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 File and Parties
Court File No.: C53328/11
Date: 2016-04-26
ONTARIO COURT OF JUSTICE
In the Matter of an Amended Protection Application Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of T.C.-W., Born on […], 2014.
Between:
CHILDREN'S AID SOCIETY OF TORONTO
Eric Del Junco, for the APPLICANT
APPLICANT
- and -
S.C.-W. and S.W.
Sharon Worthman, for the RESPONDENT, S.C.-W.
RESPONDENTS
The Respondent, S.W., not appearing and noted in default
Heard: April 18-22, 2016
Justice S.B. Sherr
REASONS FOR JUDGMENT
Part One – Introduction
[1] The Children's Aid Society of Toronto (the society) has brought an amended protection application seeking an order that T.C.-W. (the child), born on […], 2014, be made a crown ward with access to the child's grandmother, L.W. (the grandmother) and with no access to the respondent, S.C.-W. (the mother).
[2] The mother asks the court to make an order placing the child in the care and custody of the grandmother for 6 months, subject to an order for society supervision. In the event that the child is made a crown ward, the mother asks that the child have bi-weekly access with the grandmother. The mother is not seeking access to the child.
[3] The respondent S.W. (the father) is the child's father. He has had no involvement with the child or this court case. He has been noted in default.
[4] The child was in the care of the society from her date of birth until June 26, 2014. She was apprehended for the second time from the care of the mother on July 17, 2014 and has remained in the care of the society since then.
[5] The mother and the society consented to a finding that the child was in need of protection pursuant to clause 37(2)(l) of the Child and Family Services Act (the Act) on March 22, 2016.
[6] The mother has chosen not to visit the child since September 15, 2015. The grandmother sees the child three times each week. Two of the visits are semi-supervised for two hours each visit at the society's office. The third visit is for three and one-half hours in the community.
[7] The issues for this court to determine are:
a) What disposition order is in the child's best interests?
b) If the child is made a crown ward, what access order for the grandmother is in the child's best interests?
[8] The trial of these issues was heard over five days.
Part Two – Background
[9] The grandmother is 62 years old. She lives with her daughter (the sister) in a house in Malton, Ontario. The sister is 19 years old and attends a nursing program part-time at Humber College.
[10] The grandmother has been steadily employed since 2010 as a Patient Care Assistant at a Toronto hospital. She had worked in a similar job at another hospital from 2000 until 2010.
[11] The grandmother is from Jamaica. She had five children in Jamaica with her first partner (they did not marry). She came from Jamaica to Canada in 1983 and left the five children with her partner. She was 30 years old at the time.
[12] The grandmother testified that it took her 10 years to obtain landed immigrant status in Canada. She did not see her children during this time. Once she obtained legal status in Canada, she sponsored three of these children to come to Canada.
[13] The grandmother became a Canadian citizen in 2003.
[14] The grandmother said that her partner entered into another relationship when it took so long for her to obtain legal status in Canada. He ended up moving to the United States with one of their children. Their oldest child (now 44 years old) has remained in Jamaica.
[15] The grandmother testified that two of the children she sponsored to Canada now reside in the United States.
[16] The grandmother's children who were born in Jamaica are now all adults. The grandmother testified that she is in contact with all but one of these children.
[17] The grandmother married D.W. (the grandfather) in Canada in 1994. They had two children together, the mother and her sister.
[18] The grandmother testified that she and the grandfather had a good life at the beginning. However, once the mother was about 5 years old the grandfather changed. He would stay out late and was physically and verbally abusive to her, often in front of the children.
[19] The grandfather was also physically violent towards the mother. The police were involved with them on occasion.
[20] The grandmother struggled in parenting the mother. The mother had significant behavioural issues.
[21] The grandfather's daughter (the stepdaughter) from another relationship lived with them from approximately 2000 until 2003. The grandmother testified that this did not work out as "she was not a very pleasant girl and did not go to school".
[22] The society had 11 file openings regarding this family from 1997 to 2009. These openings related to domestic violence, inappropriate physical discipline and the grandmother's difficulty managing the mother's behaviour. Many of the openings closed at the intake stage.
[23] The grandmother separated from the grandfather in 2006. She testified that she finally had enough of his abuse. She said that they have never reconciled.
