Court Information

Court File No.: C51343/10

Date: 2013-05-15

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

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

And In the Matter of:

• M.G., born 1996
• J.S., born 2006
• N.S., born 2007

Between:

• Catholic Children's Aid Society of Toronto (Applicant)

And:

• N.A. (mother)
• R.B. (father of J.S. and N.S.)
• C.G. (father of M.G.)

(Respondents)

Before the Court

Justice: Robert J. Spence

Trial Heard: February 4, 5, 6, 7, 11, 12, 13, 14, 15, 19, 21, 22 and April 18, 29, 2013

Reasons for Judgment Released: May 15, 2013

Counsel

• Mr. Alec Duncan – for the applicant society
• Ms. Nancy Thompson – for the respondent mother
• Mr. Alex Novak – for the respondent father
• No one appearing for C.G., the respondent father, previously noted in default and not participating at trial

Nature of the Case

[1] The amended protection application presently before the court, brought by the Catholic Children's Aid Society of Toronto ("society"), seeks an order for Crown wardship, for the purpose of adoption. There are three children, namely, Ma, age 16 years, Ja, age seven years, and Na, age five years. Prior to the start of trial the society advised the court that Ma is back home living with his mother and because Ma is firm in his wish not to be serviced by the society, the society is seeking no order respecting his disposition. Both the mother and the father agree with the society insofar as Ma is concerned. Accordingly, this trial is about the two younger children only.

[2] Following a two-day trial in May 2011, Justice Marvin A. Zuker made the statutory findings for all three children, pursuant to the Child and Family Services Act ("Act") and he found all three children to be in need of protection pursuant to sections 37(2)(b)(i) and (ii) and 37(2)(g) of the Act.

[3] The mother and the father are both advancing separate plans for Ja and Na. Each seeks to have the two children returned to her and his care, respectively, under a supervision order.

[4] Ja and Na have been in the society's continuous care since June 16, 2010, now about 35 months. This is well beyond the statutory time limit for both children.

Background and Events Leading to the Apprehension

[5] The mother was born in Georgetown, Guyana 42 years ago. At the age of 21, she left Guyana for England as a visitor. While in England she met and married Colin, Ma's father. Ma was born in 1996. She remained with Colin for only one year after Ma's birth. Mother testified that Colin was a decent father to Ma and, when he was sober, he treated her acceptably. However, when he was drunk, the mother described him as "mean". For example, she said he hurt her "a lot", once tying her up and putting her in a closet and closing the door on her. On another occasion he burned her back with a cigarette. She said that he "hit me a lot". Mother said she had to work at multiple jobs to support her family because Colin was not gainfully employed.

[6] In 1997, while she was still married to Colin, mother came to Canada for a visit. It was there that she met Lloyd, the man she was to marry next. She then returned to England and divorced Colin. After this, she travelled to New York where she met up with Lloyd, and married him. Mother then went back to England, as she was unable to remain in New York on her visitor's visa. Lloyd subsequently went to England and brought both mother and her son Ma back to Canada in 1999. Mother and Lloyd remained together for only about one year. Testifying at trial, Lloyd said it was because he was a "quiet" person and mother was more outgoing and had "lots of friends". Mother said Lloyd was very good to Ma, but that he was "verbally abusive" to her. She said that he would "yell at me because he thinks I don't listen to him".

[7] After separating from Lloyd, in or around 2000, mother returned to England, hoping to reunite with Colin, the biological father of Ma. She did this notwithstanding the history of Colin's abusive behaviour toward her when the two of them were together in a relationship. She remained there for only two weeks before returning to Canada.

[8] Upon her return to Canada, mother began a relationship with Joel. Mother said that she and Joel lived together from about 2000 to 2004, and that they lived in five different places in total. As a result of these frequent moves Ma had to be removed from school, attending three different schools during that period of time. Mother said she eventually left Joel because he was having a relationship with someone else and, as well, he was emotionally abusive to her.

[9] After Joel, mother said she "fancied Bobby". However, she said that the "great spirit warned me to stay away from Bobby".

[10] After breaking up with Joel, mother moved into a basement apartment. She said that someone subsequently complained that the apartment was illegal and, as a result she was evicted. She said that her landlord thought she herself was responsible for reporting the illegal status of the apartment, so he locked her out of the unit and did not allow her to retrieve her personal belongings.

[11] Around late 2004 mother began attending the local Hindu temple. It was there that she met R.B., who was to become the father of Ja and Na. In March 2005, when the father found out that the mother and Ma had been evicted from the basement apartment and had no place to live, he invited her and Ma to stay in his apartment. He told her that he recently had "some litigation with his parents" and they had moved away. As a result, he had a two-bedroom apartment which he said she and Ma could share with him.

[12] Mother was not intending to have a relationship with father because she said she was still in love with Bobby from the temple. She said that although she was not in a relationship with Bobby, her soul was "reaching out to him". Nevertheless, she said that she and the father did have sex together that night, stating at trial that the father raped her. Ma was in the other bedroom while this was happening. Notwithstanding this, mother remained in father's apartment because, as she said, "we had no place to go".

[13] Mother gave birth to Ja approximately 13 months after she and Ma moved into father's apartment. And 16 months after Ja's birth, mother gave birth to Na. Despite this, at trial mother characterized her relationship with father during this period as one of landlord and tenant, because she said she was paying one-half the rent. While she was apparently continuing to have sexual relations with him, she led him to believe that she was sleeping with other men as well, although at trial she denied that she was in fact sleeping with other men. However, she acknowledged telling the society worker immediately following the apprehension that she was sleeping with other men and, because of this, she said she told the worker that she did not know the identity of the biological father of Ja and Na. Furthermore, on the statements of live birth for each of Na and Ja, mother did not provide information identifying the children's father. When she was asked at trial why she lied to the worker, she replied, "I have my own personal reasons . . . if I lied I lied, I committed a sin".

[14] It was because of this that when the society apprehended the children on June 16, 2010, it did not add the father as the father of Ja and Na as a party on the protection application.

[15] Prior to the society's involvement with the family, it appears that there were a number of openings with the Children's Aid Society of Peel. Apart from a brief opening by this society in 2005, there was no meaningful society involvement until 2008. In or around July 2008, the society received certain information which led to an investigation and a visit to the mother's home. The society's evidence, which was essentially uncontradicted, is that the home was in a very cluttered state, unsafe, and with cleaning supplies within easy reach of the children, particularly the two younger children who, at that time were one and two years of age. The mother told the society that she was suffering at that time from post-partum depression.

