.A. will gradually begin communicating as she develops trust and comfort in the person and situation. E.A. is capable of functioning well in situations in which she is comfortable. She now functions well in the foster home and in her current school.

1.6: Observations of the Access Supervisors

1.6(a): Access Visits until September 2010

[49] Mother visited the children regularly from the time of the apprehension until the first portion of the trial in September 2010. For the first period of time, father brought A.A. to the visits and remained with the family during the entire visit. This stopped at mother’s request. The children both enjoyed the visit and were both happy to see their mother. They were particularly happy to see each other. The children spent most of the visit playing together. Pamela Van, a case aide who supervised many access visits, Suzanne Legall, the children’s services worker, and Sima Kamyabi Nassabi, the family service worker, all testified as to their observations of the access visits. The major concern raised about mother during the visits was that she was passive, did not interact a great deal with the children, sitting back and watching them play. There was some evidence about mother’s speaking negatively about the society during the visits and about mother’s discussing adult issues.

[50] In cross-examination, the various witnesses were directed to notes of visits that portrayed a more positive picture and that included mother’s being involved in activities with the children and talking with them. The evidence supports the conclusion that the visits have improved. E.A. became more physically demonstrative with mother and was observed giving mother hugs when she arrived and left. Suzanne Legall, the children’s services worker, testified that she observed improvement in the visits. She testified that, at the visit on September 9, 2010, mother was a lot more involved with the children and that, at this visit, she heard mother laugh out loud for the first time. In cross-examination, she acknowledged that, in a meeting with her supervisor on March 3, 2010, she noted that the interactions between mother and the children were more positive and nurturing. She agreed in her evidence that the visits kept getting “better and better.” She acknowledged many instances in her notes in which the children displayed obvious affection towards their mother. It was her evidence that E.A. generally looked forward to the visits, although it was unclear whether she was looking forward to seeing her mother, her brother or both.

[51] At the end of the first portion of the trial in September 2010, I raised two concerns about the access visits. I was concerned about the ability of the court to use observations of the visits that included Mr. S.R. in support of understanding mother’s parenting skills and relationship with the children. It was mother’s evidence that she was passive during the visits when Mr. S.R. was present because he made her uncomfortable and because he dominated the visits. Mother had previously told the society that Mr. S.R. had been abusive and the worker had assisted her in moving to a shelter. As well, Mr. S.R. presented as a very large presence and I noted that the evidence of the family service worker was that he was very talkative in their meetings. I was surprised that the society worker had allowed Mr. S.R. to remain at the access visits given the circumstances of the case. I was also concerned about the fact that there was a lack of clarity about mother’s relationship with E.A. because there had only been a few visits between E.A. and mother without A.A.

1.6(b): Observations of Current Access after September 2010

[52] The access arrangements were changed after the last trial at the request of the court. It was the society’s position that the E.A. was happy to go to the visits and enjoyed the visits because she was seeing her brother A.A. and not because she was seeing her mother. It was mother’s evidence that she was staying in the background during the visits to allow the children to play with each other because this was the only time that they were together. The separate visits with mother were initiated to allow the society and the court to evaluate E.A.’s connection with her mother and the quality of the visits between E.A. and mother without A.A. present.

[53] Mother began having access to E.A. at the Scarborough Access Centre on Mondays for three hours from 4:00 p.m. to 7:00 p.m. The centre provides a more home-like setting and allows the access parent to engage in more regular routines with the child. Mother was expected to assist E.A. in completing her homework, reading with her and in giving her dinner. In addition to this visit, mother had an access visit with E.A. and A.A. together on Thursday for one hour. Mother also saw A.A. separately at her home when he was brought there by Mr. S.R. on the weekends.

[54] The visits with A.A., mother and E.A. continued to be good visits. The two children enjoyed each other, were happy to see each other and played together. According to the evidence of Susan Legall, the children’s services worker, both children enjoyed the visits. Mother brought an activity to play with and the complaint of the access supervisors was that there was not a lot of variety in the activities mother brought to the visits. On many occasions, mother brought markers and colouring books or a painting activity. She brought games on two occasions and the children played with the society toys on one occasion and played outside on one occasion. According to the foster mother, E.A. was happy to go to the visits with her brother and mother and was animated and happy when she returned to the foster home after these visits.

[55] The reports of the separate visits between mother and E.A. were somewhat different. These visits were quieter than those that included A.A. However, overall there were not significant criticisms of mother. She was able to organize the visit, help E.A. to complete her school work, feed her dinner and read with her.

[56] The court heard evidence about the access visits from other society staff who supervised visits, including the family service worker, Joelle Williams; case aide, Victoria Holder; and Lutchmie McCarthy, the current family service worker.

[57] The evidence about their observations of the access visits and the concerns are quite consistent. According to the evidence of Joelle Williams, the family service worker, from November 2010 to August 2011 mother “has successfully and consistently been implementing dinner time with E.A. She brings healthy, appropriate meals and generally executes dinner time in the kitchen at the table.” Mother is able to help E.A. to do her homework. She has also been able to follow through with suggestions about departure. The concerns of the access supervisors were largely around the issue of the lack of interaction between mother and E.A. Mother and E.A. were observed sitting and talking quietly to each other at times. At other times, they were observed to both be sitting and not interacting. For example, on the way home from an outing, they were observed to sit separately on the bus and not to interact.

[58] Ms. Legall raised some concern about greetings and departures. Ms. Legall was concerned about the absence of overt displays of affection between mother and daughter. Again, notwithstanding this criticism, Ms. Legall acknowledged on cross-examination that, on many occasions, E.A. displayed overt affection to her mother when leaving, including hugs and on occasion jumping on her mother and hugging her. As well, E.A.’s inconsistent behaviour during greetings and departures was noted in other circumstances and was not unique to access visits.

[59] Having reviewed Ms. Legall’s evidence, I conclude that she was overly critical and negative toward mother and that her observations, that there were no displays of affection between mother and child and that mother did not appreciate or acknowledge E.A.’s special needs, are not supported by the evidence.

[60] The level of interaction between E.A. and mother may have been a concern to the supervisors but there is no evidence that they were a concern to E.A. There is no evidence that she appeared unhappy or upset during the visits with her mother. E.A. and mother have a relationship that is consistent with their personalities. They are both quiet and contained and their response to each other at the visits is consistent with this.

[61] Mother came for visits as required and attendance was not a problem. She was more than five minutes late for the actual visit only once, although she did not come 15 minutes early to meet with the worker and to prepare for the visit as she was instructed to do repeatedly. The society workers saw this failure to arrive 15 minutes early as significant because that was the time for mother to meet with the worker and prepare for the visits. Mother disagreed and testified that she did not find the time useful because it only took two to three minutes to meet with the worker and prepare for the access visit and then she was left sitting and waiting.

