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.

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

A person who contravenes subsection 45(8) 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: 2013-06-20

Court File No.: Brampton 20027/11

Between:

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

— AND —

D.W., Respondent Mother

A.S., Respondent Father

Before: Justice Philip J. Clay

Heard on: May 15, 2013

Reasons for Judgment released on: June 20, 2013

Counsel

Shannon Kinch — counsel for the applicant society

Edosa Adams-Idode — counsel for the respondent mother

A.S. — Respondent father in person assisted by duty counsel

CLAY, J.:

Application

[1] The Society brought an application for Summary Judgment in which they sought:

a) Statutory findings pursuant to subsection 47(2) of the Child and Family Services Act (the Act) as follows:

Legal Name: L.W.

Date of birth: […], 2009

Full Legal Name of Mother: D.W.

Full Legal Name of Father: A.S.

Child's Religion: No Affiliation

Child's Native Status: Not an Indian or Native Person

Legal Name: D.S.

Date of Birth: […], 2011

Full Legal Name of Mother: D.W.

Full Legal Name of Father: A.S.

Child's Religion: No Affiliation

Child's Native Status: Not an Indian or Native Person

b) Child protection findings: That the children shall be found to be in need of protection pursuant to s. 37(2)(b)(i) and 37(2)(b)(ii) and 37(2)(g) of the Act.

c) Disposition: That the children be made Wards of the Crown for the purpose of adoption and shall be placed in the care and custody of the Children's Aid Society of Peel.

d) In the alternative an order pursuant to R. 16(9) of the Family Law Rules for specifying what facts are not in dispute, stating the issues and giving directions about how and when the case will go to trial.

[2] The mother contested the motion and sought a return of the children to her care pursuant to a supervision order.

[3] The Respondent father attended with duty counsel and sought an adjournment. He stated that he wanted to retain counsel but had not contacted anyone yet. This was the first time since the Amended Protection Application was served on March 16, 2013 that he had sought to participate. The Society opposed the adjournment as did the mother.

[4] The request for an adjournment was denied. The matter had been scheduled for a Summary Judgment motion since February. The children had been in care for two years. The matter had to be resolved.

Procedural History

[5] The mother had three other children. The two older siblings have different fathers and neither of them are the father of the subject children. The eldest lives with her paternal grandparents and the next eldest lives with his father. One sibling with the same parents as the subject children was born after their apprehension and that younger child is in care.

[6] The child L.W. was apprehended from the care of his parents on March 3, 2011 and has lived in care since that time. The child D.S. was apprehended at birth on June 18, 2011 and has resided in care since that time.

[7] In March 2011 the Society filed a Protection Application seeking a protection finding for L.W. and his older brother pursuant to ss. 37(2)(b)(i) and (ii) and (g) of the Child and Family Services Act ("the Act").

[8] In […] 2011 the same protection finding was sought for the then newborn child D.S.

[9] The parents consented to a Parenting Capacity Assessment which began in June 2011 and was completed on October 1, 2011.

[10] On February 20, 2013 the matter was set down for Summary Judgment. The Society relied upon the following affidavit material to support their motion:

1. Affidavit of Margaret Gillies, sworn April 4, 2013;
2. Affidavit of Nancy Wangui, sworn April 5, 2013;
3. Affidavit of Dr. Kershner, sworn April 4, 2013;
4. Affidavit of Teresa Kimberley, sworn April 4, 2013;
5. Affidavit of Jennifer Arthur, sworn April 4, 2013;
6. Affidavit of Pam McKibbon, sworn April 5, 2013; and
7. Affidavit of Atixhe Zeneli, sworn April 5, 2013.

[11] The mother filed the following affidavit material:

1. Affidavit of D.W. sworn April 26, 2013;
2. Affidavit of Dr. Peter Faux sworn April 25, 2013;
3. Affidavit of Dr. John Bryan Phillips dated April 26, 2013;
4. Affidavit of S. D. sworn April 15, 2013;
5. Affidavit of M. M. sworn April 26, 2013;
6. Affidavit of Tracey Wade sworn April 11, 2013;
7. Affidavit of N. K. dated April 15, 2013; and
8. Affidavit of E. M. sworn April 26, 2013.

[12] At the time of the hearing the subject children were residing with the mother's godmother and second cousin P.M. in Ajax. The mother had proposed P.M. as potential kin caregiver in correspondence to the Society from her counsel in March 2012. The Society approved her as a kin placement and both children were moved to her home from their separate foster homes in December 2012. P.M. had decided to pursue adoption in July 2012 and she was approved by the Durham Society as a potential adoptive home in January 2013.

[13] In February 2013 the mother changed her position from seeking that the children be raised by P.M. with continuing access by her to seeking that the children be returned to her care subject to a supervision order.

[14] On March 15, 2013 the Society filed an Amended Protection Application for each of the subject children (L.W.'s was included in an application that also dealt with his older siblings as they were all apprehended at the same time in March 2011.)

[15] The two amended Applications sought findings that the subject children were in need of protection and sought an order that they be made wards of the Crown and placed in the care of the Society.

