WARNING

The court hearing this matter directs that the following notice be attached to the file:

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

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Date: June 7, 2013

Court File No.: Welland 597/09

Between:

The Children's Aid Society of the Niagara Region, Applicant,

— AND —

M.B. (Mother) Respondent.

Before: Justice L.S. Parent

Heard on: May 6th, 7th, 8th and 9th, 2013

Reasons for Judgment released on: June 7, 2013

Counsel:

• L.C. Henry – counsel for the applicant
• R. Barch – counsel for the respondent mother
• E. Grinbergs – counsel for the Office of the Children's Lawyer, legal representative for the child

PARENT, J.:

INTRODUCTION

[1] The child who is the subject of this proceeding is A.B., born on […], 2000, and currently 12 years of age. The parents are Ms. M.B. ("the mother") and Mr. M.B. ("the father"). The father was not residing with the mother at the time of the Society's involvement.

[2] The mother has an older child, S.J.W. who resided with the mother and the child A.B. when the Children's Aid Society of the Niagara Region, also known as FACS ("the Society") was involved with this family. The mother was also in a common-law relationship with Mr. S.W.("the step-father"). During this relationship, the step-father impregnated S.J.W., who was seventeen (17) years of age at the time and developmentally delayed, which resulted in the birth of a child E.W. E.W. was made a Crown ward without access on January 4th, 2011.

[3] The Society issued a Protection Application on December 15th, 2009 seeking a supervision order regarding the child A.B. as a result of the disclosure of the sibling S.J.W. regarding the step-father. A.B. was removed from the care of the mother on January 21st, 2010. An order for temporary care and custody of the child was made in favour of the Society on January 26th, 2010.

[4] On June 7th, 2010, Justice Martin found A.B. to be a child in need of protection pursuant to sections 37(2)(b)(i), 37(2)(b)(ii), 37(2)(g) and 37(2)(f) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended ("the Act"). The statutory findings were also determined on that date.

[5] On September 22nd, 2011 the child A.B. was made a Crown ward without access by Justice Nevins following a summary judgment motion. This order was subsequently appealed by the mother.

[6] The mother withdrew her appeal of the disposition of Crown wardship. The appeal proceeded solely on the "no access" provision.

[7] On April 27th, 2012, Justice Henderson of the Superior Court of Justice ordered that the "no access" provision of Justice Nevins' order be set aside and that a trial be held on this issue alone.

[8] On July 10th, 2012, Justice Martin made a temporary order for access between the mother and the child until the hearing of the trial. The access was to be supervised and at the frequency of once per month for two hours to be arranged by the Society commencing July, 2012.

[9] The trial on the issue of access was held on May 6th, 7th, 8th and 9th, 2013.

2. POSITIONS OF THE PARTIES

A. The Society

[10] The Society seeks an order of no access for the purpose of adoption.

B. The mother M.B.

[11] The mother seeks an order for access. Her position at the commencement of trial was that she was seeking an order for specified access twice per month and during special holidays/occasions. She also sought an order for reasonable telephone access. At the conclusion of the trial, the mother's position was that she would accept any access as ordered by the court but indicated a desire for once every two months and during special holidays and occasions.

C. The father M.B.

[12] The father was served with the Protection Application. He did not file an Answer or a Plan of Care in these proceedings. He did not participate in the trial. The father Mr. M.B. is noted in default.

D. The step-father S.W.

[13] The step-father filed an Answer and Plan of Care in these proceedings. On March 25th, 2010, S.W.'s motion requesting that his Answer and Plan of Care be withdrawn was granted. Following this order, S.W. did not participate in the proceedings.

E. The Office of the Children's Lawyer

[14] The child, A.B., has been represented by counsel throughout these proceedings. Counsel was assisted by a clinical investigator. The OCL counsel supports the order sought by the Society, namely an order of no access.

3. ISSUE

[15] The sole issue before the Court is whether or not access should be ordered between the child, A.B and her mother, Ms. M.B.

4. STATUTORY FRAMEWORK

[16] All counsel agreed that the relevant section of the CFSA is s. 59(2.1) which reads as follows:

ACCESS: CROWN WARD – A court shall not make or vary an access Order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

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

[17] Given that the child A.B. was made a Crown ward on September 22nd, 2011, the court is bound by the test outlined in section 59(2.1).

[18] All counsel submitted and the Court agrees that the evidentiary onus is on the mother to establish that the test pursuant to section 59(2.1) has been met beyond a balance of probabilities. The consideration of what is in A.B.'s best interests, as required under section 58 of the CFSA, is only relevant if the Court determines that the test pursuant to section 59(2.1) has been met.

5. ANALYSIS

[19] In order to consider whether or not the mother/daughter relationship is meaningful and beneficial to A.B. as required under section 59(2.1), it is necessary for the Court to consider the nature of the relationship between them as supported by the evidence lead by the parties at trial. In so doing, it is necessary to isolate three distinctive periods in time:

1. From September 22nd, 2011 to July 9th, 2012 when no access occurred, given the Crown wardship no access decision of Justice Nevins;

2. From July 10th, 2012 to February 28th, 2013 when access was re-instated by the order of Justice Martin and supported by the Society and the OCL; and

3. From March 1st to May 6th, 2013 when access was occurring although no longer supported by the Society and the OCL.

QUESTION 1: Is the relationship between the child, A.B., and the mother, Ms. M.B., meaningful?

A: Evidence submitted at trial for the period between September 22nd, 2011 to July 9th, 2012

Evidence of the Society

Diane Tuttle

[20] Ms. Tuttle has been the child's service worker since A.B. was brought into foster care in January 2010.

