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 subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) 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.

Court File and Parties

North Bay Court File No.: C367-10

Date: 2012-11-02

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. 11

Between:

Children's Aid Society of Nipissing and Parry Sound

Mr. Don Wallace, for the Applicant

— And —

A.B.D. - And - R.K.S.

Mr. William Sangster, for the Respondents

Mr. Peter Rutland, for the Office of the Children's Lawyer

Heard: February 21, 22, 24, April 18, May 30, June 22 & 27, 2012

Decision

Rodgers, J.:

Background and Facts

[1] A.S.D.T.D. is seven years old. He was found by this Court to be a child in need of protection on February 9, 2011. He has been in the care of the Children's Aid Society since October 2010.

[2] The Children's Aid Society seeks an order for Crown Wardship without access. The Office of the Children's Lawyer supports that position. A.S.D.T.D.'s mother is A.B.D.. She requests the return of A.S.D.T.D. to her care. A.S.D.T.D.'s father, R.K.S., supports that position. He would like access.

Background

[3] Ms. A.B.D. and Mr. R.K.S. had a short but tumultuous relationship. Ms. A.B.D. has complained to many people that Mr. R.K.S. was abusive to her. The parents separated before A.S.D.T.D. was born. He has never lived with Mr. R.K.S.. Both parents engaged in the regular use of cannabis. Indeed, A.S.D.T.D. was born with cannabis in his system.

[4] From A.S.D.T.D.'s birth in 2005 to his apprehension in October 2010, A.S.D.T.D. resided with his mother and her mother C.D. and C.D.'s spouse K.D.. A.B.D. has had a long history of mental health issues. She has been on a disability pension for approximately 15 years. Her mental health issues and emotional instability make it impossible to cope with employment responsibilities.

[5] The relationship between A.B.D. and C.D. has been described as being chronically conflictual. The home was often dirty and cluttered.

[6] A.S.D.T.D. was apprehended in October 2010 after A.S.D.T.D. and A.B.D. attended a child therapy session and A.B.D. made some disturbing comments indicating her resentment of A.S.D.T.D. The CAS was called in and further concerns surfaced about Ms. A.B.D.'s mental health, her use of cannabis to help her cope, her emotional abuse of A.S.D.T.D. and neglectful parenting. This resulted in his apprehension and these concerns were the basis of the finding in need of protection in February 2011.

[7] After the apprehension, A.S.D.T.D. was placed in foster care. From October 2010 to June 2011 he resided with the family of B.M.. Ms. B.M. described A.S.D.T.D. as a kind and well mannered little boy. She described him as happy but often anxious. His anxiety was evident whenever he had supervised access visits with his parents. He often soiled or wet his pants before or after these visits. Ms. B.M. testified that he was well past the age for this type of mishap.

[8] In June 2011 A.S.D.T.D. went to live with his uncle D.D. and aunt P.D.. D.D. is A.B.D.'s brother. By all accounts A.S.D.T.D. has thrived in this home. D.D. and P.D. wish to adopt him. P.D. also testified that A.S.D.T.D. has great anxiety and emotional upset surrounding his regular visits with his parents. He often wets his pants and misbehaves by yelling and swearing. He talks to himself and is upset that A.B.D. brings toys to the visit but refuses to permit A.S.D.T.D. to take them home with him. The evidence of several CAS workers who supervised access confirms that A.B.D. would bring toys to access, speak to A.S.D.T.D. about all the toys she had waiting for him at home and then refuse to let A.S.D.T.D. leave with the toys she brought. This seems to be an obvious tactic to bolster A.S.D.T.D.'s attachment to A.B.D. with little regard to the effect on his emotions. A.B.D. would also tell A.S.D.T.D. not to get too comfortable in the foster home as he would soon be returned to live with her. School reports reflect that A.S.D.T.D. would show aggression and defiance and pant wetting after access. This conduct was out of character for an otherwise bright and well behaved child.