The Law

[16] A motion for summary judgment is permitted in child protection cases. The governing rule is Rule 16 of the Family Law Rules. R. 16(6) reads as follows:

(6) NO ISSUE FOR TRIAL — If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[17] The use of the word "shall" in Rule 16(6) means that if no genuine issue for trial exists the Court has no choice but to grant the summary judgment.

[18] On a motion for summary judgment, the Court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ) per Gordon J.

[19] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. CAS Dufferin v. J.R., O.J. No. 4319.

The Protection Finding

[20] There had never been a protection finding made in this matter. The file for the subject children had been adjourned on each occasion in court on the basis that the children would remain in care and that access would be supervised with time and location to be in the discretion of the Society.

[21] If the Society is unable to establish that the children are in need of protection under one of the subsections of s. 37(2) of the Act then the children must be returned to the parent from whom they were apprehended. The mother did not consent to a protection finding in her Answer but she did agree with most of the factual allegations in the Amended Application that supported a finding. On April 25, 2012 she consented to a protection finding for the two older siblings who were apprehended at the same time as L.W. The same facts were relied upon to support those findings as are being relied upon to support the findings concerning L.W. The April 25, 2012 order found that the older siblings were found to be in need of protection under s. 37(2)(b)(i), 37(2)(b)(ii) and 37(2)(g).

[22] The Amended Application for D.S. was also issued on March 15, 2013 and sought findings under the same sub-sections.

[23] The relevant sub-sections read as follows:

s. 37(2) CHILD IN NEED OF PROTECTION — A child is in need of protection where,

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

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

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i)(ii)(iii)(iv) or (v) and that the child's parent or the person having charge of the child does not provide or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm.

[24] I find that the Affidavits filed as referred to above support findings under each of the subsections of 37(2) relied upon. As the contested part of the motion was with respect to disposition and not with respect to the findings the court will assess the evidence in the disposition stage of this judgment.

The Evidence

[25] The Society relies upon a number of significant concerns and the findings of a Parenting Capacity Assessment.

[26] Ms. Kinch for the Society divided the Society's evidence into five broad themes:

1. The chronically poor condition of the mother's home
2. The mother's inability to consistently meet the children's needs
3. The mother's capacity to parent as set out in the Parenting Capacity Assessment
4. The gains made by the child L.W. since he came into care
5. The mother's unfocused and non-specific plans for the children

Condition of Mother's Home

[27] The Society's evidence was set out in the affidavits of the employees of the Society that had carriage of the file at certain times or performed certain roles from one time period to another. In other words it was arranged chronologically. Many of the issues are interwoven with each other. However it is important to examine the evidence for each of the assertions of the Society in support of the Crown ward disposition.

[28] The key to the evidence going to the state of the home is that observations were made by many different people at many different times and the concerns persisted. The Society began the file opening that has led to this hearing in June 2010 when they received a report from a neighbour. She said that she frequently observed the children playing outside the apartment and that the children were dirty and unkempt. She also said that she had been inside the mother's apartment and it was filthy with a strong odour of urine. The intake worker Ms. Hennebury attended at the home on June 29, 2010 and noted that the house smelled of cat urine, there were what appeared to be dried liquid stains on the hardwood floor, there was hair and food covering the carpet and under furniture and the sink was full of dirty dishes.

[29] On August 10 an infant wellness consultant Margaret Gillies began working with the family. In her affidavit she stated that the conditions of the home were "unsanitary and hazardous and hindered L.W.'s ability to meet his developmental milestones". By this she meant that the uneven surface of the home caused by the junk and dirt did not allow the child to learn to crawl and later to walk at the appropriate times.

[30] On September 10, 2010 Nancy Wangui took over carriage of the file. She said that she visited the home five times between September and December and during most of the visits the home presented as unsanitary. She offered the mother an opportunity to get a free mattress to replace the eldest child's filthy one but the mother did not follow through. On January 13, 2011 the house was messy and smelled of cat urine. The child L.W. had still had the bad diaper rash she had noted on a previous visit. Animal control had gone to the apartment after a complaint and there were five animals there (two cats, two dogs, and a rabbit). The concerns went well beyond the home being cluttered or messy. The key point is that it was found to be "unsanitary". There was evidence of dog and cat feces being on the floor and open and dirty cat litter boxes and a rabbit cage. On subsequent visits after being told that the home had to be cleaned up Society workers did note improvements. Nevertheless as the many photographs attached to the affidavits attested the home continued to be unsanitary during most of the time prior to the apprehension in March 2011.

[31] In her affidavit at paragraph 1 the mother stated "I will always regret my past behaviour of untidiness and neglect and I have remained resilient and remorseful". Her response on the state of her living space was set out in paragraphs 20 and 21 of her affidavit as follows:

Since the removal of my children, I relocated to a much cleaner environment in December 2011 and maintained a stable home since then. I have always provided updated photos of my apartment for past 15 months. Till date, my apartment remains safe, child friendly and in a sanitary condition.

I am better organized and have been able to prioritize my daily cleaning schedule. I got rid of the pets and clutter around my home.