[24] The mother is now 22 years old. She has not completed high school. She has been living on her own since July 1, 2015, when she was asked by the grandmother to leave her home. The mother had been involved in a violent altercation with the sister.
[25] The mother has recently obtained a job as a server at a Toronto restaurant.
[26] The mother had her first child (T.) in February of 2010. She was 16 years old at the time.
[27] T. was apprehended from the mother's care by the society on September 24, 2011, after he was found wandering alone in the community.
[28] The society initiated a protection application regarding T. on September 29, 2011.
[29] T. was placed in the temporary care of his maternal great aunt on September 30, 2011.
[30] T. was apprehended from the care of his maternal great aunt on June 21, 2012. The maternal great aunt was admitted to hospital with health issues, at least partially caused by the stress of caring for T.
[31] The mother asked for T. to be placed with the grandmother. This was opposed by the society and the case went to trial.
[32] On September 23, 2013, after a 6-day trial, Justice Debra Paulseth made an order making T. a crown ward without access, for the purpose of adoption. Her findings will be reviewed in more detail below.
[33] The mother was pregnant with the child during that trial.
[34] The mother moved into Rosalie Hall, a maternity home for single mothers on December 10, 2013.
[35] The mother initially struggled at Rosalie Hall. She was suspended from school and had confrontations with staff.
[36] By March of 2014, the mother was starting to make some gains. She was attending programs at Rosalie Hall and appeared committed to putting forth a plan to parent the child.
[37] The child was apprehended by the society at birth due to the mother's history of emotional instability and her inability to keep the child safe.
[38] The society referred the mother to its Therapeutic Access Program (TAP) in May of 2014. This is an intensive teaching and parenting assessment program run by the society.
[39] On June 5, 2014, Justice Carole Curtis made a temporary order placing the child in the care of the mother, effective June 26, 2014. The mother was living in Rosalie Hall at the time.
[40] Matters quickly deteriorated. The mother was getting into confrontations with staff at Rosalie Hall. Her anger would quickly escalate and the staff was concerned about her ability to keep the child safe. On July 16, 2014, the staff at Rosalie Hall advised the society that they felt the child should come back into care due to the mother's volatility and poor judgment. This was after an incident where the mother allegedly approached a staff member in a threatening manner with the child in her arms.
[41] The mother testified at this trial that she "messed up" her chance at Rosalie Hall. She said, "I have depression, anxiety, I know I'm not stable all the time. In the long run, I'm not going to be ok, depression will take over and I won't be able to take care of her".
[42] The society apprehended the child on July 17, 2014. On July 21, 2014, Justice Curtis made a temporary order placing the child in the care of the society, with access to the mother in the society's discretion.
[43] The society referred the mother to the TAP again in September of 2014.
[44] The TAP process took place from December 14, 2014 until June 26, 2015. The mother cancelled about one-third of her scheduled visits with the child. On March 20, 2015, the TAP made a decision to concentrate its efforts on the grandmother. The mother's attendance continued to be sporadic. The grandmother attended each visit on time.
[45] Once the TAP process was completed, access for the mother and the grandmother returned to twice each week, for two hours each visit, supervised at the society's office. The TAP report will be dealt with in more detail below.
[46] On June 3, 2015, Dr. Nitza Perlman released a parenting capacity assessment of the mother pursuant to section 54 of the Act.
[47] Dr. Perlman recommended against returning the child to the mother.
[48] The society amended its protection application to seek a disposition of crown wardship with no access, for the purpose of adoption, on July 15, 2015.
[49] The mother has not visited the child since September 15, 2015. She testified that she doesn't want to "mess up" the child's opportunity to be placed with the grandmother.
[50] The society changed the grandmother's access from fully supervised to semi-supervised in October of 2015.
[51] Dr. Perlman prepared an assessment of the grandmother dated October 26, 2015. She recommended against placing the child with her. Her assessments will be dealt with in more detail below.
[52] The grandmother moved for community access in November of 2015. This motion was opposed by the society. Justice Curtis granted the community access requested. The grandmother continues to consistently and responsibly exercise her access. The society reports that the visits are very positive for the child.
[53] The grandmother has not permitted the mother to have contact with the child during the community access.
