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 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.

(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

Court File No.: C61729/13

Date: 2016-02-01

Ontario Court of Justice

47 Sheppard Avenue East Toronto, Ontario M2N 5X5

Parties

In the Matter of an Amended Amended Protection Application for the Crown Wardship of A.D.V.C., Born on […], 2011 Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Between:

Catholic Children's Aid Society of Toronto

Karen Ksienski, for the Applicant

Applicant

- and -

N.V.C.

Lynn Bonhomme, for the Respondent

Respondent

Hearing Information

Heard: November 23, 24, 25, 30 and December 1, 2, 3, 2015

Justice: M. Sager

Reasons for Decision

Part One - Introduction

[1] The Catholic Children's Aid Society of Toronto (the society) has brought an Amended Amended Protection Application (Application) seeking a finding that A.D.V.C. born […], 2011, now 4 years old (the child) is in need of protection pursuant to subclauses 37(2)(b)(i), 37(2)(b)(ii) and 37(2)(g) of the Child and Family Services Act (the Act). The society seeks a final disposition that the child be made a crown ward, without access, for the purpose of adoption.

[2] The Respondent N.V.C. (the mother) is the child's mother. She seeks a dismissal of the society's Application. If the court finds the child to be in need of protection, the mother asks the court to order the child be placed in her care without any terms of supervision. The mother is not seeking access to the child if he is made a crown ward.

[3] The father of the child was not involved in this proceeding. Based on the evidence heard at trial, the court finds that the father is not a parent as defined by the Act.

[4] The child has been in care for a total of 18 months over two periods, the first from September 11, 2013 to June 19, 2014, and the second from March 17, 2015 to the date of trial. The child was first apprehended by the society from the care of his mother on September 11, 2013, after she was charged with public intoxication. The child remained in care until June 19, 2014 when he was placed with his mother on an extended visit until July 30, 2014, when the child was placed in his mother's care subject to the society's supervision. The child was apprehended a second time from the mother on March 17, 2015 and has remained in the society's care since that time. The mother has access to the child twice per week supervised by the society.

[5] The child has special educational and medical needs as he has Down's syndrome.

[6] The issues for this court to determine are:

a) Is the child in need of protection? And,

b) If so, what disposition order is in the child's best interests?

[7] The trial of these issues was heard over 7 days.

[8] The statutory findings, set out in subsection 47(2) of the Act will be set out in the court's endorsement in accordance the society's Application.

Part Two – The Evidence

Background

[9] The mother is 42 years old and originally from Cuba. She has another child who is now 17 years old and in college. The mother gave evidence that she was pregnant with the child when his father was deported and she does not know his last name.

[10] The child was apprehended on September 11, 2013 after the mother was taken into custody by the police who received calls from security at the Scarborough Town Centre alleging that mother was intoxicated while having care of a young child who was two years old at the time.

[11] When the mother refused to provide the police with the name and address of a friend or family member where she and the child could be taken, the mother was kept at the police station until the police felt that it was safe to release her and the child was taken into care by the society.

[12] On September 16, 2013, Justice Waldman made a temporary without prejudice order placing the child in the care and custody of the society. On September 19, 2013, 8 days after the child was apprehended and 3 days after Justice Waldman's order, the mother travelled to Cuba for a previously scheduled vacation with her older daughter leaving the child in the society's care.

[13] The mother did not see the child until November 14, 2013, two months after he went into care. In addition to being in Cuba for one week, the society claims that the mother did not make sufficient efforts to see her son. The mother claims that she called the society's offices many times from public telephones and no one answered the phone, which made it difficult for her as she did not have a telephone at the time and could not leave a number where she could be reached.

[14] Shortly after being apprehended, the child was tested for and diagnosed with Down's syndrome.

[15] On December 11, 2013, Justice Curtis heard a temporary care and custody motion and placed the child in the care of the society. The mother was granted access at the society's discretion at least twice per week.

[16] After the temporary care and custody motion the mother did not exercise access to the child for over two months from December 11, 2013 until February 26, 2014.

[17] Between February and June 2014, the mother had regular visits with the child at the society's offices. The visits were generally positive with respect to the mother's interaction with and care of the child. The mother was affectionate with the child, she brought appropriate toys and materials to the visits and the child was comfortable and happy with his mother. During this period the mother continued to refuse to work cooperatively with the society to address their protection concerns.

[18] The society acknowledged at trial that the child has a good, positive relationship with his mother and that he was happy being with his mother during visits.

[19] In anticipation of having her son returned to her care, the mother secured a daycare subsidy as well as a spot for the child in Silverstone Montessori Daycare.

[20] As the mother had consistently visited with the child for four months and the visits had been mostly positive, on June 19, 2014 the child was placed in the mother's care on an extended visit subject to conditions.

[21] On July 30, 2014, Justice Curtis made an order on consent placing the child in the mother's temporary care subject to conditions and the supervision of the society.

[22] While the child was in the mother's care, the society made both announced and unannounced visits to the mother's home and had no serious concerns about the home or the manner in which the mother cared for and interacted with the child.

[23] In January 2015, the mother advised the society that she would no longer allow society workers into her home. The mother felt harassed and was no longer willing to engage with society workers or allow them into her home. The mother also felt that the supervision order in place had a life span of six months and that since she had complied with the order for seven months she was within her rights to refuse to continue to cooperate with the society. [1]

[24] Around the same time the mother advised the society that she would no longer work with them, there was an incident at the child's daycare involving the mother that required police involvement. After this incident, the mother changed the child's daycare in contravention of the terms of the supervision order.

[25] In early February 2015, contrary to a condition of the July 30, 2014 order placing the child in her care, the mother moved the child to St. Dorothy's Daycare and refused to provide the society with a consent to obtain information from and communicate with the new daycare staff.

[26] On March 17, 2015, the society brought a motion seeking a temporary order having the child placed back in the society's care with the mother having supervised visits at least twice per week. The society advised the mother that if she agreed to cooperate with the society and sign a release allowing society workers to obtain information from the new daycare, the society would withdraw their motion seeking to bring the child back into care. The mother advised that she would not cooperate with the society.

[27] The society's motion proceeded on a contested basis and on March 17, 2015, Justice Curtis ordered the child into the care and custody of the society for a second time.

[28] Between the March 17, 2015 court appearance and July 24, 2015, the mother saw the child on four occasions; March 25, 2015, April 10, 17 and 21, 2015. The mother chose not to see the child at all for three months between April 21, 2015 and July 24, 2015.

[29] The mother has refused to cooperate with the society to address their concerns since the March 17, 2015 order and she will only communicate with the society to schedule access to her son or to raise concerns regarding the child's care in the foster home.

[30] Since July 24, 2015 the mother has been visiting the child twice per week. The visits have been plagued with conflict between the mother and the society workers as a result of the mother's concerns about the child's diet, energy level and the care he receives in the foster home.

[31] At trial the mother gave evidence that following the November 27, 2015 visit, she would not visit with her son again at the society's offices as she cannot tolerate seeing her son suffer while in foster care.

[32] The mother's visits have always been supervised or semi-supervised by the society in their offices.

Evidence Leading Up to the Apprehension

[33] On September 11, 2013, the mother was in Wal-Mart at Scarborough Town Centre with the child. The mother gave evidence that while trying to control the child from running off, she tripped and fell over his stroller. Another customer accused her of being intoxicated and called security. The mother testified that after Wal-Mart security spoke to her, several mall security guards followed her through the mall, the parking lot and right up to the bus stop. The mother got on the bus with the child but before the bus could leave police stopped it and removed the mother and child from the bus.

[34] The mother's evidence is that the police were abusive and mistreated her and had no reason to handcuff her and remove her from the bus as she was not intoxicated and had done nothing wrong.

[35] Police Constable (PC) Kayla Bianchi testified that on September 11, 2013, she received a call from Scarborough Town Centre security with concerns about a woman with a young child who appeared to be intoxicated. PC Bianchi testified that she and her partner, PC Hugh Carter, first came in contact with the mother as she was getting on public transit. The officers entered the bus and asked the mother to get off the bus so that they could speak with her. PC Bianchi gave evidence that the mother began yelling at them that she would not get off the bus. She noted that while on the bus the mother's speech was slurred.

[36] When the mother refused to get off the bus she was placed under arrest for being intoxicated in a public place, handcuffed and removed from the bus by PC Carter. PC Bianchi took the child and the stroller off of the bus.

[37] PC Bianchi testified that when the mother was taken off of the bus she was unsteady, swaying side to side and that she had to help the mother steady herself. She also testified that the mother continued to yell at them once outside of the bus. The mother was asked for her identification, which she refused to provide. PC Bianchi gave evidence that the mother was asked if there was someone whose residence they could take her and the child to but the mother refused to give them any information.

[38] PC Bianchi gave evidence that they had no choice but to take the mother and the child to the police station as they were not going to risk the child's safety by leaving him with the mother who, in their opinion, was intoxicated. PC Bianchi said that they brought the mother and child to the police station so that the mother could "sober up."

[39] PC Bianchi gave evidence that although not indicated in her notes, she could smell alcohol on the mother when she was in the back of the police car.

[40] PC Bianchi gave evidence that once at the police station the mother was still yelling, not listening and speaking over everyone. While the mother was being booked, PC Bianchi had care of the child and contacted the society.

[41] A representative of the society came to the police station and the child was taken into the society's care.

[42] PC Bianchi testified that the mother was ticketed for public intoxication and required to stay in the station until she appeared sober as they were concerned about her leaving and causing harm to herself.

[43] The mother's evidence on this issue is that she was not intoxicated and that the mall security guards acted ridiculously following her through the mall. The mother admits that at some point late that morning she had a single beer with friends in their home and an additional two beers midday while having lunch in a restaurant with the child. The mother also acknowledges that she had four empty beer cans in a bag in the under storage of the child's stroller when she was stopped by the police. The mother denies that she was intoxicated.

[44] The mother gave evidence that the police had no reason to handcuff her and remove her from the bus and that as a result she would not give them any identifying information. The mother claims that being handcuffed made her unsteady when removed from the bus. The mother was extremely upset with how the police treated her and she has lodged a complaint against the police for the way she was treated.