[21] Ms. Tuttle prepared an affidavit for trial. This affidavit, sworn on February 28th, 2013, was entered as an Exhibit at Tab 1 of Exhibit 2 of the Affidavit Brief. Ms. Tuttle adopted her affidavit as accurate.

[22] Ms. Tuttle details, in her affidavit sworn February 28th, 2012, her contact with A.B. while awaiting the appeal decision regarding Justice Nevins' order of Crown wardship with no access. At paragraph 11, she states "A.B. stated that she hopes her mom appeals the decision if the Judge orders 'no access'."

Evidence of the OCL

Jenny Athanasiou

[23] Ms. Athanasiou testified that she is a social worker currently employed as a clinical investigator with the Office of the Children's Lawyer since 2011 and an after hours worker for the Hamilton-Wentworth Children's Aid's Society.

[24] Ms. Athanasiou also provided evidence for this relevant period in an affidavit sworn February 19th, 2012. The affidavit was adopted by her and was filed as an Exhibit to this trial. This affidavit indicates that Ms. Athanasiou has been involved in this matter since January 2012.

The affidavit clearly sets outs A.B.'s wishes to see her mother notwithstanding the outstanding appeal. Ms. Athanasiou states at paragraph 20:

"A.B. stated that if she could tell the judge what she thought, she would tell him that she felt he was 'stupid' because he decided that she could not see her mother."

[25] Also of relevance are the following paragraphs:

Paragraph 27

"Throughout the interviews, A.B. shared that she wanted to maintain a relationship with her mother and when questioned, A.B. described being sad and angry that she no longer has access."

Paragraph 29

"It was evident through the interviews and her description of her mother and the time they spent together that A.B. has a meaningful relationship with her mother. A.B. has been in the care of her mother from birth until the age of 9 and had developed a close bond with her. She has many positive memories of living with her mother and, when she was removed from her care, she enjoyed the visits she has with her mother until the Court terminated the access. She seems genuinely perplexed by the decision to cut off all contact with this person she loves."

Evidence of Ms. M.B

The mother

[26] The mother did not address this period in her evidence as she was not having access with A.B. at this time. The mother, however, did testify that her relationship with her daughter prior to the apprehension was very good. Ms. M.B. testified that A.B. wanted to go everywhere her mother went.

Character witnesses

[27] Several character witnesses namely Gregory Teszner, Kira Hartlieb, Jennifer Walsh, Melony Connor, and Kristin Zacharchuk supported the mother's evidence. These witnesses provided evidence by way of sworn affidavits, which were adopted by each of them and entered as Exhibits in the Affidavit Brief at Tabs 3-7 inclusive. These witnesses also provided oral evidence.

[28] Although these witnesses testified that they have not had any direct contact with A.B. and her mother since the apprehension in January 2010, they provided some corroboration of the mother's evidence regarding her close bond with her daughter prior to the Society's involvement.

B: Period between July 10th, 2012 and February 28th, 2013

Evidence of the Society

Diane Tuttle

[29] The affidavit of Ms. Tuttle sworn February 28th, 2013 indicates that the first access visit between A.B. and her mother following the order of Justice Martin occurred on July 31st, 2012. Visits occurred once per month for two hours thereafter as required by the court order.

[30] The affidavit of Ms. Tuttle provides significant knowledge regarding these access visits as she was the individual supervising them. Specifically, Ms. Tuttle's evidence clearly demonstrates that Ms. M.B.:

(a) was prepared for the visits in that she organized activities for A.B. including crafts, baking cookies and making caramel apples;

(b) usually demonstrated appropriate affection to A.B. during the visits; and

(c) provided healthy snacks.

[31] Ms. Tuttle was equally clear, however, that she had significant concerns regarding the mother's behaviour during these visits, including:

(a) the mother silently mouthing instructions to A.B. which appeared to be directions for A.B. to do something;

(b) the suspicious behaviour of the mother which lead Ms. Tuttle to believe that the mother was audiotaping the visits;

(c) the mother questioning the re-direction comments given by Ms. Tuttle during the visits;

(d) the mother re-organizing the room where the visits were being conducted in a manner which appeared to achieve the goal of blocking Ms. Tuttle's view of the interaction between A.B. and her mother;

(e) promises by Ms. M.B. to send A.B. items in the mail;

(f) the mother engaging in behaviour which appeared to conceal information given to A.B.;

(g) Ms. M.B. providing excuses to justify her suspicious behaviour;

(h) Ms. M.B. bringing excessive gifts for A.B. at each visit;

(i) Ms. M.B. giving A.B. a business card during one of the visits; and

(j) Ms. M.B. frequently asking A.B. many detailed questions about her activities outside the visits, her school, and friends.

[32] Ms. Tuttle also testified that the Society discovered that Ms. M.B. did not stop or discourage a family member from sending cupcakes to A.B. at school on Valentine's Day. Ms. Tuttle testified that Ms. M.B. and Mr. S.W. showed up on the last day of A.B.'s camp without the Society's approval or knowledge in clear contravention of Justice Martin's order. Despite these concerns, the affidavit of Ms. Tuttle dated February 28th, 2013 states at paragraph 93:

"The Society is in agreement with the Children's Lawyer's affidavit with respect to a maximum of six two-hour visits per year between the child and Ms. B. The visits should take place in the community, and be supervised by a neutral third party".

Evidence of the OCL

Jenny Athanasiou

[33] Ms. Athanasiou provided evidence for this relevant period by way of an affidavit sworn February 21st, 2013. The affidavit was filed as an Exhibit to this trial at Tab 2 of Exhibit 2 of the Affidavit Brief.