Part Three – Past Parenting
[54] Much of the society's opposition to the plan to place the child with the grandmother is based on past parenting evidence relating to her.
[55] Subsection 50(1) of the Act permits the court to consider the past conduct of a person toward any child, and any oral or written statement or report that the court considers relevant to the proceeding is admissible into evidence. This subsection reads as follows:
Consideration of past conduct toward children
50.(1) Despite anything in the Evidence Act, in any proceeding under this Part,
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
[56] Past conduct evidence must not be permitted to suffocate evidence of a parent's current conduct, circumstances and functioning. The real relevance of past parenting evidence is the extent to which it provides a reliable backdrop against which to measure the extent to which the parents' abilities and circumstances have changed. See: Waterloo Region v. R.C. and M.S., [1994] O.J. No. 2955, (Ont. Prov. Div.); Catholic Children's Aid Society of Toronto v. C.S., 2010 ONCJ 656, [2010] O.J. No. 5831 (OCJ).
[57] The admission of past parenting evidence does not necessarily mean that it will be accepted as persuasive by the trial judge or determinative of the result. However, where a parent's previous children have recently been made crown wards, there is a tactical burden on the parent to show that he or she has taken sufficient remedial action to eliminate or at least reduce the need for protection that was found to exist in relation to the earlier children. See: Children's Aid Society of Niagara Region v. D.P. and S.B. (No. 3), [2003] O.J. No. 619, (Ont. Fam. Ct.); Catholic Children's Aid Society of Toronto v. L.M., 2011 ONCJ 146, [2011] O.J. No. 1361 (OCJ); Catholic Children's Aid Society of Toronto v. C.T., [2012] O.J. No. 2716.
[58] The society is to be commended for taking a proportional approach to the past parenting evidence. It relied mainly on Justice Paulseth's trial decision regarding T.
[59] Justice Paulseth reviewed the grandmother's child protection history in her decision as follows:
a) The grandmother had an extensive history with the society. There were 11 file openings.
b) From May to November of 1997, the society investigated a referral from a teacher at the mother's school. The mother had complained about being hit by the grandmother. The grandmother admitted to spanking the mother but was receptive to society suggestions for a change in discipline method. The grandmother denied this incident at the trial before Justice Paulseth.
c) From November of 2000 until February of 2001, the society followed up a referral from the school principal about the stepdaughter, who was living with the grandfather and the grandmother at the time (she was 14 years old). The stepdaughter was claiming that the grandfather was hitting her with his belt. The stepdaughter was running away from home a lot. The family stopped returning calls from the society and the file was closed.
d) In August of 2002, there was a brief opening with the society when someone observed the grandfather dragging the stepdaughter by the arm into a car. The stepdaughter then ran away from home for several days. The family stopped returning calls from the society and the file was closed.
e) In January of 2003, the stepdaughter was staying at a shelter for teens. She reported that the grandfather had hit her with a belt.
f) From March until June of 2003, the society investigated a complaint by the mother and the sister that the grandfather had pushed the grandmother and started to choke her during an argument. The grandfather was charged with assault. The stepdaughter was taken to the hospital for being suicidal, but the grandmother could not recall this. The stepdaughter also alleged that the grandfather beat her in the head area.
g) From August until November of 2004, the society investigated a police referral as the grandmother had been locked out of her house by the grandfather. The grandmother claimed at the time that the grandfather's abuse of her was mostly verbal.
h) In July of 2005, a camp counsellor called the society because the mother, then 13 years of age, claimed that she was worried she was pregnant by her 18-year-old boyfriend. At this time, the grandmother reported that the mother's behaviour was so disruptive that she took her to the George Hull Centre.
i) In November of 2007, the mother disclosed that she had been raped four years earlier by a cousin. She also said that the grandfather beat her.
j) In the summer of 2008, the police were called to the home by the grandmother, who was claiming that the mother had gone "berserk". The mother was not attending school or following the rules of the home. The grandmother did not return subsequent calls from society workers and the file was closed.
k) The society opened its file again in October of 2008 when the mother's school reported that the mother had arrived there with box-cutters and had been suspended. The grandmother removed the mother from the George Hull program. The mother was completely out of control and came into the care of the society under a three-month Temporary Care Agreement. The mother constantly ran away from her group home and would sometimes return to the grandmother's home. The grandmother terminated the Temporary Care Agreement early.
l) In July of 2009, the grandfather was in the home and had an altercation with the mother. The mother was charged with three counts of assault with a weapon, uttering death threats and three counts of weapons dangerous. She was taken by the police to the Syl Apps Treatment Centre, a secure custody location. The mother reported that the grandfather was hitting her with a closed fist and choking her. He was not charged. Once again, the family refused to return phone calls from the society or open the door to them.