[62] In or about February 2011, the society worker suggested that mother find and arrange an outside activity for part of the Monday visit. The expectation was that mother would find some activity close by, make the arrangements and take E.A. Mother was never able to complete these arrangements. Mother felt that she had done everything required and that she was unable to complete the arrangements because no appropriate activity was available at the community centres located within walking distance of the society office and within the limited window available for her and E.A. She testified as to the steps that she had taken. It was the position of the society witnesses that mother was very slow to take any step and had to be encouraged to follow through. It is the society’s position that, even with encouragement, she took minimal steps and the fact that an activity was not organized was the result of mother’s lack of action and not because it could not be done.

1.7: Mother

[63] Mother testified at the trial in September 2010 and again in November 2011 when the trial was completed. There was nothing remarkable about her manner or demeanour when she testified in September 2010 or November 2011. Mother presented as a quiet, somewhat timid woman. Her answers were generally short and she had a quiet and restrained manner. However, she answered the questions. Her answers were appropriately responsive to the questions asked. Her explanations and answers provided an appropriate and clear narrative. The explanations she offered for at least some of the concerns raised were reasonable. There were certain things that she was unable to explain well, particularly shaving her head and covering her head and the windows of her house with tin foil.

[64] Mother is 41 years old. She quit school in grade IX but did obtain her GED in 1998. She attended Centennial College and got a diploma as a call-centre operator. She is currently on social assistance. She has resided in the same apartment since November 2008. There are three children by three fathers. K. is 18 and lives on her own. The other two are the subject of this litigation.

[65] Mother testified that she and Mr. S.R., A.A.’s father, met in or about 1997 and lived together for about two years. It was mother’s evidence that, at first, things were good. Mr. S.R. worked very long hours and she was left alone much of the time with the three children. A.A. was a baby, E.A. a pre-schooler and starting kindergarten. She was having difficulties with K., who was an adolescent. The situation became very stressful when she and Mr. S.R. began fighting a lot. She described a lot of arguing and verbal abuse by Mr. S.R. with his threatening to take A.A. and to go to Newfoundland. The situation became very bad in 2008. It was mother’s evidence that Mr. S.R. began staying home a lot because he knew that she wanted to leave with the children and that he was trying to prevent her from going.

[66] When asked about shaving her head in March 2008, mother testified that she was under a lot of pressure. She was having difficulties with K. and they were fighting. She and Mr. S.R. were also fighting a lot and, because he did not go to work, they fought all the time. She left after a fight and shaved her head. She acknowledged being taken to the hospital but questions Mr. S.R.’s motivation for obtaining the Form 2. It was her evidence that she did not see a doctor in the emergency ward when she was admitted and that she had to wait to see a doctor but that she was released soon after.

[67] Mother returned home but the situation had not improved and she contacted the society and, with its support, moved with the children to a shelter. She came to court and obtained an order giving her custody with Mr. S.R.’s consent. She and Mr. S.R. agreed on an access schedule for A.A. which was complied with. Mr. S.R. was ordered to pay child support. During the period in which they were in the shelter, from in or about March until in or about November 2008, E.A. attended school as required. According to mother, and there is no evidence to contradict this evidence, E.A. is very shy but she had friends at school, attended regularly and did well. There was no evidence of mutism during this period and mother denies there was a problem with E.A.’s refusing to speak to people beyond her shyness.

[68] Mother did have trouble with K. who refused to go to school and the Children’s Aid Society of Toronto was involved with her around issues relating to K.. Mother acknowledged being contacted about an alleged sexual assault on K.. Mother testified that she talked to K. about the allegations and that K. denied that there had been an assault. No charges were laid and mother considered the matter concluded. Mother testified that she tried to get K. to go to school and that she would walk her to school every day but K. would not stay. K. left the shelter in October because mother took the position that she had to go to school. K. did not want to do this and chose to leave.

[69] Mother had issues with the way that the society tried to work with her, which resulted in her having a poor relationship with the worker. She testified about an incident on June 24, 2008 when her worker visited her at the shelter. The worker knocked on her door and mother did not respond. The family service worker had the shelter staff open the door in order to satisfy herself that the children had not been left unattended. Mother was in the washroom and she asked the worker to return a little later. The worker refused to leave and sat in the room for about twenty minutes while mother remained in the washroom. Mother testified that she felt that the worker coming into her room under those circumstances was an invasion of her privacy. She felt humiliated.

[70] Mother also described a meeting in October 2008 with the family service worker, the children’s service worker and shelter staff. In that meeting, the family service worker asked her if she still shaved her head, using a sarcastic voice which mother felt was intended to make the other people present at the meeting laugh at her. In her evidence, the worker acknowledged that this comment was inappropriate. Mother also testified that she did not understand why the society would allow Mr. S.R. to remain at the access visits when it knew that mother had left because he was abusive. Mr. S.R. dominated the visit and made her nervous and uncomfortable. She asked that he not be there, but his presence continued for some months. The worker knew how domineering he was because, in her evidence, she described her meetings with Mr. S.R. as listening to him talk until she brought the meeting to an end. Given the evidence, I agree with mother that there were significant issues about how the family service worker treated her and about the worker’s lack of sensitivity to mother’s feelings, all of which necessarily had an impact on mother’s relationship with the society and her ability to work with the society. It also impacts on the court’s assessment of the worker’s judgment.

[71] Concerning E.A.’s hospital admission, mother testified that E.A. had been sick since Monday but that she did not become obviously acutely ill until Saturday, prompting mother to call 911. Mother testified that she was at the hospital almost every day, missing only a few days, and that she sometimes came twice a day. She denies not interacting with E.A. She testified that she would have helped with E.A.’s care if asked but that no one asked her and she did not know what was expected.

[72] Mother also denies not interacting with the children during access visits. It was her evidence that she and the children talked quietly, played together and interacted throughout the visits. She testified that she also sat back and let the children play together because this was the only time they saw each other.

[73] In the period up to the first part of the trial in September 2010, mother came to all access visits. She completed a parenting course. She maintained stable housing. According to the evidence, the access visits improved and kept getting better and better. Based on the evidence, I conclude that both A.A. and E.A. had a strong bond with her. She demonstrated some insight into her difficulties. She admitted that she needed help and stated that she would seek help.

2: TRIAL CONTINUATION

[74] Mother again answered the questions appropriately in November 2011. Her responses were short and did not contain a significant amount of elaboration. There was nothing remarkable about her manner or demeanour when she gave evidence.

[75] Mother testified that she had a difficult relationship with her previous society worker and that this made co-operation difficult. She acknowledges a good relationship with her current worker and she is able to co-operate with her.