[45] The mother gave evidence that she did not arrive home from the police station until 3:30 a.m. to 4:00 a.m. on September 12, 2013.

[46] The mother testified that she disputed the ticket for being intoxicated in a public place but was found guilty after a hearing in which she represented herself. The court accepts PC Bianchi's evidence and her version of the events that occurred on September 11, 2013 over that of the mother, as PC Bianchi was credible and the mother did not contest the evidence in any meaningful way.

The Evidence Immediately Following the Apprehension

[47] Ms. Wendy Iniguez was the intake worker assigned to the file by the society and worked with the family from September 12, 2013 to October 8, 2013. Ms. Iniguez testified that when she first spoke to the mother on September 12, 2013, the mother immediately raised her voice with her, used an aggressive tone and vulgar language and told her that if her son is harmed while in the society's care they will "deal" with her.

[48] Ms. Iniguez testified that she tried to obtain information from the mother about her older daughter and the mother refused to give her any information and told her that she will not give her permission to speak to her daughter.

[49] Ms. Iniguez testified that she explained the process to the mother, spoke to her in Spanish and attempted to engage the mother to answer her questions. The mother refused to provide any information about her children's fathers, refused to cooperate and repeatedly told Ms. Iniguez that she had not done anything wrong, that the police mistreated her and she is an adult and allowed to drink.

[50] While the mother continued to refuse to allow Ms. Iniguez to speak to her daughter she did agree to allow her to attend at her home that day but told her that she could not come to the home until after 3:30 p.m. as the mother had to attend to filing a complaint against the police. When at the mother's home later that day, Ms. Iniguez offered the mother a visit with her son the next day, September 13, 2013 given that the weekend was approaching and she would not see her son for several days. The mother declined, advising Ms. Iniguez that she would see her son when he was returned to her care.

[51] While at the mother's home Ms. Iniguez asked the mother if her son has an illness or special needs as she believed that the child had facial features consistent with Down's syndrome. The mother told Ms. Iniguez that her son was healthy, has no allergies, illnesses or diagnoses and is "100% normal."

[52] Before leaving the mother's home, Ms. Iniguez told the mother that the society must ensure that both of her children are safe and that her son was in the society's care due to her behaviour that needed to be addressed before he could be returned to her care. The mother's response was that she was confident that her son would be returned to her care when they attended in court on September 16, 2013 as she felt she had not done anything wrong.

[53] Ms. Iniguez gave evidence that during her involvement with the family between September 12, 2013 and October 8, 2013, she placed several calls to the mother none of which were answered. The mother did not visit with the child at all during this period.

[54] The court accepts Ms. Iniguez's evidence as accurate as it was not contested by the mother.

The Society's Difficulties Engaging the Mother

Evidence of Magali Cherniavsky, Family Services Worker - October 8, 2013 to the Date of Trial

[55] Family Services Worker Magali Cherniavsky has worked with the family from October 8, 2013 to the date of trial. As the mother chose not to communicate with or cooperate with the society, much of Ms. Cherniavsky's evidence is not contested by the mother. Where she did contest the evidence, the court accepts Ms. Cherniavsky's evidence over that of the mother.

[56] Ms. Cherniavsky testified that when she was first assigned to the file the mother would not meet with her despite many attempts to arrange a meeting. Ms. Cherniavsky gave evidence that she had "great difficulty engaging" the mother. This pattern of behaviour on the mother's part persisted throughout the entirety of the society's involvement. The mother never cooperated with society workers, which contributed to the delay in having the child returned to her and more importantly, was a significant factor in the child going back into care on March 17, 2015.

[57] The mother's refusal to even speak with Ms. Cherniavsky delayed the mother's first visit with her son after he was apprehended on September 11, 2013 to November 14, 2013.

[58] When Ms. Cherniavsky was able to speak to the mother in person or by telephone, she said that the mother quickly advised Ms. Cherniavsky that she was not calling to arrange to meet with her or to discuss why her son was brought into care; she was only willing to discuss a date for a visit with her son. The mother did not provide a different version of what occurred at her meetings with the society.

[59] On November 18, 2013, Ms. Cherniavsky and her supervisor, Irene Dziama met with the mother. The mother was not willing to hear the society's protection concerns or their suggestions to address them. The mother advised that she was waiting to hear from the judge.

[60] Ms. Cherniavsky testified that she met with the mother for the first time in her home on November 26, 2013. During this visit she had no concerns about the mother's home. Near the end of the visit she urged the mother to work with the society but the mother "shut me down and said that everything else need[ed] to be discussed in the court room."

[61] The mother and the society attended in court on December 11, 2013. Ms. Cherniavsky testified that the mother was upset that the child was not returned to her care that day and told her in front of her daughter that the society could keep her son and that she was not going to visit him anymore. The mother did not visit with her son again for two and a half months until February 26, 2014.

[62] Ms. Cherniavsky testified that when the parties attended in court on February 26, 2014, the mother requested to reinstate her visits and met with her on February 28, 2014. Ms. Cherniavsky testified that she again asked the mother to cooperate with the society. The mother told her that she would not work with the society as she was going to prove that the allegations that led to the child's apprehension were false. The mother also refused to provide Ms. Cherniavsky with her telephone number.

[63] Ms. Cherniavsky testified that she approached the mother at the society's offices on March 26, 2014 to enquire if the mother planned to attend a previously scheduled meeting with a third party service provider for her son. The mother told her that she was there to see her son not to talk.

[64] The society gave evidence that despite the mother's refusal to cooperate with the society, on July 30, 2014 after 4 months of regular and positive visits with the child, the child was returned to the mother's care subject to the society's supervision. The important terms of supervision in relation to this trial are as follows:

a) The mother shall ensure that the child attends the Silverstone Montessori on a daily basis;

b) The mother shall follow through with all of the recommendations made by the staff and service providers at the Silverstone Montessori;

c) The mother shall advise her Family Services Worker of any treatment recommendations made for the child by the staff at the Silverstone Montessori and/or its providers;

d) The mother shall sign consents for the society to speak with all service providers working with the child; and,

e) The mother shall make herself, her daughter and the child available for all scheduled and unscheduled appointments.

[65] By December 2014, the relationship between the society and mother once again began to sour and in January 2015 the mother refused to allow Ms. Cherniavsky into her home. Ms. Cherniavsky said that on January 14, 2015, she made an unannounced visit to the home and when the mother's daughter answered the door she told Ms. Cherniavsky that her mother was busy and closed the door. Ms. Cherniavsky attempted to arrange a home visit again in February 2015 and was told by the mother that she could not come to the home.

[66] Ms. Cherniavsky gave evidence that in addition to refusing to allow her into the home, the mother changed the child's daycare and refused to provide a consent allowing Ms. Cherniavsky to communicate with the new daycare.

[67] The mother's evidence on this issue was that she agreed to a 6 month supervision order, it had been 7 months and she was "not going to sign any more papers for CAS to be involved." She told the society that she did not want them in her house anymore. The mother gave evidence that "I made the decision to move daycares because it made no sense to me where the teacher could not listen and do whatever they want and call CAS every day for any little small things and I had it." The mother said that she wanted the case to go to trial so that the society would stop harassing her as she "didn't want the CAS in my life."

[68] As the society felt that they were unable to supervise the mother who was not complying with the conditions imposed on her by the court when the child was returned to her care in July 2014, they sought to have the child brought back into care. The society brought a motion on March 17, 2015 and Ms. Cherniavsky testified that on the morning of the motion she advised the mother that if she agreed to meet with her and to cooperate with the society, she would not proceed with the motion. The mother refused to cooperate with the society, allow society workers into her home or sign any consents to the release of information. As a result, the society's motion proceeded resulting in the child being ordered back into the society's care.

[69] The mother once again terminated her visits with the child after the March 17, 2015 court appearance. When Ms. Cherniavsky contacted the mother on June 19, 2015 to encourage her to resume access, the mother berated her and hung up the phone.

[70] Between March 17, 2015 and July 24, 2015, a period of just over 4 months, the mother saw the child on 4 occasions before resuming regular access again on July 24, 2015. This is not contested by the mother.

[71] Ms. Cherniavsky gave evidence that following the child's readmission into the society's care in March 2015, the mother refused to have any meaningful conversations or work with her towards the return of the child to her care.

Evidence of Elissa Gerrardo, Children's Services Worker - September 23, 2013 to Date of Trial

[72] Ms. Gerrardo gave evidence that the child had three plans of care meetings while in foster care during his first admission into care between September 11, 2013 and July 30, 2014. As she refused to communicate with the society, the mother was not aware of the first two meetings and did not attend. She was invited to the third meeting that she also did not attend.

[73] Ms. Gerrardo testified that the mother did not attempt to contact her to obtain information about the child's life in care and was "dismissive or combative" with Ms. Gerrardo when they did speak.

[74] Ms. Gerrardo gave evidence about her interaction with the mother when they attended at the Hospital for Sick Children on March 25, 2015 when the child was having hernia surgery. Ms. Gerardo gave evidence that the mother asked appropriate questions but if she did not agree with what was said "she immediately became hostile again." The mother did not like that the child was in a stroller stating "he is not a baby" and removed him from the stroller despite Ms. Gerrardo's request not to.

[75] Ms. Gerrardo said that when the anaesthesiologist asked questions regarding the child's health, the mother disagreed with information provided by the foster mother and continued to repeat her disagreement while the doctor attempted to obtain answers to his questions. She described the mother as "not open to accept any information which was different or contradicted her observations or viewpoint."

[76] While in the hospital, Ms. Gerrardo tried to discuss with the mother her access to the child but the mother advised her she would not be attending visits and did not want to talk about this with her.

[77] Ms. Gerrardo gave evidence that on August 25, 2015 she met with the mother to discuss the child's schooling and to invite the mother to the child's plan of care meeting. Ms. Gerrardo gave evidence that the mother "started the conversation in [a] polite and pleasant manner. However as the conversation progressed her tone became more abrupt and she often spoke over me." When Ms. Gerrardo advised the mother that the child was enrolled in a public school, the mother protested, as she wanted the child to attend a Catholic school. Ms. Gerrardo explained that the society did not have a baptismal certificate for the child which is required to enrol the child in a Catholic school and when one was requested, the mother told Ms. Gerrardo that she was not going to give Ms. Gerrardo anything. The mother was asked why she did not provide the society with the child's baptismal certificate when she wanted him to attend a Catholic School. Her response was "it is my paper, I don't have to provide anything to anybody."