[16] The home was so unsafe that the society told mother she could not remain in the house any longer until that situation was rectified. Mother agreed to take the children and stay with a friend for a few days.

[17] The society said, at the time, mother was forthcoming about her depression and her symptoms and because she appeared willing to cooperate with the society, the society did not at that time initiate a protection application. Mother informed the society that she was seeing her psychiatrist, Dr. S., on a regular basis. The society spoke with Dr. S. who confirmed mother's depression and that she was taking medication.

[18] Mother's counsel filed a number of reports prepared by Dr. S. It had been counsel's intention to have Dr. S. testify at trial, but he could not be produced. The society initially took the position that the reports should not be admitted into evidence unless Dr. S. could be produced for cross-examination. However, the society ultimately consented to the admission of those reports. In Dr. S.'s report dated April 23, 2008, just a few weeks prior to the July 2008 opening by the society, Dr. S. stated that he had seen mother twice. He observed:

[mother] complained of severe depression, excessive fatigue, inability to get her work done, loss of appetite, impaired memory and passive suicidal ideation . . . . she complained that she often lost her belongings and that she cannot "get my act together" . . . . Diagnostically she appears to have a post-partum depression . . . I prescribed Celexa 40 mg.

[19] The society arranged for mother to be seen by a psychiatrist at Humber Hospital, following which the society and mother entered into a Voluntary Service Agreement.

[20] The society continued to meet with mother and to attend at her home. In August 2008, the society confirmed that Ja and Na appeared well. However, the mother's apartment was described by the society worker as "extremely cluttered and messy". The worker said that the state of mother's home was "unacceptable for the children".

[21] In subsequent visits during September, October and November 2008, mother's home continued to remain in a similar state. At trial, the worker stated that she had been considering a protection application around that time but held off doing so only because mother was continuing to cooperate with the society. However over the next several months, the mother failed to remedy the apartment's cluttered state; she began cancelling appointments with the society, and she was constantly asking for more time to rectify the mess. Because of this, the society assessed the overall situation to be deteriorating.

[22] In May 2009, mother reported that a bed rail had fallen on Ma's head, as a result of which he had to be taken to the hospital. The society cautioned mother that the apartment had to be decluttered immediately as the younger children were also at risk of injury if she failed to do so.

[23] The society worker attended at the home on August 14, 2009. In respect of that attendance, that worker stated:

The kitchen table was completely covered with items and could not be used. The kitchen counter was completely covered with items including an iron, coasters, boxes of food, plates, cups, pots, and pans. The children's bedrooms were a mess, and [mother's] bedroom was completely covered with clothes on the floor and with boxes. I could not even walk around the bed. In order to get to the baby crib, I noted that I would have had to crawl over the bed.

[24] The society began to take a "more firm approach" with mother and subsequently noted that mother was doing her best to ameliorate the problems. The worker fairly noted that mother "made some positive gains in coping with her stress, depression and maintaining the home". She also noted that by the end of January 2010 mother "was no longer taking any medication and appeared to be more stable".

[25] However things began to deteriorate once again in 2010. At a home visit on March 9, 2010, the worker observed:

The home to be very messy, except for the living room which was clean. The kitchen was cluttered and the dishwasher was open and full to the point that it could not be closed; the counter was filled with many objects; there were big bins in the entrance way and buckets of cleaning items on the floor in easy reach of the children; the baby's crib was overflowing with clothes, blankets and bed sheets; and both [mother's] and [Ma's] bedrooms were so cluttered with objects and clothes the bedroom doors would not open up all the way.

[26] The society strongly cautioned mother about the state of the home. Mother managed to enlist the help of a friend to assist her to de-clutter the home. The society then told mother it would re-attend on March 25th for a follow-up visit. However, without telling the society, on March 10, 2010, mother went to India for 10 days. Before leaving she said she arranged for father to look after the children. At trial, mother said she went to India to attend a special "pilgrimage" which takes place once every 12 years. When questioned at trial why she had done this in the midst of a burgeoning child protection crisis, she agreed that she should not have done so.

[27] In May 2010, mother told the worker that she was planning to take a trip to Washington D.C. for a few days and that because of this she might not have time to clean her home in time for the society's scheduled monthly visit. The worker expressed her concerns, and the need for mother to address the outstanding issues and to make those a priority. Mother unilaterally cancelled the scheduled society home visit for May 25, 2010.

[28] When the society worker attended mother's home at the subsequently re-scheduled visit on June 7, 2010, mother was outside her building saying that she had lost her keys. She also told the worker that Ja had slipped on a glass of milk and was taken to a clinic for stitches. In addition, she said Ma had thrown a book at Ja, cutting him under the eye. The worker told mother that because of the deteriorating conditions, including her depression and her difficulty in effectively parenting the children, the society would be launching a protection application.

[29] On June 16, 2010 the society worker re-attended at the home. The worker met father who stated to the worker that he was unsure whether he was the father of the two younger children. Mother's apartment was somewhat improved but still cluttered and in an unsafe condition. Mother requested another two weeks to clean the home. She also said she was planning a trip to England, to leave that very day, because a friend of hers was ill. She had asked a neighbour, or someone she knew from the Hindu temple, to care for her children while she was away. The society advised mother that she was taking too many trips and leaving the children with whoever she could arrange, but mother responded that she did not want to cancel the trip and lose the money on the ticket she had purchased.

[30] On the same day, the society obtained Ma's school attendance records, which revealed that during that current school year Ma had missed 40 days of school and had been late 56 times. On June 16, 2010 the society apprehended all three children and placed them in care, where they have since remained.

Events Subsequent to Apprehension

a. First Court Appearance and Mother's Behaviour

[31] The first appearance following the apprehension was on June 21, 2010, presided over by Justice Geraldine Waldman. For the reasons I earlier discussed, the society's protection application did not name a father for Na and Ja. Mother and father both attended court on that day. The society lawyer introduced father, who was in court, as a friend of the family. Although mother stated that she knew he was the father, she did not say anything to the court on the first appearance to correct that erroneous introduction, or to insist that R.B. was in fact the father. Nor did father stand up in court and state that he thought he was the father of Ja and Na. Justice Waldman made a temporary without prejudice order placing the children in the society's care, with mother to have supervised access, twice each week, for two hours per visit.

[32] Shortly afterwards, the father agreed to have DNA testing and it was confirmed that he was in fact the biological father of Na and Ja.

[33] Access visits were often problematic. There were multiple components to these problems. The first was the way in which mother interacted with the society workers, including those persons who were responsible for supervising the access visits.