[32] According to the Society's evidence the removal of the children in March 2011 did not result in a cleaner home immediately. An April 28, 2011 visit began with the mother wanting to block access to her home. When she relented there was a strong odour of feces and cat urine. At his first doctor's appointment after the apprehension L.W. was found to have scabies which Dr. Nadarajah said was likely caused by the unhygienic home environment.

[33] In June 2011 Ms. Wangui saw the mother's new basement apartment. The kitchen bathroom and floor appeared clean. The only noted concerns were a lack of furniture and a strong smell of cigarette smoke. Unfortunately D.W. was evicted from that apartment by July 26 and some of the landlord's concerns were the toys outside the apartment and the dogs creating messes. The mother then went to live with the maternal great-grandparents the Millers.

[34] Teresa Kimberley took over carriage of this matter on December 4, 2012 from Rhonda Bromley who had carriage from January 2, 2012 until then. Ms. Kimberley reviewed Ms. Bromley's notes. Ms. Bromley had observed the state of the mother's home on July 10, 2012 on an unannounced basis. She noted many dirty and hazardous conditions and she took photographs which were filed. By August 14 there were improvements but there were still concerns. On October 12, 2012 D.W. prepared an affidavit in support of her plan to care for her youngest child. She took photos that were filed that depicted the home as neat, organized and clean. However in an unannounced visit on November 14, 2012 the mother tried to stop Ms. Bromley from viewing her apartment because she had not had time to clean. It presented as dirty with clutter, exposed food, and cat food and cat litter on the floor.

[35] When Ms. Kimberley first saw the home on January 24, 2013 for a scheduled visit it was neat and tidy and smelt of cleaners. From then until March 29 she made several attempts to see the home on an unannounced basis but was frustrated in doing so. On March 20, 2013 she eventually gained entrance. The odour from the cat litter box was overwhelming. There was a bag of garbage in the middle of the floor.

[36] It was clear from all of the evidence that while the home had presented as clean on some occasions those times were when D.W. had advance notice that a Society worker was coming or when she cleaned up to photograph her home for her affidavits. While the home may have been in worse condition prior to the apprehension in March 2011 it was also clear from the evidence that even without the children at home the mother was unable to keep her home clean from animal droppings and garbage. The Court finds that there is no additional evidence that could be called at trial that would assist in the determination of this issue. D.W. had had a lengthy period to address the unsanitary condition of her living space and she was unable to do so on a consistent basis. The concerns over pet litter and food waste on the floor are much more acute when a parent has very young children at home then when she has much older children. In this matter the home presented a very real health risk to L.W. as he had a persistent diaper rash and developed scabies. This evidence of the state of the home went directly to the issue of the likelihood of the children coming to physical harm due to the caregiver's neglect. The fact that the mother was able to clean up her home when she felt she really needed to did not assist her position. When a person is caring for young children they have to keep the children's environment safe at all times not just the times when someone else might be observing them.

Inability to Meet Children's Needs

[37] The evidence for the Society's position that D.W. was unable to meet the children's needs was largely found in the supervised access case notes and in the observations of the assessor.

[38] D.W. has only ever had supervised access to her children since their apprehension. As D.S. was apprehended at birth, that has been for his entire life. The mother had consistently attended her access visits and many of the observations made were positive ones. She arrived on time, well groomed, provided food for the children, used appropriate vocal tones, provided the children with affection and comfort and encouraged play. The areas that D.W. was said to consistently struggle with were considered to include; tolerating the children's behaviours, misinterpreting their normal behaviours as misbehaviour, dividing her attention and affection equally, consistently exhibiting emotion and depth during interactions, using positive methods of discipline, recognizing the children's cues and failing to intervene when other adults make inappropriate comments or gestures to the children and requiring support from the other adults present to meet the children's needs. The Society filed access notes that addressed these issues. It is not necessary to set out specific examples in this judgment. However having read the summary of the notes the Court finds that there was support for all the points referred to. These types of observations are necessarily subjective. The access did occur in a supervised setting at the Society and that together with the pressure to do things correctly that a parent may feel under these conditions should cause a court to approach the conclusions reached with caution. Having said that, the Society did provide instances of positive interaction under the same circumstances so the mother did have the ability to exhibit some good parenting which may make the overall parenting observations more credible.

[39] In any event the Society did respond to the parenting concerns by referring the mother to a therapeutic access and assessment program known as TAPP. Atixhe Zeneli was the child and youth worker responsible for working with parents in that program. The mother and father participated in the program with their youngest child T.S (seven months old) between January 16, 2012 and March 27, 2013. TAPP incorporates an intervention component which is based upon attachment theory. The sessions take place two times per week for a period of three to four hours. D.W. received 105 hours of assistance through this program. Importantly the sessions take place at an assessment house that is a fully functional home so that the surroundings are more natural than is often the case with supervised visits at the Society.

[40] Ms. Zeneli did note the many strengths that D.W. demonstrated. She also observed areas requiring improvement. They included the fact that the mother used a very flat tone of voice that left the child quiet and not stimulated. She made negative statements to the child when he experienced stress such as during diaper changes or bathing (this mirrored the negative comments she was said to make to the subject children during access visits). She was said to have limited insight into how these comments affected her child. Ms. Zeneli noted that D.W. had difficulty identifying the child's needs and she said that the mother's own needs tended to impact her ability to meet her child's emotional needs. Overall Ms. Zeneli noted that D.W. had difficulty implementing the instructions she receives and that she requires ongoing support in maintaining her role as the protector and person in charge of the child.

