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 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.— (8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
45.— (9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Date: 2016-03-01
Court File No.: Halton 130/15
Between:
The Children's Aid Society, Region of Halton Applicant
— And —
D.R. and S.C. Respondents
Before: Justice Victoria Starr
Heard on: February 25, 2016
Motion Decision and Reasons released on: March 1, 2016
Counsel
Diane Skrow — counsel for the applicant
Anthony Macri — counsel for the respondent, D.R.
S.C. — did not participate
VICTORIA STARR J.:
Nature of the Motion and Positions
[1] This temporary motion is brought within the context of an outstanding status review application.
[2] On January 22, 2016, this court made a temporary, without prejudice, order varying the final supervision order dated September 24, 2015. The temporary order resulted in the child being removed from his mother's care and placed into the society's care. The temporary order made that day also provided the mother temporary access. The motion was adjourned.
[3] During the adjournment period, the society brought the within motion. It now comes before the court seeking to suspend the existing temporary access order made by me on January 22, 2016. The society also seeks an order that temporary access between the child and mother shall take place in writing only.
[4] The mother opposes the motion. She asks that it be dismissed and that the matter be set down for trial. In the alternative she asks that she have access by video in addition to cards, letter and email access.
Decision
[5] On the whole of the evidence filed in the motion, considered in the context of submissions made by each counsel, I have concluded that the current temporary access order made January 22, 2016 is not meeting the needs of the child and that indirect access as requested by the society in its notice of motion, is in this child's best interests. The society's motion is granted. The reasons for this decision and the temporary order are set out below.
Reasons
The Law
[6] Both counsel agree that the court has the power to change a temporary access order on an interim motion within a status review proceeding; that the power to vary that temporary order is discretionary; and, that the test to apply is one of best interests.
[7] Counsel do not agree on the locus of the court's power within the Child and Family Services Act R.S.O. 1990, c. C.11. In her notice of motion and at the hearing, counsel for the society submits that the court's power to vary a temporary order is found in subsection 51(5) and 59(1). Subsection 51(5) is silent as to the criteria to guide the use of discretion. That criteria counsel submits, is set out in sections 59(1), which requires any access between a child in foster care and a parent to be in that child's "best interests".
[8] Counsel for the mother submits that section 51(5) and 59(1), do not apply to temporary motions brought within the context of a status review proceeding. He submits that the section of the Act governing status review proceedings (ss. 64-68) is silent with respect to the court's power to vary an access order on a temporary basis. However, as the balance of that section of the Act requires the court to employ the best interest's criteria, that is the test to apply in deciding this motion.
[9] In my view the court's authority to make a temporary order with respect to access is section 58. Nothing in s. 58 precludes the court from making such a temporary access order pending the status review hearing. Section 58(1) provides as follows:
S. 58(1) The court may, in the child's best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
[10] I have also considered and followed the reasoning and approach of Justice John Kukurin in the case of Children's Aid Society of Algoma v. B. (Amanda) and C. (Steven), 2012 ONCJ 351 (Ont. C.J.). In that case Kukurin J. states at paragraph 14:
Status review does not extend to the review of any access order relating to the child that may have been made contemporaneously with the order that established the child's status (or made subsequently). Access is not status. Section 64 CFSA does not require a society to bring an application for a review of any person's access to a child. In some cases, changes to access orders may be desirable, particularly if there is to be a change in the child's status. In such cases, any order that changes access is made under section 58 CFSA, not under section 64. This applies equally if the change in access takes place while the status review case is ongoing. In other words, if a claim is made for an interim variation of a prior (final) access order pending a final resolution in the case. [emphasis added]
[11] The test for varying a temporary access order is set out in s. 58(1) of the Act and in the jurisprudence. There must be a comparison of the current situation to the situation at the time of the original order. The change does not necessarily have to be material but there needs to be a change in circumstances based on the best interests of the child [see Children's Aid Society of Algoma v. C.P., 2013 ONCJ 740]. In that case, Kukurin J. states, at paragraphs 6, 7 and 8, as follows:
[6] Although not spelled out in the Act, it is logical that some change in circumstances from the time that the order was made be demonstrated. Whether the change is a "material" change, or something less, is perhaps a semantic distinction. More important from the point of view of the Act, is that the change in circumstance be tied to the best interests of the child(ren).
