WARNING

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

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

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

The court may make an order:

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

where the court is of the opinion that 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

Court File No.: C57659/12

Date: 2013-07-29

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

Parties

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

And in the Matter of: F. W., born […] 2012

Between:

• Catholic Children's Aid Society of Toronto – Applicant
• B.W. – Respondent (mother)

Before: Justice Robert J. Spence

Motion Heard on: 26 July 2013

Reasons for Judgment Released on: 29 July 2013

Counsel:

• Ms. Rena Knox – for the applicant society
• Ms. Anna Harris – for the respondent mother

Introduction

[1] This is a motion brought by the mother for an assessment under section 54 of the Child and Family Services Act ("Act"). More specifically, the mother seeks a court order that she undergo a psychiatric assessment conducted by Dr. L. and that the Catholic Children's Aid Society of Toronto ("society") bears the cost of this assessment.

[2] The society is opposed to the mother's request for an assessment.

The Legislation

[3] Section 54 of the Act states [my emphasis]:

54. (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

1. The child.
2. A parent of the child.
3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child. 2006, c. 5, s. 10 (1).

Regulations

(1.4) An order under subsection (1) and the assessment required by that order shall comply with such requirements as may be prescribed. 2006, c. 5, s. 10 (1).

[4] The "prescribed regulation" is Ontario Regulation 25/07 ("Regulation"). Section 2 of that Regulation states [my emphasis]:

Criteria for ordering an assessment

2. An assessment may be ordered under section 54 of the Act, if the court is satisfied that:

(a) an assessment of one or more of the persons specified in subsection 54 (1) of the Act is necessary for the court to make a determination under Part III of the Act; and

(b) the evidence sought from an assessment is not otherwise available to the court. O. Reg. 25/07, s. 2.

[5] From the foregoing it is clear that the ordering of an assessment is an exercise of judicial discretion. But in exercising that discretion, the court should first be satisfied that:

• The assessment is necessary, and
• The court is not otherwise able to obtain the evidence sought in the assessment

[6] These requirements are conjunctive.

The Issue

[7] The society admits that if the court makes an order for an assessment, the court also has the authority to order the society to pay for that assessment.[1] Therefore, the sole issue to be determined is the necessity for that assessment.[2] Mother argues the assessment is necessary whereas the society argues that it is not necessary.

[8] The essence of the mother's argument supporting her request for an assessment is that mother has self-acknowledged mental health problems which, according to her, have not been properly diagnosed. And, because of that, there is no treatment plan in place which would enable mother to begin to address her issues which, if she were successful in so doing, would enable her to eventually regain custody of her child.

Background Leading to the Apprehension

[9] The baby was born on […], 2012. The society apprehended the baby at birth.

[10] In or about August 2012, the mother's then-mental health support worker suggested that mother contact the society regarding the impending birth. The society met with mother and opened a file. From there, the society began to conduct its own investigations in respect of the mother's potential capacity to parent. Those investigations included her background and her current challenges. Through its investigations over the next several weeks, the society formed the opinion that mother would be unlikely to meet the needs of her soon-to-be-born baby.

[11] One of the problem areas which the society identified was in connection with mother's mental health. Mother advised the society that she had been diagnosed with schizophrenia, but that she did not agree with that diagnosis. However, because her entitlement to her social assistance[3] payments stemmed from that diagnosis, she was prepared to accept the diagnosis in order to ensure an uninterrupted flow of her much-needed income.

[12] Based on the society's observed behaviours of the mother, her lack of insight into her mental health and her lack of stable housing, the society made a decision to apprehend the baby at birth. The baby has now been in the society's care since […], 2012.

Since the Apprehension

[13] Initially, the court ordered mother to have supervised access, a minimum of twice weekly, for two hours per visit, at the society's offices. However, because the society was observing mother to engage inappropriately with the child during those access visits, the society brought a motion to either suspend or reduce mother's access.

[14] The motion was argued before me on December 13, 2012. While I did not reduce the number of visits, I did reduce the duration of each visit from two hours to one hour. It is important, in the context of the present motion, to understand why I made that order.