[76] Mother has access to A.A. most weekends for a few hours on Sunday at her apartment. Mr. S.R. brings him, and remains at the apartment for the visit. This has been fairly consistent for the past two years, with a hiatus this summer when Mr. S.R. was in Newfoundland and a period in the winter when Mr. S.R. was out of work. Mother sees the two children together at the society office on Thursdays and has a separate visit with E.A. earlier in the week, semi supervised, for three hours.

[77] Mother acknowledges that she had some mental health issues at the time of the apprehension. She accepts the conclusion of Dr. Jefferies, the psychiatrist, who concluded that mother’s mental health issues were the result of her marijuana use. She no longer uses marijuana and has not had any further episodes. She does not believe that she has a mental illness. She does acknowledge that she can be negative and that she sometimes feels that she is not good enough. She understands that she has issues with self-esteem and is working on improving how she feels about herself.

[78] Mother acknowledges that she and K. have not been close. She testified that they had been talking to each other on Facebook but that K. has not been responding to her recently. She has no other way of contacting K.. K. did come to an access visit and saw her siblings.

[79] Mother described her relationship with E.A. as close. She testified that they used to be closer but the relationship has suffered because they do not see each other often. According to mother, she and E.A. talk a lot during access visits. They talk about school, family and friends. Mother tells her stories about her grandfather during World War Two. E.A. tells her what is going on at school, in the foster home and in her life. She describes herself and E.A. as similar. They are both quiet and shy and have to develop trust in someone after they meet them before they are comfortable.

2.1: Mother’s Mental Health

2.1(a): First Psychiatric Assessment

[80] Dr. Leslie Thomas Kiraly, the psychiatrist who conducted the original assessment of mother, wrote a report dated December 30, 2009, which is filed as exhibit 10, and testified at trial. There was an inadvertent difficulty with the process of his receiving information, which had a significant negative impact on the weight that the court could give to his report. Counsel for the society and mother had agreed on the materials that the doctor would receive. Unfortunately, he received only a part of the material and the affidavit from the society worker, which contained the details of mother’s conduct that had raised concerns at the time of the apprehension, was omitted. Mother attended for the assessment and participated, although, according to the doctor, she was guarded in her answers and she was not fully co-operative. She did answer all of the questions but with short answers and frequently with “I don’t remember.” The answers she gave on the questionnaires did not indicate any problems and mother was not forthcoming with any information that suggested problems. When asked about specific issues, such as covering her windows with tinfoil, she answered that she could not afford curtains. Dr. Kiraly testified that, given the clinical interview and the materials he had at the time, while there were red flags or areas of concern, there was not enough evidence to say that there was a psychiatric disorder. He prepared his report based on the interview and the information that he had received.

[81] When the worker realized that Dr. Kiraly had not received the society’s affidavit, she either sent or delivered a copy to the psychiatrist and met with him or his assistant. Mother’s counsel was not notified of this issue until some time later. Dr. Kiraly also received additional questions to be answered in his report from the worker, which questions were not reviewed by mother’s counsel. Dr. Kiraly testified that, once he had the additional information, he had to change the result and “come off the fence” and say that the mother suffered from some kind of psychotic disorder. It was his evidence, however, that the manner in which he came to his conclusions was problematic and that he should have had an opportunity to meet with mother again and discuss this new information with her before coming to a conclusion. He did feel comfortable making a diagnosis of a psychotic disorder given all of the information. He was not, however, able to come to a conclusion about the nature of the psychotic disorder.

[82] According to Dr. Kiraly’s evidence, a psychotic disorder can have different causes and different prognoses. It could be an indication of a major mental illness such as schizophrenia or bipolar disorder. It could be brought on by withdrawal from drugs. It could be a less serious illness that was cyclical and treatable. It could be brought on by stress. Because of the issues relating to how the information was given to him, Dr. Kiraly was unable to determine whether mother’s psychotic disorder was serious or whether it was treatable. He was also unable to express an opinion about whether mother would seek help and be able to use help. He did believe, based on his experience, that mother would not be forthcoming about her issues, which would make getting and seeking help less likely.

[83] It is clear that the process used for providing information to the psychiatrist was flawed. Dr. Kiraly agreed that the most appropriate way to obtain a proper assessment with reliable conclusions was to have a new assessment done by another doctor and a new report prepared.

[84] I agree with Dr. Kiraly. I have two difficulties with the first assessment. First, the process itself was flawed, creating difficulty as to the weight the court can give Dr. Kiraly’s report. Second, the conclusion that Dr. Kiraly was able to reach after receiving the additional information, of a psychotic disorder without an understanding of its nature, severity, or treatability, is not sufficient to allow the court, given all of the evidence, to come to a conclusion about the appropriate disposition.

2.1(b): Second Psychiatric Assessment

[85] As a consequence of the difficulties with the first psychiatric assessment, the court requested a second report. Dr. Joel Jefferies, an experienced psychiatrist, met mother, conducted a psychiatric examination and prepared a report. His résumé is filed as exhibit 22 and his report as exhibit 23. He based his opinion about mother’s mental health on his interview with mother, a letter from mother’s lawyer, a letter from the Children’s Aid Society of Toronto and a copy of the admission and discharge history from Scarborough Hospital, where mother had been a patient in 2008. Dr. Jefferies reviewed mother’s history in his report. It is his opinion that mother had two psychotic episodes, one in 2008 and one in 2009, caused by her excessive use of marijuana over an extended period of time. I accept Dr. Jefferies’ information that the effect of marijuana use is cumulative and may have been aggravated by the increased strength in the marijuana mother was using.

[86] He states:

I am asked if she has a psychiatric condition. My answer is that she has had a psychiatric condition that is in remission. I think that she was severely emotionally disinhibited in March 2008 and almost certainly psychotic. . . . Clearly this psychotic episode was transient and by the time Dr. Bender saw her it had cleared away. . . . this is a woman who was chronically intoxicated for almost fifteen years often using large amounts of marijuana and this drug tends to have a cumulative effect . . .

He states further: “Chronic marijuana use on occasion leads to psychosis, but more typically it affects behaviour more generally leading to trouble thinking clearly and to indolence. These manifestations would of course affect her capacity for child care.” The observations of mother during this time are consistent with the symptoms related to excessive marijuana use.

The episode of April 2009 was more clearly a psychotic one. . . . I cannot be sure but it seems very likely that her mumbling to herself, her wearing of sunglasses indoors and her listening to the iPod and not interacting with the child were all symptomatic of more chronic marijuana intoxication and perhaps related paranoia.

There is no specific treatment for marijuana-induced psychosis. It usually goes away if one abstains from the drug.