[7] The status quo is represented by the existing order. The person who wants to change that order has the onus of demonstrating not only that some change in circumstances has taken place, but also:
(a) that this change in circumstances renders the existing order no longer in the best interests of the child(ren); and
(b) that the new order sought now represents what is in the best interests of the child(ren).
[8] The change in circumstances and the connection to best interests of the child(ren) must necessarily be made by way of admissible evidence. The standard of proof of such evidence is the balance of probabilities – the civil standard. This applies not only to the father, B.B, but also to the society, and to any other party in the case, whether supporting or opposing the motion, or sitting somewhere in between. Since the vehicle for the motion to vary is a motion, the Family Law Rules applicable to evidence on such motions apply to this motion.
[12] I have followed the forgoing test to vary access and considered all of the relevant "best interests" factors set out in subsection 37(3).
The Evidence
[13] The child in this case is 7 years old, L., born in 2009. L. has been subjected to significant trauma throughout his life.
[14] The evidence including various statements of agreed facts filed, details the mother's lengthy and continuing struggle with substance abuse; the steps she has taken in an attempt to maintain her sobriety; her mental health struggles (including an eating disorder); and, illegal activities. The evidence also chronicles the father's repeated and often violent abuse of the mother, with many incidents witnessed by the child.
[15] Needless to say, the society (first the Children's Aid Society of Toronto, then the Children's Aid Society, Region of Halton) have been involved with the mother and child for a very long time. The child's first apprehension in March of 2012 was preceded by a three-year history of the mother's voluntary involvement with the Children's Aid Society of Toronto to address concerns about substance abuse and domestic violence, for which the father was incarcerated. Some of the mother's struggles linger, some do not. Her issues, however, continue to interfere with her ability to parent the child.
[16] L. has been in and out of care several times and, at times, for significant periods of time. The history is as follows:
a. He was apprehended on March 2, 2012, and returned to the mother's care under a final supervision order on June 15, 2012 (105 days in care);
b. He was apprehended on November 1, 2012, and returned to the mother's care on November 6, 2012 (5 days in care);
c. He was apprehended on January 30, 2015 and returned on February 12, 2015 to the mother's care on a temporary basis, subject to supervision by the society (13 days in care);
d. He was apprehended on January 22, 2016 and has thus far spent 39 days in foster care.
[17] Other examples of the trauma L. has experienced, as set out in the various statements of agreed fact filed with the court previously, are as follows:
a. He was apprehended on March 2, 2012 because he informed police officers over the phone that he couldn't wake up his mom. Officers attended at the home and found the three-year-old child unsupervised in the home while the mother was slumped over on the couch with a crack pipe found near her person (see Statement of Agreed Fact dated September 7, 2012);
b. In November 2012, the mother was arrested for "theft under" and for "assault" following an incident at the Eaton Centre where she allegedly attempted to leave the store without paying for items, attempted to flee by taxi and also physically assaulted a staff member at the store, all in the presence of the child. While the mother denied being under the influence of crack cocaine and denied shoplifting, she did not deny that the child was present and witnessed the incident (see Statement of Agreed Facts dated April 16, 2013);
c. On January 26, 2013, police were called to the child's grandparents' home and found the mother and her parents in the middle of a very aggressive and loud argument in the presence of L. Plates had been thrown around and things broken in the home. The officer reported that L. was "shaking" from what he had witnessed (see Statement of Agreed Facts dated April 16, 2013);
d. On January 30, 2015, police were called to the mother's home as the child contacted a friend who then contacted the police because the child could not wake up his mother, who was reportedly asleep in the pool of her vomit and blood. The police and paramedics attended at the home. The police advised that when they got into the home, it took them 20 minutes to wake the mother (see Statement of Agreed Facts dated August 19, 2015).