[78] On August 25, 2015, when Ms. Gerrardo advised the mother of the upcoming plan of care meeting, the mother told Ms. Gerrardo that she was not going to attend any meetings and did not wish to speak with anyone other than the lawyers.

[79] The mother did not call any evidence that contested the evidence of Ms. Gerrardo and the court accepts Ms. Gerrardo's evidence as accurate.

Evidence of Society Supervisor Camis Nicholson

[80] Ms. Nicholson gave evidence that she does not normally meet with families but in this case met with the mother on several occasions because "she insisted on speaking to the supervisor and advised me that she does not want to speak to her worker." Among Ms. Nicholson's concerns with the mother is the difficulty the society had engaging the mother in a working relationship and the mother's refusal to visit with her son when she did not like the outcome at court or a decision made by the society.

[81] On July 24, 2015 the mother asked to speak to Ms. Nicholson after her visit with the child at the society's office. Ms. Nicholson gave evidence that when she tried to discuss the impact of irregular visits on the child with the mother she "became upset and blamed the society for her not seeing her son." Ms. Nicholson asked the mother why she was not speaking to her worker and the mother told her that she did not want to speak to the worker or any of the society's staff, she only wanted to see her son.

[82] The mother did not give evidence that contradicted the society workers with respect to her refusal to cooperate with the society. The mother made it very clear in her evidence that she did not feel she had done anything wrong and that the society had no basis for apprehending her son twice.

Evidence Regarding the Mother's Supervised Access at the Society's Offices

[83] There is consensus among the society workers that for the most part, the mother's interaction with the child is appropriate. The access is positively described in the following ways:

a) The mother loves her son and is affectionate with him;

b) The mother is mostly attentive to her son's needs;

c) The mother promotes the child's culture and brings Spanish books and toys;

d) The mother has checked the snacks the child brings to visits and shows concerns about the child's diet;

e) The mother is very encouraging of the child's development, teaching him his numbers, letters and colours;

f) The mother encourages the child to be independent;

g) The mother teaches the child proper manners;

h) The mother brings age appropriate toys and activities to the visits;

i) The mother works hard to teach the child how to use a spoon and plate and sit in a regular chair as opposed to a highchair;

j) The mother implements routine and structure during visits;

k) The mother correctly noted that the child had a rash around his mouth, was wearing pull ups that were too small for him and seemed overly tired at some visits;

l) The mother showed concern over whether someone was reading to her son in foster care; and,

m) The child's hygiene is not an issue when in the mother's care nor is the appropriateness of his clothing.

[84] While the mother's interaction with the child at the supervised visits was mostly positive, the society staff reported some significant concerns. They are as follows:

a) The mother had unrealistic expectations of her son's abilities;

b) The mother regularly verbalized her disapproval of the foods being sent with the child by the foster mother;

c) The mother verbalized her disapproval of the child wearing a diaper or a pull-up at a visit;

d) The mother was quite upset when the child appeared tired at visits and blamed the foster home for his being tired saying repeatedly that it is not normal that her son is so tired;

e) When the child was tired she would not carry him;

f) When staff attempted to discuss reasons why the child may be tired, she would not consider any explanations other than poor care in the foster home;

g) When society staff offered suggestions to the mother regarding care of or interaction with her son, she was argumentative and dismissive; and,

h) If the child was even a few minutes late for a visit the mother would become very upset and demand a letter indicating that the child was late for a visit while the child was waiting to commence the visit.

[85] The mother regularly complained about the food the foster mother sent with the child on the visits or that he was not eating food the mother brought to the visits. This issue was a source of repeated conflict between the mother and society workers. The mother did not approve of the snacks the foster mother sent with the child to the visits including yogurt, applesauce, oatmeal cookies and apple juice. The mother complained that the child was consuming too much sugar and not eating enough vegetables in the foster home. The foster mother gave evidence that it did not matter what food or snacks she sent with the child for visits with the mother, they all came back.

[86] When the society staff made suggestions to the mother about the food she was feeding the child or her refusal to carry the child or allow him to wear diapers or pull-ups during her visits, she rejected their suggestions outright and often became argumentative with them. She was never open to any of their suggestions or explanations.

[87] There was also evidence of the mother's misuse of her time with the child. She used her time with her son to raise issues with staff and even when it was suggested that she wait until the end of her visit to have a discussion with staff she would refuse and insist on speaking to them at that moment or not speaking at all.

[88] Throughout the 18 months the child was in care, the mother regularly used her visits with the child to complain about the care the child was receiving in the foster home, his appearance, his diet and his use of diapers or pull-ups. The society addressed the mother's concerns with the foster home but the mother was never satisfied with the response or explanation she received from the society.

Evidence of the Mother's Attitude in Relation to the Child's Diagnosis of Down's Syndrome

[89] It is the society's position that the mother has not been able to accept the fact that her son has been diagnosed with Down's syndrome and as a result she has unreasonable expectations of him. The mother has not actively sought out services for the child or participated in services arranged for the child by the society or the daycare. The society points to the undisputed fact that at the time of apprehension the mother had not had the child tested for Down's syndrome despite his doctor's advice shortly after the child's birth that such testing should be done.

[90] The society gave evidence that the mother met with Ms. Cherniavsky and her supervisor, Irene Dziama on November 18, 2013 and discussed whether the child should be tested for Down's syndrome. The mother told Ms. Cherniavsky and Ms. Dziama that she did not want the child tested for Down's syndrome, as it would not make a difference in how she cared for him. [2] At the end of this meeting the mother agreed to have the child tested for Down's syndrome but she refused to discuss the society's protection concerns with Ms. Cherniavsky and Ms. Dziama or how to address the concerns.

[91] The mother denies the society's claims that she does not accept that her son has Down's syndrome. The mother's evidence was that she did not have the child tested for Down's syndrome as her son's doctor only asked her once to have him tested and when she asked him if it would change the way she is raising him he told her "no" so she did not have the testing done.

[92] The child's doctor, Dr. Porepa gave evidence that he recommended chromosome testing to the mother but she refused and said the child was fine. Dr. Porepa said that he told the mother that she "must" have the child tested for Down's syndrome and he found the mother's categorical refusal to have the child tested as "strange".

[93] When asked if he told the mother that a diagnosis of Down's syndrome would not affect how the mother cares for him, Dr. Porepa said he may have said this but "I still would have thought that it was important to get the diagnosis because it would clarify other possible conditions and also provide connections to services and other support services." Dr. Porepa gave evidence that it was important to document the diagnosis as it could open the door for more comprehensive treatment for developmental issues.

[94] Dr. Porepa testified that he had written in his notes more than once that the mother was not willing to accept the diagnosis of Down's syndrome and that he raised the need for chromosome testing with the mother "quite a few times".

[95] The mother arranged for the child to attend Silverstone Montessori Daycare after he was returned to her care in June 2014. The child attended this daycare from June 23, 2014 until February 4, 2015. The supervisor of the centre, Manjit Kundhal gave evidence that when the mother contacted her about the child attending Silverstone she told Ms. Kundhal that the child is "potty trained", "fully developed" and does not require any services. Ms. Kundhal said that the mother told her that the child looks like he has Down's syndrome but he does not, he "just has a Filipino father."

[96] A review of the daycare's application form completed by the mother shows that where she was asked to disclose all known "allergies/symptoms/medical attention" she wrote "NO" for all three. Nowhere in the application did she indicate that the child has Down's syndrome. The mother did not give any evidence to contradict Ms. Kundhal's evidence of their conversation on this issue.

[97] Ms. Kundhal gave evidence that in addition to advising her that the child was "potty trained" the mother told her that the child can verbalize his need to use the washroom. Ms. Kundhal said the child was in fact not toilet trained and was unable to tell staff when he needed to use the washroom. This was problematic for the daycare, as the mother did not want the child in a diaper or pull-ups. Eventually the mother agreed to the child wearing pull-ups at naptime.

[98] Ms. Kundhal made enquiries about obtaining the services of an Early Childhood Consultant through Humber College to assist the child with his development including toilet training, speech and language and eating. Ms. Kundhal said the mother agreed to such services and signed the necessary consent forms.

[99] Ms. Kundhal gave evidence that she was present at a meeting held at the daycare with the mother, the Intense Resource Support Worker, Amy Goncalves and the Early Childhood Consultant, Larissa Kostevskii. Ms. Kundhal said the meeting was supposed to start at 5:10 p.m. but was delayed until at least 5:40-5:50 p.m. when she left. Ms. Kundhal said that the meeting could not start as the mother was dominating the discussion, talking about the past and how the child was taken from her. Ms. Kundhal said there was no discussion about the child or his needs before she left the meeting.

[100] When the child would cling to the mother at visits at the society's offices and want to be carried she would refuse to carry him telling him that he is 4 years old and not a baby and big boys walk themselves. She was observed dragging the child to the bathroom or the elevator when he refused to walk. The mother complained to the staff that the child being tired was not normal and she questioned if he was eating and sleeping well in the foster home.

[101] The mother requested a meeting with Ms. Cherniavsky and her supervisor Camis Nicholson to discuss her concerns about the child being visibly tired at visits. The meeting was held on October 13, 2015, during which Ms. Nicholson told the mother that the child recently had his thyroid level checked by his doctor and that he was referred to a specialist to monitor his thyroid issues. The mother responded by advising Ms. Cherniavsky and Ms. Nicholson that she does not want them to use the child's diagnosis of Down's syndrome as an explanation for him being tired at visits as his being tired is caused by the foster home. The mother's evidence at trial did not differ from the society's evidence.

Evidence of the Mother's Interaction with the Silverstone Montessori Daycare Staff

[102] Ms. Kundhal described how the mother got upset very quickly and that it was very difficult for the staff to approach the mother because of how quickly she became upset.