[34] The society's evidence regarding the dysfunctional dynamic between mother and the society is far too extensive to repeat in these reasons. However, mother's behaviour toward the society personnel can be described as out of control, often comprised of rants and raves, as well as the use of foul and vulgar language. This kind of behaviour occurred during visits as well as in voice mail messages that mother left for workers, and in direct telephone contacts. I should note that much of this was not denied by mother. I will return to mother's various explanations and her acknowledgements regarding her behaviour after I provide a few examples of how she conducted herself.

[35] On more than one occasion she called the society and left messages stating that the society was acting inappropriately. She would accuse the society of mistreating her children. Once she told a worker directly, "you are evil, you should die, you should die". On one occasion she told a society supervisor that the society was disrespectful, negligent and liars. On another occasion when she was yelling at a worker, the worker told her to lower her voice and the mother responded that it was not her that was yelling but the "80 spirits" she had inside her. One society worker produced recordings of two voice mail messages left by mother as recently as January 2013. They were played in court. Mother acknowledged both of them as her messages. She was clearly out of control in those messages. The messages are replete with rants, vulgarities and threats. For instance, in one of the messages, she said to the worker, "don't mess with me" and "watch your back sister" and "a lot of black people hate you".

[36] Interestingly, when mother listened to one of those voice recordings in court, she said she remembered having left lots of messages for society workers, and the particular one she had just listened to was not as bad as others she had left. After listening to the messages, mother continued her testimony, in reference to the particular worker, by saying, "who the hell is she", "her Karma is a bitch" and she was a "bully from day one".

[37] This is not to suggest that mother's access visits were littered with the same type of behaviour. While she did occasionally engage in a dysfunctional way with workers in the presence of her children, more often than not, this kind of behaviour occurred away from the children.

[38] Mother did try to explain her behaviour by stating that she was frustrated with the way in which the society was servicing her and her family. She believed that the society workers tried to "bully me". She accused one of the society supervisors of "mocking me" when mother told the supervisor she was going to lodge a complaint against the society to the Child and Family Services Review Board ("Board"). Mother did not deny being "extremely aggressive" in her interactions with the society. She acknowledged often being out of control when she interacted with the society workers, stating "I'm out of control" because of all the society's lies, and "of course I cannot control myself".

[39] I discuss mother's behaviour for two reasons. On its own, bad behaviour towards the society does not necessarily equate to bad parenting; nor, on its own is bad behaviour a reason not to return children to a parent. However, before the court will make a supervision order, it must be reasonably confident that the parent has the capacity and the willingness to work cooperatively with the society. Absent that, it is trite to state that a supervision order will not work.

[40] The second reason relates to what underlies this kind of behaviour. I heard very persuasive evidence that mother has mental health issues which likely interfere with her ability to parent effectively; and it is the state of mother's mental health which likely explains in large part why she interacted in such a dysfunctional manner with society personnel. I will have more to say about mother's mental health later in these reasons.

b. The Quality of Mother's Access Visits

[41] The quality of mother's access visits was to some extent mixed. One society worker supervised 18 access visits from shortly after the apprehension until November 2010. The final four visits that she supervised, between October 22, 2010 and November 2, 2010 were essentially positive visits, with mother coming prepared with food, interacting appropriately, and being affectionate with the children.

[42] However, the visits prior to October 22, 2010 were for the most part difficult. During one visit, which began well, mother began to get agitated in front of the children and tried to engage with the supervisor rather than focusing on her children. In another visit mother began to cry in the access room and confronted her eldest son, Ma about stealing. In August, mother brought a male friend to the visit and focused on him and her cell phone, rather than focusing on her children. In another August visit, mother again spent considerable time on her cell phone, and advised the supervisor that the children were dirty. In yet another August visit, mother focused on her financial difficulties in front of the children, even asking Ma to request money from his foster mother. In the final August visit, mother once again focused on what she perceived to be the children's dirty clothing; she also told the children their hair was too long and their backpacks had too many crumbs inside.

[43] Frequent cell phone use continued during subsequent visits as well. In a September visit mother became upset and began to yell during the visit. Mother's behaviour was so disruptive that the society felt compelled to call the police. In the last visit in September, Na who just turned three years old, fell on the floor. Mother refused to pick him up saying that it "served him right" and that Na was "stupid". In front of the children, mother referred to the foster mother as "stupid", "lazy" and "dirty". In an October access visit, mother again became upset and stated that Na's pants were dirty, and she proceeded to change his pants. In another October visit, mother again focused on the children's hygiene and made comments about the children's clothes being "dirty".

[44] Another society access supervisor, stated that during a November 2010 visit, mother became loud and upset during a visit, complaining about what she perceived to be a dirty access room. When the society refused permission for mother to take the children for a walk, she became angry and began to shout, in front of the children. Mother's behaviour spiralled out of control to the extent that the society was forced to call the police to attend at the society's office. The police required mother to leave the society's office. The same supervisor was present during visits in April 2011. During one visit, mother spent some of her time checking Na's body for a skin rash. Later in another April visit, mother again complained that the access room was dirty. She became angry and said in a loud voice that she was going to leave as she could not spend another minute in that "dirty room".

[45] The foregoing are but a few of the many instances of mother acting inappropriately during access visits. She was often focused on herself and her own needs, rather than providing support and nurturing for her children. She would break down and cry in front of her children during access visits, bemoaning her situation – once, for example in September 2012 referring to herself as "poor mommy" directly to her children. Mother seemed obsessed with "dirt" and her perception that the children would arrive at the visits in an unclean condition, and her insistence upon removing the children's clothing and replacing it with clothing she had brought to the visit. This pattern of behaviour became so problematic for the children, who were beginning to feel guilty and self-conscious, that the society eventually prohibited mother entirely from changing the children's clothing during access visits.

[46] Society workers repeatedly attempted to reinforce with mother the need to focus on her children in a positive way during access visits. That would have required her to stop spending time on her cell phone, to stop concentrating on her perceptions of the children's level of cleanliness, to stop becoming angry and yelling in front of the children, to stop complaining to society workers about one thing or another, and to stop being aggressive toward society workers.

[47] While this is not to suggest that every visit was consumed by such negativity and dysfunction on mother's part, the evidence does force me to conclude that the visits, instead of improving with the passage of time, actually deteriorated. Eventually, the society had to apply to the court to decrease mother's access visits. And on October 3, 2012, Justice Ellen Murray reduced mother's access to 1-1/2 hours per week, supervised by the society. This very restrictive access is what has remained in place to the present.