[18] Based on the unchallenged current evidence presented by the society, the mother is presently struggling with addiction issues and has recently had several relapses. This is confirmed in a letter from the mother's doctor, Dr. Asbell, dated February 24, 2016 attached to the mother's affidavit sworn February 25, 2016. The court was told that she left court on the day of the hearing, prior to the motion being heard, to enter a detox program and that she is considering entering into a long term residential treatment program following detoxification. Based on the unchallenged evidence before me it is clear: at this point in time the mother's ability to parent L. is severely compromised. L. is in the society's care. Return to his mother's care, is not an option for L. at this time.
[19] At the hearing of the emergency motion to bring the child into care, on January 22, 2016, I found, based on the evidence before me of all of the recent events, including the mother's avoidance of and/or refusal to cooperate with court ordered random urine screens; L.'s deteriorating behaviors and his increased anxiety and behavioural issues; L.'s numerous absences from school; and the information received from Dr. Asbell and the Society regarding positive urine test results; that it was in his best interests that he be removed from his mother's care immediately.
[20] The evidence before me on this motion indicates that since the child came into the society's care on January 22, 2016:
a. There have been multiple episodes of extreme, violent threats by the child including repeated expressed desire to cause serious physical harm to others, extreme vulgar abusive language, repeated episodes of "disassociation" during angry outbursts;
b. The idea and reality of access visits with his mother is the likely trigger for the forgoing behaviours as his anxiety and stress levels as well as the forgoing behaviours often escalate before and after visits.
c. L. is hyper-vigilant and worried about his mother;
d. Even mentioning his mother has caused L. to explode.
e. L. had to be taken to McMaster Children's Hospital on January 29, 2016 due to concerns about his mental state and as the child put it because he was having a "mental breakdown". He was admitted and then discharged on January 30, 2016.
[21] Based on the unchallenged evidence before me with respect to the mother's conduct during the visits that have occurred since January 22, 2016, it is clear that the mother:
a. Engages in inappropriate adult conversations with society workers and challenges the necessity of their supervision and interactions in the presence of the child;
b. Challenges the quality of care (physical and hygienic) provided to the child by the foster parents, in the presence of the child;
c. Discusses inappropriate topics with the child such as: they will move to another city when he is out of care; he will come home soon; she will get more visits; this is all her fault, she will be getting help, her lawyer is helping her; they will change his school when he gets out; and,
d. Discusses the steps she will take to deal with the society with L.
[22] In addition to the forgoing, there are several references by the child to being told by his mother that he should misbehave, that foster parents are dangerous, and that he should not be happy in foster care.
[23] In her affidavit sworn February 25, 2016, the mother indicates that she strongly disagrees with the suggestion that she is the cause of the child's upset while he is in care. She believes that the society is trying to blame her for the fact that they have not been able to find a suitable foster placement that meets even basic standards of care. The child, she says, is upset and reacting so strongly because the society is neglecting him while he is in their care; and, because he misses her and the security but she provides to him. She goes on to provide a list of the ways in which the society has been neglecting the child since he was brought into care on January 22, 2016. This list includes having to move him four times between two homes in such a short period of time; signs of physical neglect when he attends visits; the use of restraints to deal with his behavior (behaviors he has never displayed while in her care); and, the fact that he is afraid of his foster father.
[24] The society has put evidence before the court that speaks to a far more complex explanation of the child's current emotional and mental health crisis. In this regard it relies on the observations and opinions of three different mental health professionals. First it relies on the outcome of the brief assessment of the child by the psychiatric team at the McMaster Children's Hospital. According to Ms. S. (and Dr. Baird who will be discussed below), the child's severe difficulties can be attributed to the chaos, instability and other chronic toxic stresses associated with the environment in which he has spent most of his preschool years. They made several recommendations including the suspension of access.