[103] When the mother became upset with her for calling the society when the child was ill and the mother could not be reached, Ms. Kundhal gave evidence that the mother was very upset and she "could not calm her down." She said that the mother was "very loud in front of children in the hallway."

[104] Ms. Kundhal described a day in August 2014 when the child was sick and she called the mother to have her pick up her son. The mother told her that she was not coming to pick up her son, as he was fine when she dropped him off so "you made him sick." Ms. Kundhal said the mother "was very upset" and told her that she was not going to answer the phone when the daycare calls. A lot of time was spent in cross examination around the daycare's sick policy and instances when the child had a fever and had to be picked up. Ms. Kundhal said that when the child was ill they had to leave a lot of messages for the mother, as she did not answer the phone. When the mother gave evidence on this issue she was quite indignant about the fact that she told the daycare that when she is at work she cannot answer her phone and they have to leave her a message. She also found it quite amazing that the daycare required her to leave work and travel to the daycare by bus to pick up her son when he only had a low grade fever.

[105] On one occasion when the child had a fever, Ms. Kundhal tried several times to reach the mother without success. She left the mother a message advising that if she did not come to the daycare to pick up the child, who appeared quite ill, they were going to send him to the hospital by ambulance. Ms. Kundhal said the mother came to the daycare but did not call in advance to advise that she received the message and was on her way.

[106] Ms. Kundhal said that the mother was asked repeatedly for an emergency contact number for someone other than herself or her daughter who could not be reached during school hours but the mother did not provide one. It is for this reason that Ms. Kundhal called the society when she could not reach the mother.

[107] Ms. Kundhal said the mother was mostly appropriate with the child, stayed with him in the morning until he was settled, showed an interest in how he was doing and his daily activities and threw a lavish birthday party for the child at the daycare.

Mother's Evidence Regarding Silverstone Montessori Daycare

[108] The mother did not contest Ms. Kundhal's evidence. The mother was consistent throughout her evidence about her belief that her son was toilet trained when he went into care. She felt he had acquired more words before he went into care and that he had regressed in the development of his speech. The mother was honest with the court when describing incidents at the daycare that made her upset or angry. She did not downplay her reaction to what had occurred. Therefore, the mother's evidence confirmed most of Ms. Kundhal's version of the events that had taken place.

[109] The mother's evidence is that she had problems with the daycare shortly after the child began attending in June 2014. The mother repeatedly said in her evidence that the daycare staff were not listening to her.

[110] According to the mother the problems with the daycare escalated over three issues; (i) the staff were allowing the child to play in the water play area of the daycare which she had told staff not to allow her son to use as she said it was making him sick; (ii) the daycare supervisor was calling her too often to tell her that the child was sick and that she had to come pick him up; and, (iii) the daycare supervisor called the society too often and over trivial issues.

[111] The mother's evidence was that the daycare staff and supervisor were ignoring her. They did not listen to her and continued to allow the child to engage in water play at the daycare when she forbid it and told them it was making her son sick. The daycare supervisor gave evidence that it was not possible to tell one child that he could not participate in the water play activities when it was open to the other children and this child loved the water play area. For the mother, this was not a satisfactory response and she was clearly very upset that the daycare allowed her son to play in the water area when she had repeatedly told them not to allow him to do so. The daycare's refusal to follow her instructions enraged her. She said it made no sense to her that the daycare would not listen to her and do whatever they wanted even after several complaints from her.

[112] The daycare staff's refusal to follow the mother's instructions with respect to the water play was, according to the mother's evidence, the reason for the child getting sick several times between December 2014 and January 2015. These repeated illnesses led to further conflict between the mother and the daycare as the mother was required to leave work on several occasions to pick up her son from the daycare. There was no evidence to support the mother's complaint that the water play area was responsible for the child's illnesses. [3]

[113] Between December 11 and 15, 2014, the child either appeared sick or had a fever on several days and as a result the mother was called and asked to pick up the child. The mother explained in her evidence that this was frustrating because when she brought the child to the daycare in the morning he was not ill so she concluded that something at the daycare must be making the child sick. She further testified that the daycare would call her at work and disrupt her even for a slight or low-grade fever, which she considered unreasonable notwithstanding the daycare's clear policy that a child with a fever must be picked up from the daycare.

[114] The mother's relationship with the daycare came to an end after an incident in January 2015 that resulted in police involvement. The mother described a day in which she arrived at the daycare and her son was not in his classroom. She had to search the daycare and the school it was attached to in order to find her son. She was very angry as she did not give anyone permission to move her son from the preschool room to the school age room. She confronted a daycare teacher and asked for the supervisor's telephone number as she wished to speak with her immediately. The daycare teacher claimed she did not know the supervisor's phone number but the mother did not believe her. Apparently a 15 year old boy picking up a sibling "got in the middle of a conversation between two grownups" which upset the mother. The mother told the boy that she is not talking to him but he continued to get in the middle of their conversation. She said that she backed up to leave the room to take her son to the bathroom and when she went to open the door the boy got in her way.

[115] The mother testified that the police were called and the 15 year old boy's mother arrived at the daycare. It was alleged that the mother pushed the boy who got in the middle of her conversation with the daycare teacher and the mother gave evidence that she did not "touch the damn kid".

Evidence of Larissa Kostevskii

[116] Ms. Kostevskii is a Special Needs Resource Consultant at Humber College who provides support to Early Childhood Educators at licensed daycare centres. She became involved with this child on July 7, 2014, after Ms. Kundhal, the daycare supervisor, contacted Humber College seeking services for the child.

[117] It is Ms. Kostevskii's role to design an individual plan to address a child's needs and set goals for the child to attain. It is also her role to meet with family and staff to communicate the goals set for the child and the strategies to employ to assist the child in attaining those goals. She can also provide referrals to different agencies or if the child is already working with different agencies to coordinate with the other service providers to ensure that what they are working on with the child is brought to the attention of the daycare staff and employed by them when appropriate.

[118] Some of the self-help skills Ms. Kostevskii identified for the child as requiring assistance were eating, dressing, communication skills and toileting or in other words, to be completely toilet trained.

[119] Ms. Kostevskii testified that she requested extra support for the child through the City of the Toronto child care support fund. This allowed the daycare supervisor to hire an additional staff person to work directly with the child building the skills Ms. Kostevskii identified. The child was approved for 60 hours of assistance and the additional staff member would attend at the daycare for 1-2 hours a day.

[120] Ms. Kostevskii testified that she also applied for intensive research support through the City which resulted in additional support for the child for 18 sessions, 2.5 hours twice per week for three months. Amy Goncalves from Community Living Toronto started working with the child in November 2014 and reached the midpoint of the 18 approved sessions when the mother removed the child from Silverstone Montessori.

[121] On November 11, 2014, Ms. Kostevskii, Ms. Goncalves and one of the daycare staff met with the mother to discuss Ms. Goncalves' role and what days of the week she would attend at the daycare. As stated above, Ms. Kundhal, the daycare supervisor, was also in attendance for part of the meeting.

[122] Ms. Kostevskii gave evidence that the meeting started with introductions and she identified the goal of the meeting was to sign the contract and discuss the strategies currently in place for the child, how he was doing and what Ms. Goncalves would be working on with the child. As the daycare worker began to speak, Ms. Kostevskii gave evidence that the mother began asking her questions and "spoke in a raised voice" and "it was challenging for everyone to re-engage to the point that [the daycare worker] needed to leave the room."

[123] Ms. Kostevskii gave evidence that the mother complained that the daycare staff were not listening to her requests, for example, that the daycare not allow her son to engage in water play at the centre and not to baby him. She also did not approve of the child eating out of a bowl when he is capable of eating off of a plate. Ms. Kostevskii testified that the mother's complaints during this meeting "went on and on".

[124] Ms. Kostevskii gave evidence that the "parent is the driver and knows her child best" and that they respect her point of view but in a group setting such as a daycare there are different routines and methods that they employ. For example, they do not consider some methods of assistance babying the child but rather a way in which to help the child reach his potential.

[125] Ms. Kostevskii gave evidence that at the meeting the mother asked the staff not to hug the child and to let him walk by himself. She said that the staff were letting the child walk by himself but occasionally he needed more attention from the staff and that it was her belief if the child asks for a hug or needs a hug "that's what we would do." The mother did not dispute that she asked the staff to let the child walk by himself but she denied asking the daycare staff not to hug the child.

[126] Ms. Kostevskii gave evidence that she met with Thanya Duvage, the speech pathologist arranged through Surrey Place on three occasions. Although aware of the sessions, the mother did not attend as she was at work. Ms. Kostevskii explained that the delay in the service being provided to the child between July 2014 and January 2015 was due to the mother's request that the speech pathologist work with the child at the daycare as opposed to Surrey Place which took some time to arrange. The mother confirmed in her evidence that she requested the speech pathologist to work with the child at his daycare.

[127] Ms. Kostevskii explained that usually families bring the child to the speech pathologist, in this case to Surrey Place, but the mother wanted the speech pathologist to come to the daycare as she advied Ms. Kostevskii that Surrey Place is not convenient for her and it would be better for her if the service was provided at the daycare. Ms. Kostevskii told the mother that they will try to accommodate her but in other circumstances they do not provide these services at the daycare.

[128] Ms. Kostevskii further explained that usually the parent brings the child to the speech pathologist where they work one-to-one or in small groups depending on the child and the assessment. The idea is that the parent would be involved and learn from the speech pathologist in order to utiliize what they learn at home. Thanya Duvage, the speech pathologist, agreed to conduct the sessions in the child's daycare classroom which took place with Ms. Kostevskii and the classroom teacher. Ms. Kostevskii gave evidence that the mother could not attend the sessions as she was working and that the notes from the sessions were sent to the mother and it was her understanding that the mother communicated with the speech pathologist via telephone.

[129] Ms. Kostevskii described her interactions with the mother as positive. She agreed that mother worked collaboratively with her and that she had no concerns about mother's interation with the child. She had three meetings with the mother before their last meeting to assist in the transition to the new daycare and a new consultant as well as a few chance meetings when the mother attended at the daycare to pick up the child.

