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.

(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

File No.: C71658/14

Date: 2014-12-05

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

Between:

Catholic Children's Aid Society of Toronto — Applicant

- and -

Maricel R. (mother) and Abraham M. (father) — Respondents

Hearing Details

Before: Justice Robert J. Spence

Motion Heard on: 2 December 2014

Reasons Released on: 5 December 2014

Counsel:

• Ms. Shamshad Bee — for the applicant society
• Ms. Tammy Law — for the respondent mother
• Father not present, his whereabouts currently unknown

Introduction

[1] This is a temporary care motion in respect of the now three month old child who was apprehended at birth on September 12, 2014.

[2] The Catholic Children's Aid Society of Toronto ("society") was contacted by the hospital staff as a result of security related issues occurring at the hospital, surrounding mother's family who was present with her at the time of the birth. The combination of the volatile behaviour of mother's family at the hospital, together with the mother's own disabilities, gave rise to the hospital's concerns, and to the subsequent decision by the society to apprehend the baby.

[3] On September 17, 2014 Justice Stanley B. Sherr made a temporary without prejudice order placing the baby in the care of the society, with access to mother four times each week, 90 minutes per visit, supervised at the society's office.

[4] The temporary care motion was to have been argued on October 21, 2014, but on that date I adjourned the motion as the society had been seeking certain records in respect of mother's disability, and those records had yet to be delivered to the society. That adjournment was contested by mother's counsel. I made it clear I would not be inclined to grant a second adjournment at the society's request.

[5] The temporary care and custody motion was subsequently argued before me on December 2, 2014. The following are my reasons for judgment on that motion.

Mother's Position

[6] Mother's primary plan is for her baby to be returned to her care, pursuant to a supervision order. Her alternate plan is for the baby to be placed in the care and custody of her (the mother's) godmother, again pursuant to a supervision order.

Society's Position

[7] The society's position is that neither of mother's proposed plans for the interim care of the baby satisfies the tests set out in section 51 of the Child and Family Services Act ("Act") and, accordingly, the court should order the baby to remain in the society's temporary care.

The Primary Plan – Return to Mother

[8] The section of the Act which governs mother's primary plan, namely, a return to herself, is set out in section 51(2) of the Act, which provides [my emphasis]:

Custody During Adjournment

(2) 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. R.S.O. 1990, c. C.11, s. 51 (2) ; 2006, c. 19 , Sched. D, s. 2 (9); 2006, c. 5, s. 8 (1, 2).

Criteria

(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) . 1999, c. 2, s. 13.

[9] Distilled, the test in this section is about risk of harm and whether that risk of harm can be adequately addressed by a court order which, in this case, would include terms of supervision. The onus is on the society to establish on credible and trustworthy evidence that there are reasonable grounds to believe that there is a real possibility that if the baby is returned to the mother, it is more probable than not that she will suffer harm. Further, the onus is on the society to establish that the baby cannot be adequately protected by terms of conditions of an interim supervision order. See – Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.).

[10] The society's argument is that if the baby were to be returned to the mother, there is no order that the court could make that would adequately protect the baby from risk of likely harm while in the mother's care.

Discussion of Mother's Primary Plan

[11] Mother is a person with special needs. She has developmental delays which impact on her ability to function in certain aspects of her daily life. Citing from one of mother's own affidavits, she states:

In the informal assessments done by Dr. Chan for ODSP purposes in 2010, he noted that I have a severe learning disability with most severe symptoms with intellectual function, learning and memory. It states that I have difficulty with naming times and places, attention span, use of public transport, and banking. He further notes that I have no symptoms among other things of poor judgment, emotion, impulse control, lack of insight, motor behaviour or perception.

[12] Mother acknowledges that she is functionally illiterate, being

unable to read or write but I have managed to function well using assistance from my supports.

[13] Mother further states that she has

Poor short term memory – I have always known about this for a long time and have learned to cope by always asking for appointments and times to be written down for me. I am then able to show the documentation to support persons such as family members to remind myself of what was said.

[14] Mother states that she has no problems with long term memory.

[15] She continues in her affidavit with the following comments about her disability:

Awareness of dates – I am not good with specific dates, however, I am able to remember when I need to be at an appointment at a certain day of the week.

Banking – I have my own bank account at TD Bank. I know how to cash my ODSP cheque and know how much I have. I pay my own bills with my ODSP money.