[25] The McMaster psychiatry opinion regarding the source of the child's problems is similar to that offered by Dr. Angela Fountain, the psychologist who assessed him in June 2012. Her report is attached to the affidavit of Amanda–Lee Parker, sworn June 11, 2012. In her report she indicates: "L. is suffering the effects of trauma with respect to being exposed to domestic violence and family chaos. He also shows signs of symptoms of parental negligence where he is overly attached and protective of his mother." She also notes that the child's dysfunctional tendency to take on a parental role with respect to his mother and comments on the maladaptive nature of this behavior and its causal relationship to his then ongoing, prolonged exposure to the violence, chaos and dysfunction of his early childhood home.
[26] On February 16, 2016 the child was taken to the Child Advocacy and Assessment Program (CAAP) unit at McMasters Children's Hospital. Psychiatrist, Dr. Baird, reviewed L.'s psychological assessment, observations from the foster home and the Child and Youth Workers, notes from access visits, medical history, serious occurrence, and court papers. Dr. Baird also met with L. privately. Dr. Baird provided the society with a written report dated February 19, 2016 which is attached to the affidavit of Jennifer Benallick sworn February 16, 2016.
[27] In his report, Dr. Baird states:
It seems entirely clear that by far the most plausible explanation for the many and severe emotional and behavioral difficulties that L. is experiencing have their root cause in his preschool exposure to a chaotic, inconsistent in the responsive, violent home environment and the impact of being cared for by individuals with apparent mental health and drug addiction problems.
It seems quite obvious that this collection of phenomena is precisely what L. has experienced. It was entirely predictable based on what was known about him and his family and could have been prevented. Also entirely predictable in the current circumstance is that he would both desire proximity to his mother while experiencing profound emotional dysregulation at the thought of her or in her presence. [emphasis added]
[28] Dr. Baird recommends that immediate action be taken to stabilize L. and warns of the significant and serious risks associated with failing to do so. Indeed he states: "All means available must be brought to bear to begin to stabilize L.". He makes several recommendations, many of which will fall to the society to act on and which include, ensuring L.'s placement in a stable, long-term living circumstance with adult caregivers with specific training and experience in managing children with this child's collection of difficulties.
[29] The second immediate priority is the suspension of the child's contact with his mother. On this point Dr. Baird states:
It is strongly recommended that until L. reaches a significant degree of stability, direct contact with his mother should be suspended. The available documentation clearly demonstrates that the idea and reality of these visits results in highly predictable, significant and potentially dangerous violent escalations, increased anxiety and more stress that will impede his healing. However, L. clearly worries about his mother, a fact which is made worse by his dysfunctional personalization problem. He will therefore need ongoing direct evidence that she is doing well, cares about him and that he need not worry about her. This can be accomplished by indirect means such as e-mails/letters (screened by staff for inappropriate content), greeting cards etc. Once L. has been established in a safe and secure environment and has begun to learn to regulate his emotions and if his mother is herself stable and drug-free, closely monitored and gradual reinstitution of access could be considered.
[30] In support of her position that there should be no change in her access, the mother relies on the letter of Dr. Asbell attached to her affidavit. In that letter Dr. Asbell indicates that the mother has been a patient under his care since 2005. He notes that mother and son have a very close relationship and L. has always been comfortable and close with her anytime he has seen them together. He goes on to say that he sees a complete separation as very psychologically damaging to L, that it would aggravate his anxiety and would likely cause permanent damage.
Analysis
Evidentiary Issues
[31] Counsel for the mother argues that although the court is entitled, when deciding motions within the context of a child protection application, to rely on evidence that the court finds "credible and trustworthy", no similar provision is contained in the sections of Act that deal with motions heard within the context of a status review proceeding.
[32] The court is entitled to rely upon hearsay evidence that it finds reliable and relevant. As I have already noted above, this is a motion and thus, the Family Law Rules O. Reg. 114/99 applicable to evidence on such motions apply to this motion. Ms. Benallick's evidence complies with those rules and she has filed documentation such as the foster mother's notes and Dr. Baird's report as exhibits to her affidavit, so that I can see firsthand that she has accurately captured the information that has one of them as its source. Further, all of these sources, except the mother and child are professionals. They have, as part of their professional responsibilities, record keeping.