[48] For her part, mother tried to justify her conduct by pointing a finger at the society. She essentially accused the society of acting in bad faith when, only weeks after complaining about the society to the Board, the society amended its protection application to seek Crown wardship for the purpose of adoption. She also testified at trial that her concerns regarding the cleanliness of the society's access premises were well-founded. For example, she complained that for 5 people to exercise access in one small room was too much to expect. She also testified that at least on one occasion the access room was littered with "scraps of food", the table in the access room was "not clean" and the children had to sit on a dirty couch. She testified that "I started to complain right from the start". The children were coming "dirty", their feet and breath were "foul". They were "dirty and they were crying". They had "no proper clothes". And as a result of these perceptions by mother, she stated, therefore, "I go ballistic". When mother was asked by her own counsel what she expected during such visits, she responded, "a more spacious room". She stated that she was "watched through a glass", and this is something she sees "as jail". On one occasion, on or around her 40th birthday when she was scheduled to visit with her children, she testified "I refused to go to that dirty room" and "I refused to be locked up in that room and be treated like a common criminal on my 40th birthday".

[49] Whether mother's complaints about the cleanliness issues were exaggerations, or accurate descriptions, is not something I am able to determine. However, it is hardly a secret that the society has resource limitations, and this is doubtless reflected at the society's offices and at their supervised access locations. Nevertheless, this in no way excuses loud, aggressive and belligerent behaviour – and, particularly when such behaviour takes place in front of the children - which, as I noted above, mother confirmed in her testimony at trial. Mother's lack of emotional self-regulation in the presence of her children, is of considerable concern to this court.

[50] Unfortunately, mother was so consumed by all of these perceived wrong-doings on the part of the society and the foster parents, that she lost sight of the purpose of access visits. She was so fixated on herself, her needs, and what I would refer to as infrastructure details, that she became essentially incapable of having meaningful visits with her children, on many occasions.

Mother's Mental Health

[51] There was considerable evidence tendered at trial regarding mother's mental health. The society called Dr. Wittenberg, who was qualified as an expert in child psychiatry, parent-child relationships and parenting capacity.

[52] Dr. Wittenberg performed a court-ordered assessment pursuant to section 54 of the Act. He submitted a written report and gave oral testimony and was cross-examined at trial. In his report, Dr. Wittenberg noted that Justice Zuker had found the children to be in need of protection because mother was more absorbed by her own needs rather than the needs of her children and, as well, because of her chaotic lifestyle. He noted that Justice Zuker found as a fact that mother's home was dangerous, overflowing with things, and had toxic substances within easy reach of the young children. Dr. Wittenberg also referred to mother's involvement with domestic abusers, her failure to get Ma to school in a timely way, her failure to follow through with counselling on domestic violence issues, and her general failure to understand the risks to her children. He also noted that mother would seem to be willing to go travelling on a whim, leaving her children with whoever she could find to care for them.

[53] Dr. Wittenberg also reviewed other psychiatric reports and noted that mother's behaviour had persisted for considerable periods of time, with "some remissions", but also "recurrent relapses over a very long period of time". Dr. Wittenberg concluded that mother showed no evidence of having a major psychiatric disorder, no evidence of psychosis, no evidence of significant depression and no evidence of a significant Anxiety Disorder. On the other hand, he stated that:

Her style of speech was over inclusive and tangential. She displayed a number of odd behaviours and had a number of odd beliefs. . . . In my interview with her I could not find any evidence that she understood that impact of her behaviour and of the experiences to which the children had been exposed on the children and their development or psychological health.

[54] Dr. Wittenberg went on to state:

She has repeatedly disappeared in terms of her actual physical presence, her attention to supervision, her ability to maintain a safe and healthy living space and perhaps almost all of the time I suspect, has failed to be able to maintain an awareness of the children's needs and put it ahead of her own needs and impulses. Of great concern has been the variability of her behaviour. This makes her unpredictable to the children. It also makes it very difficult to predict that she will continue to be available to the children. In fact, I would predict that her variable and chaotic lifestyle will continue with remissions and relapses. Thus she is able to maintain a good parenting role in some respects, for some periods of time but one should expect this will fail.

[mother] has a personality disorder, probably of the Schizotypal subtype. This is a pervasive pattern of social and interpersonal deficits . . . . she loses sight of the needs of her children . . . . on repeated occasions to extreme degrees. I cannot believe with any confidence that she will be able to safely and supportively parent her sons over the long-term.

[despite being involved with a psychiatrist for a number of years] she seems not to have benefited significantly from that . . . . It is very difficult to make changes when one has a Personality Disorder. The problem is that the person's behaviour is felt to be in keeping with the beliefs and values that the person holds. . . . I do not think there is a therapy or a treatment that will make a difference to that. Certainly there is nothing that will make any difference to that in the period of time that these children need appropriate parenting. Thus, the only service that might be helpful to [mother] at this point in time would be supervision. Supervision by itself, when the children were in her care, was not adequate to change her behaviour. Rather, she even in those occasions would suddenly leave the country, leaving the children unsupervised or inappropriately supervised. Her house repeatedly deteriorated. She repeatedly got into angry, distressing conflict with others in her children's presence. Thus, even in a circumstance with adequate supervision, I do not believe that [mother] has the capacity to take care of her children.

[55] At trial, Dr. Wittenberg stated that any real change by mother would first require her to be motivated to change and, even then, would require a "period of years". He did observe that mother has demonstrated the capacity to care for the children for periods of time. However, he went on to emphasize that "inadequate supervision is a very problematic thing". The children's needs were "disappearing off the map of her mind". She would leave young children on their own, unsupervised, without understanding the impact this would have on them. Most pointedly, Dr. Wittenberg testified that "neglect and lack of supervision" is "almost impossible to change".

[56] The court also received evidence from a number of other medical sources. As I noted earlier, reports from mother's ongoing psychiatrist, Dr. S. were admitted without cross-examination. Dr. S's involvement with mother dates back to 2008.

[57] In a letter dated March 27, 2011, addressed to mother's former counsel, Dr. S. stated:

Diagnostically I thought she had a Dysthymic Disorder as well as histrionic traits of personality, that is to say, a tendency to over-emotionality. . . . [mother] is not currently being treated for a psychiatric disorder. Her mental state is essentially normal although she tends to over-react when stressed . . . .I am not able to comment on her parenting capacity.

[58] And finally, in a two-line handwritten note Dr. S states: "[mother] continues to remain well from a psychiatric perspective."