Capacity Issues

[41] Ms. Kinch argued that there was a significant amount of evidence that some of the difficulties D.W. faced in parenting were as a result of cognitive limitations. The Affidavit of Dr. Betty Kershner dated April 4, 2013 referred to those issues which were addressed in her Parenting Capacity Assessment. Her findings were set out in paragraph 5 of her affidavit as follows:

5. Both Ms. W. and Mr. S. are functioning cognitively in the range of Developmental Delay. Both of them demonstrate personality features that lead them to ignore or dismiss as trivial the problems that should be addressed.

a) The parents do not, on their own, have the capacity to adequately care for and protect the children; and

b) Neither parent has the capacity to understand and identify potential risks that would compromise the physical safety and emotional well-being of the children.

[42] Dr. Kershner arrived at her finding that the parents had developmental delay by a series of tests that she administered during the assessment process and by her interviews with them. She stated that while D.W.'s "cognitive functioning is in the range of Developmental Delay, her profile is not flat: there are strengths and weaknesses." Her identifiable strengths are expressing herself verbally and seeing where things are headed. The latter is part of a sub-test related to social abilities. Dr. Kershner put it this way:

D.W. is better at seeing what is coming than she is at realizing what there is to deal with right at the moment. She tends not to notice what is in front of her. This makes it difficult and unlikely that D.W. will improve something that is amiss in her circumstances at the time that it is happening.

[43] Dr. Kershner also stated:

Personality testing revealed that D.W. is shy and timid, lacking proper boundaries between herself and others. She may pull back, fail to express/assert her own needs and refrain from meaningful interaction. She fails to employ basic organizational skills. She can be sensitive to a child's needs and wants to be available emotionally to the child. However she is prone to misinterpret what is going on. She over-estimates where her help is needed and, which makes her anxious and keeps her distracted. D.W. expects children to feel bad. She wants to comfort them but sees it as natural that they should be upset, so she is unmotivated to seek ways to prevent their distress; she just accepts it. She is prone to blame herself for things going wrong, as she sees them. And she sees things as wrong and in serious danger out of all proportion to what is really going on. At the same time she can fail to see the daily necessities.

[44] In the PCA Dr. Kershner responded to a question about whether the mother's childhood trauma impacts on her ability to meet the children's needs. She said the following:

I believe that the mother's childhood experiences and trauma are impacting negatively on her parenting. Intensive long term psychotherapy can be useful in such cases. However, D.W. does not have the motivation to change. Without this motivation, change will not occur; it is hard work even when one is strongly motivated and insightful. D.W. lacks insight as well. She may well develop a "wish" to in order to get her children back but the wish will be for her children and not really to change. The desire to change must be sincere for psychotherapy to be effective.

[45] Ms. Adams-Idode contested Dr. Kershner's view of D.W.'s cognitive abilities. She filed the Affidavit of Dr. Peter Faux dated April 25, 2013. Dr. Faux is a psychiatrist. D.W. was referred to him by her family physician. He saw her on June 13, 2012 and on four occasions after that with the last being February 6, 2013. He said that she tended to worry and has episodes of panic but is sub-threshold for Anxiety and Panic Disorder. He said that the onset of the mother's anxiety occurred when the children were placed with the Society. Since then she has felt stressed by continuous examination of her parenting skills by Society workers. He felt that D.W. had Adjustment Disorder with symptoms of anxiety. He felt that she had a "take charge" attitude that "has helped her cope with the loss of a parent in her adolescent (sic), that has helped her graduate from high school and that has helped her parent her children in the past". He noted that she was now depressed as a result of the loss of her children. He said that "Based upon my overall impression and diagnoses, 'in no way does her psychiatrist (sic) condition preclude her from parenting her children'".

[46] At first blush it might appear that there is a conflict in the expert evidence. Conflicts on key issues require a full hearing where the background to the opinion can be tested and credibility assessed. However Dr. Kershner's opinion of capacity to parent was made after objective testing, a review of the history, interviews with the parents and observations of the parents with their children. Dr. Faux was not asked to assess capacity to parent and his involvement was limited to assessment and treatment of any mental health problems that D.W. might have. He had no information other than the mother's self-reporting and his own observations. He may well have had the necessary foundation and expertise to diagnose and treat D.W. but there is nothing in his affidavit that would suggest that he could possibly be qualified as an expert at a trial to provide an opinion on the mother's ability to parent. The few facts that he does relate are not accurate. Sadly D.W.'s own mother died of leukemia when she was only eight years old not in her adolescence. There is no foundation for an opinion that the mother had a "take charge" attitude that has helped her parent her children in the past. None of her five children live with her and there is no evidence that she has been able to manage the stresses of parenting.