[33] I have also considered that I have been offered no reason to doubt the reliability of either Ms. Benallick or the sources of her information and belief as cited in her affidavits – such as the foster mother, Ms. S., or Dr. Baird. Further, the mother did not assert in the evidence or in argument that they were not reliable sources of information or that the information is wrong. I note as well that the mother could have filed an affidavit challenging the evidence about her own conduct and access visits. She chose not to do so. Instead she elected to file a letter from Dr. Asbell and an affidavit that has as its focus, blaming the society for the child's current state of crisis and absolving herself of any responsibility. In the circumstances, I find Ms. Benallick's evidence, including her accounting of what has been reported to her reliable, relevant, and probative.
[34] There are two "medical" reports or letters before the court with conflicting opinions. First there is Dr. Asbell's letter. Dr. Asbell does not give any details, such as when or how often he has seen mother and child together, for how long, in what context etc. He gives this opinion and recommendation: "I see a complete separation as very psychologically damaging to L.; this would aggravate his anxiety and would likely cause permanent damage." Dr. Asbell does not give any information about his credentials and as he appears to be associated with the methadone program that the mother is participating in, I infer that he is not a psychiatrist or psychologist. He does not indicate that he has read any of the court material, including that filed for this motion and in particular, Dr. Baird's report. He is not L.'s physician and there is no evidence that he has ever seen L. in his professional capacity, or even talked to L. The foundation for his opinion and recommendation seems to be that he has seen mother and child comfortable together on those unspecified number of occasions that he has seen them together. I accept his observation that mother has been relapsing and that mother and child have seemed comfortable and close when he has seen them. I give no weight to anything else that he says.
[35] The society, in effect, offers Dr. Baird's report as an expert report. It clearly wishes the court to rely upon his observations, conclusions, opinions, and recommendations. Rule 20.1(1) of the Family Law Rules sets out a number of criteria that such reports must meet. Most of these criteria have been met. Two have not: first, the requirement in 20.1(1)2 regarding details of the expert's qualifications. This is usually addressed by including with the report a copy of the expert's curriculum vitae. The court was not given this. Second, the requirement in 20.1(10)7 has not been met. That is, the report is not accompanied by Form 20.1 – An acknowledgement by the expert of his duty.
[36] Counsel for the mother argues that the court should not place any weight on Dr. Baird's report. It is the equivalent of an assessment and the court should view the use of such assessments at this interim stage in the same way as is applicable in custody and access cases. In my view it is generally inappropriate to import principles that have evolved in the context of custody and access litigation into the child welfare arena. Courts in child welfare cases routinely rely upon an assessor's observations at the interim stage. I do not accept that the court should never accept opinions or act on recommendations at the interim stage or that it can only do so in exceptional circumstances. What is called for is caution. The court should, on such motions, direct itself that a motions judge does not have the whole of the case that would be available to a trial judge and be mindful that the evidence in the motion is untested by cross-examination.
[37] Despite the formal deficiencies relating to the admission of his report into evidence, and despite the fact that it has not been tested through cross-examination, I place weight on Dr. Baird's observations and recommendations. I have done so for several reasons. First, Dr. Baird had much of the same information before him as I have before me and I found that his accounting accords with the evidence before me, with the record, and with the various statements of agreed fact. Second, I do not really need Dr. Baird's opinion about the likely causes of this child's issues, the risks, or of what needs to be done to manage the risk, to reach similar conclusions on the balance of probabilities, based on the remainder of evidence before me at this time. Much of what he says is fairly obvious and sensible.
[38] Third, we have a child in this case who is very clearly in crisis and whose mental and emotional health will likely continue to deteriorate if immediate action is not taken. I do not require Dr. Baird's expertise or assessment to reach this conclusion. I find his recommendations with respect the immediate measures that should be employed to protect this child, to stabilize him, and to promote his overall wellbeing and healing, very helpful.
