Court File and Parties

Court File No.: CFO-12-10141-00-A1 Date: 2013-01-15 Ontario Court of Justice

Between: Children's Aid Society of Toronto Applicant

— And —

M.M. & R.N. Respondents

Before: Justice M. L. Cohen

Endorsement

COHEN, M., J:

Background and Procedural History

[1] This is a ruling regarding the temporary care of the child A.N., born […], 2011. A.N. was admitted into the care of the Society on October 29, 2011, pursuant to a three month Temporary Care Agreement. The following February, 2012, the society commenced a protection application in which it seeks a finding that A.N. is a child in need of protection under section 37(2)(b)(i) of the Act, and a 6 month period of Society wardship. On February 15, 2012, Weagant, J. made an order placing A.N. in the temporary care of the society, subject to access by the mother, at the discretion of the Society, at a minimum of twice per week. The Society has now changed its position regarding the disposition of the matter, and seeks to vary the existing order of temporary care.

[2] In this motion, the Society is seeking a temporary order allowing for increasing access to the mother over a four week period, including overnight and extended visits. At the end of the four week period, the society expects to ask the Court to make a final consent order, which would include a finding under section 37(2)(b) of the Act, and an order placing A.N. with the mother, subject to a supervision order. The mother supports this plan, including the proposed variation of the existing temporary order. The father resides in Guyana and has yet to be located and served with the pleadings.

[3] There is ample evidence in this case that the mother suffers from a severe cognitive disability. The central issue in the application will be whether, notwithstanding her cognitive limitations, the mother has the capacity, with the support of the Society, to adequately parent the child. Considering the very difficult issues raised in such an application, and in the motion to vary the existing Order, I directed that the motion proceed by way of oral hearing. The hearing has now been completed, and for the reasons which follow, I am ordering that the child remain in the temporary care and custody of the society, subject to access by the mother.

Factual Background

[4] A.N. came into care as a result of reports from hospital social workers, and subsequent observations by society social workers, all of whom suspected the mother was cognitively limited. It was noted that the mother, who is 42 years of age, only discovered her pregnancy at 32 weeks. She did not have permanent housing or any source of income, and she lacked the basic necessities for caring for an infant. The social workers observed that the mother did not know how to soothe, diaper or dress the baby. She required frequent prompting to read the baby's cues. They also found that information had to be repeated to the mother numerous times for her to be able to remember and apply what was said. The mother herself acknowledged that she did not know how to care for an infant and agreed to the child coming into care.

[5] Since A.N.'s placement in care, the mother has been the subject of concentrated efforts by the Society to educate her in the basic requirements of parenting an infant. She has engaged in several parenting programs, including "Make the Connections", and the Therapeutic Access Program. However, because the mother, despite her best efforts, continued to struggle, in April, 2012, the Society recommended that she participate in a cognitive assessment.

Expert Assessment

[6] Pursuant to a consent section 54 Order, dated June 14, 2012, the assessment was conducted by Dr. Kathleen McDermott. Dr. McDermott was asked to assess:

1. The mother's intellectual and cognitive functions, and related strengths and challenges relating to her level of functioning and the impact of same on her ability to parent the child;

2. An assessment of the level of her language and communication abilities;

3. An assessment of the level of her attachment with her daughter and of her ability to form an appropriate attachment;

4. An assessment of whether any community supports, programs or services can assist the mother in learning parenting skill and in maintaining information, and whether there may be a particular approach to learning that the society can use to assist the mother in being successful.

[7] Dr. McDermott's report was completed on July 12, 2012. Dr. McDermott's assessment involved one meeting with the mother, in which she obtained a personal history and administered three cognitive tests, an interview with the family services worker, and a review of "all pertinent reports and notes, as submitted by the society." Other than recounting the mother's personal history, the report primarily relates the results of the cognitive testing. In the report Dr. McDermott states that she did not, as requested, assess the mother's level of attachment with A.N., "due to the limited focus of this assessment of [mother's] cognitive abilities."