[87] The society did not cross-examine Dr. Jefferies and his report is therefore not challenged.

[88] The society did raise the issue of whether the timing of mother’s marijuana use is consistent with mother’s psychotic episodes. I am satisfied that the two acute episodes in 2008 and 2009 are within the period of mother’s excessive use of marijuana.

2.1(c): Psychological Assessment

[89] Dr. Betty Kershner conducted a psychological assessment of the mother that was intended to give the court a fuller understanding of mother. Her report is filed as exhibit 20. She testified at the trial and was qualified as an expert in individual psychological assessments of adults. Her résumé was filed as exhibit 21.

[90] The information she reviewed includes Dr. Jefferies report, a letter from the society worker, a letter from mother’s lawyer, psychological assessments of E.A., and mother’s hospital admission and discharge reports. She met mother and conducted a clinical and attachment interview. She administered several tests including the Wechsler Adult Intelligence Scale and the MMPI. The testing and clinical interviews took about 11 hours over two days. Dr. Kershner noted that the testing took longer than usual because of mother’s slow rate of responses.

[91] She described mother as appearing pleasant, appropriately dressed and well groomed when she attended for the assessment. She noted what she described as a “very strong lack of vitality in presentation.” She noted in the report that mother’s “facial expression was bland. Her voice had limited modulation. Her handshake was extremely limp. She seemed limited in energy, passive. She demonstrated limited reaction to anything that we talked about.”

[92] According to the test results, mother is currently functioning overall within the borderline rage of ability at the 7th percentile. Dr. Kershner found that:

Putting together the three social cognitive tasks on the cognitive testing. . . . [Ms. S.A.] is likely to miss what is going on in front of her. If it comes to her attention, she is able to anticipate what is likely to happen next, which provides an opportunity for planning or adjusting one’s course. However, her testing demonstrates poor judgment and diminished interest and her manner of handling problems is not likely to be appropriate.

[93] She notes further that:

Personality and emotional testing demonstrates that [Ms. S.A.] is basically instrumental in her focus, she emphasizes the practicality of getting things done and has very little access to feelings, her own or others.

[94] She noted that Ms. S.A. was not child-focused and that she found it really striking that, in the interview, mother did not talk about her children.

[95] Dr. Kershner concludes: “In my opinion, Ms. S.A. has schizophrenia —disorganized type. Episodic with Inter-episodic Residual Symptoms.” She explained in her evidence that this diagnosis is based on the test scores, the personality traits and patterns that were the picture of mother from the test results and the clinical interview which she conducted.

[96] Dr. Kershner specifically rejected Dr. Jefferies’ opinion that mother does not have a mental illness.

[97] In cross-examination, she acknowledged that mother had not exhibited any overt symptoms of psychosis for the past two years. However, it was her position that mother did exhibit strange behaviour. She testified that, when coming to her conclusion, she used the criteria from the DSM4 to support her opinion about mother’s mental health but she did not have her notes and she was unable to provide the court with the criteria that she had actually used in coming to this opinion.

[98] I have serious concerns about the diagnosis of schizophrenia. I note that mother was seen by three other psychiatrists, one on her release from the hospital after her acute psychotic episode in 2008, by Dr. Kiraly and again by Dr. Jefferies. None of these psychiatrists came to that diagnosis. I take particular note of Dr. Jefferies opinion about mother given his experience. Dr. Jefferies is a very experienced psychiatrist who was head of the schizophrenic unit at what was then the Clark Institute for ten years. He has published at least twelve articles on schizophrenia. I give more weight to the absence of diagnosis of schizophrenia by Dr. Jefferies than to Dr. Kershner’s opinion.

[99] The evidence about mother’s behaviour does not support the diagnosis of schizophrenia. Mother has been seen regularly by social workers and case aides for the past two years. While there are issues about mother’s passivity and flat affect, there have been no concerns raised about any further psychotic episodes or unusual behaviour similar to her shaving her head or covering her windows with tin foil. According to the evidence of Mr. S.R., he had no concerns about mother’s mental health before the 2008 incident. He has had no concerns about mother’s mental health for the period after the apprehension, when the children began having access visits with mother.

[100] While I reject the diagnosis, I accept some of the evidence and some portions of Dr. Kershner’s report. Specifically, mother’s testing at the low range of borderline in the intelligence scale is consistent with mother’s lack of insight into E.A.’s needs and her simplistic view of how she would meet E.A.’s needs if E.A. were returned to her. When discussing E.A.’s education needs, mother answered: “She needs help in math. I would look into it.” In response to a question about comprehension, mother answered, “I think she is pretty good for her age.” When asked what she would do differently, she testified, “I would co-operate with the society more and work with the teachers.” When asked whether she would need assistance if E.A. was returned, she thought that she might need help getting E.A. to appointments.

2.1(d): Conclusion

[101] I accept Dr. Jefferies’ opinion that mother had two marijuana-induced psychotic episodes, one in 2008 when she shaved her head and the second in 2009, around the day E.A. was apprehended. This conclusion is consistent with the evidence of mother’s marijuana use. Given the admission by mother of her marijuana use both to Dr. Jefferies and to the court, mother was under the influence of marijuana for much of the period of the society’s involvement between these two periods. The observations of mother during this period are also consistent with the effects of long-term excessive marijuana use as described by Dr. Jefferies. It is consistent with Dr. Kiraly’s opinion that mother had some sort of psychotic illness, given that this conclusion was based in part on the information that he received from the society about mother’s behaviour and hospitalizations during the period of her marijuana use and around her two psychotic episodes.

[102] I cannot conclude that mother has a major mental illness such as schizophrenia as suggested by Dr. Kershner. This is not consistent with the conclusions of Dr. Jefferies, who is a psychiatrist who has practised extensively and published in this area. It is also not consistent with the conclusions of Dr. Kiraly, who, while he concluded that was some psychotic illness, did not conclude that mother was schizophrenic. It is also not consistent with the doctor who treated her when she was admitted to hospital.

[103] I note as well that mother had no history of psychiatric problems prior to the first incident in April 2008 and, in fact, the only evidence before the court about that period from Mr. S.R. is that both episodes when mother displayed psychotic symptoms were atypical. I note as well that there have been no further psychotic episodes.

[104] Mother engaged in excessive use of marijuana for a lengthy period of time. I accept Dr. Jefferies’ evidence that, aside from the two acute psychotic episodes, the effects include trouble thinking clearly and indolence. Mother is by nature a quiet, withdrawn, anxious and shy woman. She is not animated and has a reasonably flat affect. I accept Dr. Kershner’s evidence that she functions in the low range of borderline for intelligence. Mother’s marijuana use, her personality and her low intellectual functioning, taken together make mother unable to develop the parenting skills necessary to meet E.A.’s emotional, educational and developmental needs

2.2: Finding

[105] The first step is to determine whether the evidence on a balance of probabilities supports a finding that the child is in need of protection. The society is seeking a finding that the children are in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Act.