[34] The affidavit of Ms. Athanasiou indicates that her first contact with A.B., once the access visits were re-instated by the order of Justice Martin on July 10th, 2012, was on August 29th, 2012. Her affidavit states at paragraph 3:

"A.B. shared that she continued to attend for supervised access visits with her mother at the FACS office. She described being excited to attend and shared that visits were fun as they did crafts. She wished that visits could be longer and in the community."

[35] At paragraph 6, Ms. Athanasiou writes:

"On January 18th, 2013, I attended FACS to observe a supervised visit with A.B. and her mother. A.B. and her mother were actively engaged in games and crafts and enjoyed their time together…A.B… shared that she would like access to increase and suggested to maybe 3 times per month, however she could not say why."

[36] Ms. Athanasiou concludes at paragraph 9 that

"The visits are meaningful to A.B. as it reassures her that her mother is doing well and allows her to continue her relationship with her…"

[37] She continues at paragraph 12 by stating

"In light of the above situation the OCL position on access remains that it should not impede or interfere with a successful adoption placement with foster parent Bill and as long as this precondition is met than closely supervised access could be as much as 2 or 3 hours every other month."

Evidence of Ms. M.B.

The mother

[38] The mother testified that that prior to her first visit with A.B., following the reinstatement of access, A.B. called her from a payphone in Niagara Falls on July 3rd, 2012. She testified that A.B. left a message on her cellphone saying "I love you, miss you, you complete me".

[39] The mother further testified that a 2nd message was also left that day asking her to add a friend of A.B.'s on her Facebook page so as to allow A.B. to contact her. Ms. M.B. added the friend and then contacted A.B. on Facebook on July 4th, 2013. The mother testified that she did not disclose this communication to the Society or the OCL and knew that such contact was not permitted.

[40] Ms. M.B. testified that she attended A.B.'s last day of summer camp following what she described as a "funny" phone call from the camp director. She testified that the call was to inform her that A.B. was requesting that she be present for a play to be held on the final day of camp. There is some doubt as to whether or not this call occurred as the camp director was not called as a witness in these proceedings. It is clear, however, and acknowledged by the mother that she did not seek prior approval from the Society or inform the OCL of her attendance. Furthermore, she testified that she knew that this contact was not permitted.

[41] The mother testified that the access visits, once re-instated, went amazingly well and were awesome. She testified, however, that it was during this period of time that A.B. began expressing to her that she did not wish to be adopted. This was expressed by A.B. during the visits, by whispering to her mother out of earshot of Ms. Tuttle, and outside the visits. Ms. M.B. testified that it is for this reason that she accepted the contact from A.B. on any occasion as she did not believe her child was being heard and she was never going to refuse her child if she was reaching out to her.

C: Period between March 1st and May 6th, 2013

Evidence of the Society

Diane Tuttle

[42] Ms. Tuttle's evidence for this period was provided orally.

[43] Ms. Tuttle testified that the Society's position regarding access changed as a result of information given to her by the foster father on March 25th or 26th, 2013. Ms. Tuttle testified that A.B. had confided in her foster father the night before that her mother had hidden a note and a self-addressed stamped envelope to Justice Martin inside a gingerbread house Ms. M.B. had brought as a gift for A.B. during the access visit in December 2012. This note and envelope was entered as an Exhibit at Tab 11- Exhibit 1 of the Applicant's Document Brief. The note partially reads as follows:

"If you don't want to be adopted, they can't make you because you are 12 yrs old and my lawyer told me to tell you that you have the right to talk to the judge. Write a letter to the court house and write everything you want to say to the judge, for example you want to be part of the court proceedings, you want to talk to the judge before we go to trial. You're allowed to go to court with your lawyer because you are 12 and you can tell the court that you want to go back to your mom when you are 14-15 yrs old and that you don't want FACS involved any longer…"

[44] The note also contained Ms. M.B.'s email address and an invitation to communicate with her.

[45] Ms. Tuttle testified that A.B. also confided that she had been texting with her mother between visits.

[46] Ms. Tuttle also testified that the concerns regarding the mother's behaviour continued throughout this period. She testified that during the visit on April 26th, 2013:

(a) Ms. M.B. was in the process of bringing her other daughter, S.J.W., to the visit without prior approval of the Society;

(b) Ms. M.B. was abrupt and short-tempered with A.B. and not as complimentary as in past visits;

(c) Ms. M.B. placed her head directly in front of A.B. so that their mouths could not be seen;

(d) Ms. M.B. showed A.B. screen shots on her phone of the coffin of A.B.'s deceased niece, the infant daughter of S.J.W.;

(e) Ms. M.B. directed A.B. to tell the worker that she was keeping an item of clothing given to her by her mother despite this being contrary to the rules surrounding access;

(f) Ms. M.B. told A.B. at the end of the visit while leaving to "have a nice life and do well in school". Ms. M.B. then returned to the room and said "I love you" and left again only to return on two more occasions to say she would never stop loving A.B.;

(g) Ms. M.B. said to A.B. that she was turning 50 and that this would be her last birthday; and

(h) Ms. M.B. appeared agitated throughout the visit and struggled to keep A.B. occupied for the two hours.

[47] Ms. Tuttle testified that these behaviours were present despite the mother having been notified by two letters, on April 15th and 24th, 2013, of the rules surrounding her access visits. These letters were introduced as Exhibits 3 and 4 at the trial. The letters clearly indicate that communication outside of access visits, gifts, discussions regarding the deceased child of S.J.W., placements for A.B. or the attendance of S.J.W. at visits were not permitted.