[8] Dr. McDermott testified at the hearing and was qualified as an expert in psychological assessments of adults and children. The following are the conclusions as set out in her written report:

M.M.'s overall intellectual functioning resides in the Developmentally Delayed Range (1st percentile). Although there is a significant discrepancy between her Verbal Comprehension skills and her Perceptual Reasoning abilities, both reside in the Developmentally Delayed Range (1st and 001st percentiles, respectively). M.M.'s retention of verbal and visual material indicates that she has major difficulties with the immediate recall of verbally and visually presented materials (4th percentile) but she is able to retain the limited information she has processed over a period of time (12th percentile). Her overall Composite Memory Skills reside at the 7th percentile.

Generally, individuals with a learning profile similar to M.M.'s have difficulty processing essential verbal and visual information and with retaining it over time. M.M. would have difficulty in discerning salient from irrelevant information and in judging or weighing the importance of that information. Her thinking is largely simplistic and concrete in nature and she may find it very difficult to think on an abstract level. Hence, she may not be able to generalize from one learned situation to another or see important variations that run along a similar theme. The logical order or sequence of tasks may not be anticipated nor the consequences of her own actions or the actions of others. Also, the ability to multi-task is compromised and hence she may not be able to efficiently move back and forth from one task to another.

For M.M. to acquire new skills, generally or within the area of parenting, she would need both verbal and visual training with a good deal of repetitive exposure and modelling in order to consolidate learning of basic information. Due to her intellectual deficits she cannot be expected to readily process complex information or generalize learning to new situations. Written material needs to be at a very basic level as her reading is at the second grade level.

Individuals with M.M.'s learning profile usually require both informal and professional supports to successfully manage independent living. M.M. qualifies for an intellectual disability but appears capable and motivated to work. She would be most suited to simple repetitive tasks in work environments that do not require complex decision making or judgment.

[9] Dr. McDermott stated that developmental delay does not preclude the ability to parent. Other factors must be considered. She stated that, based on her review of the Society notes, she saw the mother as optimistic, motivated and receptive to help, and not angry or defiant. These would be protective factors. Dr. McDermott acknowledged however, that she did not do a parenting capacity assessment, and that she did not do psychological testing. She stated that the cognitive tests she conducted would constitute one component of a parenting capacity assessment.

Evidence at Hearing

[10] The Society called several social workers on the motion. Their testimony was strikingly positive. Over the course of the 15 months A.N. has been in care, the social workers have observed progress in the mother's parenting skills. She comes to access visits prepared, she is able to navigate public transit with the child, and she is able to appropriately manage feeding, changing, and dressing A.N.. The mother was observed to be attentive and loving with A.N., willing to learn, and compliant with the social workers.

[11] On the other hand, this testimony did not address the risk in this case that was summed up in a report from April, 2012, by a worker from "Make the Connections." She stated that she "worries if something doesn't go the way Ms. M. expects," that she "wasn't sure whether Ms. M. could manage," and that she "had concerns about Mother's ability to remember information and apply what she learned in caring for A.N.."

[12] Shannon Deacon, who testified for the Therapeutic Access Program, stated that that Dr McDermott's reports fit with the observations of herself and others in the program: the mother was slow to learn, had difficulty retaining material and needed extra support, both formal and informal.

[13] The mother did not testify at the hearing. Nor did Mr. I.M., the man with whom the mother resides. Mr. M. was described by one of the social workers as mother's roommate, which he is, but he is also her former husband. Whether he would be appropriate, available, and reliable as a support to mother was not explored. Indeed, the mother pleads in her Answer/Plan of Care that her roommate works long hours, and will not be involved in the care of the child. We know that on one occasion when a worker called him on Mr. M. on his cell phone, he purported to be in Pakistan. A neighbour was referred to as a possible support, but he also was not called upon to testify. In the result, there was no direct or reliable evidence that would enable the Court to assess the availability or quality of any "informal" support persons who might be available to assist the mother on a daily basis.

Legal Framework

[14] This is a motion under section 51 of the Act, which provides that where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

• (i) a place of secure custody as defined in Part IV (Youth Justice), or
• (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

[15] The determination is governed by section 51(3) which provides that:

(3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

Court's Analysis and Decision

[16] I am satisfied there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm in the mother's care as a result of her severe cognitive limitations. The Society and the mother agree that a supervision order would be required were the child to be returned to the mother's care.