[60] Justice Paulseth made a number of findings of fact that are relevant to this proceeding, including:
a) T. had special needs. He had significant behavioural issues and developmental delays. He was a child who presented as traumatized and neglected.
b) The grandmother did not understand a child psychologist's recommendation for stability for the child. The child had special needs and the grandmother was already planning to move her home. She was packed, but unsure about where she would be moving. She knew that the psychologist had said that T. had an attention deficit problem, but said "I don't see it".
c) The court had set out an expectation of the grandmother to support the maternal great aunt when T. was in the maternal great aunt's care. This help was not forthcoming.
d) The mother and grandmother frequently complained about T.'s treatment in foster care.
e) The grandmother had never really worked with the society and blamed them for all of her problems. Her pattern was to call when there was a crisis with the mother and not follow though when the crisis had calmed down. If she could avoid answering the phone calls of the society, she would.
f) The mother quickly became angered at access visits. She could be verbally abusive to society staff and even to T. The grandmother was observed as not being able to set boundaries for the mother.
g) The grandmother permitted the mother to have telephone contact on access visits despite being instructed by the society not to do this.
h) On one occasion the grandmother pretended to be the mother and left a voice mail with the society confirming the mother's visit.
i) The mother got into a fight outside the grandmother's home with another woman in November of 2012 that left the mother bloody. The grandmother failed to report this incident to the society.
j) The history of the grandmother with the society clearly indicated a pattern of failing to follow through with resources. The grandmother had the mother connected to several different clinical resources but would not follow through with them. Recurrent themes of domestic violence and physical discipline emerged, but the grandmother refused services by not answering the phone or reporting that all was well.
k) The grandmother vacillated in her appreciation of the mother's inability to care for the child. The grandmother appeared to appreciate that the mother could not parent T., but in the next breath testified that she was a good mother who would never hurt the child.
l) The grandmother lacked any insight into the mother's history of behavioural difficulties. This lack of insight led her to believe that the mother was "turning things around".
m) The grandmother was always drawn back to the mother's needs. The entire matter was replete with examples of the grandmother's approach to this issue. She loved T. very much but when the mother called, T. came second. When the mother asked her to lie for her, she did.
n) It was a problem that the grandmother couldn't remember or denied that there were any problems other than those attributable to others.
o) The plan of the grandmother fell far short of meeting T.'s special needs.
p) The grandmother did not appreciate the impact on T. of all of the mother's moves in the early part of his life. She did not appreciate that the chaos of this lifestyle had left the child lost and unattached.
q) The grandmother's plan for T. was not grounded in reality. She said that she would care for the child until the mother was ready. There was no permanency in her plan.
Part Four – Legal Considerations
[61] 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 section 57.1, in the child's best interests:
Supervision order
- 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
- 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
- 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
- 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.
[62] 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:
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.)
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.
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.)
[63] 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.
[64] 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.
[65] 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.
[66] 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:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships by blood or through an adoption order.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
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.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
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.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[67] A crown wardship order is the most profound order that a court can make. To take someone's children 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. 4th 79 (SCJ- Family Branch).
[68] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests. Catholic Children's Aid Society of Hamilton v. J.I., [2006] O.J. No. 2299 (Ont. Sup. Ct.).
[69] 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., [1994] 2 S.C.R. 165 (S.C.C.).
Part Five - Services Provided
[70] The following services have been provided by the society to assist the mother and the child:
a) It worked closely with Rosalie Hall to assist the mother in parenting the child.
b) It provided the mother with a Family Service Worker.
c) It referred the mother and the grandmother to the TAP for intensive parenting assistance.
d) It arranged Plan of Care meetings to share information about the child.
e) It arranged for assessments of the mother and the grandmother by Dr. Perlman.
f) It provided the child with a Children's Service Worker.
g) It conducted a kinship assessment of the grandmother.