[48] It is as a result of these incidents that the Society concluded that Ms. M.B. was incapable of abiding by conditions attached to any type of access order and therefore that access could no longer be supported by the Society. The position of the Society was and remains that the consistent and persistent disregard of the rules regarding access by the mother demonstrates her inability to support A.B. in a permanent placement.

Evidence of the OCL

Jenny Athanasiou

[49] Ms. Athanasiou provided oral evidence to the Court regarding this period.

[50] Ms. Athanasiou testified that during her meeting with A.B. on April 27th, 2013, A.B. reported that:

(a) the last visit was boring and she would like the visits to be near water;

(b) her mother did put the note in the gingerbread house;

(c) she would like the visits to stop if her mother's behaviour continues to be in A.B.'s word "loopy";

(d) she would like to see her mother but is concerned because her mother keeps breaking the rules;

(e) she would like to see her mother but would like clear rules around access. If her mother continues to be in A.B.'s word "sneaky", however she would like the visits to stop; and

(f) the visits once per month are a lot and she would like only special occasions.

Evidence of Ms. M.B.

The mother

[51] Ms. M.B. testified that during this period A.B. continued to express to her objections to being adopted. The mother testified that she continued to be concerned that A.B. was not advocating for herself. Ms. M.B. testified that this is why she continued to have contact with A.B. outside of the supervised access visits with the knowledge that this contact was not permitted by court order.

6. CONCLUSION: IS THE RELATIONSHIP MEANINGFUL?

[52] In his decision in The Children's Aid Society of Niagara Region v. M.J., 2004 O.J. No. 2872, Justice Quinn of the Superior Court of Justice, Family Court held at paragraphs 45 through 47 that a meaningful relationship was one which is "significant".

[53] The evidence advanced at trial confirms that all parties, namely the mother, the Society and the OCL, were of the view that access, during the period of July, 2012 to February, 2013 was meaningful and that continued access was being supported by them.

[54] The question therefore is whether or not the new concerns of the Society and the OCL support the conclusion that access is no longer being meaningful? The answer to this complex question is no. The behaviour engaged in by the mother did not render the mother/daughter relationship meaningless or insignificant.

[55] The evidence of the mother is that the efforts she undertook to encourage her daughter to express her views on being adopted were motivated by her love and concern for her. A.B. also clearly stated to Ms. Athanasiou on April 27th, 2013 that, despite her mother's behaviour, she still wished access as "she is still my mom." Such a statement indicates the continuation of the meaningful bond between them.

[56] Given the Court's determination on this issue, it is necessary to determine whether or not the mother/daughter relationship was not only meaningful to A.B. but also beneficial to her.

QUESTION 2: Is the relationship between the child, A.B., and the mother, Ms. M.B., meaningful and beneficial?

Evidence of the Society

Dr. Oren Amitay

[57] The Society presented Dr. Oren Amitay as a witness. Following a hearing on his qualifications, Dr. Amitay was qualified, on consent, as an expert in the area of parenting capacity assessments.

[58] Dr. Amitay undertook a parenting capacity assessment (PCA) of the mother M.B. and the step-father S.W. in the context of their proposed plan to care for the child, E.W. whose biological parents are S.W. and the elder daughter of the mother M.B, namely S.J.W.. Dr. Amitay released his report on November 27th, 2009.

[59] Dr. Amitay's report was tendered, without objection by counsel, in this trial so as to provide the Court with expert evidence regarding the data obtained during the psychological testing of the mother, the conclusions drawn as a result of the data derived from this testing and the behaviours of the mother witnessed throughout the testing.

[60] At the beginning of his testimony, Dr. Amitay described in detail and confirmed the testing process undertaken by Ms. M.B. during the assessment. There was no objection raised by counsel about the substantive facts relied upon by Dr. Amitay in the writing of his report or his evidence at trial. The mother did not dispute the recital of information relating to her contained in the report. There was no cross-examination on the issue of the validity of the tests administered on the mother.

[61] The relevant portions of Dr. Amitay's report are as follows:

"Her (Ms. M.B.) test data reveal significant areas of concern with respect to her thought processes, psychological and emotional functioning, and interpersonal dynamics. Ms. (M.)B.'s impairment in her reality testing, extremely poor judgment and apparent history of inappropriate behaviours is usually found among individuals with certain histories and/or serious psychiatric or psychological conditions. …Notwithstanding Ms. (M.)B.'s claims of a "normal" childhood, the possibility of an inadequate or inappropriate upbringing is consistent with her maladaptive, personal, interpersonal and social functioning." Page 18, paragraphs 4 and 5.

[62] Describing the incident of S.W. having had sexual relations with and impregnating S.W.J while he and Ms. M.B. were in a relationship, Dr. Amitay writes this information is relevant not for

"…moral reasons but because they reveal a severe lack of judgment on the part of Ms. (M.)B. and Mr. (S.)W. In fact, Ms. (M.)B. apparently did not act on her daughter's allegations that the older and much larger Mr. (S.)W. raped her …In fact, it has been reported that Ms. (M.)B. instructed her daughter to recant her story to the school so that she would not lose her other daughter…. She (Ms. M.B.) insists that she never told her daughter to retract her allegations – she currently places most of the responsibility for the sexual relationship on her daughter, despite the girl's age at the time and her reported developmental delays…" Page 17, paragraph 3.

[63] Dr. Amitay concludes that the sexual relationship between S.W. and S.J.W., regardless of its nature, demonstrates on the part of Ms. M.B.

"extremely poor judgment" and "the tests results and interview data reveal a pattern of apparent dishonesty or omission of information…" Page 18, paragraph 2.