Public transit – I am able to use public transit to arrive at places that are familiar to me. The only time I have difficulty with public transit is when I am required to go to a new place. When that occurs, I ask my supporters to accompany me and show me how to get to the unfamiliar address.

Complex tasks – I do agree I have difficulty with complex tasks, however, when the tasks are broken down for me I am usually able to learn them. When the task is too complex for me, I have the humility to ask for help.

I have insight into my disability. I have known since I was very young that I am delayed and I have learned to cope and function despite that disability by surrounding myself with supports and supportive people. I believe that I am able to parent [my child] with the appropriate supports and in fact, my plan has always included a plan with supports.

[16] The fact of mother's disability is not disputed. The question for the court is whether mother – as a result of her disability or otherwise – is able to protect her baby from the risk of likely harm if the baby is placed in her care, with terms of supervision.

[17] Undoubtedly, mother has many strengths, which the court recognizes. Despite her disabilities, she has demonstrated an ability to function effectively in a number of areas. Specifically, I note the following:

1. During her pregnancy mother attended 15 out of a possible 16 prenatal visits.

2. In addition to attending her prenatal classes, mother attended a prenatal support group at Rosalie Hall. She did this without being prompted to do so by the society.

3. Since the date of Justice Sherr's order, mother has attended 38 access visits at the society's office. In order to get to those visits, she is required to take public transit, something which she has demonstrated an ability to do.

4. The evidence presented to the court does not reveal any serious problems having occurred at those access visits. In fact, mother has demonstrated responsibility and resourcefulness by attending those visits well prepared, for example, arriving with diapers for the baby. While one case note described some difficulty mother was having with burping her baby, another case note stated that she had been able to do so effectively.

5. In the 38 access visits, which total 57 hours of observation, there are next to no serious problems observed by the society insofar as mother's ability to appropriately interact with her baby.

6. Despite her developmental delays mother has a demonstrated ability to manage her ODSP funds in a responsible manner.

7. Mother has the insight to recognize that she cannot parent her baby on her own without supports and, because of this, her plan is to move in with her godmother who will assist her on an ongoing basis. There are other family members who are also able to assist mother, including the godmother's 19 year-old daughter who was present in court during the argument of this temporary care and custody hearing.

[18] However, in spite of these strengths, there are deficits which, in the opinion of the court preclude mother from being the baby's primary caregiver.

[19] The court wishes to emphasize that the fact of mother's disability alone is not a reason to conclude that she is incapable of addressing the risk of harm issues. A parent's cognitive limitations alone cannot be a reason to separate a child from her parent. In Children's Aid Society of Kingston v. F.R., 23 R.F.L. 391 (Ont. Prov. Ct. – F.D.), at paragraph 8, Thomson J. said [my emphasis]:

It is my opinion that the court should take the following approach when faced with cases such as the one now before me. First of all, the fact of low parental intelligence should not be taken as determinative in itself of the child's need for protection. Rather, the question should be one of deciding whether, in light of their individual capabilities, these parents are able to meet their parental responsibilities.

[20] While the society spent some time during argument referring to various psychological assessment test scores in respect of mother's areas of strengths and weakness, the court is necessarily less concerned about scores and more focused on mother's on-the-ground functioning insofar as it relates to her ability to parent, in other words, her "individual capabilities".

[21] And it is in respect of mother's functioning that the court sees serious red flags.[1]

[22] Mother's illiteracy prevents her from doing certain things which are essential to the care of a child, particularly a young baby who is in the most vulnerable category of children. For example, if the mother cannot read a prescription bottle for her child's medication, how can she know to follow certain instructions for administering medication?

[23] While mother's adult supports may be able to assist mother in this regard, those supports cannot be assured of being available around the clock, every day of the week.

[24] Given mother's short term memory challenges, how will mother be able to remember when she last administered any medication which is to be given to her baby on a periodic basis throughout the day?

[25] While mother is able to take public transit to places that are "familiar to me", what will happen in the event of an emergency which requires mother to take her baby to a hospital and her supports may not be immediately available?

[26] These are just a few of the challenges that mother faces as a result of her disability. And it is far from clear to the court how any terms contained in a supervision order could ensure that those challenges are adequately addressed.

[27] Again, it is important to emphasize that the child before the court is an infant and, as such, requires very close attention and monitoring.