(2) Child in need of protection.— A child is in need of protection where,

(b)

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

(i)

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

(ii)

pattern of neglect in caring for, providing for, supervising or protect the child;

(g)

there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

[106] There is no issue as to the finding. Mother’s counsel submitted to the court that mother accepts Dr. Jefferies’ report. Mother therefore acknowledges that she suffered two psychotic episodes as a result of long-term excessive use of marijuana. The second episode resulted in E.A.’s apprehension. This admission is consistent with the evidence before the court. Mother’s appearance at the time of the apprehension, with tinfoil on her head and over the windows, is consistent with a psychotic episode. Mr. S.R. also contacted the society and expressed concern about mother’s statements about someone being in the house when he picked up A.A. that same day. His observations of mother are also consistent with a psychotic episode. I find, based on the evidence, that mother suffered a psychotic episode on April 2, 2009.

[107] In acknowledging Dr. Jefferies’ report, mother admitted excessive use of marijuana for a lengthy period of time. I accept Dr. Jefferies’ evidence that long-term marijuana use leads to trouble thinking clearly and indolence, all of which would impact on mother’s parenting.

[108] Given the above, it is clear that both children were at risk of suffering both physical and emotional harm when E.A. was apprehended and A.A. was left in his father’s care. Mother was not able to care for them. I therefore find that both children are in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Act.

2.3: Disposition

[109] Once the finding is made, the legislation provides an evidentiary path or steps which must be considered in a disposition hearing. These were considered by Justice Craig Perkins in the case Children’s Aid Society of Toronto v. Tracy L. and Evonne B., 2010 ONSC 1376, [2010] W.D.F.L. 1957, [2010] O.J. No. 942, 2010 CarswellOnt 1343 (Ont. S.C.).

[110] The court must consider section 57 of the Act and determine whether the disposition that is in the child’s best interests is the return to a party with or without supervision. Subsection 57(3) of the Act requires the court to look at less disruptive alternatives to removing the child from the care of the person who had charge of the child immediately before the intervention, unless the court finds that these alternatives would be inadequate to protect the child. Subsection 57(4) requires the court to look at community placements including family members before deciding to place a child in care.

[111] If the court finds that the above is not in the child’s best interests, then the court must decide whether a period of society wardship or an order for Crown wardship is in the child’s best interests. Subsection 57(1) of the Act is limited by section 70, which provides that the court shall not make an order that results in a child aged younger than age six being a society ward for a period exceeding twelve months and a child over age six being a society ward for a period exceeding twenty-four months. This section informs the court as to what order it can make in cases in which the statutory time limits have been exceeded.

[112] Subsection 70(4) of the Act allows for a single extension of the allowable period for society wardship by a further six months, if such an extension is found to be in the child’s best interests.

[113] If an order of Crown wardship is made, the court must consider clause 59(2.1)(a) of the Act to determine whether an order of access should be made.

[114] The court must determine the appropriate disposition, having regard to the criteria set out in subsection 37(3) of the Child and Family Services Act and based on the child’s perspective. See Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, 1994 83, [1994] S.C.J. No. 37, 1994 CarswellOnt 376. The court must assess the extent to which the degree of risk that existed at the time of the apprehension continues to exist today. It then must weigh all of the factors and consider the plans proposed by the society and the parents.

[115] An order for Crown wardship is one of the most serious orders this court can make. It is well-settled law that a judge must exercise the power to take a child permanently away from parents only with the highest degree of caution and only on the basis of compelling evidence and after an examination of possible remedies. See Children’s Aid Society of Hamilton Wentworth v. Jill G., (1996), 90 O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 CarswellOnt 1428 (Ont. Div. Ct.).

2.4: Analysis

2.4(a): A.A.

[116] A.A. has resided with his father since the apprehension. He sees his mother regularly both at the society office, where he has a weekly visit with E.A. and his mother, and with his mother separately on the weekend. According to the evidence, he is a happy, healthy, engaging child. There is no evidence of any concerns. The society has no concerns about the care that he receives from his father.

[117] A.A.’s needs appear to be far less complex than E.A.’s. However, given the concerns about mother’s ability to parent, there remains the risk of harm if A.A. were returned to his mother. Mother’s ability to parent is limited and the same concerns about her ability to meet E.A.’s emotional, educational and developmental needs apply to A.A.

[118] I have determined, having considered the evidence and the criteria as set out in subsection 37(3) of the Act, that it is in A.A.’s best interests that he remain in the care and custody of his father by reason of the following:

He has lived with his father since April 2009. Remaining with his father represents stability and continuity.

There were significant protection concerns at the time of E.A.’s apprehension. There have never been any protection concerns involving father’s care of A.A.

Father’s plan for A.A. is the better plan and one that is more able to meet his physical, emotional and developmental needs.

Remaining with father ensures A.A. of a safe and secure place in a family.

A.A. has regular contact with his mother. This can continue if he remains in his father’s care and custody.

[119] There is no reason to move A.A. now. He has lived with his father for more than two years. He continues to see his mother. This arrangement is in the child’s best interests and ought to continue. There is currently an order giving mother custody. Father should therefore take steps to secure legal custody of A.A. There is also an issue as to mother’s access to A.A. She has requested access to A.A. without father’s remaining in her apartment. Given the evidence, I would suggest that the parties attempt to work out a better access arrangement. If they are unable to do so, then I would suggest that this issue be dealt with in a proceeding under the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, along with a change in custody.

2.4(b): E.A.

[120] Mother’s low intellectual functioning, her personality, her lack of ability to be reflective and her lack of insight into E.A.’s needs together create a serious impediment to mother’s ability to parent E.A. E.A. and mother are very similar and, as a result, mother is unable to provide E.A. with the support that she needs to overcome her anxiety and shyness. Mother does not appear to see her quiet, shy nature as a problem for herself and lacks insight into why this is a problem for E.A. This is consistent with her lack of ability to be reflective and the simple terms in which she views the world.

[121] Mother does not have the skills necessary to meet E.A.’s complex needs, the insight to fully understand those needs or the ability to learn the skills necessary to care for this child. Mother has made some efforts to change and there have been some improvements in the access visits but the evidence taken as a whole leads to the conclusion that mother’s current level of parenting is what we can expect and that, while this allows mother to manage a three hour access visit, she does not have the level of parenting ability or insight into E.A.’s needs to allow her to successfully parent E.A. full time.