[9] At trial A.B.D. testified that she had been sexually abused as a child by her older brother D.D.. She indicated that she first disclosed this when she learned in January 2011 that A.S.D.T.D. had been placed in the home of D.D. and P.D. This disclosure is suspect. Its timing is consistent with an effort to undermine the decision to place A.S.D.T.D. in the D. family home. In addition, A.B.D. has been engaged in counselling and psychiatric care for most of her life. Sexual abuse was the focus of this professional intervention. Ms. A.B.D. testified that she never brought up the issue of abuse by her brother. Furthermore, she did not advance this concern with any vigour in this trial. I find it difficult to accept that A.B.D. was historically victimized by her brother D.D..

[10] By the same token, I put no weight on evidence concerning a disclosure that A.S.D.T.D. is purported to have made in January 2012 just before this trial started. A.S.D.T.D. suggested that he had his penis burned by A.B.D. when they resided in a motel when he was 4. (A.S.D.T.D. and his mother and grandparents did indeed live in a motel for a short time in 2010 following the foreclosure of their home). A.B.D. denied harming A.S.D.T.D. in this way. K.D. testified that it could not have happened and there is no medical confirmation. Cst. DeHass of the North Bay Police Service investigated the matter and wisely decided not to lay charges given the age of the complainant and lack of corroboration.

[11] C.D. and K.D. resided with A.S.D.T.D. and A.B.D. until his apprehension in October 2010. C.D. has been employed at the Psychiatric Hospital for 27 years. She testified that her daughter A.B.D. has suffered from mental health difficulties for most of her life. She has had difficulty coping and over the years was often suicidal. She described a Jekyll and Hyde personality. A.B.D. could be unpredictable and could anger easily. She indicated that A.B.D. had no routine for A.S.D.T.D. and would often disappear for days leaving him in C.D. and K.D.'s care. A.B.D. would verbally abuse A.S.D.T.D., calling him stupid and telling him she wished he had never been born. C.D. claims that A.B.D. was jealous of A.S.D.T.D. and resented that he got more attention than she did. According to C.D., A.B.D. often ignored and neglected A.S.D.T.D.. She regularly smoked marijuana. A.S.D.T.D. was fearful of his mother.

[12] In cross-examination C.D. conceded that A.B.D. was highly intelligent and artistic. She also admitted that her relationship with her daughter was chronically conflictual.

[13] K.D. told the Section 54 assessors that A.B.D. was unpredictable and prone to sudden rage. He described how A.B.D. would scream at A.S.D.T.D. call him a "little stupid bastard". She would tell him that she should have aborted him. A.B.D. took little responsibility for child care and would often disappear for days leaving A.S.D.T.D. to be cared for by C.D. and himself. She used marijuana heavily and spent more time caring for her horses than for her son.

[14] Given the toxic relationship between C.D. and A.B.D. I must approach C.D.'s evidence with care. I find, however, that much of what C.D. attributed to A.B.D. is confirmed elsewhere in the evidence. Several access supervisors describe A.B.D.'s unpredictable and mercurial mood swings during access.

[15] Furthermore, Laura Lippi, a onetime roommate of R.K.S. told the Section 54 assessors that A.B.D. would denigrate A.S.D.T.D. when they visited with Mr. R.K.S.. Ms. Lippi recalled that A.B.D. would tell A.S.D.T.D. that he was holding her back and that he was the reason she had to give up her horses.

[16] The most dramatic confirmation of C.D.'s account of A.B.D. verbally abusing A.S.D.T.D. can be found in the pivotal events of October 4, 2010. A.B.D. brought A.S.D.T.D. to an intake session for child therapy at the H.A.N.D.S. agency. They met with child therapist Sari Behamdouni. A.B.D. was so confrontational and verbally and emotionally abusive of A.S.D.T.D. that Ms. Behamdouni was compelled to call the C.A.S. immediately following the session.

[17] During the session A.B.D. told the therapist in A.S.D.T.D.'s presence that she gets nothing from A.S.D.T.D.; that he always came first and she came last. She stated she put her life on pause because of him and that it was his fault that she could not go out or have friends. She told A.S.D.T.D. that she exists to be a slave to him.