[39] The most compelling reason to accept and follow Dr. Baird's recommendations arises out of the increased risk of harm to this child associated with delaying action until trial. The society intends to amend its status review application to seek Crown wardship. This will take some time and the matter cannot be set down for trial until it has done so and all responding and reply pleadings have been served and filed. Further, this court cannot offer trial dates until mid-summer, some months away. This is a case where the "assessor" has called for immediate action in order to protect the child and promote his healing and overall wellbeing. Leaving this child without relief for some months to come would mean leaving him in crisis and exposed to significant risk of further harm.
[40] This is, quite simply, one of those cases where we cannot wait until trial to test Dr. Baird's opinions and recommendations. We cannot wait to do what is in L.'s best interests and necessary to both protect him and promote improvement in his overall wellbeing. We must take action now. It makes good sense to try implementing Dr. Baird's recommendations. This is particularly so, given that no alternative course of action has been proposed that will provide this child with protection from the factors currently contributing to his heightened state of crisis or which will promote his healing and wellbeing pending trial.
Status Quo
[41] The status quo the society seeks to change with respect to access is, that set out in my temporary without prejudice order dated January 22, 2016. That order provided that the mother is to have access to the child, at minimum, once per week, with duration, additional access, frequency, level of supervision, and location, at the discretion of the Children's Aid Society, Region of Halton.
Change in Child's Circumstances
[42] The child's circumstances have changed dramatically since I made that temporary access order. There is a marked difference in his already fragile mental and emotional health. Since January 22, 2016, he has been in a heightened state of crisis. There have been multiple episodes of extreme, violent threats by the child including repeated expressed desire to cause serious physical harm to others, extreme vulgar abusive language, repeated episodes of "disassociation" during angry outbursts. The child must constantly be physically restrained to keep himself and others around him safe and to assist him in calming down. He has been hospitalized at least once because of the extreme nature of his crisis on January 28 and 29, 2016. In addition, during access visits the child has been exposed to inappropriate messaging and conversations and has witnessed his mother's oppositional behaviour towards the society as well as her negative attitude and view of his foster placement and his safety.
Best Interests
[43] To blame either the society or the mother alone for this child's current state of crisis is overly simplistic. Based on the evidence before me, it is more probable than not that the child has been doing poorly for a very long time and the longitudinal cause of this is likely rooted in his history of trauma.
[44] I have little doubt that the child's experience of being apprehended and placed in care yet again; his experience of being moved between two foster homes during the short time he has been in care this time around; and, his experiences while in foster care, all contribute to his current heightened state of crisis. Dr. Baird has made recommendations to address these issues and I expect the society to implement them.
[45] However, I reject the mother's assertion that this and the factors she itemizes in her affidavit, are the sole cause of the child's current emotional dysregulation, violent and dangerous behaviours. There is Dr. Fountain's 2012 psychological report, which clearly outlines that even at that time this child was suffering from significant mental health and behavioural issues. The evidence also suggests that since the late summer 2015, there have been many signs warning of his deteriorating mental and emotional health. For example, there is the mother's own report to the worker that he as acting up and that she was having difficulty managing him. There are also the verbal reports from the school, including the report that he had destroyed his classroom one day.
[46] There is sufficient evidence before me that the child's concern about his mother and his mother's behaviours during access visits are likely also major contributors to his deteriorating mental and emotional health and current state of crisis. The evidence is that the idea and reality of visits with his mother results in significant and potentially dangerous escalations in his violent behaviours as well as in increased anxiety and stress. The mother's actions undermine his placement. They also reinforce for L. that he is not safe where he is and that he cannot trust those who are caring for him. That he is receiving this message loud and clear is evidence from the things he says to those who care for him and from his destabilization and emotional dysregulation both during and after visits. It is not in his best interests to continue to be exposed to such stimuli.