[15] I was persuaded on the evidence that mother had been exhibiting bizarre and often dangerous behaviours during access visits. Here is an extract from my endorsement following argument on that motion:

Some of the society's observations regarding the mother's behaviour are very concerning, including the mother potentially blocking the baby's airways with a blanket, speaking aggressively toward the baby, not understanding the baby's basic cues regarding hunger, or the lack of hunger.

In a number of respects the mother is exhibiting behaviours that would suggest that mental health issues are at play. However, mental health issues per se do not, in my view, pose a risk of harm to the baby in the context of the present supervised access. But the earlier referred-to behaviours may pose a risk of harm.

In my view, the mother's behaviours toward the baby pose a risk of either physical or emotional harm – possibly both.

[16] By the January 31, 2013 court attendance, the paternal grandmother, who had previously been suggested as a possible kin caregiver for the child, had dropped out of the picture as someone who might be able to fulfil this role.

[17] Mother's problematic behaviours continued, without material abatement. The society advised that it would be bringing a motion for police records and, additionally, that it was seeking further information from mother's psychiatrist regarding mother's mental health diagnosis and the recommended and prescribed medications from her psychiatrist.

[18] On March 6, 2013, on an unopposed basis, I ordered the production of mother's police records and her psychiatric records.

[19] The society subsequently identified the maternal uncle as a possible temporary caregiver, and it placed the baby with the uncle on an extended visit on June 8, 2013.

[20] On July 2, 2013 I made a temporary supervision order maintaining the baby with the uncle. The uncontradicted evidence is that the baby is doing very well in the care of the uncle and the aunt, and they have stated that they are interested in pursuing a possible adoption.

Mother's Records

[21] The society obtained and has now filed in the court record voluminous medical and criminal records pertaining to mother.

[22] I begin first with a flavour of the criminal records as, in my view, they are tied directly to the mental health issues. The criminal records reveal that from 2000 to 2013 mother had been arrested 38 times. The records contain 42 occurrence reports and 75 field information reports. Charges include theft, failure to attend court, assault, possession of controlled substances, trafficking, causing a disturbance and making harassing telephone calls.

[23] As a review of the records disclose, she has become well-known to a number of police officers over the years, who describe her as a "crack addict" and a known "prostitute". Police have also taken her to psychiatric facilities where she has been "formed"[4] under the Mental Health Act.

[24] The police records reveal that mother has engaged in the kind of bizarre behaviour that is indicative of mental health problems, including yelling, running into oncoming traffic, and threatening passers-by. On at least one occasion, her belligerent behaviour and her belief that others were out to harm her caused the police to determine that she was a danger to both herself and others and she was arrested under the Mental Health Act.

[25] On another occasion in 2011, mother was arrested for theft in a store, and when the police attended they observed mother to be behaving very strangely, including yelling and talking to herself. Her body also emitted a strong odour of cat urine.

[26] Most recently, in May 2013, the police attended at the mother's group home after she had attacked one of the staff members at that home. Mother told police that the staff person was an imposter who was trying to persuade her to take her medications. The police observed mother to be incoherent and agitated; and because the staff did not want her charged criminally, the police arrested her under the Mental Health Act, and took her to the Scarborough Centennary Hospital.

[27] I turn next to the medical/psychiatric records.

[28] Mother consented to a disclosure of those records limited to the period from 2006 to the present. These records reveal that during that seven-year period mother has seen seven different psychiatrists. Her current psychiatrist, Dr. Styrsky, is her primary psychiatrist. She has been treating mother for eight years.

[29] The society obtained and filed the OHIP records for the same seven-year period. The codes used in those OHIP records indicate the various diagnoses and treatments for mother during that period of time, for which OHIP was billed. According to those records, mother has attended for:

• Psychotherapy on a number of occasions
• Individual psychiatric therapy
• In-patient and out-patient psychiatric care
• Electroconvulsive therapy
• Assessments for psychoses, schizophrenia, drug dependence/addiction, anxiety neurosis, hysteria, obsessive compulsive neurosis and treatment for drug overdoses

[30] In total there were over 200 attendances/treatments offered to mother during the seven-year period covered by the OHIP records, the vast majority of which were for psychiatric/mental health issues.