[28] Second, mother has demonstrated by her conduct that she may be not be capable of making correct choices, to the extent that she places both herself and, potentially her baby, in danger. Mother's own mother kicked her out of her home when she found out mother was pregnant because she disapproved of the baby's father. When this occurred, mother decided to move in with her sister-in-law, Melissa.

[29] Mother herself acknowledges that this decision was an error in judgment. She moved into Melissa's home in February, and despite her awareness that Melissa was acting inappropriately, she continued to remain in the home during her pregnancy. Melissa was involved with drugs and alcohol and inappropriate "partying" with her friends at her home, the home where mother was residing with her unborn baby. And yet, mother continued to reside in that home, placing both herself and her unborn baby in harms' way.

[30] Melissa's conduct toward mother was abusive. On July 1st Melissa assaulted mother. Mother states

Melissa became very angry and pushed, kicked and strangled me. I sustained bruises all over my legs and red marks on my neck. I was seven months pregnant at the time and I was fearful for my safety and that of my unborn child.

[31] This is not to blame mother for the assault committed by Melissa but, rather, to point out that if mother had been capable of exercising more prudent judgment, had she been capable of making better choices, she would have been aware that Melissa was a pot getting ready to boil over. Mother would have seen this and either not moved into Melissa's home or, having moved into her home, immediately recognized that the decision to do so was a bad one, and moved out right away. By remaining in Melissa's home she not only exposed herself to considerable risk of harm – harm which in fact materialized - but harm to her unborn baby as well.

[32] Mother's highly questionable judgment is further highlighted by her involvement with the baby's father.

[33] The father, who is 22 years old and in receipt of ODSP, has been involved in a relationship with the mother for about 7 years. Mother told the society worker that on one occasion, the father showed mother a gun while she was at his home.

[34] When mother told the father that she was pregnant he pushed her down the stairs.

[35] Mother told the society worker that when she was in labour she tried calling the father repeatedly but he would not come to the hospital. The father was clearly not interested in the wellbeing of his child, or in becoming an active parent.

[36] During mother's access visits at the society's offices, mother was heard to tell father over the telephone that she didn't like the way he was talking to her and to "watch your mouth". And yet mother still tried to encourage the baby to "talk to papa". She kept trying to encourage the father to come to the access visits to see the baby. Mother had difficulty understanding that father was simply not interested in engaging with his baby.

[37] Mother told the society worker that the father stated he does not want anything to do with the baby, that he doesn't want to see the baby, and that he will not get anything for the baby. And yet despite this, mother persists in trying to forge a relationship between the baby and the father, something which, on the evidence before the court, runs counter to the baby's best interests at the present time.

[38] Notwithstanding the father's demonstrated assaultive behaviour, his clear lack of interest in the baby, and his irresponsible attitude, mother says that she still loves him, just "not as much". According to the society's evidence, mother

said that she knows that if she dresses up sexy she would get him because he likes that. She said that he gets jealous and accused her of being with other guys.

[39] Whether mother's demonstrated poor choice regarding the father arises from her disability or from a simple inability to make a responsible decision in that area, is of little concern to the court. The court's only concern is that mother did what she did, made the choices that she made, and in acting the way she did, she placed both herself and her baby at risk of harm. Instead of running as far away from the father as she could, and as fast as she could, she has persisted in attempting to maintain a relationship with the father, something which, in the court's view, poses a risk of harm to the child.

[40] It is fundamental that a supervision order requires full and complete cooperation between the caregiver/parent and the society. The most recent event which occurred at the society's office on November 28th casts serious doubt on the mother's ability or willingness to work cooperatively with the society.

[41] On that date, the maternal grandmother was at the society's office to visit with one of her own children, the half-sister of mother. Mother was also present at that visit. During that visit, the society worker supervising the visit was forced to enter the room to speak to the grandmother about some inappropriate conduct on her part. As the worker was leaving the room, the mother said "What a fucking bitch,[2] I am going to beat the shit out of her". The mother said this in front of the grandmother and in front of her half-sister.

[42] The fact of this event is not disputed by the mother. However, while apologetic, she is somewhat dismissive of this event, characterizing it more as an outburst during a stressful moment. The court takes an entirely different view of this event and of mother's explanation and, accordingly, is far less sanguine than mother.

[43] In the first place, this was not a visit between mother and her own child but, rather, a visit between the maternal grandmother and the mother's half-sister. Mother's stress level ought to have been virtually non-existent in such a situation. It was not as though mother was visiting her own child and the worker came into the room and engaged mother in a heated discussion.