[130] Ms. Kostevskii explained that when the child changed daycares, she and Ms. Goncalves would no longer be able to work with the child as he was out of their region and a new consultant and resource support worker would have to be arranged for the child at the new daycare.

[131] Ms. Kostevskii testified that the staff at the Silverstone Montessori loved the child because of his spirit and everyone had a great time engaging and communicating with him. The staff followed her recommendations and suggestions and sought support from her. She said that the daycare staff were receptive to the services she provided and that they were quite diligent with the child.

[132] When asked about the gains the child made while at the Silverstone Montessori Daycare, Ms. Kostevskii said that the child adjusted well in the daycare and became familiar with the routines. He was able to follow the routines with some assistance and was more independent. She said that he had improved in his toilet training and was staying dry more. With respect to communication, Ms. Kostevskii gave evidence that the child was using more words and always engaged during musical time enjoying singing and dancing. At the time of her involvement, the classroom was very small with only four children and the child was developing good social skills.

Evidence of Kimberly Edwards

[133] Kimberly Edwards is the child's occupational therapist at ErinoakKids Centre for Treatment and Development ("ErinoakKids). The child was referred to Ms. Edwards by his paediatrician while in the society's care. She met the child in September 2015 and conducted an assessment to arrange for a block of services designed to meet specific goals set for the child. Ms. Edwards identified the child's needs as toileting and school readiness skills such as informal play skills, pre-printing, cutting and colour and shape recognition. She gave evidence that the goals identified did not require physiotherapy and at the end of the first session with the child a block of occupational therapy was to begin as soon as possible to coincide with the child beginning Junior Kindergarten.

[134] At the first session Ms. Edwards gave the foster father recommendations on how to work with the child in the home to develop skills that can be transferred to school. She testified that the child's development of the skills or goals identified might take longer to achieve if the recommendations are not followed at home with the child.

[135] In her second meeting with the child in October 2015, Ms. Edwards assessed his fine motor skills. She testified that the child's fine and visual motor skills were "very poor overall." She said that he was having difficulty reaching and grasping things and was holding a marker in a fist which would make it difficult to learn to print and copy letters.

[136] Ms. Edwards said that the child is very happy and excited for the activities she has planned and understands the structure of the sessions really well. She said he participates in all of the activities, is making progress and is learning to copy and imitate her and is working on his shapes and colours.

[137] In response to the question, what effect if any would pushing the child too hard have on him, Ms. Edwards said that it could cause delay in acquiring the skills they are working on as "you don't want them frustrated at the lack of success" or "to lose interest and not continue to try" if they are held to too high expectations.

[138] Ms. Edwards testified that she never met the mother nor received a telephone call from her.

Part Three – Analysis and Conclusion

Mother's Lack of Understanding of Down's Syndrome

[139] The society argues that the mother's failure to understand Down's syndrome and the effects it has on her son's health and development is due to her refusal to accept the diagnosis. Regardless of the reason for the mother's conduct, it is clear that she does not understand how the diagnosis impacts her son and the care she provides him. When asked to give the names of the professionals working with her son she was unable to recall most of the service providers' full names or what they did.

[140] The risk to this child of suffering emotional harm as a result of the mother's lack of understanding of Down's syndrome and her failure to appreciate that her expectations of him might have to be altered is significant.

[141] The mother has refused to accept that the child might have special needs since he was born. Despite the child's treating physician's repeated requests to have the child tested for Down syndrome, she refused. She refused despite being told that confirming the diagnosis will create opportunity for services for the child.

[142] The mother's unwillingness to consider that her child was different and might have special needs was demonstrated in her evidence that when she took her son to the Hospital for Sick Children to address his hernia in 2012, no one raised the issue of her son's development with her or that he might have Down's syndrome. A review of the Discharge Note from the hospital dated May 21, 2012, makes it clear that this evidence was not accurate as it states that the child has features of Down's syndrome.

[143] The court found the mother's evidence on why she did not locate services for her son's special needs a compelling example of her poor judgment and lack of understanding or appreciation of her son's needs. The society's lawyer asked the mother " Did you utilize any services for children with special needs?" The mother's response was, "I didn't know [the child] had special needs so I didn't go to any services for special needs."

[144] The mother shows no regret for not having her son tested for Down's syndrome earlier as recommended by his doctor. Nor does she have an appreciation for the consequence of not doing so which was to deprive him of the services available for children with his specific needs at a much earlier age.

[145] Of particular concern to the court is the mother's behaviour during supervised visits at the society's office that demonstrates she either does not understand her son's diagnosis of Down's syndrome or she does not accept the diagnosis. During the visits the mother had unreasonable or unrealistic expectations of the child and when the society staff suggested this to her, she was dismissive and unable or unwilling to consider what the staff were saying to her.

[146] The mother insists that her son was completely toilet trained at the age of 2 years when he first went into care. The mother complained strenuously when the child arrived at visits wearing a diaper or pull-ups. The mother told staff that the child is not a baby and that he should not be wearing a diaper or pull-ups. She blamed the society and the foster home for what she believed was the child's regression in this area. She told the child that he is a big boy and big boys do not wear diapers. The mother also told the child that he is a smart boy and the people looking after him are not smart as it is easier for them to put him in a diaper rather than take him to the toilet. The mother refused to carry the child's diaper bag at the visits stating that she would not carry what is not hers. All the other witnesses who gave evidence on the issue of the child's toilet training including the Silverstone Montessori Daycare supervisor and the foster mother were very clear that the child was not toilet trained and was working on accomplishing this goal.

[147] Another example of the mother's lack of understanding of Down's syndrome is her reaction to the child when he appeared tired at many visits after his second admission into care in March 2015. When society staff attempted to discuss with the mother why the child might be tired, the mother refused to engage in such a discussion and instead blamed the foster home. The mother would not even consider that the child might be tired due to the fact that he recently began full day attendance at school. Society staff also told the mother that children with Down's syndrome often have issues with their thyroid that could contribute to the child being tired. There was no explanation the mother would consider other than her belief that something was happening in the foster home which was making the child tired. The mother's evidence on this issue did not differ from that of the society.

[148] The mother's reaction to the child being fatigued is concerning as she lacked knowledge and understanding of how of her son's needs and his stage of development might be affected by Down's syndrome. The mother was so focused on her son being "normal" that she was not attentive to his actual needs. When society staff attempted to discuss how Down's syndrome might affect the child's needs, the mother refused to have such a discussion and instead cast blame on the society and the foster home.

[149] The mother's denial in relation to the child's diagnosis of Down's syndrome and her actions following the diagnosis create a serious risk of harm for the child. The mother said over and over again in her testimony that she wants her son to be independent yet she could not articulate a plan that she would implement for this to occur; she just expects it to happen. Her interaction with the child during some of the access visits demonstrates that she has unrealistic expectations of the child and that she was not prepared to consider that she was being unrealistic when the topic was broached by society staff supervising the visit.

[150] The mother would not take the child to Surrey Place for services as in her estimation the child would get everything he needed in one convenient location; his daycare. In her evidence she said, " I don't need to go to Surrey Place. What I need is for them to provide the service at the daycare or school where he is comfortable." When the mother was asked if it was too difficult for her to take her son to Surrey Place for services she said, "No, it was my decision where to put my child. I didn't want my son to go to Surrey Place, it is my decision." This response is concerning considering the number of doctors and professionals already working with this child outside of the school/daycare setting and the demands it puts on his caregiver.

[151] The mother would not agree to bring her son to Surrey Place for speech therapy even though it was explained to her that the speech therapist works together with the child and parent in order to assist the parent in learning techniques to use with the child at home. The mother insisted on all services being provided to the child at his daycare, saying he should receive all services in one place where he is comfortable. This is unrealistic and the mother provided no evidence to show that it is possible.

[152] Considering the mother's unrealistic and unsupported expectation that the child can receive all the services he needs at daycare or school, this court is not at all confident that the mother is capable of meeting this child's physical and medical needs as he grows older.

[153] The mother has at a minimum had a hard time accepting her son's diagnosis of Down's syndrome. She repeatedly interacted in a manner with her son that seriously brought her understanding of Down's syndrome into question. She believed him to be toilet trained when he was not, she believed him to be "fine" and "normal" and not requiring of any services when she enrolled him in the Silverstone Montessori in June 2014, several months after she was advised that he tested positive for Down's syndrome. The mother did not provide an explanation as to why she did not indicate on the application form for Silverstone Montessori that the child has Down's Syndrome. She also did not provide evidence to contradict the evidence of the daycare supervisor that the mother told her that the child was fine and did not require any special services.

Mother's Failure to Work Cooperatively with Professionals and Service Providers

[154] The mother's inability to work cooperatively with people involved in her son's life was demonstrated by her refusal to cooperate with the society for most of the two year period of their involvement from September 2013 to the date of trial. The society gave evidence of many examples of their attempts to engage the mother in order to have the child returned to her care but their attempts were met with anger and the refusal to communicate let alone cooperate. The mother told society workers on several occasions that she would not talk to them about anything other than scheduling visits with her son. She told them if they had something to say to her they should say it in court. She was waiting for the trial to demonstrate that society involvement in her life was never necessary so there was no point for her to communicate with the worker other than to arrange for her access.

[155] Even after the child was returned to her care despite her refusal to cooperate with the society, the mother continued to make decisions that brought her judgment and ability to meet this child's needs into question.

[156] In early 2015 the mother violated the terms of supervision order and changed the child's daycare without notice to the society. The society was forced to bring a motion to have the child brought back into care after the mother advised the society that she would no longer allow workers into her home or communicate with them and she refused to give the society consent to communicate with the child's new daycare.

[157] On the morning of the motion, the society advised the mother that they would withdraw their motion and leave the child in her care if she would just agree to work with the society. The mother advised that she would not work with the society and the motion proceeded resulting in the child being brought back into care. The mother chose to risk having her son removed from her care a second time rather than agreeing to engage with the society and allow the society to communicate directly with the child's new daycare. This speaks volumes about the mother's inability to put the needs of her son before her own needs.