[64] Dr. Amitay drew the following conclusions in his report:

"In short, many of the preceding issues reflect Ms. M.B.'s extreme difficulty in examining, connecting with, understanding, regulating and using her own internal processes to guide her actions adaptively. She consequently cannot provide the emotional support and stability a child needs to develop in a healthy fashion. Page 21, paragraph 2.

"Accordingly, Ms. (M.)B.'s failure to make meaningful, long-lasting improvements appears to reflect features of her personality. Defying numerous requests to modify her odd, inappropriate or offensive behaviour suggests an anti-social stance, extreme sense of entitlement and self-interest, and refusal to conform to the expectations of others, especially if doing so interferes with her needs, impulses or pleasure in any way." Page 20, paragraph 1.

"Perhaps more concerning is Ms. (M.)B.'s inability or refusal to comply with repeated requests to cease or modify her inappropriate behaviours."

Page 19, paragraph 2.

"Full compliance and honesty would be required to ensure that the child was not put at risk…The couple's demonstrated lack of judgment, together with their unrealistic perceptions of their abilities and sense of entitlement, strongly implies that they would breach any conditions imposed on them if these conditions interfered with their needs or desires." Pages 22 and 23, paragraph 3.

[65] Dr. Amitay testified that the mother, at the time of his involvement, displayed self-serving behaviour coupled with an inflated sense of self, meaning that she tried to see herself as flawless and therefore in no need of taking directions from others.

[66] Dr. Amitay concluded that these personality traits placed Ms. M.B. at risk of personally attacking, being slightly resentful towards, and undermining anyone questioning her. He further added that Ms. M.B. would likely lack any empathy and would not have sufficient insight to see how her behaviour may impact a child; for example telling a child to lie, and creating loyalty conflicts for the child.

[67] Dr. Amitay testified that Ms. M.B. would place a child's needs quite low and her needs as a priority.

[68] Dr. Amitay was asked if his conclusions would change if he were to learn that Ms. M.B. had been in contact with the child A.B. despite such outside contact being prohibited. He testified that this behaviour would confirm his opinion as such evidence would indicate that the predictions from the test results were accurate given the mother's inability to follow rules and her tendency to do things on her own terms.

[69] In cross-examination, Dr. Amitay was informed that the mother had completed anger management courses, parenting courses, that she volunteers and has maintained employment since the completion of his report. These facts were testified to by Ms. M.B. during her evidence.

[70] Dr. Amitay testified that the completion of parenting and anger management courses would be a good step however he would need to see how the mother was implementing the tools learned in order to determine if the personality/behavioural concerns witnessed by him in 2009 were controlled permanently and dramatically today. He added that the courses taken could merely have resulted in Ms. M.B. learning to control her surface emotions, since an ability to change was not displayed by the mother during his assessment process.

[71] Dr. Amitay testified that given the behaviour displayed by the mother during the assessment process, it would take years and years of extensive therapy to effect change as Ms. M.B.'s behaviour was so profound and she displayed very little empathy.

[72] Dr. Amitay summarized his opinion that Ms. M.B. was judgmental, lacking insight and unability to work and co-operate honestly with the Society. Dr. Amitay concluded that, in his opinion, the conclusions drawn in his November 27th, 2009 report remain valid today as he has not been made aware of any factors which would lead him to conclude otherwise.

[73] Dr. Amitay also expressed concern that any direction from the mother to the child to break the rules, such as writing to the judge, may result in the child suffering from severe anxiety disorder.

Debra Riggs

[74] The Society presented Ms. Debra Riggs as a witness. Ms. Riggs is a Child Life Specialist employed since 1993 with McMaster Children's Hospital – Child Advocacy and Assessment Program (CAAP). On consent of all parties, Ms. Riggs was accepted as an expert in the area of child maltreatment assessment.

[75] Ms. Riggs testified that she is a member of the Child Advocacy and Assessment Program team along with a Paediatrician, a Paediatric Nurse, a Clinical Specialist and a second Child Life Specialist. This team completed an Impact of Maltreatment Assessment on A.B. on May 30th, 2011. This report was entered as an Exhibit at Tab 4 of Exhibit 1 of the Applicant Document Brief.

[76] Ms. Riggs testified that an Impact of Maltreatment Assessment looks at a child's needs at the time of the assessment and in the future. She testified that A.B. was ten (10) years of age at the time of the assessment.

[77] Ms. Riggs described the assessment process as consisting of three (3) interviews with the child over a period of time. She indicated that this process was developed so as to enable trust and comfort to be established, to explain the assessment process and then to explore the concerns within the family. Ms. Riggs further described that the mother participated in the assessment process through direct interviews and a feedback meeting.

[78] There was no objection raised by counsel on the substantive facts relied upon by the Child Advocacy and Assessment Program team in the writing of their report or Ms. Riggs' evidence at trial. The mother, through her testimony, did not dispute the recital of information relating to her or her family as contained in the report. There was no cross-examination by counsel on the issue of the validity of the tests administered on A.B.

[79] The report describes A.B. as follows:

"A.B. presented much spontaneous information regarding her personal and social life, her personality traits, and family relationships. She was consistently animated. It was noted that the information that A.B. presented seemed exaggerated and/or the events she recounted seemed to lack credibility. Furthermore, there were times that the interviewers felt that A.B. was provocative and attention-seeking" Page 8 paragraph 5

[80] The report notes at page 22 and 23.