[59] Mother called two other medical witnesses, Dr. H and Dr. K. Dr. H met mother on June 18, 2010 when he was the on-call psychiatrist at the William Osler Health Centre, where mother was brought by the police after reportedly making a statement, "If I cannot hear the children's voices, I would rather die". The purpose of Dr. H's involvement was to determine if mother should be involuntarily admitted to hospital on a "form" as either a danger to herself or to others. He determined that mother did not qualify for involuntary admission. His report contained the following diagnosis:

Axis I – Adjustment disorder with disturbance of emotion and conduct, query bipolar disorder type 2, recent episode of hypomania. Axis II: Deferred

[60] At trial, Dr. H expanded on some of this. He stated that an adjustment disorder is a reaction to the environment or psycho-social stresses, such as the loss of a partner or, in this case, the apprehension of the children. If the adjustment disorder is minor, it will often resolve when the stress is resolved. If the disorder does not resolve, it will be considered to be a "major disorder". He testified that Axis II refers to the diagnosis of Personality Disorders, a disorder which can interfere with the day-to-day functioning of someone who is so afflicted. While he "deferred" his diagnosis in respect of this disorder, he did state that it is very difficult to change a person's personality unless that person is motivated to change.

[61] Finally, court heard from Dr. K, currently chief of psychiatry at the William Osler Health Centre. On March 16, 2011, approximately nine months following the apprehension of the children, mother was brought to the Emergency department by police after being called by the society when mother reportedly uttered suicide threats. Dr. K agreed with the prior assessment of Dr. H and he concluded there was insufficient evidence to involuntarily admit mother to hospital.

[62] At trial, Dr. K stated that an "adjustment disorder" is a state of emotional disregulation in response to situational stress, and it can last for weeks or many months, depending upon the nature of the stress. The impact of this disorder on the individual will vary, depending upon the stress and the degree of that disorder.

[63] In summary, the court received a considerable amount of psychiatric evidence. There is nothing magical about such evidence that would require a court to decide a case based on such evidence alone. As with any evidence adduced at trial, the evidence must be carefully considered and given whatever weight the court deems appropriate having regard to the totality of the evidence presented at trial. If the psychiatric evidence is markedly at odds with the rest of the credible evidence, it will likely be given less weight. If, on the other hand, the psychiatric evidence is aligned with the on-the-ground evidence presented at trial, then common sense dictates that it is likely to be given much greater weight.

[64] In this case, having considered all of the evidence, I make the following findings respecting mother's mental health:

• Mother does not have a major mental illness;
• Mother has an adjustment disorder and very likely a personality disorder;
• Her disorders are likely of long-standing duration; and
• She has little or no insight into the state of her mental health and the serious obstacles that her mental health issues pose. And because of this, she has no motivation to work toward a remediation of her mental health deficits.

[65] I will address the implications of the psychiatric evidence when I deal with the assessment of mother's plan, to which I now turn.

Mother's Plan of Care and the Viability of That Plan

[66] Mother's amended Answer and Plan of Care is dated January 24, 2013. In that Plan she seeks the return of both children to her care. She asserts that she is willing to be bound by the terms of a supervision order. Her Plan of Care disputes the society's allegations, some of which include:

• "Her poor mental health and its impact on her level of functioning, ability to parent, and ability to maintain a safe and hygienic home environment for the children";
• "Her ability to prioritize the children's needs . . . leading to instability and a lack of structure for the children, including poor school attendance for Martin";
• "frequently leaves the children in the care of others as she travels for her own personal reasons";
• "hazardous items in easy reach of the children, and to the point that items in the home have fallen on the children and injured them";
• Her "verbal aggression and severe mood swings"; and
• Her "hoarding behaviour while the children were in the home with" her.

[67] I list these few allegations and mother's responses to them to illustrate that despite the considerable evidence to support the society's concerns, mother essentially continues to deny them. And because she is in a state of denial, she lacks the insight which, according to the psychiatric evidence, is a necessary first step toward remediation.

[68] In her Plan of Care, she discloses three support persons who she says will assist her in caring for the children. The first is husband number two, Lloyd, with whom she was in a relationship for about one year, from 1999 to 2000. This is the person who mother said was "verbally abusive" to her. Lloyd testified that he has visited with mother a few times but he lives far away from mother and doesn't really see her. He said if the children were returned to mother, he would provide moral support and even financial support.

[69] While perhaps mother would like to see Lloyd as a viable support person, it is clear to me from the evidence that Lloyd is not someone who is able to fulfil such a role in any meaningful way. Because of their history together, at worst, his presence in mother's life would be very much a negative; at best, it would be little more than benign.

[70] The second person mother lists as a support is Subrian who is apparently a lay priest at the local temple where mother attends. He testified that mother and her children used to come to the temple regularly and that his primary knowledge of the family comes from that attendance, rather than the family home, which he said he doesn't know about "that much". He was asked how he would assist the mother if the children were returned to her. He said he would do so through "classes", "singing" and "prayers". He would also give "advice". While some sort of spiritual sustenance might be nice for mother, this is not what mother requires in order to address her very serious issues.

[71] Mother's third support person is a woman named Anama. This person did not testify at trial and, accordingly, the court knows virtually nothing about her.

[72] Mother did produce two additional witnesses, both of whom said they were prepared to act as supports. The first, Ms. Ramnarain, is a single mother with two grown children in their 40's. She has known mother since May 2012. She has met the oldest child Ma, but has never met the younger two children. Her plan would be to move into mother's apartment. She describes herself as a "strict disciplinarian" who would "report" mother "if things don't go my way".

[73] Ms. Ramnarain describes mother as "cool, calm and collected". She has never seen mother express any anger or hostility. She has never heard mother being "loud" or seen mother become angry. Between May and October 2012, when mother was having supervised visits with the younger children, Ms. Ramnarain never suggested coming along with mother to visit with the children. When she was asked why she never suggested this, she responded "I don't know".

[74] This person impressed the court as well-intentioned and likely sincere in her desire to help mother. But she has never even met the children and she really knows nothing about mother's mental health problems and the aggressive and hostile way in which these problems manifest themselves. The picture she paints of mother is very different from the one that the society – and now the court – has come to know.

[75] The final support person proffered by mother at trial is a woman by the name of Patricia. Patricia and mother were neighbours in the same apartment building for about one year between approximately June 2010 and June 2011. At most, she would have had contact with the two younger children for a few weeks before they were apprehended by the society. She said she would support mother "in whatever way I can".