[71] It would have been helpful if the society had referred the grandmother to other programs to assist her with the deficits identified by Justice Paulseth. However, a standard of perfection is not required of the society. The society fulfilled its obligation to provide services for the family and the child pursuant to both subsection 57(2) and clause 15(3)(c) of the Act.
Part Six - Community or Family Plans
[72] The only community or family plan proposed was to place the child with the grandmother.
Part Seven - The Child
[73] The child was described by witnesses as delightful, smart, curious, inquisitive and playful.
[74] The child was also described as being happy, social and talkative.
[75] The child is developing normally. She has very good fine motor skills. She likes to run and climb.
[76] The child loves music, dancing and reading.
[77] The child is healthy. She is a picky eater and her foster parents are working with her on this issue.
[78] The child was described as being closely attached to her foster parents.
[79] The child has an excellent relationship with the grandmother. She is excited to see her on visits. She is physically affectionate with the grandmother and interacts well with her. They sing, dance and read together.
[80] The child looks to the grandmother for comfort on visits. She is sometimes sad when the visits with the grandmother end.
[81] The child shows no adverse effects either before or after her visits with the grandmother.
Part Eight - The Plans of Care
8.1 The Society's Plan
[82] The society's plan is to make the child a crown ward and search for a suitable adoptive home for her.
[83] The society is confident that the child is highly adoptable.
[84] The foster parents will not be adopting the child. She will eventually have to be moved.
[85] The society supports the grandmother having access to the child. It proposes that this access take place 4 times each year, at times to be agreed upon by the parties. It asks that the grandmother's access be supervised in its discretion. The society wants to make sure that the grandmother supports the decision if the child is made a crown ward and not undermine her placement. The society proposes that the grandmother be able to exchange letters and pictures with the child up to 6 times each year.
[86] An access order would permit the grandmother to bring an openness application if the society served a Notice of Intent to place the child for adoption.
[87] The society asks that the mother have no access if the child is made a crown ward. This is not opposed by the mother.
[88] The society submits that while the grandmother is a good access parent, she is not capable of safely parenting the child on a long-term basis. It submits that she has a poor parenting history and in particular a poor history of protecting her children. It submits that she has demonstrated no insight into her own limitations or into the limitations of the mother and the sister. This means, it submits, that history is likely to repeat itself.
[89] The society submits that the grandmother has a complicated relationship with the mother and she will be unable to establish clear boundaries with her. This will, they say, create undue risk of exposing the child to the mother's instability. The society submitted that the grandmother will be unable to effectively intervene and protect the child if she is exposed to the mother's inappropriate behaviours.
[90] The society submits that the mother's plan to have no contact with the grandmother or the child is unrealistic and doomed to fail.
8.2 The Mother's Plan
[91] The mother's plan is for the child to be placed in the care and custody of the grandmother for a period of six months, subject to the supervision of the society.
[92] The mother has proposed that she will have no access to the child and no contact with the grandmother. She testified that this will be painful for her but she does not want to do anything to hurt the child's chances of remaining with her family. The mother says that she feels terribly she lost T. and cannot bear the thought of the child also becoming a crown ward.
[93] The mother testified that she has been able to stay away from the grandmother's home since July 1, 2015. She is willing to agree to a restraining order, if required. She says that her only contact with the grandmother is at court or when they are meeting with her lawyer. She stated her belief that if she has contact with the child, the child will never see her family again.
[94] The mother said that while it has been hard for her, she has not attended access since September 15, 2015, to prove that she can stay away.
[95] It is the mother's intention for the placement with the grandmother to be permanent. She said that she is prepared to stay out of the child's life forever.
[96] The grandmother resides in a three-bedroom home in Malton, Ontario. She testified that the child would have her own bedroom. She has already set up a crib in the bedroom. She has supplies for the child and age-appropriate toys. The sister will also live with them and assist her with caring for the child.
[97] The grandmother presently works night shifts to be available for her frequent access to the child. She testified that she has arranged with her employer to work day shifts (from 7:30 a.m. until 3:30 p.m.) if the child is returned to her care. She has also arranged to take one month off of work so she can be present and assist the child during the transition to her home.