"When she (A.B.) was gently challenged about the veracity or plausibility of her narratives or provided opportunities to admit to embellishing her narratives, she appeared defensive and there was notable change in her affect. She became less animated and less engaged with the interviewers. She repeatedly denied any exaggeration, rather she often added further fantastical or implausible details and/or information to support her description of events. This presentation appeared to be consistent with reports from both her foster parent and her school teachers. A.B.'s embellishments and distortions of the truth may serve a psychological function. For instance, her distortions may be protective for her and shield her from the realities of her life. Unfortunately, this pattern of functioning places her at risk for future psychological difficulties and compromises her interpersonal relationships."

[81] This description of A.B. was confirmed by Ms. Riggs during her testimony.

[82] The concerns regarding A.B. noted by CAAP in their report are as follows:

(a) A.B.'s school, social and emotional/behavioural functioning. It was told to Ms. M.B. that CAAP had concerns about A.B.'s ability at times to decipher reality from fantasy. Furthermore, A.B seemed to struggle in maintaining peer relationships; Page 20, paragraph 5;

(b) A.B. required insightful role modelling by caretakers who understood A.B.'s struggles. Additionally, A.B. needed structure, limits, caregivers who recognized her propensity to engage in fantasy and could redirect her to focus on reality; Page 21, paragraph 2;

(c) A.B.'s personality functioning and emotional stability. CAAP recognized that A.B. struggled in school, and recommended psycho-educational testing; Page 21, paragraph 2

(d) A.B. has impairment in her academic, social, and emotional/behavioural functioning that place her at risk for future psychological and mental health difficulties; Page 22, paragraph 2;

(e) A.B.'s ability to decipher reality from fantasy. A.B. and her mother misrepresent A.B.'s skills and functioning. A.B. functions in a world that has been created by herself and her mother that does not represent an accurate world view. Page 23, paragraph 1;

(f) A.B.'s relationship with her mother has been marred by both rejection by her mother as well as maternal expectation that A.B. meet Ms. M.B.'s needs. Boundaries between Ms. M.B.'s parenting role and A.B.'s role as the child appear to be blurred. It is likely that these blurred boundaries may have contributed to A.B.'s cognitive distortions about her own personal functioning, her previous experiences in her mother's care and her world view. Given her presentation, her tendency to exaggerate and embellish and her apparent desire for attention, CAAP has significant concerns regarding her emotional functioning. Page 23, paragraph 2;

(g) Socially, A.B. demonstrates difficulties in sustaining positive interpersonal relationships. Page 23 paragraph 4; and

(h) There are concerns that A.B.'s underlying core beliefs are negative. If A.B. does not have opportunities to shift her core beliefs about herself, then she will need to continue to expend increasing amounts of energy to maintain these created beliefs. Page 24, paragraph 2.

[83] In her testimony at trial, Ms. Riggs stated that the focus of A.B.'s description of her relationship with her mother was on what they did together as opposed to the relationship itself and the quality of it. Ms. Riggs described this as an "instrumental" description.

[84] Ms. Riggs concluded by indicating that A.B.'s credibility was questioned throughout the assessment process as she denied any concerns within her family life. She had an unshaken belief that the child E.W. was her sister, that her older sibling S.J.W. was not delayed intellectually, that she was doing well at school and that she was brilliant. Ms. Riggs testified that when A.B. was challenged on these beliefs, she had difficulty responding but maintained her views.

[85] Ms. Riggs expressed concern that A.B. was aligned with her mother during the assessment process and that this put A.B. in a position of control over the access issue. This concern was re-enforced when Ms. Riggs was advised that A.B. had been told by her mother that she could return to her mother's care when she was 14 or 15 years old.

[86] Ms. Riggs confirmed the report's conclusion that indicated that A.B. was not functioning well at the time of the assessment, in part due to her experiences of maltreatment. Ms. Riggs noted that A.B. was very aligned with both her mother and S.W. as she presented as significantly influenced in her beliefs by information her mother had provided, to the point of using words and phrases similar to her mother's.

The report concludes at page 24, paragraph 4 as follows:

"A.B. requires role models to help her develop an alternative framework for engaging in social and interpersonal relationships. She requires competent experienced caregivers who are able to clearly define the boundaries between the parenting role and the child role and who can reframe and redirect A.B. from her precocious attention seeking behaviours. A.B.'s care-taking environment will be paramount in building a more functional view of self and reality. She requires structure, routine and appropriate expectations and consequences."

[87] Ms. Riggs was informed that the evidence at trial was that Ms. M.B. was telling A.B. that she could come home when she is 14 or 15 years of age. Ms. Riggs testified that all of the concerns and conclusions outlined in the CAAP report were confirmed by this information, that such messages would have the impact of destabilizing A.B.'s placement, and would be unhealthy for her future development.

The Foster Father

[88] The foster father testified that A.B. had been in his care for the past 4 to 4 ½ years. A.B. had lived with him from December 2009 to end of May/early June 2011 and then from June 2012 to present. He testified that even though A.B. had been out of his care for the period between July 2011 to May 2012, he saw her 3 times per week, increasing to Sundays and then for complete weekends.

[89] The foster father testified that when A.B. came to live with him, discipline and her interaction with others were concerns. He testified that A.B. has great difficulty abiding by the rules of his household and had difficulty with peers. A.B. wanted to be the center of attention and would engage in behaviours which would achieve her goals. The foster father testified that these remain concerns, although some progress has been made.

[90] The foster father was clear in his commitment to adopting A.B. He is prepared to accept any conditions as ordered by this Court. He testified that he does have concerns with regard to Ms. M.B. having continued contact with A.B. but is clear that if this contact is ordered, he remains committed to A.B. on a permanent basis.