[17] The more difficult question is whether the child can be protected by an order of supervision, and on this question, despite the mother's progress, I find the Society's motion fails. In my view, the fact that the mother can parent the child adequately for brief periods does not establish that she has the capacity to care for the child, on her own, over an extended period. Before the child is returned to the mother, the Court requires satisfactory evidence about the mother's ability to anticipate problems, to adjust and learn from experience, to exercise sound judgment in new or unexpected situations, and to exercise vigilance with regard to room-mates and other persons in contact with the child.

[18] Dr. McDermott's evidence is of limited value in this regard. She did not do a comprehensive assessment. Furthermore, while the Society will provide "formal supports", there is no satisfactory evidence of other supports available to the mother through family or friends in the community. At this stage I am not satisfied that the risk can be addressed by terms of an order. I am dismissing the motion without prejudice.

Comments on the Adversarial Process

[19] I wish to comment briefly on the efficacy of the motion in this case. As I have noted, the Society and the mother were in agreement that the order should be varied to permit extended and overnight access. I was not satisfied that the affidavit evidence supported the change, and directed an oral motion in the expectation that in an oral motion, the evidence would be amplified, and tested. This did not happen.

[20] Child protection litigation is resolved through the adversary system, which has as its goal accurate fact-finding. The adversary system presumes that parties who are motivated by self-interest will present and critically test all relevant evidence. To quote one academic observer, "…if one of the parties is not motivated to oppose the other party's case, the requisite factual investigation and presentation of proof will not take place"[1]. Furthermore, where the parties are not motivated to oppose one another, as was the case here, the damage to the fact-finding process cannot be remedied by the judge. I acknowledge that, in a child protection case, the judge has more expansive powers than in other forms of civil litigation, including the power to call witnesses under section 49 of the Act. Nonetheless, the judge will always be significantly constrained. Most importantly, and for very good reasons, the judge must occupy, and respect, the "position of established neutrality." A judge who intervenes too enthusiastically in a case may lose the balance necessary to objectively assess the merits of the case. In addition, the perception that justice has been done may be tainted, not only with negative consequences for the reputation of the justice system, but also for the parties, who may be less willing to respect the order which results. Furthermore, from a practical perspective, a judge who enters the arena may do more harm than good. As the Supreme Court noted in R. v. Brouillard, [1985] 1 S.C.R. 39[2], "It must always be borne in mind that the judge does not know what is in counsel's brief and has not the same facilities as counsel for an effective examination-in-chief or cross-examination".

[21] I wish to make clear that I do not fault counsel, who are entitled to agree with one another on what they see as an appropriate resolution of a case, and I believe the Society made its best efforts to present the evidence on the motion in a dispassionate manner. Nonetheless, I have concluded that the evidence was not adequate, nor was it properly tested. The question of whether a loving parent with a severe cognitive disability can safely and adequately parent a child is complex. Surely more evidence is required before this question can be properly answered. The assessment was brief and limited, the witnesses were not cross-examined in any meaningful sense, and important information was lacking. In all the circumstances, I intend to summon additional resources to ensure that the court has an adequate record on which to base its decision.

Orders

[22] I am making the following orders: First, pursuant to section 38 of the Act, legal representation is to be provided to the child by the Office of the Children's Lawyer. Secondly, cognitive testing has confirmed that the mother, a single parent, suffers from a severe cognitive limitation, and a more comprehensive assessment is required to enable the court to properly assess risk in this case. The parenting capacity assessment is necessary for the court to make a proper determination in this case, and the evidence to be gained from the assessment is not otherwise available to the court. (see: Court Ordered Assessments, O. Reg. 25/07, section 2; Children's Aid Society of Algoma v. P.Mc., 2008 ONCJ 768, [2008] O.J. No. 5774 (Ont C.J.)). I am ordering that the mother undergo a parenting capacity assessment pursuant to section 54 of the Act.

[23] Once the Children's Lawyer has been appointed, counsel shall file with the court the name of three proposed assessors together with curricula vitae, and the proposed terms of the assessment order. I am therefore adjourning the matter for case conference or motion to settle the terms of that Order.

Released: January 15, 2013.

Justice Marion Cohen

Footnotes

[1] Neil Brooks, "The Judge and the Adversary System", reprinted in The Civil Litigation Process Cases and Materials, 6th edition, (2005), Emond Publications Limited, Toronto at p.54

[2] Citing Yuill v. Yuill, [1945] 1 All E.R. 183 (C.A.)