[76] In her examination in chief she described mother's apartment as "very attractive", with "good furniture", a "good scent" and "immaculate", and mother herself as some who was "talkative", "excitable" and someone who "brings life to a room". In her cross-examination she was shown pictures of clothes strewn about mother's floor, the dishwasher stacked so high with dishes that it could not be closed, and the bathroom overflowing with garbage. She was then asked whether this was consistent with the adjectives she had earlier used to describe mother's apartment. She responded by saying this was normal. She also acknowledged not really understanding why the society became involved in the family's life, or knowing anything about mother's history with the society.

[77] Again, as with the other support persons, it was clear to the court that Patricia has little understanding of the issues at play, including mother's history, the events leading to her involvement with the society or her mental health deficits. In essence, Patricia is little more than a kindly neighbour who was able to come to court to offer some supportive words.

[78] Mother's support persons seemed to have been cobbled together for the purpose of this trial. I am prepared to accept the sincerity of each of them. But none of these supports go to the heart of what mother's difficulties are about, as discussed in some detail by Doctor Wittenberg. Mother's chaotic, self-centered behaviour operates to the detriment of her children. None of her support persons have any real understanding of mother's history with the society, why the society became involved, or mother's mental health issues. What they know about this case is what has been told to them by the mother. In order to be meaningful supports, individuals would require a thorough understanding of the issues, not simply as filtered by mother but, more importantly, from spending time with the society workers in order to gain an accurate understanding of the history of this case, in an unvarnished way.

[79] But the problems for mother go much deeper than simply the inadequacy of her support witnesses. Even if those individuals were fully aware of mother's circumstances and her personal challenges, in my view, no supports would be sufficient to overcome mother's fundamental problems. As I concluded earlier, based on all the evidence, mother's mental health deficits are of long-standing duration, and she has no insight into the nature and extent of those deficits. I agree with the thrust of the psychiatric evidence that in mother's circumstances, these issues are not capable of remediation in the near term; and so long as they remain extant, mother will be incapable of parenting her children in a consistently adequate manner, regardless of any supervision or support persons who may be on the scene to assist her. What she needs is not people to drive her to appointments or for respite purposes but, rather, insight into her personality disorder, and a desire to undertake the necessary long-term therapy and counselling that would be essential to reshaping her behaviour. Regrettably, this insight does not exist.

Consideration of the Decision of the Child and Family Services Review Board

[80] As I noted earlier, mother complained to the Board about the services the society was providing to her and the children, as well as the society's treatment of mother. One of the conclusions the Board reached was that mother has a "mental health disability" and that the society

did not meet its obligation to accommodate [her] mental health disability, with respect to how it heard her when decisions were made or when she had concerns and how it responded to her regarding decisions about her interests, including those of her children.

[81] The Board stated:

The society was essentially at a loss as to how to respond to the applicant given her volatility and her frequent, often repeated concerns. On certain occasions, the applicant was adequately heard and provided with information. However, overall, the society avoided confronting the concerns or issues raised by the applicant directly with her, due to their fear that these discussions would erupt into aggressive and/or threatening behaviours on the part of the applicant. This avoidance on the part of the society contributed to the applicant's feeling disrespected and unheard by the society.

[82] It was essentially on this basis that the Board concluded that the society failed to adequately accommodate mother's "disability" under the Human Rights Code.

[83] Mother's counsel relies on this finding by the Board to argue that the society's failures to meet its statutory obligations are fatal to the society's application for Crown wardship, citing my own decision in Children's Aid Society of Toronto v. K.B., [2007] O.J. No. 5090. In that case the society itself recognized that there was a realistic possibility of reuniting the family if the society facilitated appropriate counselling. Having made this determination, the society in that case failed to do what its own workers recognized was a necessary precondition to family reunification. The society then came to court and argued that because the statutory time limit had been exceeded the child ought to be made a Crown ward, regardless of the fact that it had failed to provide the necessary services which it was statutorily obligated to do, according to the society's own evidence.

[84] The facts in K.B. were highly unusual. Essentially that was a case where the society itself acknowledged its failure to undertake certain steps that could have led to family reunification. That is not the case here. While the Board may have found that the society failed to do certain things, including accommodating mother's mental health disability, the overall evidence at this trial persuades me that the society worked very hard to assist mother. The workers kept returning to the house over and over again, giving mother repeated opportunities to remedy the unsafe state of her home, rescheduling appointments with her that mother continually cancelled, and all of this in the face of ongoing abuse directed to the workers by the mother.

[85] Does this mean that the society acted perfectly? In hindsight, it is often possible to speculate that the society may have been able to do something else to assist a family. However, the court must have regard to the totality of the evidence. The society struggled mightily with the mother and, in my view, it acted reasonably in the circumstances. It made all efforts that could reasonably have been expected of its workers. Regardless of the possibility that the society may have been able to do more, an extra effort here, or an extra effort there would not, in my view, have made any material difference. The core issue in this case is not about whether the services which the society offered to mother met some standard of perfection, but mother's own serious mental health deficits which were not correctable by the society, regardless of what the society may have done.

[86] Although early in this trial I ruled that the Board's decision could be admitted into evidence, the society, in its final submissions, nevertheless urged me to discredit that decision, for reasons which I do not need to discuss here. I address the Board's decision only insofar as is necessary for the purpose of formulating my own decision. It is certainly not for this court to criticize the findings of the Board, and I specifically decline to do so. Suffice it to say that on the evidence presented to this court at trial, I am more than satisfied that the society met its statutory obligations to service mother and her family, as reasonably best it could. And because of that, the K.B. case has no applicability to the facts of this case.

The Statutory Path

[87] The Act sets out the statutory path which the court must follow where a child has been found in need of protection, as is the case here:

Order Where Child in Need of Protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

Supervision Order

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

Society Wardship

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

Crown Wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive Orders of Society Wardship and Supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, s. 13 (1-3).

Court to Inquire

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4).

Less Disruptive Alternatives Preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15 (1).

Community Placement to be Considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4).

[88] As noted above, subsection 57(1) of the Act requires the court to consider this statutory path having regard to what is in the best interests of the children. Subsection 37(3) of the Act provides:

Best Interests of Child

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3).

[89] In the circumstances of the present case, the clauses which I consider to be the most salient are 1, 8, 10, 11 and 12. All of those clauses, when read together are about the risk of serious harm to these children were they to be returned to the care of their mother, and the delay that has so far been incurred in planning permanently for these children. Of course, those clauses require the court to balance these considerations with the merits of returning the children to the care of their mother.