[122] It is also significant that mother took no steps to support the child’s return or to change or improve her life in the year between the two portions of the trial. She does attend the access visits regularly. She has stopped using marijuana. She has accepted advice and support around improving the visits. But she has not worked, taken any courses, engaged in any therapy or taken any steps to demonstrate real effort to move forward with her life.

[123] Mother’s response and actions relating to the outside activity she was asked to plan for E.A. is of concern. I agree that it may have been impossible for mother to find such an activity, given the time of day, the amount of time and the other expectations of the visit. However, how mother went about trying to accomplish this task gives us insight into her ability to be proactive as needed to meet this child’s needs. She was slow to begin and had to be prompted and encouraged. She made efforts but only the obvious ones: looking on-line and at the two local community centres. There is no evidence of her asking anyone at the community centres for assistance. She did not ask the society workers for assistance or suggest a program at another time and ask the society to accommodate this change. She gave up easily and justified her failure by concluding that she had tried and there was no solution.

[124] Mother’s interaction with E.A. is quiet and restrained. Mother is generally not demonstrative with her affection, although she does show affection to E.A. She tries to engage in activities that E.A. enjoys. She shows interest in E.A.’s life. For example, when told that E.A. was going on medication for ADHD, mother looked up the condition and the medication on the internet and educated herself.

[125] E.A. looks forward to the visits and wants to see her mother. She was very upset when her visit was cancelled and cried when she returned to the foster home after the visit did not occur. While she does not consistently greet her mother or say goodbye, this is consistent with E.A. in general and is not unique to this relationship. There also have been visits where E.A. was very affectionate with her mother and, on at least two occasions, she leapt on her mother and hugged her as she was leaving. The two have been observed to sit quietly together and talk. E.A. follows her mother’s direction as evidenced by the fact that she and mother go through a normal routine during access visits which includes a meal and homework. They have a mother-and-daughter relationship and the evidence supports the conclusion that they have a close relationship.

[126] E.A. has special needs. She is an extremely shy and anxious child. She is comfortable in familiar situations such as at school and in the foster home and is able to function well in these settings. However, it takes a long time for E.A. to reach that level of comfort. She withdraws and is non-responsive in situations which involve strangers, which are strange to her and cause her to feel stressed. She refuses to talk to people with whom she is not comfortable, leading to the diagnosis of selective mutism by Dr. Massabki.

[127] The evidence of both her teacher, Maria Vlachopoulos, and the therapist, Sandra Meyerovitz from Aisling Discovery, illustrate the depth of this issue. Both of these witnesses are experienced and trained professionals. Both worked hard to develop a relationship with E.A. In both cases, it took significant work, time and skill to get to the point where there was communication with E.A. Sandra Meyerovitz testified that E.A. would not talk with her and that, after some weeks, she began communicating by drawing pictures in the X and O’s game they played together. It is very significant that, as Sandra Meyerovitz stated in her evidence, it took 40 visits before she felt that she had developed a good rapport with E.A.

[128] I had some concern about the evidence of E.A.’s presentation when she arrived at the foster home as described by the foster mother. However, even discounting this evidence and accepting the evidence of the principal, the teacher, the therapist and the evidence of the foster mother in September 2011, it is clear that E.A. has made significant progress since she has come into care. She has moved from a special class into a regular class at school and is performing at or close to grade level in most subjects. She is happier and more confident in the school setting and has made friends. She has begun to engage with her therapist and appears to be on the verge of beginning some useful therapy.

[129] E.A. is very happy in her foster home and very attached to her foster mother. I accept the evidence that it is her wish to continue to reside in the foster home with the current foster mother. While the long-term plan for E.A. may be adoption, she is able to remain in the foster placement as long as necessary. She will also remain in the same school if she is made a Crown ward.

[130] When determining the disposition, I must consider E.A.’s best interests using the criteria set out in subsection 37(3) of the Child and Family Services Act:

(3) Best interests of child.— 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:

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

The child’s physical, mental and emotional level of development.

The child’s cultural background.

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

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

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.

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

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’s remaining with or returning to a parent.

The child’s views and wishes, if they can be reasonably ascertained.

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

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.

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

Any other relevant circumstance.

[131] I have considered the relevant criteria as follows:

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

[132] E.A. has significant mental and emotional needs. She is an extremely shy and anxious child who withdraws and becomes uncommunicative when she is not comfortable in a situation or when she is around people whom she does not know well. She requires an extremely consistent environment with supportive adults. She also requires adults who are sensitive to her needs and able to obtain the resources that she requires. E.A.’s mother has shown a lack of insight into E.A.’s needs. Mother’s own emotional make-up is such that she is unable to provide E.A. with the role model and support that she needs to overcome her severe shyness and anxiety. Mother has demonstrated that she is not able to be proactive about finding resources and services for E.A. E.A. has made progress dealing with her shyness and anxiety in the foster home and it is clear that the foster mother is able to provide E.A. with the support she needs to improve in these areas.

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

[133] E.A. has a close relationship with her mother. She also has a close relationship with her foster mother. Given the evidence, E.A. is likely to remain in her current foster placement for the foreseeable future. If she is made a Crown ward, she would have a place in a family. Both the society’s plan and mother’s plan address this consideration adequately.

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.

[134] E.A. is very attached to her mother and brother A.A. She looks forward to and enjoys both her separate visit with her mother and her visit with mother and A.A. She was very upset when a visit with her mother was cancelled. Both the society’s plan and mother’s plan would allow E.A. to continue to have a close relationship with her brother A.A.

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

[135] E.A. has been in the same foster placement since the apprehension in April 2009 and has been there for two-and-one-half years. She has a very close relationship with the foster mother. She has been in the same school for that period of time. She has had the same teacher for two years and has a very close relationship with that teacher. E.A. has made significant progress in this placement and in this school. I accept the evidence of the teacher, the foster mother and the children’s services worker that she has grown and developed, made progress academically to the point that she is now in a regular class with supports and that she is functioning at or near grade level in most areas. She has friends at school and presents as a much happier child. She was able to successfully go to overnight camp last summer for two weeks. She continues to exhibit a high level of anxiety and continues to be extremely shy and extremely slow to open to new people and adapt to change, as evidenced by the slow progress her therapist has made in developing a relationship with her. This has been a consistent pattern through the period of the society’s involvement with her.

[136] E.A.’s access visits with her mother and her brother are also every important to her. E.A. looks forward to the visits, wants to see her mother and was very upset when a visit did not take place this summer. She asked the foster mother to help her make a card and get a gift for her mother for Christmas and mother’s birthday and, according to the foster mother, she was excited to give mother the gift. The foster mother testified that E.A. worries about her mother and needs to see her mother. The foster mother agreed that not seeing her mother would have an impact on E.A. but she was unable to quantify it because E.A. does not verbalize.