[158] The mother's evidence regarding the calls she received from the daycare for her to pick up her son when he had a fever provided the court with a very good understanding of how the mother deals with people when she does not agree with them. The mother's evidence on this issue was provided to explain to the court why the mother made the decision to change the child's daycare. She was very agitated when describing the occasions she had to leave work and pick her son up from daycare because he was ill.

[159] The mother's evidence was that the daycare was unreasonable to expect her to attend at the daycare immediately when her son was sick. The mother did not respect the daycare's policy that a child with a fever must immediately be retrieved from the daycare and that the daycare office must be provided with contact information for people who can be reached in the event of an emergency. [4] Her lack of respect in this regard led to conflict between her and the daycare staff. The mother was indignant when she gave evidence that the child's fever was not even as high as described by the daycare so she did not understand why she had to leave work and pick up her son.

[160] The mother's evidence regarding the conflict with the daycare that led to police involvement was disturbing. How such a minor issue as the change to the room the child was in at the end of the day could escalate to police involvement can likely be attributed to the mother's aggression and her confrontational behaviour in situations where she feels she is not being obeyed. The court is troubled by the fact that this incident involved confrontational behaviour directed at a minor.

[161] The effect on the child of being removed from the Silverstone Montessori daycare was significant. He had been working with Larissa Kostevskii, Amy Goncalves and Thanya Duvage in addition to his familiarity with the daycare staff, children and routine. By removing the child from the daycare the mother put her son in a position to have to start all over with new service providers as well as new daycare staff, children and routine. The decision to change the child's daycare was based on the mother's need to show that she was right, she is the decision maker and she is in control; it was not a decision well thought out or based on the child's needs.

[162] The child was showing improvement in the areas identified by Larissa Kostevskii as requiring improvement and for which strategies were put in place by Ms. Kostevskii and employed by the Silverstone Montessori Daycare staff. When the child was removed from Silverstone Montessori Daycare, the new daycare, St. Dorothy's Daycare, had to start the process of obtaining supports for the child all over again. While he was already approved for the services he had to wait until new service providers associated with St. Dorothy's were assigned to provide services at the new daycare. The supervisor at St. Dorothy's testified that there is a long wait list for the services the child was receiving at the Silverstone Montessori Daycare.

[163] The mother's evidence made it very clear that she did not consider the effect on the child of removing him from the Silverstone Montessori Daycare and that she would do it again if she felt it necessary. The mother was so defiant in defending her actions that she could not recognize that the child had much more to lose than to gain by removing him from the daycare at which he was flourishing as a result of the people who were supporting him there.

[164] The mother gave evidence that she recently made the decision to change the child's doctor as Dr. Porepa, who has been the child's doctor since birth, is located too far from her home and she requires a doctor that is more convenient for her. Despite her decision to withdraw the child from Dr. Porepa's care which she testified she already did, the mother had not yet arranged for a new doctor for the child and advised that there was a doctor close to her home named Paula but she could not recall her last name, who she planned on taking the child to. On the application for St. Dorothy's Daycare, the mother listed one of the child's specialists as his doctor.

[165] The mother, who testified that she took her son to various programs across the city several times a week when he was younger to facilitate his learning, was asked if she felt it was worthwhile to take the child to programing in Scarborough and Regent Park [5] why would she not travel to maintain Dr. Porepa as the child's doctor. The mother's response was "it was my decision to move the child from that doctor. I did what I think is best for the child, my decision."

[166] Considering the amount of programing the mother took the child to in different parts of the city, it is hard to accept the mother's evidence that she changed the child's doctor because his office was not convenient for her. It is possible that the mother changed the child's doctor as she did not approve of Dr. Porepa giving evidence as part of the society's case.

Mother's Decision to Suspend and Resume Access to the Child on Three Occasions

[167] Of the 18 months the child was in the society's care, the mother chose to suspend her visits with her son for a total of 7.5 months. She also testified at trial that she would not attend anymore visits after November 27, 2015. This pattern of behaviour by the mother creates a real risk of emotional harm to the child.

[168] The mother's reasons for suspending and then resuming access on at least 3 occasions sheds light on the mother's lack of judgment and demonstrates that she is unable to consider how her decision to terminate visits would affect the child.

[169] One week after the first apprehension the mother went on vacation with her daughter to Cuba while her son was in foster care. When the mother returned from Cuba she blamed the society for her inability to see her son for over two months after he first went into care, claiming they did not answer the phone when she called from a public telephone and she did not have a cell phone at which they could call her back as she could not afford one after spending money on the trip to Cuba and giving money to her mother while there. As a result, the child did not see his mother for over two months after the first apprehension.

[170] The mother's explanation for not visiting the child between December 11, 2013 and February 26, 2014 was that she could not believe that the judge did not return her son to her care on the December 9, 2013 court appearance, as he was not being cared for properly in the foster home. She gave evidence that she was "very disappointed so I didn't go to any more visits." The mother spoke at length about how hard it was for her to see her son when he was not being cared for properly and not being able to do anything about it. She said that it was hard to see her son at visits and not be able to take him home. The mother's evidence was entirely focused on her needs as opposed to the needs of her son. Furthermore, it was at least partially within the mother's control to do something to assist in her son being returned to her care and she could have started by cooperating with the society.

[171] When asked by her lawyer why she changed her mind and began visiting her son again in February 2014, her answer started off child focused but quickly turned to her need, once again, to prove she is right and everyone else is wrong. The mother said that she decided she "would take this to trial and I told the workers I will take this nonsense to trial and I will have a fair trial and I will say what happened and the evidence will speak for itself."

[172] After the child was brought back into care in March 2015, the mother once again decided she was not going to attend visits at the society's office. The mother testified that she did not understand why the society would think she would attend at their offices to visit with her son when she made it clear before he was apprehended for the second time that she did not want the society involved in her life any longer. The mother only saw her son on four occasions between March 16, 2015 and April 21, 2015 and did not see him at all for three months between April 21, 2015 and July 24, 2015.

[173] The mother also testified that she would not be visiting her son after her most recent visit on November 27, 2015, as she could not continue to see her son suffering in foster care and she could no longer tolerate her son arriving late for visits too tired to interact with her.

[174] The mother's evidence on this issue demonstrates that she has no insight into the harm she was potentially causing her son by entering and exiting his life in the manner she did. A child is entitled to consistency of care from a parent or caregiver and to know that this person will always be there for them. A parent cannot come and go from a child's life, as the risk of emotional harm to the child is enormous.

[175] The mother's conduct has had devastating consequences on the child. The mother's inability to work cooperatively and effectively with others led to the child being removed from her care and deprived the child of a consistent relationship with his mother and sister. The mother's angry reaction to what should be no more than a difference of opinion, led to the child being removed from a daycare where he was happy, doing well and receiving special support from three outside professionals who could not follow him to the new daycare. The mother's inability to control her emotions and put her son's needs before her own caused her to remove the child from the care of a doctor who had overseen his care since birth.

[176] The mother's poor judgment is fuelled by her uncontrollable need to prove she is right or to demonstrate that she knows what is best for her son and does not need anyone to tell her how to raise her child. The mother's need to prove she is right or knows best is an impulse she cannot or will not control even when it comes at a high cost to her son who suffers the most as a result of her actions.

[177] The mother has demonstrated that she is not capable of working cooperatively with others in providing care and treatment for her son. She listens and cooperates until she disagrees. She is not willing to provide better care for her son if it is an inconvenience for her.

[178] The mother seems incapable of engaging in respectful discussions or a constructive conversation regarding her son. She is only capable of instructing people to do as she says. No one can tell her what to do; she does not need advice or assistance of any kind in raising her son.

[179] The mother is incapable of meeting this child's needs as she is unable to identify and understand what those needs are and she is unwilling to listen to those who have the knowledge and expertise to best help her son reach his full potential.

Part Four – Finding in Need of Protection

[180] The society seeks a finding that the child is in need of protection pursuant to subsection 37(2)(b) or subsection 37(2)(g) of the Act.

[181] Subsections 32(2)(b) and (g) of the Act reads as follows:

Child in need of protection

37(2) A child is in need of protection where,

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

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

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

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) [(i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development] resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[182] The risk of harm under clause 37(2)(b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458 ; Children's Aid Society of Ottawa-Carlton v. T. and T. .

[183] Harm caused by neglect or error in judgment comes within the finding. See Catholic Children's Aid Society of Toronto v. C.C. [2015] O.J. No. 3139(O.C.J.)

Finding Under Subsection 37(2)(b)(i)

[184] The evidence of both the mother and PC Bianchi supports a finding under subsection 37(2)(b)(i) of the Act. The mother put the child at risk of physical harm by consuming a large amount of alcohol in a short period of time while the child was in her care.

[185] The mother was inebriated when she was at Scarborough Town Centre. She acknowledged drinking that day and PC Bianchi gave evidence that the mother was unsteady on her feet, slurring her words, smelled of alcohol and was brought to the station to sober up. The mother denies being intoxicated.

[186] The court did not find the mother's evidence as to what occurred on September 11, 2013 to be credible. The court accepts PC Bianchi's evidence as fact and finds that the child was at risk of harm and in need of protection on September 11, 2013.

[187] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W. (2001), 114 A.C.W.S. (3d) 71 ; Children's Aid Society of Brant v. James Albert T. and Melissa Marie S., 2005 ONCJ 302 .

[188] The court finds that since the date of the first apprehension, the mother has put the child at further risk of harm pursuant to subsection 37(2)(b)(i) of the Act as a result of the following conduct:

(a) Her resistance to having the child tested for Down's syndrome;

(b) Her failure to properly educate herself on what her son's diagnosis of Down's syndrome means in terms of his development, his ongoing health and any issues he may encounter, and what supports and services are available to him in the community;

(c) Her inappropriate expectations of the child due to her lack of understanding of Down's syndrome;

(d) Her failure to pursue services for her son which addresses his special needs;

(e) Her refusal to cooperate with and attend at Surrey Place for her son to receive services;

(f) Her failure to attend most of the plans of care meetings arranged by the society at their offices;

(g) Her failure to focus on her son's needs when meeting with society workers and/or service providers and using the time to air her grievances with the society, daycare, police, foster home etc.;

(h) Her failure to attend sessions and engage in meaningful contact with the service providers working with her son arranged through the society or the child's daycare;

(i) Her failure to take the child for blood tests to determine his thyroid level as requested by Dr. Porepa after the child was returned to the mother's care in July 2015; and,

(j) Her decision to withdraw the child from the care of Dr. Porepa, the child's doctor since birth, in order to find a doctor closer to her home and that she did so before having a new doctor in place for the child.