[44] Second, there is no evidence that the society worker did or said anything inappropriate to cause this escalated behaviour on mother's part. Third, mother was fully aware that her inappropriate language would be heard by both the child she was visiting as well as the society workers themselves. In acting as she did, the mother needlessly and inappropriately exposed her half-sister to verbal abuse.

[45] And all of this is in addition to the direct threat mother levelled at the worker, a threat which was reported to the police, leading to a criminal investigation.

[46] Furthermore it is not an answer to say that a parent who is involved with the society will occasionally experience stress and react inappropriately in the moment. Raising a young baby is, by its very nature, a stressful undertaking. Stressors occur frequently and it is important for the court to understand whether or not a parent is capable of dealing appropriately with those frequently occurring stressful situations.

[47] If such a relatively minor society/parent interaction, of the kind that occurred on November 28th is going to result in the almost complete loss of control that mother exhibited on that day, how will mother possibly be able to cope when she experiences far more stressful situations, the kinds of situations that are commonplace with the parenting of babies and very young children?

[48] Here, mother not only swore at the worker, but effectively threatened to assault her. She did this with the "eyes and ears" of both the society and the court on her. If she behaves in this manner when she is under close scrutiny, how will she behave when she is out of sight, away from the constant monitoring and observation of the society? The court can have no confidence that she will cooperate fully and unreservedly with the society if her baby were to be placed in her fulltime care.

[49] Unfortunately, the combination of mother's poor choices, her lack of insight and her demonstrated poor judgment forces the court to conclude that no supervision order, regardless of the terms, would sufficiently alleviate the risk of harm to the child in the mother's primary care.

The Alternate Plan – Placement with the Godmother

[50] The section of the Act which governs mother's alternate plan is section 51(3.1), which provides [my emphasis]:

Placement with Relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community. 2006, c. 5, s. 8 (3).

[51] The test in this section differs from the test for placement with the mother. Whereas the test for placement with mother is about adequately addressing the risk of harm, the test for placement with a relative or member of the child's community is about best interests.

Discussion of Mother's Alternate Plan

[52] The society has a number of expressed concerns about placement with the godmother. They can be summarized as follows:

1. The godmother "may" have a criminal record;

2. The godmother does not have the ability or commitment to care for a newborn child;

3. The godmother has failed to address safety concerns in her home; and

4. The proposed sleeping arrangements for the baby in the godmother's home may not be appropriate.

[53] I gave the society leave to cross-examine the godmother during the course of this hearing, with the right to re-examine by mother's counsel. As a result, my findings are based on the oral evidence elicited as well as the affidavit evidence filed in the court record.

[54] I turn first to the issue of the so-called criminal record. The godmother stated in her evidence that she has no criminal record as an adult. She did say that she may have been "charged" criminally as a youth. The society's response to this is that it "doesn't know" if this information is correct because it has yet to hear back from the RCMP following the request for the godmother's fingerprints. The godmother complied with this request for fingerprints and the society does not know – whether it will be weeks or months – when it will hear back from the RCMP regarding a more complete criminal record check.

[55] The godmother's evidence about her record has not been refuted, and the court has no reason to disbelieve her. The court cannot speculate that a further search of RCMP records "may" reveal something which contradicts the godmother's evidence.[3]

[56] To delay a decision about placement on this basis would be to keep a child in care longer than what might otherwise be necessary, and to unnecessarily delay the proceedings to the detriment of the baby. In this regard, I adopt the comments of Justice John Kukurin in Children's Aid Society of Algoma v. L.H., 2014 ONCJ 394, [2014] O.J. No. 3987, at paragraphs 31 and 32 [my emphasis]:

The question at this point is what should the court do. The simplest route would be to simply adjourn any decision and await the outcome of the kin assessment . . . in the hopes that it will be favourable. . . . The alternative is to decide the temporary care and custody . . . on the basis of the evidence that the court currently has, applying the criteria that the court is mandated to apply. My decision is to do the latter . . . . There is already too much delay in child protection matters generally. Kin assessments are just one more element that adds to delay.

[57] So while the society did not specifically request an adjournment of this motion to await further records from the RCMP, it implied during argument that the court should perhaps be concerned about the unknown, concerned that such disclosure might reveal evidence other than what the evidence currently discloses. I reject that position as it is based on nothing more than speculation on the society's part.