[47] To be fair to Dr. Faux his diagnosis of the mother's shyness, social anxiety and depression does fit with known facts. It is also apparent from all of the evidence that the mother has had many life challenges and she has persevered. She has been under scrutiny and she has responded by generally being co-operative. She consented to an assessment and took many parenting courses. It is not difficult to see how a care provider could sympathize with her plight. Furthermore in the area which is within Dr. Faux's realm of expertise the mother did not have a major mental health issue and had not abused substances to a great degree or acted in any way to put her children in danger. However the doctor's opinion is limited as noted above and does not represent a conflict on the key issue of whether the mother had the capacity to parent.

[48] Ms. Tracy Wade swore an affidavit. She is a social worker and mental health therapist that the mother was seeing on a regular basis. She first saw D.W. on November 11, 2011 to do a mental health assessment. She noted that at the time the mother was under a great deal of distress and exhibiting symptoms of anxiety and depression. She said that D.W. was "most definitely grieving the loss of her children". Ms. Wade has met with the mother bi-monthly. She states that her "intervention plan has included symptom management, psychoeducation, referrals, advocacy and system navigation."

[49] Ms. Wade noted that the mother was working on achieving the goals set out by the Society for her to have her children returned when the Society told her that based upon the results of the P.C.A. the children would not be returned to her care. She obtained and read the report and arranged for the psychiatric assessment by Dr. Faux.

[50] While Ms. Wade properly notes that she is not qualified to challenge Dr. Kershner's finding of developmental delay she used the finding to see if the mother could access disability services. She noted that Developmental Services of Ontario could not accept Dr. Kershner's opinion in this regard as it did not address the mother's adaptive functioning or her limitations in cognitive and adaptive functioning prior to age 18. She contacted Dr. Kershner who responded that she did not know if the mother met the DSO criteria or not.

[51] Ms. Wade's next step was to contact the Neurodevelopmental & Educational Assessment Center in Mississauga and to request that an assessment be done. Ms. Wade stated that a psychometrist Ms. DeSouza of NEAC administered the psychological tests and she said that the mother falls just below the average intellectually but while she is a slow learner she is not developmentally delayed.

[52] Dr. Bryan Phillips the psychologist swore an affidavit. He was responsible for the psychological assessment. Dr. Phillips reported that the mother had "Borderline Intellectual Functioning".

[53] He stated that this diagnosis is indicative of a higher level of functioning than Dr. Kershner's diagnosis of developmental delay. He was careful to add the following: "This statement … is not intended as a comment upon or an evaluation of the Respondent's capacity to parent her children."

[54] Ms. Wade concludes by stating that the mother has "shown her commitment to toward improving her ability to parent her children. I perceive her to be a devoted mother who is concerned about the well-being and healthy development of her children".

[55] It is apparent from Ms. Wade's affidavit that she is a good advocate for her clients. She sought out second opinions and services. She was able to see first-hand that the mother was distressed by the loss of her children and there is no doubt that D.W. had followed up with referrals. She had attended for therapy, she had taken parenting courses and she had attended for her access visits. From this Ms. Wade formed an opinion as to the mother's dedication and motivation.

[56] Ms. Adams-Idode submitted that Dr. Faux and Dr. Phillips' findings as to the cognitive ability of the mother showed Dr. Kershner to be wrong. The Court finds that even if Dr. Kershner's testing undervalued the mother's intellectual capacity that this undervaluing did not undermine her ultimate findings. A careful reading of the assessment shows that cognitive ability is made up of many factors and as Dr. Kershner said herself the mother was strong in some areas and weaker in others. If Dr. Phillips had shown the mother to have above average cognitive abilities then the value of any analysis arising out of the testing might be called into question but that was not the case. Both assessors found her cognitive functioning to be below average they only differed on how far below average she was. Cognitive testing was just one of many factors that made up part of Dr. Kershner's comprehensive assessment. It should be noted that the Society filed Dr. Phillips and Ms. Wade's reports as part of their case. The difference in where the testing data fit on a scale of cognitive ability is not determinative of the capacity issue. In Dr. Kershner's capacity finding set out at the beginning of this section she refers to a finding of "developmental delay" but also to the parent's "personality features". She did not rest her opinion solely on the objective testing.

[57] For the purposes of this decision the Court is prepared to accept Dr. Phillips' finding of borderline intellectual functioning. There is nothing to be gained from an opportunity to cross-examine any of the doctors on why they attached the label that they did to their test results. The Court finds that Dr. Kershner's opinion of the mother's capacity to parent is well supported by her observations and the history that she reviewed.

Gains Made in Care

[58] Ms. Kinch took the position that the gains made by the child L.W. while in foster, and then kin care, demonstrated that the mother's parenting had a big impact upon her child's failure to meet his developmental goals.

[59] L.W. was apprehended in March 2011 when he was 15 months old. The affidavit of the primary care worker Ms. Kimberley addresses the changes in L.W. since he came into care. At paragraph 54 of her Affidavit she stated that upon apprehension L.W. was referred to a developmental pediatric consultant Dr. Marie Kim to address his developmental delays. Her reports were attached to the affidavit. In her consultation notes she said that L.W.'s foster parents had reported to her that when L.W. was placed in their home he was unable to pull himself up to a standing position. Within a month's time he had started walking. The foster parents also reported that L.W. was unable to feed himself at 15 months. Again within a short time he had learned to eat with his fingers.