[18] A.B.D. had an emotional outburst during this encounter and was rude and confrontational. Ms. Behamdouni counselled Ms. A.B.D. to refrain from conducting herself like this in front of A.S.D.T.D.. Ms. A.B.D. replied "why would I not be allowed to show any emotions in front of A.S.D.T.D.". Remarkably, according to Ms. Behamdouni, A.S.D.T.D. appeared fearful and confused and that he drew close to her, a stranger, for comfort. The reporting of this incident put the wheels in motion for A.S.D.T.D.'s apprehension.

[19] In June 2010, a few months prior to A.S.D.T.D.'s apprehension, A.B.D. was pulled over by the police. She appeared to be suffering from mental illness and she was taken to the hospital because she was considered to be suicidal. This was not the first time she was hospitalized because of concerns of self harm.

[20] A.B.D. attends access faithfully. I have no doubt that she loves her son. She often engages in imaginative play with him at his level. Andrea Pyke, who works in the Clinically Managed Supervised Program, testified that when A.B.D. is well, the visits are positive. A.B.D., however, has severe mood swings and can become angry and volatile during visits. She often uses the visits to confront child protection workers and has to be redirected to focus on A.S.D.T.D.. She testified that to date A.B.D. continues to struggle with controlling her emotions in A.S.D.T.D.'s presence.

[21] I conclude that there is evidence that confirms the evidence of C.D. and K.D. concerning the parenting limitations of A.B.D..

[22] A.B.D. testified in her own case. She is 45 years old. She acknowledged she has been under psychiatric care for most of her life. She explained that 2010 was a difficult year for her. There was a foreclosure on the home she shared with C.D., K.D. and A.S.D.T.D.. She lost personal possessions, her house and her dog.

[23] She insisted that she was A.S.D.T.D.'s primary care giver before his apprehension. A.B.D. testified that she has learned through clinically managed supervision how to keep her problems separate from A.S.D.T.D.. She takes "Anxiety Management and Coping" at the C[…] Clinic as well as cognitive behaviour therapy which helps her think before reacting.

[24] Ms. A.B.D. insisted that she has made many changes in the last 1 ½ years. She asserts that she now has employment prospects and has completed a lot of introspection. She no longer fears men. She is involved in Bible study. She says she uses less cannabis now and is taking counselling for drug abuse at the Community Counselling Centre.

[25] In cross-examination A.B.D. indicated she intended to quit using cannabis and to get off O.D.S.P. She insisted that she is a different person now than when she was assessed by Dr. Jeffrey Phillips who found her responses to questions about her parenting ability to be unrealistic and lacking credibility. She indicated that she did not take out her anxiety on A.S.D.T.D. deliberately. She denied ever verbally abusing A.S.D.T.D.. She testified that she continues to have ongoing problems and that she may move to Sudbury to get away from negative influences. She said she needs a change in her lifestyle.

[26] At times in cross-examination Ms. A.B.D. appeared sarcastic and flippant. For instance, when she was asked if she took any responsibility for the emotional abuse of A.S.D.T.D. she replied, "Sure, why not?".

[27] She conceded that she was "perhaps" neglectful, inattentive and impatient with A.S.D.T.D.. She denied ever being suicidal but insisted she was occasionally hospitalized when others over-reacted to her despair.

[28] She acknowledged that she needed to change her lifestyle and to get away from people from her past to make it easier to quit using cannabis. She could not say when this change would occur but suggested a move to Sudbury would help. She indicated she intended to get off O.D.S.P but acknowledged she has never taken any steps to do so. She could not say when she would change her lifestyle but insisted that she could parent and make the necessary changes at the same time. She insisted that she was capable of parenting now.

[29] Mr. R.K.S. testified in support of A.B.D.. He is content with supervised access. He admitted saying in January 2011 that he was not sure what kind of relationship he wanted with A.S.D.T.D.. He said he was going through personal problems at that time. He admitted that he has an older son who he put in the care of the C.A.S. when that child was 9 or 10 years old and that he did not attend court when that child was made a Crown Ward. When he was asked if he did anything to upgrade his parenting potential since A.S.D.T.D.'s apprehension his answer was "I wasn't the problem, A.B.D. was the one being attacked".