[90] For the reasons I have articulated, I have come to the conclusion that a supervision order is not in the best interests of these children. The mother's relationship with the society is toxic and there is no realistic likelihood that she would be willing to work cooperatively with the society in respect of any terms and conditions the court would see fit to impose. For a supervision to have any hope whatsoever of succeeding, mother would have had to demonstrate that she is aware of her significant parenting deficits that require remediation and the consequential need for her to work in conjunction with the society.

[91] Beyond that, however, even if the mother were willing to comply with terms of a supervision order, there is no order that could address the risk of harm to the children in the circumstances of this case. The totality of the evidence makes it clear that mother's mental health deficits are of such long-standing duration that, at best, she would wax and wane in terms of her ability to parent these children. In the end, the very best these children could hope to experience if they were returned to their mother's care, is a parent who is centred on her own needs most of the time, and only occasionally focused on the needs of her children. In my view, this would be a recipe for both emotional harm as well as physical harm for these children.

[92] At this point, I summarize the main reasons why placement of the children with the mother is not an option:

1. Mother has a long history of connecting with multiple and abusive partners:

a. Colin in 1996, who mother described as physically abusive to her;

b. Lloyd, from 1999-2000, who mother described as emotionally abusive to her;

c. Joel, from 2000-2004, who mother described as emotionally abusive to her; and

d. R.B., the father, from 2005 onward, who mother testified "raped" her on the first night they spent together while her son Ma was in the next room. And despite this, she chose to remain with R.B., rather than going to friends or to a shelter, choosing to expose herself and her child to the harm that would result from being in a relationship with someone who would treat her so violently;

2. Mother's long-standing mental health issues, which I have discussed in considerable detail. Mother has no insight into her mental health challenges. She sees herself as essentially a healthy person who has been victimized by the society's actions toward her and her family, particularly in light of what she sees as a validation of this perception by the Board's decision. Her perceptions of herself and how she has parented her children are out of step with reality, and because of this she has no motivation to engage in therapy which, in any event, according to Doctor Wittenberg would take years to effect any meaningful change, in respect of her ability to be a responsible parent.

3. Mother is self-centred, often placing her own interests and needs ahead of her children's needs. Her repeated expressed wishes to take trips out of Canada – to India in March 2010, Washington in May 2010 and England in June 2010 – while in the midst of a burgeoning child protection crisis demonstrated an inability to prioritize her children ahead of her own wants and desires. That self-centredness also manifested itself in bringing male friends to access visits and focusing on them instead of her children and focusing on her cell phone during visits instead of on her children. One of the more pointed examples of that self-centredness was complaining to her children, during an access visit about being "poor mommy", without any understanding of how this might impact on her children.

4. Her lack of emotional self-regulation. Her unrelenting anger toward the society workers, forcing police to become involved to remove her from the society's offices. This behaviour was often expressed in the most vile and vehement manner, and on occasion in front of her children, without any understanding of how that behaviour could possibly result in emotional harm to her children.

5. Her inability to ensure her children were attending school on a regular basis, as evidenced by Ma missing 40 days of school in the 2009-2010 school year. This was entirely unexplained by mother.

6. Her inability to maintain her home in a safe and uncluttered state, leading to injuries to her children on multiple occasions.

[93] Society wardship is not an option. Subsection 70(1) of the Act, limits the time in society care to 12 months for children less than six years of age, and 24 months for children who are more than six years of age. These children have been in care for approximately 35 months, well in excess of the statutory time limits.

[94] Pursuant to subsection 57(4), the court has in fact considered community placements. Midway through the father's case at trial, it appeared to the court that the paternal grandparents and possibly the paternal uncle might have been willing to plan for the children. As a result, and with some considerable reluctance, I adjourned the trial for several weeks to permit the society to fully investigate the merits of these plans. As it turned out, the grandparents, who had stated their willingness to plan, subsequently withdrew their plan. And the paternal uncle did the same. No one else has been identified as a possible community placement for these children.

[95] Following along the statutory path, and having considered all other options, the court is left with the sole option of making these two children Crown wards.

Access Following the Making of a Crown Ward Order

[96] Mother argues that if the court makes an order for Crown wardship, there should be an order permitting mother to have access to the children. The statutory provision regarding access following the making of a Crown wardship order is the following:

Access: Crown Ward

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

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

(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2).

[97] In Children's Aid Society of Haldimand and Norfolk v. R.D. 2011 ONSC 4857, [2011] O.J. No. 4082 (Ont. S.C.), Justice J. Turnbull stated, at paragraphs 28 and 29:

It is an accepted legal principle that the person seeking access to a Crown ward must satisfy the court that access should be granted. This includes demonstrating that an access order will not damage a child's chances of being adopted. Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (C.A.); Children's Aid Society of Niagara v. J.C., [2007] O.J. No. 1058 (Div. Ct.) at para. 23.

Under section 59(2.1), the onus remains upon the person seeking access to prove on a balance of probabilities that the legislative tests for access have been met. The law and the rationale for the legislative provision have been very articulately stated by Perkins J. of the Court in Children's Aid Society of Toronto v. T.L. 2010 ONSC 1376, [2010] O.J. No. 942 (S.C.J.) at paras. 23 and 25 to 27.

[98] What that means, in this case, is that mother has the onus of proving on a balance of probabilities, both prongs of the test at section 59(2.1).

[99] Turning to the first prong, in my view mother has not proved that her access to the children would be "beneficial and meaningful". Undoubtedly there were a number of successful access visits. And it is certainly open to the court to conclude that the children enjoyed a number of these visits. I accept mother's evidence that she loves the children and I am also prepared to accept for the purposes of mother's argument that the children love her. However, none of these is sufficient to satisfy the test of "beneficial and meaningful".

[100] In Huron-Perth Children's Aid Society v. J.F. [2012] O.J. No. 5215 (S.C.J.), Justice I.F. Leach stated, at paragraphs 77 and 80:

As noted above, s. 59(2.1) of the CFSA also demands that a Crown ward access order not be made unless the court is satisfied that "the relationship between the person and the child is beneficial and meaningful to the child".

Numerous decisions have explained what the terms "meaningful" and "beneficial" require in this context. . . . [including a relationship] that is "advantageous" [and] "significantly advantageous to the child". I read clause 59(2.1) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother learns how to be a responsible parent.

[101] In the context of the present case, I have concluded that mother has significant parenting deficits that would impair her ability to safely and competently care for her children. This would operate to the detriment of her children. Her children cannot be "expected to wait and suffer" while mother works on those deficits – even assuming such were possible. I realize that the level of competent parenting required for the purpose of access visits alone is less than what is required of a fulltime parent. But nevertheless, even an access parent must be capable of demonstrating safe and responsible parenting, something which mother has been unable to demonstrate, in a consistent manner. I must conclude, therefore, that access would not be beneficial and meaningful to these two children.