[60] Dr. Kim observed that L.W. was unable to speak. He used some signs and gestures to communicate. While conceding that she had very little information about the child's history prior to coming into care the doctor made the following comment in her report of the August 16, 2011 appointment:

…it appears that he had little stimulation in the first year. Since coming into care, he has been making progress, however he remains behind overall with most significant delay in terms of his speech communication

[61] Dr. Kim saw L.W. again on March 27, 2012. At that time she noted marked changes in his explorative play. Overall she said that the child "exhibits mild developmental delays however he has made nice gains."

[62] L.W. was also referred to Infant and Child Development Services of Peel. On August 25, 2011 he was taken to see developmental consultant Sherene Singh. Her summary letter notes that L.W.'s development is:

… somewhat weak in the areas of gross motor and weak in areas of communication and personal-social development. L.W.'s development is well below age expectations in the areas of fine motor and problem solving.

[63] On February 22, 2012 L.W. again met with Ms. Singh. She had made referrals for occupational therapy and speech and language therapy. After again noting that the child "was below age expectations" in every area she recommended that:

L.W. would benefit from a structured and consistent and/or predictable home environment with familiar people who are able to respond to his cues, to promote his sense of security and his cognitive and emotional development.

[64] By the May 31 appointment Ms. Singh was able to report that:

L.W.'s development is typical for his age in the areas of gross motor, fine motor and problem solving. L.W.'s development is weak in the area of personal–social and well-below age expectations in the area of communication.

[65] L.W. moved to Ajax in the region of Durham in December 2012 when he went to live with P.M. He was referred to ICDS there and to Resources for Exceptional Children. He also attended day care five days a week. The daycare was not asking for any additional supports except speech therapy.

[66] The evidence in the affidavit material supports the Society position that L.W. made significant developmental gains while in care. Some of the reasons for the delays were quite simple and it is not difficult to link them to the parenting he received. He could not move or crawl properly in his mother's apartment due to the clutter and dirt. He was not assisted in being able to learn to feed himself. The fine and gross motor delays that he came into care with did disappear over time as noted above. The speech and communication difficulties are more intractable and it is not fair to assign all blame to the mother for those delays.

[67] The child D.S. was apprehended at birth. The evidence was that he did not have special needs and he was meeting all of his developmental milestones.

The Mother's Plan

[68] Ms. Kinch took the position that D.W. had not presented any realistic plan for the care of her two children. Referring to the mother's plan of care she noted that the mother said that the father A.S. would co-parent and that he would help maintain proper housekeeping standards and hands on support in caring for the children. Ms. Kinch said that the father had not been able to assist the mother in these areas before the children came into care and nothing had changed which would suggest that anything would be different in that regard.

[69] A.S. did work long hours and it was true that he had not been able to ameliorate the conditions that led to the Society's involvement and eventual apprehension. Nevertheless the parents were still together and he did provide emotional support. The mother did have many other family members and friends who would help where they could. She filed the supporting affidavits of her grandparents E. and M. M., her aunt S. D., who supervised visits in Orangeville, and a friend N. K.

[70] The Society said that the mother had not made plans for daycare which seems to mean that she had not registered the children in one. The mother's plan and affidavit set out that she planned to have the children in day care. Given that they have not been in her care for over two years it is unrealistic to expect her to try and reserve spaces in the event the children are returned.

[71] The Court finds that the mother did make a lot of plans without the Society's direct involvement. She sought out her family doctor and accepted a referral to the North Peel program where she has formed a very good supportive relationship with Ms. Wade.

[72] On her own initiative she registered for and took the Parenting and Positive Discipline course at the Family Education Centre in Brampton from April 12 to June 14, 2012. The Society then asked her to take another course called Parenting Young Children which she took and completed from October 15 to November 26, 2012. She also took the Therapeutic Access (TAPP) program with her youngest child and completed that in February 2013.

[73] With respect to housing D.W. leased a different apartment in December 2011 and she sent to the Society, and attached to her affidavit, many photographs of that apartment in a clean condition. D.W. complained that the Society had only been to her apartment about ten times. She seemed frustrated by the fact that she would get the apartment clean and no one would come and confirm that. However as noted above there were occasions after she got the new apartment that the Society attended on an unannounced basis and the apartment was seen to be a mess or she refused to show it.

[74] The Court finds that the mother has taken a number of steps to meet the Society's identified concerns. She is to be commended for that. The counselling she is receiving and the parenting education she has taken will no doubt be of assistance to her in the years ahead. The question that the Court has to answer though is whether it is in the best interests of the children to return to the mother's home at this time.

[75] The mother had access to the Early Years centre when L.W. was at home. She said she would take him but she did not. His developmental delays resulted in part from a lack of stimulation. The father will not be home for most of the time that the mother is parenting so she will be on her own. Her support network is well meaning and there is no doubt that they will try and help the mother whenever they can. However they do not live with her or nearby to her. Their support will be the kind of secondary support a parent will get from their own parent or close friends. With the exception of the counselling support of Ms. Wade most of the support network was there prior to the children coming into care. Moreover a review of their affidavits shows that they believe the mother to have strong parenting abilities from their contact with her. They want her to have her children with her and they have not really had the opportunity to see her in a stressful environment in her own home with young children.