[137] This combination has worked well.

[138] It is clear that continuity of care is extremely important for E.A. and any disruption will have a serious adverse impact on her. The foster mother’s evidence is that she loves E.A., considers her a part of the family and is prepared to be a long-term placement for her. I am satisfied that for E.A. now remaining with her current foster mother and at her current school represents continuity of care. Continuing access to her mother is also part of this continuity for E.A.

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.

[139] The plan of the society, which has E.A. remaining in her current placement with the possibility of adoption in the future should she become ready and able to accept that change, is the best plan for the child, provided that it includes ongoing contact with mother and A.A. I repeat the reasons set out above about the strong need for continuity of care. I agree with the evidence of the adoption worker that E.A. is not ready to discuss or consider adoption and that work needs to be done to prepare her for this.

[140] Mother is not able to meet this child’s complex needs. E.A. needs an adult who will encourage her to move beyond her anxiety and shyness and develop techniques that will allow her to overcome these issues and move more easily in the world. Her mother shares many of these same attributes and is therefore unable to provide E.A. with the modeling and support that she needs. E.A. needs someone who will advocate for her and ensure that she gets the help and resources that she needs. Mother is unable to do this for her.

The child’s views and wishes, if they can be reasonably ascertained.

[141] E.A. is not a verbal child and it is very difficult to ascertain her wishes. Her therapist, Sandra Meyerovitz, testified about a session she had with E.A. before Ms. Meyerovitz came to court. She testified that she told E.A. that she was coming to court and asked E.A. whether she was aware of the court. E.A. answered that she was aware of the court case and that she understood that it was about where she would be living. Ms. Meyerovitz asked E.A. whether there was something E.A. wished the therapist to tell the court. E.A. did not respond. She then asked whether “you are happy with [Ms D.K.]” (the foster mother). E.A. agreed she was. She asked next: “Would you like to stay with [Ms D.K.]?” at which point E.A. “smiled, lit up and nodded yes.” When asked if there was anything else E.A. wished the court to hear, E.A. did not answer.

[142] The witness agreed that her recollection of this conversation is not precise but she was clear that “what is reliable is that she indicated that she was happy with [Ms D.K.].” I accept this evidence as expressing this child’s wishes.

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.

[143] E.A. is likely to suffer harm if she is returned to her mother. I acknowledge that mother’s parenting skills are better now than at the time of the apprehension. She is no longer using marijuana and therefore the behaviour consistent with its use – confused thinking, lethargy and psychotic episodes – is no longer present. Mother has also developed her parenting skills with the assistance of the society. There have been improvements and mother has generally successfully parented E.A. for a few hours each week.

[144] Even if mother was able to meet E.A.’s instrumental needs, she is unable to meet her emotional and developmental needs. Mother is unable to provide E.A. with the supportive environment that she needs to overcome her anxiety and shyness and to allow her to be able to participate fully in life. Mother is a poor role model because she is very similar to E.A. She is shy, quiet and withdrawn. She does not have the skills necessary to support E.A. in developing her own social skills and overcoming her shyness.

2.4(c): Conclusion

[145] Having considered all of the evidence and the criteria set out in subsection 37(3) of the Child and Family Services Act, I find that the society’s plan of Crown wardship is in E.A.’s best interests.

2.5: Extension of Time — Subsection 70(4)

[146] Subsection 70(4) allows the court to extend the period of 24 months of society wardship set out in subsection 70(1) for a child over six by a period of up to six months, if it is the child’s best interests to do so and only in exceptional circumstances.

[147] Mother has tried hard and has made some progress. She is not using marijuana and, given Dr. Jefferies’ report, this was responsible for mother’s most acute symptoms and her psychotic episodes, which resulted in the apprehension. Mother has made some progress in parenting, as evidenced by the observations and evidence of the access supervisors. However, the concerns about mother’s ability to meet E.A.’s needs are longstanding and are part of mother’s personality and inherent capacity including her own shyness and quiet demeanour and her low intellectual functioning. These are not amenable to change and I cannot conclude that anything would be different in terms of mother’s parenting if we looked at this situation again in six months. E.A.’s needs continue to be significant and I cannot conclude that a further six months would reduce these needs to the point that mother could effectively parent her.

2.6: Services Provided by the Society

[148] The society has provided appropriate services in the period after September 2010. I have raised some issues about the worker and the access visits in the period up to the first part of the trial. However, I am satisfied, on the basis of all of the evidence, that my concerns do not impact on the outcome of the trial. Mother acknowledges a good working relationship with the worker she has had for the past year. She has had support with the access visits and in fact was offered more support than she used.

2.7: Kin or Community Placement

[149] There is no evidence of any kin placement or community placement for E.A.

2.8: Conclusion

[150] Given all of the above and having considered all of the evidence, I find that the least intrusive disposition that is consistent with A.A.’s best interests is that he remain in the care and custody of his father, subject to the supervision of the Children’s Aid Society of Toronto.

[151] Given all of the above and having considered all of the evidence, I find that the least intrusive disposition that is in E.A.’s best interests is that she be made a ward of the Crown and that she be placed in the care and custody of the Children’s Aid Society of Toronto.

2.9: Access

[152] The statute provides as follows:

(2.1) Access: Crown ward.— 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.

[153] The onus to rebut the presumption against access to a Crown ward is on the parents. Children’s Aid Society of Toronto v. Dora P., 2005 34560, 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J. No. 4075, 2005 CarswellOnt 4579 (Ont. C.A.). The parents have the onus of establishing both portions of the test in subsection 59 (2.1) of the Act. This is a very difficult test for parents to meet. Where a Crown wardship order has been made, there is no obligation on the society to prove that the children are adoptable, let alone that there is a prospective adoptive family. Children’s Aid Society of the Niagara Region v. J.C., 2007 8919, 223 O.A.C. 21, 281 D.L.R. (4th) 328, 36 R.F.L. (6th) 40, [2007] O.J. No. 1058, 2007 CarswellOnt 1680 (Ont. Div. Ct.).

[154] The meaning of the phrase “beneficial and meaningful” was examined by Justice Joseph W. Quinn in Children’s Aid Society of the Niagara Region v. M.J., 2004 2667, 4 R.F.L.(6th) 245, [2004] O.J. No. 2872, [2004] O.T.C. 634, 2004 CarswellOnt 2800 (Ont. Fam. Ct.), where he said:

[45] 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.