[91] The foster father was worried that Ms. M.B. would portray him as the "bad person" to A.B. He worries about ongoing contact having a negative impact on A.B. He testified that he does not trust the mother to support A.B. living with him. He is genuinely concerned that A.B. has been through enough. The foster father testified that he is "near the final straw". He indicated that "...there is a history of trying to accommodate access and then it goes bad". He also recognizes, however, that A.B. would be hurt if no access was ordered.

[92] The foster father testified that he is concerned about the behaviour of the mother since A.B. has been in his care. Specifically, he testified about:

(a) The mother's attendance at A.B.'s summer camp without permission;

(b) An incident which occurred at the library during an access visit when A.B. returned home upset;

(c) Extending telephone calls between A.B. and her mother and the conversations going "sour";

(d) Seeing Ms. M.B.'s telephone number on a piece of paper A.B. brought back from an access visit; and

(e) The discovery of the note in the gingerbread house.

[93] The foster father does not recall A.B. discussing with him the option of seeing her mother prior to the access visits being re-instated in July 2012. He testified that A.B. does mention her mother to him; however, the details are very sparse and usually focused on the activities during the access visits.

[94] The foster father testified that he has discussed the topic of adoption 40 to 50 times with A.B. He testified that A.B. is quiet during these discussions, that he tells her she has a voice and can influence the decision, and that A.B. has never told him that she feels like she is being forced to be adopted or that she does not want to be adopted. He testified that he has never been contacted by any of A.B's school counsellors saying that A.B. does not wish to be adopted. He testified that A.B.'s plan is to live with him until he dies.

Evidence of the OCL

Jenny Athanasiou

[95] Ms. Athanasiou testified that, during her visit with A.B. on April 27th, 2013, A.B. told her that she knows that her mother is not supposed to give her things during the visits. She also said that her mother speaks French to her and says "call mom". A.B. said that she repeats what her mother says in French in English so that the access supervisor can hear it. A.B. also said she wants the visits to stop if her mother continues to do this.

[96] Ms. Athanasiou testified that A.B. said that she did not really care about the note written by her mother and hidden in the gingerbread house. A.B. said she did not listen to the instructions on the note and that she did not send the note to the judge as she did not want to do this.

[97] A.B. also admitted to Ms. Athanasiou during this meeting that she had found a free application to text on an iPad and so texted her mother. A.B. told her that she stopped texting her mother as "mom was annoying", she was texting in capital letters, getting her sister S.J.W. to text her and trying to get her to send the letter to the judge.

[98] Ms. Anthanasiou testified that A.B. told her that she was not aware that her mother was going to attend at her summer camp; did not know why she was there and thought she would be in trouble with her foster parents as they were in attendance as well. A.B. told Ms. Athanasiou that she ran and hid behind a billboard when she saw her mother as she was scared. A.B. also said that she did not ask the camp director to call her mother to invite her.

[99] Ms. Athanasiou testified that A.B.'s reaction to an order of no access would be that she would be "a little upset but not really angry" and that she wants visits because "she's still my mom."

Evidence of the mother

The mother – Ms. M.B.

[100] Ms. M.B. testified that since the completion of Dr. Amitay's report she has completed 30 hours of an anger management course, completed several parenting courses through community resources and seen two psychiatrists over a 3 ½ year period. The mother's evidence was that the she has taken "...so many courses at so many different locations that she can't recall all of them without the certificates in front of her."

[101] The mother testified that "she wants what A.B. wants" To that end, she testified that she would not impede or impair any adoption plan; that she would respect any and all conditions attached to access visits such as no gifts, no outside contact and supervision at an access facility. She testified that she would be willing to meet with the Society to discuss access.

[102] The mother denied that she attended A.B.'s summer camp on her own initiative. The mother denied that she initiated any contact with A.B. The mother agreed that, once contacted by A.B. outside of the monthly supervised access visits, she did not inform the Society or the OCL of this occurring nor did she seek prior approval from the Society despite knowing that this contact was prohibited. She justifies this behaviour by explaining that she was advocating on behalf of her daughter.

[103] Ms. M.B. acknowledges that she brought a motion seeking permission from the court to have A.B. testify at trial. The mother admits that she did not include in her affidavit filed in support of her motion, any mention of the contact she describes as having been initiated by A.B. by telephone on July 3rd, 2012. She further agrees that she did not include in her affidavit in December 2012 the statements by A.B. in October, November and December, 2012 saying she did not want to be adopted.

[104] The mother was clear in her evidence that Ms. Tuttle's testimony regarding concerns arising during the access visits was merely her perception. Throughout her testimony, Ms. M.B. justified her behaviours. For example:

(a) she did not know if she hit the record button on her iPhone therefore any recording was a mistake;

(b) any typing motion during the access visit of August 28th, 2012 was not typing but her demonstrating to A.B. how to play the piano;

(c) she whispered as A.B. was whispering;

(d) she denied erasing any paper during the September 2012 visit; and

(e) said she was expressly invited by the camp director to attend the last day of A.B.'s camp.

8: CONCLUSION: IS THE RELATIONSHIP MEANINGFUL AND BENEFICIAL?

[105] There is a bond and a relationship between mother and daughter which has developed over the nine years that A.B. was in the exclusive care of her mother. A.B. says she loves her mother and her mother clearly loves her. However, section 59(2.1) requires more than access being meaningful. The section requires that the access be meaningful and beneficial to A.B.

[106] Justice Quinn, in his decision in Children's Aid Society of Niagara Region v. M.J., supra, at paragraph 45, defined the term beneficial as follows:

"Using standard dictionary sources, a 'beneficial' relationship is one that is 'advantageous'…even if there are some positive aspects to the relationship between a parent and child, that is not enough – it must be significantly advantageous to the child."