[102] As mother has failed to meet the first prong of the test for access, that failure would be sufficient to dismiss her claim for access to the children. Nevertheless, I will also consider whether mother has met the second prong of the test, namely, whether access would impair the children's "future opportunities for adoption".

[103] Ms. Thompson, on behalf of mother, relies on a decision by Justice Ellen Murray in Catholic Children's Aid Society of Toronto v. M.M. 2012 ONCJ 440 as standing for the proposition that the evidentiary burden on this point rests with the society to establish that access would not having a "chilling effect" on the potential pool of adoptive parents. In that regard, Justice Murray stated, at paragraphs 235 to 237:

For the court to evaluate these arguments [ie, whether access would impair opportunities for adoption], evidence about the characteristics of the pool of prospective adoptive parents is required. It is the Society, and not M.M. and J.N. who has access to this data. The Society chose not to present evidence on this point.

M.M. and J.N. bear the onus of satisfying me that an order for access will not impair L.M.'s opportunities for adoption. They have presented all the evidence they could reasonably be expected to marshal on this point. The Society has presented no evidence on the beliefs and attitudes of its pool of potential adoptive parents as regards possible openness arrangements for L.M., and I decline to make a finding on this point without evidence.

I am satisfied based on the evidence presented that an access order in this case will not impair L.M.'s opportunities for adoption.

[104] I do not take Justice Murray's comments as standing for the notion of a reverse onus on the society. She does state that the onus rests with the parents. Justice Murray noted that the parents called evidence on this point and the society did not call any evidence. What I conclude from this is that the parents raised a prima facie argument in their favour and the evidentiary burden then shifted to the society, which the society then failed to meet.

[105] The facts of that case, on the issue of adoptability, are not the facts of this case. In this case, the mother called no evidence on the issue of whether her access would impair these children's future opportunities for adoption.

[106] Even if Ms. Thompson is correct, that Justice Murray's comments could be interpreted as placing a greater evidentiary burden on the society than on the parents, I would respectfully disagree that this greater evidentiary burden is consistent either with the wording of the Act or the weight of the authorities that have considered that wording. In that regard I prefer the comments of Justice Stanley B. Sherr in Catholic Children's Aid Society of Toronto v. S.S. 2011 ONCJ 803, [2011] O.J. No. 6076, where he stated, at paragraph 145:

Until recent amendments to the Act, a society was unable to place a Crown ward for adoption if there was an outstanding access order under Part III of the Act. Crown wards with access were not eligible for adoption. Section 141.1 of the Act has now been amended to allow societies to place Crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair or even reduce either element of the conjunctive test in s. 59(2.1). The court must still be satisfied that "access will not impair the child's future opportunities for adoption". The operative words of s. 59(2.1)(b) – "will not impair" – place an onus on the parents to satisfy the court that access to the Crown ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption. The onus on parents remains high. See: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC, paragraphs [419]-[421] and [427]

[107] I agree with Justice Sherr who in turn, as noted above, was following a decision of the Superior Court of Justice, and which I consider to be binding authority on this court. The onus on the mother in this case is "high". She has not come close to discharging that onus.

[108] The mother has failed to meet both prongs of the test at section 59(2.1) and, accordingly, her claim for access to the two children as Crown wards must be dismissed.

Father's Plan

[109] Father's plan was for the children to live with him pursuant to a supervision order. He was planning to enlist the support of his parents, as well as his brother.

[110] Father has a number of convictions for crimes of violence and violence-related offences against his own parents as well as others. He was often the perpetrator of domestic violence directed at the mother. He is presently facing at least one outstanding criminal charge. He testified that if he is sentenced to a period of incarceration in respect of the outstanding charge, his parents and his brother would care for the children.

[111] Father greatly minimized what was some quite serious criminal behaviour on his part. By way of example, he was convicted of dangerous operation of a motor vehicle in 2011 after he rammed an automobile on the Don Valley Parkway, a dozen times, causing thousands of dollars in damage to the vehicle. And yet, he testified at this trial that he was unaware that he had even hit that vehicle.

[112] In 2005 he was convicted of assaulting his own mother and uttering a death threat to her, events which took place over several days. When father was asked about this at trial, he attempted to significantly downplay his conduct by stating "we had arguments, disagreements for a few days". As I noted early in these reasons, he had told mother about this by stating simply that he had "some litigation with his parents".

[113] There are many other examples of serious criminal and criminal-type behaviour by father over the past few years that reflect his inability to self-regulate his anger and aggression. This recent history of serious anger management problems, as evidenced by corresponding criminal convictions, make his plan to care for the children unrealistic. Certainly, the court could give no consideration to such a plan unless the father had trusted and reliable supports in place. On the evidence, including father's own mother and his brother both abandoning father's plan at this trial, no such supports exist.

[114] The father effectively abandoned his plan prior to the completion of his case. His own mother who attended to give evidence in chief, failed to re-attend court to be cross-examined. The father himself failed to re-attend court, after the lengthy adjournment when both his parents as well as his own brother backed away from planning for the children. On April 18, 2013, father's counsel advised the court that he had been trying for some weeks to contact father, unsuccessfully. Mr. Novak also advised the court that the grandmother was not returning to court to complete her evidence because she herself had been unable to contact her own son. Mr. Novak also spoke with the father's brother who confirmed that he was withdrawing his plan.

[115] All of this, while technically not constituting evidence as it came directly from Mr. Novak, was in fact confirmed by reply evidence from the society worker who was able to testify to all of the salient facts.

Conclusion

[116] As I noted earlier, the mother's plan is not in the best interests of the children. Regrettably for her, she is unable to establish on a balance of probabilities that if the children were returned to her care, she would consistently be able to responsibly and competently parent the children in a risk-free way. The children have run out of time to remain in the care of the society under a society wardship order. And there are no other viable plans for the children. Accordingly, the court is left with no other option but to order that both children be made Crown wards so that they can be placed for adoption.

[117] Finally, I wish to thank all three counsel for the professional manner in which they presented their respective cases. Ms. Thompson and Mr. Novak in particular, were faced with very challenging tasks, and both demonstrated preparedness, courtesy and respect toward the many witnesses who testified throughout the course of this trial. For that, the court is most grateful.

Justice Robert J. Spence

15 May 2013