[30] Mr. R.K.S. presented as a miserable individual. He has shown little interest in participating in his youngest son's life but he is extremely critical of others like C.D., D.D. or K.D. who have cared for the child.

[31] A.B.D. asserts that she is capable of parenting now because of the strides she has made in her life since A.S.D.T.D. was apprehended. It should be noted, however, that when Dr. Jeffrey Phillips attempted to complete a psychological assessment of Ms. A.B.D. in December 2010 he found that she scored in the 99th percentile in her satisfaction with her own parenting. He found that she engaged in positive impression management to the degree that the psychological testing process had no validity. He had serious concerns about her credibility. He concluded that, "Ms. A.B.D. presented to assessment procedures in a fashion that reflected difficulty acknowledging problems on her part, and a tendency to blame others for her difficulties".

[32] Unfortunately the improvements claimed by Ms. A.B.D. in her ability to parent cannot be confirmed. Andrea Pyke who has supervised access since February 2011 testified that A.B.D. continues to have mood swings during access. She continues to act out in anger in front of A.S.D.T.D.. A.S.D.T.D. continues to experience anxiety arising from this conduct. A.S.D.T.D. appears vigilant and apprehensive in his mother's presence.

Disposition

[33] I am satisfied that the C.A.S. has made significant efforts to assist Ms. A.B.D. to improve her parenting capacity. These efforts primarily focused on the Clinically Managed Access program. This program is designed to give more intensive intervention during access to teach sound parenting practices to parents with higher needs. In this case the focus was on attempting to help A.B.D. focus on A.S.D.T.D.'s needs and not her own problems. Unfortunately Ms. A.B.D. did not benefit from this approach. She resented any efforts to assist her and continued to use access as a venue to confront C.A.S. personnel.

[34] Section 5(3) of the Child and Family Services Act requires that I look to all least disruptive alternatives to the removal of a child from a parent. Section 57(4) requires that the court consider community placement, including family members before placing the children in care. These two sections read together serve a clear legislative directive that the permanent removal of a child from a parent is a last resort.

[35] In the case of Jewish Family and Child Services of Toronto v. R.K., T.K. and E.K.T., 2008 ONCJ 774, Justice Sherr of this court at paragraph 67 outlines important principles drawn from the case law:

Crown Wardship is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence and only after a careful examination of possible alternative remedies... In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of apprehension exist today. This must be examined from a child's perspective... It is important not to judge the parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests.

The significance of the child centred approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance...There has to be some demonstrated basis for a determination that the parents are able to parent the child without unreasonably endangering the child's safety.

[36] The focus of these proceedings is a determination of what is in the best interest of A.S.D.T.D.. The best interests of the parents are not the issue.

[37] Section 37(3) of the Child and Family Services Act reads:

37(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:

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

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

3. The child's cultural background.

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

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

6. 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.

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

8. 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.

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

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

11. 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.

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

13. Any other relevant circumstance.

[38] In attempting to determine what is in A.S.D.T.D.'s best interest I am taking into account the following factors drawn from the evidence:

a) A.S.D.T.D.'s physical and emotional needs and the appropriate care or treatment to meet those needs (S.37(3) 1).

A.S.D.T.D. is in good health although he has a heart condition which may require surgery in later years. He continues to have episodes of anxiety that are associated with access visits with his parents. He requires a predictable and stable environment.

b) The importance of A.S.D.T.D.'s development of a positive relationship with a parent and a secure place as a member of a family (S37(3)5).

Unfortunately A.S.D.T.D.'s opportunity to develop a positive relationship with his mother is contingent upon what kind of mood she is in. I find that A.B.D., on occasion, has expressed to A.S.D.T.D. or to others in A.S.D.T.D.'s presence how much she resents him. These types of comments not only undermine A.S.D.T.D.'s relationship with his mother but undoubtedly impact on his sense of security and self-worth. In contrast, for the last 17 months A.S.D.T.D. has been accepted into the family of his uncle and aunt where he is treated as a valued member. He is thriving there.

c) A.S.D.T.D.'s relationships and emotional ties to a parent, sibling, relative, other member of his extended family or members of his community (S37(3)6).