[58] The second issue is the godmother's ability or willingness to commit to the care of a newborn infant. The society argues that the godmother cancelled some appointments with the society. The society also points out that the godmother only attended a few of the 38 scheduled access visits. And finally, the society argues that the godmother has three children of her own, ages 5, 14 and 19 years, suggesting that the godmother already has her hands full at home.

[59] While the godmother did cancel visits with the society – due to illness – she actually met with the society on three occasions, namely, twice in October and once in November. Furthermore, she was present with the mother at the time of the hospital apprehension. Moreover, she has sworn two affidavits in support of the mother in this proceeding. She has also taken the time and demonstrated her commitment by attending court in support of the mother. And she has opened her home to the society as well. All of this demonstrates a great deal of commitment by the godmother. Notwithstanding all of her obligations as a parent to her own children, it is the court's view that she has demonstrated a real commitment to work with the society in an attempt to persuade both the society and the court of her ability and willingness to care for the baby.

[60] As to the number of access visits she attended, that has been explained in a satisfactory manner. Her evidence is that the society asked her to "back off" the visits, presumably so that it could assess mother's interaction with the baby alone during access visits. I listened very carefully to godmother's evidence in her oral testimony. It is clear that she is a person of limited sophistication and it is easy to understand how there may have been some communication problems between her and the society. I place little weight on the fact that godmother attended a limited number of access visits.

[61] While it is true that the godmother has other responsibilities in the home and, doubtless, the addition of a newborn will add to those responsibilities, she does not currently have employment outside the home. She obtained a Personal Support Worker certificate in 2000 and worked in that capacity for seven years. However, she is presently in receipt of Ontario Works arising from an inability to work due to arthritis in her shoulder.

[62] Her 19 year-old daughter lives at home with the godmother. The adult daughter has sworn her own affidavit in this proceeding wherein she outlines her "excellent relationship" with the godmother and with her own siblings. The daughter has attended access visits with the baby and she has asserted her commitment to assist with child care responsibilities in the home. So, while the godmother does indeed have much on her plate, the fact that her adult daughter is on the scene is an asset, rather than a liability. She is someone who, the court concludes, would provide real value-added to the godmother's ability to care for the baby.

[63] From all of the evidence, I am unable to agree with the society's submission that the godmother has either the inability or a lack of commitment to take on the primary care of mother's baby.

[64] I now turn to the third concern raised by the society, namely, the safety issues in the home. During a home visit in October, the society identified a number of safety concerns, including the lack of a carbon monoxide detector and a non-functioning smoke detector, window screen issues and the smell of cigarette smoke in the home. The society's evidence is that these concerns had not been addressed as at November 24th.

[65] However, godmother stated in her affidavit sworn November 25th that she had addressed those concerns. The society cross-examined her on this point and elicited testimony that these concerns were in the "process" of being addressed by the godmother at the time she swore her affidavit and, in fact, by the weekend of November 29-30, they had been fully addressed. The only remaining thing to be addressed by the godmother was setting up the baby's crib, which is in fact present in the godmother's home.

[66] I accept the godmother's evidence that these safety issues are now substantially addressed.

[67] The final issue raised by the society is the baby's sleeping arrangements, something which society counsel candidly acknowledged as a minor issue. The society wondered why the godmother's proposal was to have the baby sleep in the same room as her five year-old child instead of in the godmother's room. The godmother stated in her evidence that she would make the necessary "accommodations" depending on where the mother herself is sleeping as well as what makes the most sense for the sleeping patterns and wellbeing of both the baby as well as the five year-old. The court considers this response to be very sensible, reflecting as it does the need to be flexible and to see how the different arrangements will actually work out.

[68] I agree with the society that this is a minor issue. I have no reason to believe that the godmother will fail to set up her home with the sleeping arrangements organized in the most reasonable way, having regard to the needs of the baby and her own five year-old child.

[69] I recognize that the godmother is living in somewhat constrained circumstances. She is on a limited income, and living in a modest apartment. However, many families do just fine living in such circumstances. It is important that the court not judge the godmother and her circumstances by middle-class standards. Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515. Furthermore, the society candidly acknowledged it would assist the godmother by providing resources to the family in the event I ordered the child to live with her. Those resources would include supports such as visits from a public health nurse, a parent support worker and a letter advocating for daycare subsidies.