[189] The court finds that the child continues to be in need of protection pursuant to subsection 37(2)(b)(i) of the Act.

Finding Under Subsection 37(2)(g)

[190] The society also seeks a finding that the child is at risk of emotional harm pursuant to subsection 37(2)(g) of the Act. For reasons set out below the court finds that since the date of the child's first apprehension (September 11, 2013) and up to the date of trial, the mother has failed to foster the child's development or engaged in a pattern of behaviour that is likely to interfere with and delay the child's development such that the child is at risk of emotional harm and in need of protection pursuant to subsection 37(2)(g) of the Act.

[191] The mother's behaviour and poor judgment have put the child's emotional wellbeing and development at risk of harm. Her unwillingness to work cooperatively with others involved in the child's life throughout the society's involvement demonstrates a dangerous pattern of behaviour that has and is likely to continue to have a detrimental impact on the child resulting in a real risk of harm. Not only is the mother unable to work cooperatively with others, she has demonstrated that when she feels she is not being listened to, she becomes belligerent and abusive.

[192] The mother has also failed to address the child's special needs as a result of either her refusal to accept the child has Down's syndrome or her lack of understanding of the diagnosis.

[193] The mother's actions since September 2013 and her evidence at trial demonstrate an overwhelming need to prove she is right and others are wrong. Her need to be right has seriously impaired her judgment and had significant consequences on her son demonstrating that she is unable to put the needs of her child before her own.

[194] The mother's behaviour and poor judgment has put the child at risk of harm pursuant to subsection 37(2)(g). The following are examples of the mother's inability to meet her son's needs since the society became involved with the mother and child:

a) The behaviours set out in paragraph 188 (a) to (J) inclusive;

b) Her refusal to cooperate with the police and provide the information requested of her. Instead of cooperating with police and de-escalating the situation, the mother was belligerent and uncooperative. The child being brought into the society's care initially was due entirely to the mother's behaviour with the police;

c) Her refusal to develop a working relationship for any measureable period of time with a single society worker. The mother has remained defiant in her hostile approach towards interaction with all society workers for over two years. In March of 2015 the mother even refused to cooperate with the society in the face of a motion to have the child brought back into care. Her hostility was visible during the trial while she sat at the counsel table and her anger directed at the society was palpable throughout most of her cross examination. The mother has consistently demonstrated that it is more important for her to prove her innocence or that she is right and the society is wrong then it was to cooperate with the society to ensure her son's return to her care as soon as possible;

d) Her decision to leave her son in care and vacation in Cuba with her daughter shortly after the first apprehension;

e) Her decision not to see her son for two months after he was first apprehended;

f) Her refusal to visit with her son between December 11, 2013 and February 26, 2014 and between April 21, 2015 and July 24, 2015;

g) Her decision to end visits with her son after her November 27, 2015 visit at the society's office;

h) Her refusal to comply with the court order requiring her to cooperate with the society and not to change her son's daycare without the society's consent after the child was returned to her care in July 2014;

i) Her refusal to abide by the daycare's policies resulting in unnecessary and ongoing conflict with the daycare staff which eventually necessitated police involvement;

j) Her insistence on being argumentative and inappropriate with the society's access supervisors and using the time to complain about the society and the care the child was receiving in his foster home; and,

k) Her insistence that as the child's mother she knows what is best for him and does not need advice from anyone on how to care for him.

Part Five – Disposition

Disposition Options

[195] The court's disposition options in this case are set out in subsection 57 (1) of the Act. This subsection reads as follows:

Order where child in need of protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under subsection 57.1, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

[196] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:

1. Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or crown wardship. (Section 57.)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70 (4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for crown wardship.

3. If a society wardship order is made determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests (section 58.)

[197] Subsection 57 (2) of the Act requires that the court ask the parties what efforts the society or another agency or person made to assist the child before intervention under Part III of the Act. The society was not involved with this child prior to the first apprehension in Septmeber 2013. Several efforts were made by the society to assist the child after he was apprehended on September 11, 2013. Those efforts are set out below.

[198] Subsection 57 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[199] Subsection 57 (4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care. The mother did not propose any family members or third parties as alternate caregivers. In fact, the mother repeated in her evidence that she has no supports other than her 17 year old daughter. No plan other than the mother's was before the court.

[200] In determining the appropriate disposition, the court must decide what order is in the child's best interests. The court has considered the criteria set out in subsection 37 (3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

37. (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships by blood or through an adoption order.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[201] A crown wardship order is the most profound order that a court can make. To take someone's child from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton- Wentworth v. G. (J) (1997) 23 R.F.L. 4 th 79 .

[202] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective . See: Catholic Children's Aid Society of Metropolitan Toronto v. C.M. .

Services Provided

[203] As stated above, the society became involved with the family after the child's apprehension. The following services were provided to the family:

(a) The child completed a block of speech therapy through Surrey Place between April 16, 2015 and June 5, 2015;

(b) The child was assessed by an occupational therapist at ErinoakKids on September 23, 2015 and provided with a block of occupational therapy sessions to help prepare the child for school;

(c) The child was given a referral from ErinoakKids to an orthopaedic clinic to monitor any issues that may arise from having flat feet;

(d) The child was assessed by ErinoakKids for physiotherapy sessions which were not provided at the time but for which the child will continue to be monitored;

(e) The child is seeing a thyroid specialist;

(f) The society and foster mother are in discussions with the child's school to determine what additional resources, if any, are required for the child in the classroom setting; and,

(g) The society asked the mother to participate in a psychological assessment, which she declined.

The Competing Plans of Care

[204] The society's plan is for the child to be made a crown ward without access for the purpose of adoption. The child's foster mother did not give evidence that she would adopt the child but she did say that the child could stay with her until he is adopted. She said that due to her age it was unlikely that the child could remain in her care beyond 5 years.

[205] Kate Blick, the society's adoption worker gave evidence. Ms. Blick felt that she could find an adoptive home for the child and in fact had two potential adoptive families open to adopting a child with Down's syndrome, one that had been approved by the society. Ms. Blick testified that in her tenure as an adoption worker she has successfully placed one child under the age of 4 with Down's syndrome for adoption. The court finds that this child is adoptable.

[206] The mother's plan for the child is that he be returned to her care and the court terminates all society involvement. The mother made it abundantly clear that she will not cooperate with any terms of supervision. The mother and child will continue to reside in the mother's current apartment where the child has his own bedroom. The child will attend St. Dorothy Daycare and St. Dorothy's Catholic School. The mother advised that all of the supports put in place in the child's previous daycare were transferred to St. Dorothy's and can be continued at that daycare and school. The supervisor of St. Dorothy's Daycare gave evidence that the child can attend the daycare and that there is room for the child. The mother gave evidence that her support network is composed of her 17 year old daughter who lives away from home and is attending college and the Yonge Street Mission whose food bank she has used in the past. She gave no other names of third party or community supports. She said that her friends were not part of her support system.

The Child

[207] The child was described as a happy, energetic little boy who likes everyone and smiles most of the time. The current foster mother described the child as a "charming, very sweet little guy who seems to love everybody." She said he adapted very quickly to their home and his new bedroom. She said he is open and friendly and has no problems eating or sleeping.

[208] As many children with Down's syndrome have weak muscle tone, they are delayed in their fine and gross motor skills. This will have to be monitored on an ongoing basis by an occupational therapist and possibly a physiotherapist. The foster mother currently takes the child to ErinoakKids for occupational therapy.

[209] The child has speech and language delays also associated with Down's syndrome. In order to continue to improve this child's speech and language skills, he will require ongoing work with a speech therapist. The child was to begin with a new speech therapist after a second assessment scheduled for December 2015.

[210] The child has some medical issues arising out of his Down's syndrome. This child will have to be seen by his paediatrician to monitor his overall health on a regular and frequent basis. He will always have to be monitored by a cardiologist and a thyroid specialist. He has flat feet that may be affecting his gait for which he may require leg braces. This will require ongoing consultation with an orthopaedic surgeon. The foster mother also advised that the child was going to have his vision checked in February 2016. She has also taken the child to a cardiologist, the thyroid specialist, a dentist and a new paediatrician.

Positive Aspects of Mother's Plan

[211] The following are the positive aspects of the mother's plan:

(a) The child will remain in the care of his biological mother and have the opportunity to enjoy a relationship with his biological sister;

(b) The child will continue to learn Spanish and other aspects of his culture;

(c) The child will enjoy a clean home where his needs with respect to shelter, clothing, hygiene and appropriate stimulation will be met;

(d) The mother is able to arrange for an appropriate daycare and a daycare subsidy;

(e) The mother loves her son;

(f) The mother has stable housing and employment;

(g) The mother exposes the child to different places and experiences;

(h) The mother is willing to have services provided to the child at daycare and at school;

(i) The mother has taught the child good manners and social skills; and,

(j) The mother's older daughter did well in her care and is attending college.

Disposition

[212] At the time of trial the child had been in care for a total of 18 months. Despite the mother's ability to meet the child's basic needs by providing him with food, shelter and clothing, the evidence strongly establishes that it is in this child's best interest to be made a Crown ward.

[213] This child has special needs and he requires a caregiver not only able to recognize those needs but one who is able and willing to take action to ensure that those needs are being met. Based on the mother's conduct over the past three years, the court finds that she is unable to sufficiently meet her son's needs. As outlined above, the mother has demonstrated very poor judgment in relation to her son and as a result she has repeatedly exposed him to the threat of serious harm. Sadly, she has absolutely no appreciation of the harm she has subjected her son to and said she would do nothing differently if given the chance.