Summary

[76] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent. Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J.

[77] The Court's decision must be about whether there is a genuine issue for trial in the summer of 2013. The Court is satisfied that all of the relevant evidence that could be called is before the Court in the affidavit evidence. There are no major factual disputes. D.W. believes that the Society's recording of her parenting skills at access visits, was biased or unfair. However the court finds that the Society were careful to set out the mother's strengths when also noting what they found to be her weaknesses.

[78] There are no credibility issues which require that the evidence be tested by cross-examination at trial. The assessor's opinion evidence was supported by a solid factual foundation. The only evidence from the mother's mental health professionals which was inconsistent with Dr. Kershner's findings was that of the mother's cognitive ability. As noted above if I were to accept the findings of Dr. Phillips over those of Dr. Kershner it does not lead to a different result.

[79] There was other evidence that might appear at first to be contradictory. There were photographs submitted by the mother that showed a clean and child appropriate apartment. There were ones from the Society workers that showed a dirty and unkempt home. However the mother admitted that her home had become filthy and cluttered. In fact she, and her family and friends, focused on that fact as the sole reason that her children were not with her. The overall evidence was that the mother could keep a clean home only if she expected the Society to be arriving imminently. There was no inconsistency in the evidence, the home was very dirty at times and clean at other times. The Society's point, which the Court accepts, is that the home needs to be clean and safe at all times.

[80] There was evidence from Ms. S.D. that the mother was a very competent parent at the visits that she supervised. The evidence from the supervised access at the Society showed both good skills and parenting deficits. Ms. Adams-Idode notes that the mother felt under tremendous scrutiny at the access centre. This is always the case for any parent whose children are in care. The comments by access supervisors are necessarily somewhat subjective. In this matter the Society filed the actual notes and not just the conclusions. There were not one or two concerns but a number of them. All of the concerns led to the access remaining totally supervised. It could well be that there were no concerns during family supervised visits. The circumstances are totally different. Just because there were no incidents during family visits does not mean that the concerns noted by the Society cannot be correct. Both the Society supervisors and the family members could be correct. There is no conflict that requires a determination of credibility. The Society was not trying to assert that the mother was a physical risk to her children or that she was difficult with supervisors. The concerns were longer term ones and involved judgment and the ability to consistently provide for children. Positive access visits did not diminish those concerns.

[81] Ms. Adams-Iode took issue with the Society's failure to provide the mother with services following the delivery of the P.C.A. The steps taken by both the mother and the Society are somewhat complex as it appeared that the mother's focus changed. In March 2012 her lawyer put forward on her behalf P.M. as a kin care provider for the subject children. P.M. was successful and the children have been with her since December 2012. After that time many of the services that the mother sought, and the Society provided, related to the fact that the youngest child was also apprehended at birth and the Society had an obligation to assist the mother in being able to parent that child. For example the therapeutic access program was set up for the mother and youngest child although it would assist the mother with respect to her other children too.

[82] The mother did seek out some of her own services and did take steps to comply with the Society's expectations. The difficulty in the mother's position is that it equates good intentions with good results. The mother had received counselling and taken courses but the access notes showed that she was not able to put into practice all of the parenting advice she had received. In fact for over two years the access remained supervised.

[83] Making an order for more supervised access leading to unsupervised access is no longer an option. The decision that must be made at a trial is whether it is in the children's best interests to return home now or whether they should be returned to the mother.

[84] This Court finds that an order that the subject children be made Crown wards would be the inevitable result after trial.

Access — Meaningful and Beneficial?

[85] Pursuant to s. 58 of the C.F.S.A. an access order can only be made if it is in the child's best interests to make the order. There is a presumption against access when a Crown ward order is made. Section 59(2) terminates any existing access order upon a Crown ward order being made. Section 59(2.1) reads as follows:

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

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

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

[86] It should be noted that the 2011 amendments to the C.F.S.A. which created s. 141.1.1 have changed the focus of the analysis of the second branch of the test. That section reads as follows:

s. 141.1.1 (1) ADOPTION PLANNING — Nothing in this Act prohibits a society from planning for the adoption of a Crown Ward in respect of whom there is an access order in effect under Part III (Child Protection).

(2) OPENNESS — Where a society begins planning for the adoption of a child who is a Crown ward, the society shall consider the benefits of an openness order or an openness agreement in respect of the child.

[87] The first step then in determining whether there should be access to a Crown ward is to determine whether the access is meaningful and beneficial to the child (emphasis added). The law is clear that the evidentiary onus is on the parent. A beneficial relationship is one which is advantageous. A meaningful relationship is one which is significant. It is not enough that there are some positive aspects to it: it must be significantly advantageous to the child. It speaks of an existing relationship, not the possibility of a future relationship. Even if the relationship is beneficial and meaningful there still must be some qualitative weighing of the benefits of access vs. no access. Children's Aid Society of Niagara Region v. M.J., 2004 O.J. No. 2872 (SCJ).