[31] On March 16, 2011, the mental health court support worker at the Old City Hall Court wrote to Dr. Styrsky in connection with mother's then-current criminal charges of fail to comply and trafficking in cocaine. Mother had appeared in the mental health court for possible diversion of her criminal charges. The court support worker wished to obtain certain information from Dr. Styrsky in support of a request to the Crown Attorney for that diversion. Specifically, the worker asked for [my emphasis]:

a brief history including

• Diagnosis • Treatment recommendations • Medications • Frequency of appointments • Opinion regarding relation of offence to illness

[32] In a letter dated May 14, 2011, Dr. Styrsky responded to the court support worker as follows [my emphasis]:

This is a 33 year old female who has a diagnosis of chronic Schizophrenia. I also suspect a diagnosis of substance abuse (but this has not been confirmed by patient). The patient does not discuss her offences with me so I cannot comment on the relation of offences to her illness.

She is taking the following medications: Seroquel 25 mg. 8 tablets daily Temazepam 30 mg. 1 capsule twice daily

I have recommended an increase in her Seroquel dosage but she has refused to consider this. I see her in follow-up approximately every 6 weeks.

[33] Subsequently, in a handwritten note dated January 4, 2013, Dr. Strysky stated that she had been trying to persuade mother to agree to an increase in her medication but mother was refusing to agree. Further, Dr. Styrsky noted [my emphasis]: "patient appears suspicious [and] denies she has a mental illness".

[34] By telephone call on July 18, 2013, Dr. Styrsky advised the society worker that mother had not come to her office since May 2013, even though she was supposed to be attending approximately on a monthly basis.

Is an Assessment Necessary?

[35] In Children's Aid Society of Algoma v. M.(P.), 2008 ONCJ 768,[5] Justice John Kukurin considered whether an assessment was "necessary" in the context of a motion brought by the society for a section 54 assessment. At paragraphs 25 and 26 of his reasons for judgment, Justice Kukurin stated [my emphasis]:

A thesaurus examination of the adjective "necessary" and its noun form "necessity" yields connotations such as requisite, required, needed, essential, vital and indispensable. A review of the dictionary meaning of "necessary" results in similarly couched language. "Necessary" is that which "cannot be done without" or is "unavoidable in the nature of things". "Necessary" is several steps beyond desirable or helpful.

[36] At paragraph 33, Justice Kukurin continued [my emphasis]:

The recent amendments to the Act and the establishment of minimum mandatory criteria now require the court to be satisfied that it cannot make its essential judicial determinations[6] except with the assessment in question.

[37] What are the kinds of "judicial determinations" that a court is required to make under Part III of the Act? Without purporting to be an exhaustive list, some of those determinations include:

• What is in the best interests of a child
• What is the risk of harm that a child was exposed to prior to the apprehension
• What is the parent's ability to adequately address that risk of harm
• Is the parent capable of meeting the child needs if the child were in the parent's fulltime care and control
• If the parent is not capable of meeting the child's needs, what disposition would be in the child's best interests

[38] In the present case, I must ask, "Is it essential that mother attend on another psychiatrist for about three hours,[7] for the purpose of receiving a diagnosis and a treatment plan?

[39] In her affidavit sworn in support of this motion mother states that she requires the assessment for three reasons:

1. I believe I have mental health issues that have not been properly treated;
2. I believe an assessment will provide me with a treatment plan and make recommendations regarding medication that may better treat my symptoms; and
3. That without this evidence am unable to make a case regarding the potential caregiving role I can provide to my child in the future.

[40] Mother states in her affidavit that:

• She can't recall when she was diagnosed with schizophrenia;
• She questions Dr. Styrsky's recommended medications by stating "I am not certain this is the best treatment for me at this time";
• In the absence of an assessment the "majority" of the society's case against her is comprised of notes made by case workers during her access visits; and
• The society is not expert in the area of mental health and cannot determine her mental health status or her capacity to parent her child in the future.

[41] Mother's primary outside support for her assessment request comes from her current mental health case manager who states in a very recent letter to mother's counsel [my emphasis]:

My purpose in writing this letter is not to dispute Dr. Styrsky's opinion but simply to advocate for my client's request of [sic] a second opinion pertaining to her diagnosis and any subsequent treatment recommendations.