A.S.D.T.D. is an only child. In his early years he was often left in the care of his maternal grandmother and her spouse. He would understandably have a strong attachment to them. A.S.D.T.D.'s father R.K.S. has always been an access parent. A.S.D.T.D. has bonded to members of his foster family. A.S.D.T.D. loves and wants to please his mother. It is unclear however whether he has a healthy attachment to her given the anxiety he experiences in her presence.

d) The importance of continuity in A.S.D.T.D.'s care and the possible effect on him of disruption of that continuity (S37(3) 7).

A.S.D.T.D. is doing well in foster care in a home where there is structure, routine, security and predictability. A.B.D. testified that she continues to use cannabis and needs to change her lifestyle in order to effectively parent A.S.D.T.D.. Those changes have yet to occur. I am concerned that the return of A.S.D.T.D. to her care would jeopardize the progress he has made in foster care.

e) The merits of the respective plans of care for A.S.D.T.D. (S37(3)8).

The C.A.S. proposes that A.S.D.T.D. remain permanently in the care of his aunt and uncle by way of adoption following an order for Crown Wardship. A.S.D.T.D. has done well in this environment. A.B.D. proposes that A.S.D.T.D. reside with her. Once he is with her she intends to stop using cannabis. She intends to change her lifestyle. She intends to get off O.D.S.P. and find employment. She intends to move to Sudbury to get away from people who have a bad influence on her. She may become a Jehovah's Witness minister and purchase a farm. Ms. A.B.D. is 45 years old. By now, she is who she is. She has little insight into her parenting weaknesses which are significant. I find it highly unlikely that there will be a dramatic change in her well entrenched lifestyle anytime soon.

f) A.S.D.T.D.'s views (S37(3)9).

A.S.D.T.D. is only 7 years old. He has indicated that he is happy in his foster home. I do not put much weight on his views given his age.

g) The risk that A.S.D.T.D. may suffer harm through being kept away from A.B.D. or through being returned to her care (S37(3)11).

The assessment of the risk of the return of a child to the care of a parent has been described by our Court of Appeal as "a necessary and critical inquiry when crafting a placement that was in the children's best interest" (Children's Aid Society for the Districts of Nipissing and Parry Sound v. S.S., 2008 ONCA 31, at paragraph 24). A.S.D.T.D. remains anxious in his mother's presence even in the short periods of supervised access. When he resided with her he was often emotionally abused and neglected. A.B.D. has made little progress as a parent since A.S.D.T.D. was apprehended. I find that there is a substantial risk that A.S.D.T.D. will suffer emotional harm if he is returned to her care. This child needs a secure, predictable and stable home. Sadly, A.B.D. cannot meet that need.

Conclusion

[39] I am satisfied that the return of A.S.D.T.D. to his mother's care is not in his best interest having regard to the application of S37(3). A.S.D.T.D.'s father does not seek placement of the child with him.

[40] The maternal grandparents have not presented themselves as a placement option. Society Wardship is not an option at this stage.

[41] A.S.D.T.D. was apprehended in October 2010 and was found to be a child in need of protection in February 2011. The basis for the apprehension and finding were concerns about A.B.D.'s lifestyle, mental health issues, volatile temper, drug use and the neglect and denigration of her child. Unfortunately many of those concerns remain.

[42] There shall be an order for Crown Wardship of the child A.S.D.T.D. (D.O.B. […], 2005).

Access

[43] The remaining issue to be determined is whether or not there should be a provision for access. Section 59(2) provides:

(2) The court shall not make or vary an access order 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 a permanent or stable placement.

[44] Access has caused considerable anxiety for A.S.D.T.D.. Even when access goes well, he remains vigilant and wary of a potential outburst of anger from his mother. I find these visits do more harm than good. This access is not beneficial to A.S.D.T.D.. A.S.D.T.D.'s visits with his father are less traumatic.

[45] There is clear evidence that A.S.D.T.D. is adoptable. Ordered access to either parent would impair A.S.D.T.D.'s opportunity for a secure and stable placement that adoption brings the hope of providing.

[46] The order for Crown Wardship will be without access to either parent.

Released: November 2, 2012

Signed: "Justice Greg P. Rodgers"