[47] The problem is that I get no sense from the evidence that the mother appreciates the seriousness of L.'s situation or what is at stake for him. She does not appear to even recognize the damage that has been visited on the child by all that he has experienced as a result of the choices she has made, her conduct, and her inability to address her own problems.
[48] There is nothing, at this time, to suggest that the mother can or will change her behaviour during access visits. I get no sense that she even remotely appreciates the negative and destabilizing affect her conversations with the child and her behaviours during access with the child are having on him. Indeed, she seems oblivious to her child's emotional needs, and demonstrates a profound lack of insight. Certainly the content of her February 25, 2016 affidavit is clear indication that she cannot provide him with the support he needs to hear from her in order to trust his current caregivers and in order to feel safe and secure in care. In the circumstances, including the fact that L. must remain in care for some time to come, continuing access in its current form is of great concern and puts the child at continued risk.
[49] I have considered the mother's request to have access by video as well as telephone access. I am not in any way assured that she will not continue to do or say the harmful things she does during such access. Evidence with respect to her most recent access visits indicates that she does not always follow the direction of the society to refrain from harmful messaging and behaviours during her visits. There is no real qualitative difference in the level of control over the mother between in person or video and telephone access. While video or phone contact can be terminated more quickly, the termination will only occur after L. has been exposed. Video or phone access, in other words, will not shield L. and shielding is what he needs at this time.
[50] I have considered the love, affection and biological connection between mother and child, the child's attachment to his mother, and his desire to have contact with his mother. The evidence before me suggests that his attachment to his mother is an insecure one and that there are unhealthy aspects of his relationship with her, including his assumption of the role of parent when his mother is not functioning well. These considerations lessen the weight of such evidence. In any event, none of this evidence, even if taken collectively, outweighs the evidence before me that opposes a finding that continued access at this time is not in this child's best interests.
[51] On the whole of the evidence, it is contrary to the best interests of this child to have any form of direct access with his mother. As indirect access through cards, letters, or e-mail for the purpose of reassuring L. that his mother is doing well, cares about him, and that he need not worry about her, will assist with his stabilization and thus be of benefit to him, I find such contact to be in his best interests. The society will have to screen such communications however, to ensure that their content is appropriate.
[52] As the length of time to trial is uncertain, I am prepared to review this order with a view to implementing a gradual reinstitution of access, once the following has occurred:
a. L. reaches a significant degree of stability;
b. L. has been established in a safe and secure environment and has begun to learn to regulate his emotions;
c. His mother is herself stable and drug-free;
d. His mother has acquired a better understanding of what her son needs from her and has demonstrated through her written communications with him and by her ongoing attitude and conduct in relation to those who are responsible for service to the child that she is committed to meeting those needs. She cannot do that, it seems to me, until she has a better understanding of what in her is driving her present conduct and has taken definitive steps to resolve that.
[53] I expect that the society will be following up on the many other recommendations made by Dr. Baird immediately as his report makes it very clear that merely suspending the mother's access is not enough to stabilize this child. I have requested that the society serve and file an affidavit on the next occasion that updates the court with respect to its efforts and successes in this regard.
Order
[54] Accordingly, I order as follows:
The temporary access order dated January 22, 2016, shall be suspended pending further court order, upon review;
Temporary access between the child and respondent mother shall take place in writing only by way of e-mail, letter, and/or greeting card, with such written correspondence to be reviewed by the society to ensure its appropriateness for the child;
Parties are to contact the Trial Coordinator to obtain and have mutually convenient trial dates held.
Counsel for the respondent is to ensure that the respondent mother's affidavit sworn February 25, 2016 is filed in the continuing record.
The society shall serve and file, for the next occasion, an affidavit updating the court on its efforts and successes in carrying out Dr. Baird's recommendations as well as an update on the state of L.'s mental and emotional health.
Released: March 1, 2016
Signed: "Justice Victoria Starr"
Footnote
[1] In particular the following subrules:
R. 14(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.
R. 14(19) The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.