[214] The mother has refused throughout this proceeding to take any responsibility for her actions. The mother was asked if in retrospect would she do anything differently with the police, society staff or the daycare staff and without hesitation she answered that she would not do anything differently. The mother believed that she was justified in refusing to engage with or cooperate in any way with the police, the society and the daycare, as she had done nothing wrong. The mother equated cooperating with these parties to admitting blame on her part.

[215] The mother has shown no insight whatsoever into how her actions have negatively impacted her son. For example:

(a) The mother failed to see that her behaviour was directly responsible for the child being brought into care in September 2013 and March 2015;

(b) The mother blamed the society for her inability to see her son for over two months after he first went into care;

(c) The mother blamed the daycare's water play area for the child's illness and fevers in December 2014 and January 2015 when there is no evidence to support her belief;

(d) The mother blamed the foster home for the child being tired and appearing to lack an appetite when there is no evidence to support her belief;

(e) The mother showed no appreciation of the risk of harm she was creating by refusing to visit the child for lengthy periods of time; and,

(f) The mother blamed the foster home and the care the child was receiving for her decisions to stop visiting the child in November 2015.

[216] The mother was questioned about her conflict with the daycare over her instructions to the staff not to allow the child to engage in water play and she was asked if she would tell the child's Junior Kindergarten teacher not to do something with the child once he is in school? She responded that if it made the child sick she would and if the teacher did not listen to her she would go to the principal and if the principal did not listen to her she would withdraw the child from the school. This is a perfect example of the mother's inability to appreciate the possible consequences of her actions on her child.

[217] The most recent example of the mother's continued poor judgment was her announcement at trial that she had decided yet again to suspend her visits with her son in late November 2015, as she could not bear to see him while he was still in foster care. The number of times the mother went long periods without seeing her son while he was in care is quite telling in terms of her ability to meet her son's needs.

[218] All children need a caregiver who is capable of meeting their day-to-day needs but a child with special needs is more vulnerable and requires a higher standard of care. This child has special needs and his caregiver must be able to consult with professionals to identify where the child needs assistance and how best to provide that assistance. In order to be successful in meeting this child's needs the caregiver must be able to cooperate with service providers and be willing to learn from others and utilize what they learn to assist the child. In order for this to occur, the caregiver must accept that they do not always know what is best for this child given his special needs and that they must seek out assistance and follow the advice of those who do in order to best support the child and foster his development. A parent or caregiver who fails to involve professionals in this child's life and work effectively with them is guilty of not giving this child all the available tools to develop to his full potential.

[219] This child must have a caregiver who will nourish the child's relationship with the service providers in his life even when it is inconvenient for her. As this child requires routine and consistency of service providers, his primary caregiver must be able to work with many others as part of a team with the singular goal of fostering the child's development. Anything less will gravely hinder this child from reaching his full potential.

[220] The mother's inability to work cooperatively with anyone who disagrees with her or who will not capitulate to her demands creates a situation where this child will always be subjected to major changes in his life, changes which will likely serve the mother's needs as opposed to the needs of the child. This creates a risk of emotional harm to this child. Constantly changing service provides, doctors, daycares, schools etc. is not good for any child but this child has special needs that would make each of these changes more difficult for the child and likely to cause the child emotional harm and delayed development.

[221] The ability of the mother to meet her child's needs has not improved over the last two years as she is driven by her overwhelming need to be right and her unequivocal refusal to take advice from others on topics which she believes she requires no assistance. She is closed off to people who disagree with her or challenge her and if she feels she has been wronged, she becomes irrational and confrontational to the point where she will make hasty decisions that are not in her son's best interest but rather satisfy her own needs. The mother's attitude is that if sacrificing her child's needs is collateral damage in her quest to be in control, to clear her name or to prove she is right, so be it. The mother has demonstrated time and time again that she is willing to make that sacrifice if she feels she is under attack or that she is not being treated with the respect or deference she expects. It is always about her as opposed to the child.

[222] There has been no improvement by the mother over the last two years to better meet her son's needs as she has refused to communicate with society workers or engage with any of the professionals working with her son. In fact, she was argumentative with various people working with her son when they provided her with suggestions or feedback. She said very clearly that she knows how to take care of her son, as "nobody has to teach me anything, it is my instinct as a mother."

[223] As the mother has shown no improvement in her ability to meet her son's needs and demonstrates no insight into how her behaviour and choices will bring harm to her son physically, emotionally and developmentally, the mother cannot be given care of this child without a supervision order. The mother refused to work with the society at all over two years and considered their involvement in her life "harassment" and a "nightmare" and gave evidence that she would not work with the society if the child was returned to her care. A supervision order would not achieve any level of protection for this child.

[224] The mother's plan does not address the society's or the court's concerns. As the mother has never accepted that there were legitimate protections concerns that required her cooperation to address, nothing has changed in her ability to meet the needs of this child and protect him from harm since he was first brought into care on September 11, 2013.

[225] In accordance with subsection 37(3) of the Act, the court finds that:

(a) The society's plan will better meet the child's physical, mental and emotional needs.

(b) The society's plan will better meet the child's physical, mental and emotional level of development.

(c) The society's plan will better meet the child's needs for continuity and a stable place in a family through adoption.

(d) The risk of placing the child with his mother is unacceptably high.

(e) The society's plan will better address the child's needs than the mother's plan.

(f) This case cannot be delayed any longer and the child should receive a permanent home as soon as possible. It is in the child's best interests that this is in an adoptive home.

[226] The least disruptive disposition for this child and one that is consistent with his best interest is to make him a Crown ward.

Access by Mother to the Child

[227] Pursuant to the Act, a disposition of Crown wardship provides for a presumption against access. The test for access to Crown wards is set out in subsection 59(2.1) of the Act which reads as follows:

59(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2) .

[228] The onus to rebut the presumption against access to a Crown ward is on the mother. As the mother is not seeking access if the child is made a Crown ward, the mother did not make submissions to rebut this presumption. See Children's Aid Society of Toronto v. Dora P. and Raymond L. .

[229] The mother has the onus of establishing both portions of the test in subsection 59(2.1) of the Act. This is a very difficult test for her to meet. Where a Crown wardship order has been made, there is no obligation on the society to prove that the child is adoptable, let alone that there is a prospective adoptive family. See Children's Aid Society of Niagara Region v. J.C., S.B. and R.R. .

[230] Section 141.1 of the Act provides that, before a society can place a child for adoption, any outstanding order of access to the child must first be terminated. An adoption placement cannot be made if there is an outstanding order of access.

[231] The society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through either adoption or a custody order.

[232] The meaning of the phrase "beneficial and meaningful" was examined by Justice Joseph W. Quinn in Children's Aid Society of Niagara Region v. M.J., K.S. and S.S. , where he said:

[45] What is a "beneficial and meaningful" relationship in clause 59(2)(a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous." A "meaningful" relationship is one that is "significant." Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough — it must be significantly advantageous to the child.

[46] I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

[47] Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[233] In Children's Aid Society of Toronto v. M.A. and C.M. , the court found that, even though the access visits were generally enjoyable for the child, it was open to the trial judge to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family.

[234] In Children's Aid Society of Toronto v. Tracy L. and Evonne B. , Justice Perkins described the two-part test as a gateway. He wrote in paragraphs [29] and [30] of his decision as follows:

[29] Section 59(2.1)(b) operates even if there is no immediate prospect of an adoption: "A court shall not make or vary an access order . . . unless the court is satisfied that . . . access will not impair the child's future opportunities for adoption" (emphasis added). How much stronger still must the presumption be if, as in this case, there is evidence that there is an immediate, existing placement ready to adopt and there are two other placements waiting in the wings?

[30] Note as well that the focus of section 59(2.1) is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child's wishes, are not mentioned. It is only when one gets through the narrow gateway of section 59(2.1) that the wider best interests test of section 37(3) becomes open for discussion. The new section 63.1 makes it clear the legislature has determined that the best interests of children who cannot return to a parent's care and who are adoptable lie in a permanent family placement by way of adoption or a custody order. Parents might be able to satisfy a court that future adoption opportunities for a child do not likely exist, either because the child's wishes to return to their care are so overwhelming that the child would not consent to a placement or because the child's special needs are so extreme that an adoption is not a realistic possibility. But that is far from this case, on the evidence.

[235] The mother's and the society's evidence is that the child enjoyed the time he spent with his mother. The extent to which the child enjoys the relationship he has with his mother does not amount to a beneficial and meaningful relationship as defined by the Act and as interpreted by case law.

[236] By the mother's own choice the child has not spent very much time with the mother since March 2015. As the mother chose not to visit the child between May and July 2015 and since November 2015, it cannot be said that the child shares a beneficial and meaningful relationship with his mother. There was no evidence called that suggested the child had a negative reaction to being removed from the mother's care and brought back into care in March 2015 after being returned to his mother in July 2014 after the first apprehension. There was also no evidence that the child was having a negative reaction to the limited contact he has had with his mother since coming back into care in March 2015.

[237] It is the court's opinion that the evidence of the mother's inability to interact appropriately with people who disagree with her or who she does not approve of is strong evidence that even if she were seeking access to her son, such an order would impair the child's future opportunity to be adopted.

[238] There shall be an order that the child is made a Crown ward without access for the purpose of adoption.

Part Six – Final Order

[239] A final order shall go on the following terms:

(a) Statutory findings are made as set out in the endorsement record.

(b) The child is found to be a child in need of protection pursuant to subclauses 37(2)(b)(i) and 37(2)(g) of the Act.

(c) The child will be made Crown ward without access for the purpose of adoption.

Justice Melanie Sager

Date: February 1, 2016

Footnotes

[1] The July 30, 2014 order of Justice Curtis had no expiration date.

[2] The mother made this same statement in her evidence at trial.

[3] This is strikingly similar to the difficulties the mother had with the society over her insistence that the child was overly tired due to the poor care he was receiving in the foster home. The mother was incapable of considering the daycare staff's response that the water play area is not making the child sick in the same way she was incapable of considering the possibility that the child was fatigued at visits due to some reason other than the care he was receiving in the foster home.

[4] Much like the mother did not respect the supervision order made by the court when the child was placed in her care on July 30, 2014.

[5] The mother lives in Etobicoke.