[107] The Society and the OCL submit that continued access between A.B. and her mother is not beneficial to her. The evidence presented in support of their common position is based on the historical inability of the mother to respect a court order regarding access thereby placing A.B. in a difficult position and potentially impairing her adoption by the foster father who has cared for her for the past 4 ½ years.

[108] The Society and the OCL advance the position that the mother is unable to respect any parameters regarding access. The Society and the OCL submit that the mother has engaged in behaviours to satisfy her own needs in these proceedings and the matter involving custody of the child E.W. prior to the involvement of the Society.

[109] In the domestic matter involving the child E.W., the Court has heard evidence that:

(a) the mother pressured S.W.J to recant her disclosure regarding S.W. in order to avoid any risk of losing A.B.;

(b) the mother asked S.W.J. who the father of E.W. was despite knowing that it was S.W.;

(c) the mother declared the father of E.W. as "unknown" in a custody application she initiated against S.W.J.;

(d) the mother lied about whether or not she was in a relationship with S.W. following his impregnation of S.W.J.; and

(e) the mother lied about S.W. attending at court and declaring in open court that he was E.W.'s father.

[110] The mother submits that the relationship between A.B. and herself is beneficial. She submits that her relationship with her daughter has survived despite the Society failing to meet its obligation to support and encourage their relationship through access. The mother submits that continued access is beneficial as she wishes A.B. to be happy.

[111] The mother testifies that she has been behaviourally rehabilitated. She is clear and confident in her testimony that she will, from this day forward, abide by any conditions this Court attaches to an access order.

[112] The Court was provided with a Parenting Capacity Assessment report dated November 27th, 2009, the testimony of Dr. Amitay, the CAAP report and the testimony of Ms. Riggs. Assessments are to be used as a resource to assist the Court in fact-finding. The weight to be given to an assessment depends on the extent to which the assessor's observations and conclusions are supported by the totality of the evidence. The evidence lead at trial leads the Court to place significant weight on these reports.

[113] The mother acknowledged that she disregarded the rules surrounding access and did so on numerous occasions. It is further evident from her behaviour that she also encouraged and even created opportunities to have A.B. break the rules as well. Yet, the mother does not show any insight or even acknowledgement that her actions placed her child in a difficult situation, caused her anxiety and potentially jeopardized her child's permanent placement option.

[114] The evidence advanced during this trial shows blatant examples of the mother's continued lack of judgment and insight into her own behaviour and the behaviour she encourages her daughter to engage in while awaiting the trial of this issue.

[115] The evidence is clear that Ms. M.B. chose to attend at A.B.'s summer camp. The evidence is clear that Ms. M.B. engaged in communication with A.B. outside of the existing court order dealing with access. Ms. M.B. is equally clear that this contact was initiated and requested by A.B. Even if this were true, the immediate response of Ms. M.B. should have been to communicate with the Society and even the OCL that A.B. had requested this contact. This course of action did not even enter into Ms. M.B.'s thought process and this despite the many parenting courses and resources she has accessed since the removal of her daughter from her care. The mother's explanation that she was merely advocating for her daughter and responding to her efforts to reach out do not justify her disregard of the court order regarding access.

[116] This evidence, coupled with the testing and the conclusions regarding the mother drawn by Dr. Amitay in his November 27th, 2009 report, lead the Court to conclude that the traits and characteristics of the mother as identified in the report continue to be the foundation of her personality today. Furthermore, it is clear on the totality of the evidence that these personality traits of the mother create an inability on her part to engage in behaviour which would support a permanent placement of her child outside of her care.

[117] As previously indicated, even if the mother's evidence was accepted, there were numerous avenues and recourses available to her to address her concerns regarding A.B.'s views as she believed them to be. Ms. M.B. chose not to exercise these options, rather she chose to engage, entice and encourage her daughter in behaviour which was contrary to a court order and thereby creating in her a sense of divided loyalty between her mother and foster father.

[118] Of equal importance is the CAAP report which clearly outlines the challenges being faced by A.B. in her social, academic and emotional development. The Court cannot ignore that A.B. is a child who requires stability and a placement which provides her with a realistic sense of who she is, what she can become and a path to achieve this success. The foster father, Ms. Tuttle and Ms. Athanasiou have also testified to the continued fragility of A.B.

[119] The evidence before the Court supports the adoptability of A.B., in spite of her fragility. The foster father has been clear in his commitment in this regard. He has also been honest about the challenges he has faced and could face should access continue. The experts are clear that A.B. requires a stable, secure and permanent home. Unfortunately, this cannot be achieved by the continued involvement of her mother in her life, even by limited and controlled access. It is clear that to continue a relationship built on deceit and active encouragement to disregard the rules and regulations, no matter what the justification, cannot be beneficial to A.B.

[120] To permit the access to continue in the hopes that Ms. M.B. will follow through on her assurance that she will respect the rules surrounding this contact creates a period of uncertainty and instability for an already fragile child. To permit this to occur would have a negative impact on A.B.'s psychological and emotional wellbeing and perhaps diminish her full integration into her adoptive family which by all accounts is committed to providing her with a sense of love, stability and guidance on a long term basis.

[121] For these reasons, the Court finds that continued access between A.B. and her mother, M.B, is not meaningful and beneficial as required under section 59(2.1) of the CFSA. Accordingly, the mother's claim for access is dismissed and there will be an order of no access.

[122] Given the Court's decision, the applicability of the second branch of section 59(2.1), namely whether the ordered access will impair the child's future opportunities for adoption, and the determination of the child's best interest under section 58 of the Act are not required.

Released: June 7, 2013

Justice L.S. Parent