[70] As I noted earlier, the test for placement with the godmother is "best interests". The factors which a court must consider in determining the best interests of a child are set out in section 37(3) of the Act. It is unnecessary for me to go through those individual factors. Suffice it to say that when weighing the benefit of a foster home against living in a family home, surrounded by a parent and "god-family" members, the starting point is that a court will almost always prefer the latter over the former.

[71] I note as well that there was a need for the baby to change foster homes since coming into the society's care, so that continuity of care will be better addressed by the family than by the baby remaining in care, where there is clearly no guarantee that the baby will have uninterrupted continuity of care.

[72] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448. Had I decided that the godmother was unable to address the safety concerns with appropriate terms in a supervision order, my conclusion would have been that safety concerns trump other best interest considerations. But here, the court can be reasonably confident that with appropriate terms of a supervision order in place, the godmother will be able to surround the baby with the love and nurturing of immediate family, especially since the mother herself will be living in the godmother's home.

Conclusion

[73] Mother's motion for the return of the baby to her temporary care and custody, subject to society supervision, is dismissed.

[74] Mother's motion for the placement of her baby in the temporary care and custody of the godmother, subject to society supervision, is granted. There will be a temporary order placing the baby in the care and custody of the godmother, subject to society supervision, with specified terms and conditions, including:

1. The society shall have the right to make announced and unannounced visits.

2. The godmother and the mother shall sign all necessary consents for the release of third party information pertaining to the baby.

3. The godmother will maintain the family home in a safe and child-friendly manner.

4. The godmother shall have the primary responsibility for the baby's care.

5. The society and the godmother will agree on the persons who may otherwise be responsible for the baby's care on those occasions when the godmother cannot be at home during periods of the day when she must attend necessary errands or cannot take the baby with her. Those persons may include the godmother's 19 year-old daughter and, in limited circumstances, the mother herself, as well as such other persons as the society reasonably agrees to beforehand, with the godmother. In the event the society and the godmother are unable to agree on alternate caregiving, the society's position will prevail.

6. The godmother shall cooperate in allowing a public health nurse, a parent support worker, or any other person recommended by the society to enter her home, at reasonable times, and the godmother shall follow all reasonable recommendations made by the society and/or any of such other persons.

7. Neither the godmother nor the mother, nor anyone else residing in the household shall permit the biological father to have access to the child without the society's consent, which must be obtained in advance.

8. The society will forthwith provide a list in writing to the godmother of the names of any other persons who shall not be permitted to have access to the child without the society's consent.

9. In the event one of the aforesaid persons appears at the home, uninvited, entry to the home shall be refused and the godmother shall forthwith notify the society of what occurred.

[75] The court emphasizes that notwithstanding the mother's residence in the godmother's home, it is the godmother and not the mother, who will have primary care and custody of the baby; and it is the godmother who will be directly answerable to the society and to the court in respect of this order.

[76] Should the mother, the godmother or the society wish to address any of these conditions, or add any further conditions, they are at liberty to set an early morning appointment with me through the trial coordinators' office. However, in order to avoid unnecessary court attendances I encourage the godmother and the mother to agree to any reasonable changes/additions requested by the society. In the court's view, it is necessary at this early stage of the temporary supervision order, to impose strict terms and conditions to ensure the protection of this very young baby. With the passage of time, and depending upon how events unfold, it may be possible to loosen the terms and conditions.

[77] The court has a final word of caution to the mother and the godmother. As I noted earlier, the baby is in the most vulnerable class of children, children who can neither speak nor make their wishes or views understood in any meaningfully extensive way. It is the court's expectation that the mother and the godmother will fully abide by all conditions attached to this supervision order. A failure to do so could result in the re-apprehension of the baby, with a resultant poor prognosis for a further reintegration back into the family unit.

[78] I will require the parties to report back to the court in the form of a case conference in the next several weeks. It is important that the parties advise the court of the progress of this temporary supervision order, particularly at the early stages of this order. I tentatively set January 21, 2015 as a return date. However, if counsel's unavailability precludes this date, they shall cooperate with each other to agree on another date and shall inform the court accordingly by a 14B motion form.

Justice Robert J. Spence

December 5, 2014

Footnotes

[1] As these reasons reveal, some of the functioning deficits are in fact directly related to mother's disabilities.

[2] Referring to the society worker

[3] The court was told that some type of less extensive criminal record report was obtained from the police or RCMP and that this document revealed no criminal convictions for the godmother. It was only afterwards that the society was advised that a more extensive report could be made available, but only if godmother went for fingerprinting, which she did.