[98] The grandmother has already contacted a daycare located at the Milton Community Centre. She says that this is a 5 minute walk from her home.
[99] The grandmother said that her plan during weekdays would be to get the child dressed for daycare and leave for work. The sister would then walk the child to daycare before she leaves for school each morning. The grandmother would then pick up the child from daycare after work and be responsible for looking after her. The grandmother would care for the child on weekends.
[100] The sister testified that she is committed to assisting the grandmother with this plan and that she will help her with the child in any way possible. She said that she plans to remain with the mother until the child is older. The sister testified that her school is close to home.
[101] The grandmother stated that she will have the support of her brother as well.
[102] The grandmother said that she will have the child attend activities at the Malton Community Centre. She hopes to have the child go to swimming classes and sing-a-long sessions at the Centre.
[103] The grandmother is an ordained minister. She will occasionally lead the service at her church on Sundays if the pastor is not available. She is very religious. She intends to take the child to church on Sundays and involve her in programs.
[104] The grandmother has a doctor who will provide medical care for the child.
[105] The grandmother said that she will comply with all terms of a court supervision order. She is aware that the society will need to remain involved. She testified that she is presently working well with the society and will continue to do so.
[106] The grandmother supports a supervision term that the mother can have no access to the child or attend at her home. She is also supportive of the court making a restraining order against the mother, if it feels this is necessary. She is agreeable to immediately notifying the society if the mother attempts to contact the child or come to her home. She emphasized that the child is now her priority. She said that she would contact the police if the mother came to her door and wouldn't leave. If she was with the child at a mall and saw the mother, she said that she would turn and walk the other way.
[107] The grandmother said that she has participated in parenting groups at the Jamaican Canadian Association and at counselling at the Just for Today Harm Reduction program to help strengthen her ability to set boundaries for the mother. She feels that she has learned a lot and is much more prepared to say no to the mother. She said that she has proved that by keeping the mother away since July 1, 2015.
[108] The grandmother deposed that she is in good health, takes no medications and has plenty of energy to care for the child.
[109] The grandmother plans to retire at age 65 and be at home full-time with the child.
[110] If the child is made a crown ward, the grandmother seeks frequent access, bi-weekly. The mother does not seek access.
Part Nine - TAP
[111] The court heard from Shannon Deacon, the coordinator of the TAP. She prepared a report dated July 14, 2015 and adopted this evidence at trial.
[112] The mother began attending the TAP sessions in December of 2014. The grandmother initially attended occasionally, as the focus of the program was on the mother. The mother attended twice weekly for four hours at a time. The focus of the TAP process changed to the grandmother on March 20, 2015, once it became apparent that the mother could not adequately parent the child. The grandmother began attending twice weekly for four hours at a time.
[113] The mother spent 104 hours at the TAP. The grandmother spent 112 hours there.
[114] Ms. Deacon reported that the mother demonstrated a great deal of affection and interest in the child. The mother, she said, made efforts to develop a routine that met the child's needs. She always came to visits with everything the child needed. She worked hard at trying to support the child's relationship with the foster parents. She was open to feedback and made efforts to understand the society's concerns.
[115] The mother struggled to get to the visits regularly or on time. She cancelled 36% of her visits. She often arrived late.
[116] Ms. Deacon reported that the mother demonstrated behaviours that placed the child at risk of emotional harm. The mother, she said, had difficulty regulating her emotions. When the mother was happy she would be over-excited, intrusive and unpredictable with the child. When she was angry or depressed, the mother would be quiet, less engaged and less aware of the child. She struggled to recognize the impact of her actions in the moment.
[117] The grandmother testified that she found the TAP process "great" and very helpful. She was able to describe how she learned to follow the child's lead. For instance, if she was reading a book and the child was not paying attention, she just shouldn't complete the story, but rather should try to see what the child was interested in and participate with her in this.
[118] Ms. Deacon confirmed that the grandmother made good use of the TAP process and learned a lot.
[119] Ms. Deacon reported that the grandmother attended access regularly. She expressed and demonstrated a great deal of commitment, affection and concern for the child. She was very cooperative with staff.