[88] The quality of the relationship must be the focus. The parents have to show more than just that a child has a good time during visits. (Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523, [2006] O.J. No. 5344 (OCJ)). More is required than just a display of love between parent and child. The Divisional Court has held that a person seeking access must prove that his or her relationship with the child "brings a significant positive advantage to the child". Children's Aid Society of Niagara Region v. J.C., [2007] O.J. No. 1058 (Div. Court).

[89] In this matter D.W. did consistently attend her access visits. While those visits remained supervised they moved to family supervision only after December 2012. At the time of the hearing the mother had visits every alternate week with one visit being supervised by Ms. P.M. and the other by Ms. S.D. in Orangeville.

[90] D.W. had asked in March 2012 that her second cousin and godmother take care of her children on a permanent basis. P.M. decided to pursue kin care and after much thought she put herself forward as an adoptive parent. That pre-adoption process was completed by December 2012 and the children were placed with her. She filed an affidavit in which she addressed her background and her plans for the children. P.M. appears to have all of the right qualities and abilities to be an excellent parent. She has not only co-operated with the mother's access but she has supervised it every second week and taken the children from her home in Durham Region to Orangeville for S.D.'s supervision. When S.D. supervises all of the mother's five children are present so that the visits serve as sibling access and not just parental access.

[91] P.M. states that she is prepared to sign an openness agreement with the mother that would continue her relationship with the children. In her affidavit she states that the access has gone well and even notes that D.W. deferred to her with respect to a decision concerning a child. In reviewing all of the evidence the Court concludes that the mother is a parent who could accept an access role without disrupting the bonding that must occur between an adoptive parent and their children.

[92] The Court finds that the relationship here is meaningful and beneficial to the children. Although L.W. has been in care since fifteen months and D.S. since birth they have both had access approximately twice a week since they have been in care.

[93] The second branch of the test which is whether the access would impair the child's chances of adoption must be considered differently now than it was prior to the 2011 amendments. The inquiry no longer ends if the child is found to be adoptable since a Crown ward with access can now be placed for adoption. The additional question that will now be raised is whether the possibility of an openness order will impair the child's opportunities for adoption. Catholic Children's Aid Society of Hamilton v. A. (M), (2012) O.J. No. 223.

[94] In this matter the putative adoptive parent is known and in fact was proposed by the mother as an appropriate care giver. The adoptive parent is willing to allow contact. The Society's position, which she endorses, is that there should be an openness agreement. Such an agreement would be a contract made after an order making the children Crown wards. It would define the type of contact that could occur. It would not be subject to judicial review and there is no remedy to the mother if the adoptive parent changed her mind.

[95] Section 141.1.1 allows for an access order to be made but the 2011 amendments created a process by which that access order will be terminated upon an adoption subject to the right of the party with the access order to apply for an openness order. Given that it is P.M.'s intention to proceed with the adoption it is likely that any access order made here will become an openness order.

[96] The Court finds that an access order should be made in all of the circumstances of this matter. It is in the best interests of the children that the future relationships between their adoptive parent and their biological parents have some structure. It must have been very difficult for P.M. to be planning to adopt and then find out that the mother wished to parent the children after all. It is always difficult for a biological parent to negotiate issues concerning their children with that child's primary caregiver. Any order should provide for flexibility but also mandate a minimum amount of time so that the parameters of the access terms will be clearly set out.

[97] It is important for the children to be able to continue the sibling access that they have as well as to continue to see their parents. However the access that will be granted will be significantly less than the mother currently has. An order making the children Crown wards means the end of any effort to return the children to the mother's care. Part of the reason for access prior to a Crown ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. Access at a minimum of once every two months will allow the mother and children to have family visits which could include the children's siblings.

[98] The Court recognizes that many changes in the family could occur over the years. The Court is unable to order that the other children share in the access as there may be other orders made, or to be made, concerning those children. The Court declines to order access to the father A.S. as he was found to be in default and his position could not be evaluated as there was not sufficient material before the Court to assess him as an access parent. It is understood that he was not able to attend a great deal of access to this point due to his work hours. The Court will trust the Society to determine if he can accompany D.W. on her access visits. At present it would appear to make sense to have visits continue to be supervised by Ms. S.D. for as long as she is willing to do so. P.M.'s mother lives in Caledon, south of Orangeville, and transportation and exchange should be able to continue. However it is not appropriate for the Court to be more specific. The access needs to be flexible to adapt to the changed circumstances. The nature and quality of the access will no doubt depend a great deal upon D.W.'s ability to co-operate with the adoptive parent so that together they can meet the children's needs for a connection with the birth family.

Order

[99] There shall be an order as follows:

1. The children L.W. born […], 2009 and D.S. born […], 2011 do not have any religious affiliation.

2. The said children are not Indian and are not eligible for native status.

3. The said children shall be found to be in need of protection pursuant to s. 37(2)(b)(i) and (ii) and s. 37(2)(g) of the C.F.S.A.

4. The said children shall be wards of the Crown and placed in the care and custody of the Children's Aid Society of Peel.

5. The children's mother D.W. shall have supervised access at least once every two months with the length of the visit and the time and place of the access to be in the Society's discretion.

Released: June 20, 2013

Justice P.J. Clay