[42] In my view, the mental health support worker who, understandably, is a self-acknowledged "advocate" for mother, hit the nail on the head when she characterized this request for an assessment as essentially a request for a "second opinion".

[43] The court already has voluminous evidence about mother's psychiatric/mental health issues and challenges. Her treating psychiatrist for the past eight years knows mother better than any new psychiatrist meeting with her for a morning or an afternoon could possibly learn. To state this, is to state the obvious. It is merely common sense.

[44] Dr. Styrsky, her treating psychiatrist for the past eight years, provided a diagnosis and treatment plan[8] to the mental health court support worker in 2011. Dr. Strysky's letter to that worker was succinct and to the point. Yet, despite Dr. Styrsky's recommendations for treatment/medication, mother has refused to follow those recommendations. Even more telling, mother continues to deny that she has a mental illness.

[45] The fact that mother has chosen to either disbelieve Dr. Styrsky, or to not follow those recommendations, is not a reason to order a second opinion.

[46] The fact that mother believes, as she has stated in her affidavit, that the proposed assessment would leave her "unable to make a case" at trial, is not a reason to order a second opinion. Her desire for a second opinion does not equate with judicial necessity.

[47] The combination of mother's lengthy involvement with the criminal justice system, and her extensive contact with psychiatrists and other mental health professionals over the past number of years provides the court with a very clear evidentiary picture of mother's mental health issues, as well has how her mental health challenges have impaired her ability to function and how they may impact on her ability to parent a toddler in the immediate future.

[48] The court's ability to make the necessary judicial determinations, as required by section 2 of Regulation 25/07, come not only from the police and medical records but also from mother's on-the-ground behaviours. As I noted in my endorsement on the December 13, 2012 motion, those behaviours have a direct impact on the quality of her interaction with the baby.

[49] The accumulated evidence from the police records, the medical records and mother's observed behaviours provide the court with an abundance of evidence regarding mother's mental health, and obviates the need for a three-hour assessment.

[50] In a perfect world, with unlimited resources and no time constraints, second opinions can be a nice thing to have. But we are not living in a perfect world; we do not have unlimited resources, and we are not without serious time constraints. And, most importantly for the purpose of this motion, the court must be guided by the wording of the legislation, which requires a finding that the proposed assessment is "necessary" before judicial discretion will be exercised in favour of ordering a section 54 assessment.

[51] Regardless of which party seeks the court-ordered assessment, the legislation makes no distinction in the test for the determination by the court.

[52] Accordingly, in answer to the question I posed earlier, namely, is the requested assessment "necessary", in that it is essential to enable the court to make the judicial determinations which it must make, I am forced to conclude that the assessment is not necessary.

[53] For all of these reasons, and despite the very able submissions by mother's counsel, I must dismiss mother's motion for a section 54 assessment.

[54] I have adjourned this matter to September 4, 2013. That date will be for a settlement conference, with each party to file settlement conference briefs. Thereafter, if the matter is not settled, it will be on the Assignment Court list for October 16, 2013 @ 2:00 p.m. By that date, the baby will have been in care beyond the statutory time limit, and because of the very young age of this baby, permanency planning is essential.

Justice Robert J. Spence

29 July 2013

Footnotes

[1] See, for example, Children's Aid Society of Toronto v. O. (Kemi) and L. (Bruce), 68 O.R. (3d) 269

[2] There are other legislative requirements that must be met before the court will order an assessment, but for the purpose of this motion, the only requirement that was in issue is the requirement set out in section 2 of the Regulation

[3] Specifically, from the Ontario Disability Support Program

[4] Whereby the person can be detained for a period of time while a psychiatrist determines whether that person is a danger to herself or to others

[5] See also Children's Aid Society of Algoma v. M.L.-B., 2012 ONCJ 456 which makes similar observations

[6] The "judicial determinations" are those required to be made under Part III of the Act

[7] The psychiatric assessor mother has chosen proposes to spend a total of seven hours from start to finish, which would include a morning or an afternoon with mother (including reviewing court documents), and the balance of his time presumably preparing his assessment report

[8] Which is precisely what mother would be seeking in the section 54 assessment