[155] The sections of the Child and Family Services Act relating to adoption of children who have been made Crown wards with an order for access by the biological parent have recently been amended. These amendments allow the society to look for an adoptive placement and, if same is found, require the society to give notice of the proposed adoption to the party who has access. The amendments then create a process for determining whether the party having access should continue to have contact with the child post adoption and, if so, what contact.

145.1.1 Access order in effect — Notice of intent to place for adoption.—(1) This section applies where,

(a)

a society intends to place a child who is a Crown ward for adoption; and

(b)

an order under Part III (Child Protection) has been made respecting a person’s access to the child or the child’s access to another person.

(2) Notice.— In the circumstances described in subsection (1), the society shall give notice to the following persons:

The person who has been granted an access order.

The person with respect to whom an access order has been granted.

(3) Right to apply for openness order.— The society shall include in the notice the following information:

Notice that the society intends to place the child for adoption.

Notice that the access order terminates upon placement for adoption.

In the case of notice to a person described in paragraph 1 of subsection (2), the fact that the person has a right to apply for an openness order within 30 days after notice is received.

In the case of notice to a person described in paragraph 2 of subsection (2), the fact that the person described in paragraph 1 of subsection (2) has the right to apply for an openness order within 30 days after notice is received.

[156] The recent amendments to the Act create new considerations when addressing the issue of access and new dynamics in the adoption process. These new considerations must be addressed when considering the test in subsection 59(2.1)

[157] The amendments do not vitiate the meaning of subsection 59(2.1). The amendments allow for adoption of a child who was properly made a Crown ward with access within the context of subsection 59(2.1). Therefore, I must be satisfied that continuing access would not impair E.A.’s future opportunities for adoption.

[158] E.A. lived with her mother and her mother was her primary caregiver until her apprehension. E.A. has had regular access to her mother throughout the period in which she has been in care and the access has increased. The access visits have been consistent and without interruption. Mother and E.A. spend three hours together every Monday and eat dinner, do homework and read together. She had several longer visits during the summer months.

[159] I accept the submission of counsel for E.A. that we must consider the issue of whether the visit is meaningful and beneficial from the child’s point of view. I accept her submission that the various access supervisors’ criticisms of the lack of interaction in the visits may be a concern when considering her ability to parent the child. However, they should not be taken to mean that the child is not enjoying the visit or that the child is uncomfortable or unhappy during the visit. The quiet low-key exchange is how the two interact. There is no evidence of anger or hostility. Mother supports E.A. in her placement. E.A. clearly loves her mother and displays affection to her. While she does not always greet her or say goodbye, this is consistent with E.A.’s general behaviour and there have been a number of occasions when E.A. has leapt at her mother and hugged her when the visit was over.

[160] According to the foster mother, E.A. is anxious before visits. E.A. comes back to the foster home somewhat withdrawn from the family and quiet. She does not talk about the visits with the foster mother. E.A. is happy and animated when she returns from the visits with her brother A.A. There is no evidence of any problems at school or at the foster parent’s home after visits. E.A. was very upset when her visit was unexpectedly cancelled. The access visits were increased after September 2010 and that was positive. E.A. had extra time with her mother over the summer of 2011 and that was also positive. According to the foster mother, E.A. is very concerned about having Christmas and birthday gifts and cards for her mother and is very excited abut giving these to her mother.

[161] The foster mother testified that she would be very concerned if the visits with mother did not continue. It was her evidence that E.A. looks forward to making sure that her mother is okay. She also testified that mother showing up validates for the child that mother cares enough about her to come to see her. She described E.A. as totally falling apart over one missed visit. The foster mother testified: “I believe that it would have an impact on her not to see her mother.”

[162] Having considered the above evidence, I am satisfied that the visits are meaningful and beneficial to E.A. Her connection to her mother is significant. The visits are important to her.

[163] E.A. is not currently ready to be placed for adoption. This is the opinion of her therapist and the evidence of the adoption worker. She requires further therapy and, at this point, it is unclear when adoption might be a consideration.

[164] E.A. is 11 (almost 12) years old. Adoption is not in the immediate future and she will therefore be even older if and when an adoption placement is found. E.A. has a real and significant connection to her mother and to her brother. I acknowledge that access to A.A. could occur without access to mother. However, A.A. and mother are linked as part of E.A.’s biological family.

[165] I find that the visits are beneficial and meaningful to E.A. In considering whether an order for access would impair her future options for adoption, I have considered the following:

E.A. is not ready to be placed for adoption now.

E.A. is now almost 12 years old. She will be older if and when she becomes ready to be placed for adoption. Her consent to the adoption will be required.

E.A. should be able to continue to maintain contact with her brother A.A. which, while not requiring contact with mother, makes such contact less intrusive.

Mother does not have a history of undermining E.A.’s placement. The current foster mother is supportive of ongoing access.

It is the evidence of the foster mother that ongoing contact is important to E.A. and that she would be concerned if the access were to be discontinued. Continued contact with mother represents continuity and stability and, given the evidence, this is a significant consideration for E.A.

The concerns which led to the apprehension and the disposition of Crown wardship are not such as to discourage an adoptive family if contact were a requirement.

Given the evidence, ongoing contact with mother is meaningful and beneficial to E.A. and in E.A.’s best interests. If anything, access is likely to support a move to adoption by minimizing the changes in E.A.’s life and allowing her to maintain the security and continuity of her connection with her biological mother.

[166] Given the above, I find that an order for access would not impair E.A.’s future options for adoption.

[167] I am therefore ordering that the child E.A. be made a ward of the Crown and that she be placed in the care and custody of the Children’s Aid Society of Toronto. There will be an order for access to mother and to A.A. The access arrangements should continue as they are. However, the society has the discretion to vary the access, provided that such a variation is in E.A.’s best interests and does not reduce her contact to mother to less than monthly.

[168] I leave the determination of mother’s access to A.A. to be worked out between the parents. I would be prepared to address this if they cannot agree on an arrangement. I suggest that this could best be resolved in a motion to change brought by father in the Children’s Law Reform Act.

2.10: Sibling Access

[169] The children have a close relationship and enjoy their time together. Their contact with each other is clearly meaningful and beneficial to them. This access should be allowed to continue.

2.11: Order Re Disposition

[170] The child A.A. shall be placed in the care and custody of his father subject to the supervision of the Children’s Aid Society of Toronto for six months. Access to mother shall be as arranged between the parents.

[171] The child E.A. shall be made a ward of the Crown and placed in the care and custody of the Children’s Aid Society of Toronto with access to mother. The access arrangements should continue as they are. However, the society has the discretion to vary the access, provided that such a variation is in E.A.’s best interests and does not reduce her contact to mother to less than monthly.

[172] The children shall have access to each other as arranged between father and the society.

Released: 26 January 2012

Signed: “Justice Geraldine F. Waldman”