[120] Ms. Deacon observed that the grandmother was proficient at most parenting tasks, including developing a routine for the child, feeding, changing, soothing and stimulating her. She was able to accurately read and respond to the child's cues, which led to the child responding to the grandmother as a safe caregiver.
[121] Ms. Deacon reported that the TAP service team remained concerned about the grandmother's ability to be protective of the child in the presence of the mother's unstable and intrusive behaviours, as the grandmother seemed to struggle to set limits and recognize the mother's deficits. She reported that it was difficult to complete a full assessment of this concern as the mother stopped attending access regularly.
[122] The mother produced a series of emails between Ms. Deacon and other society workers dated May 19, 2015. In these emails, Ms. Deacon was suggesting that the society increase the grandmother's visits to community visits. The response was a suggestion to wait until after the receipt of Dr. Perlman's assessment.
[123] The following comments in Ms. Deacon's emails on this date were helpful to the court in assessing the child's best interests:
a) Hey guys…just looking ahead – do we plan to continue grandmother's access at TAP? The mother is here less than a full visit a week. We could think about moving grandmother's access into the community and keeping one visit a week for mother at the office? Then seeing if grandmother can follow boundaries about keeping mother out of her access, etc. Thoughts?
b) I think we need to decide where we're at with our assessment with grandmother, then decide on access from there. Moving it to Isabella completely doesn't make any sense if we're going to support the child going to grandmother – it's counterproductive to just move it back to Isabella. At this time, our assessment of grandmother as a caregiver is that she is competent, caring, attentive and attuned. The mother has been here so rarely it's been hard to assess but in conversations grandmother has expressed understanding of our concerns. I think, if we're leaning towards reunification with grandmother, we should move her access out into her home/community, but request that mother have access in the office, with grandmother there as well. Does that make sense?
[124] Ms. Deacon did not express in her emails the opinion that the grandmother could not protect the child from the mother – only that this issue needed to be further assessed. At trial, Ms. Deacon testified that she felt that the next step in May of 2015 was for the society to assess if the grandmother could set boundaries for the mother when access took place in the community – this is why she recommended this step.
[125] The society did not move forward with community access after receiving Dr. Perlman's assessment, even though the society acknowledged that the grandmother's parenting had continued to improve after having participated in the TAP process. Community access only took place after a contested motion in November of 2015.
[126] Ms. Deacon testified that she was not surprised that there have been no issues reported about the grandmother's community access with the child.
Part Ten - The Psychological Assessments of Dr. Perlman
10.1 - Dr. Perlman's Evidence
[127] Dr. Perlman's reports dated June 3, 2015 and October 26, 2015 were filed. Dr. Perlman also testified.
[128] Dr. Perlman reported that the mother suffers from significant symptoms of depression and anxiety, consistent with a diagnosis of Post-Traumatic Stress Disorder. She attributed this to abuse and neglect during the mother's childhood. Dr. Perlman felt that these psychological issues are likely to interfere with the mother's ability to provide the child with adequate parenting. She reported that the mother has limited comprehension of the impact her mental health problems have on her ability to parent. Treatment of these issues, she felt, would be a long process.
[129] Dr. Perlman said that psychological testing showed that the mother functions in the low-average to average range of cognitive abilities. However, her fears and anxieties interfere with her ability to function. She observed that the mother has a long history of aggressive outbursts and depression.
[130] Dr. Perlman reported that the mother and the grandmother have a complicated relationship that remains unresolved. The grandmother was not able to protect the mother from abuse by the grandfather. The mother reported to her that the grandmother used physical discipline on her. The mother viewed the grandmother as strict, unforgiving and unavailable.
[131] Dr. Perlman felt that the mother has been unable to move on from the loss of T. to crown wardship. She is still grieving this loss.
[132] Although she was not assessing the grandmother in her first assessment, Dr. Perlman did interview her and felt that she did not have an understanding of the magnitude of the mother's mental health issues and their effect on her.
[133] Dr. Perlman concluded in her first assessment that the history between the mother and the grandmother raises concerns about their ability to provide the child with stability.
[134] In her second assessment of the grandmother, Dr. Perlman described her as a loving grandmother who wants to parent the child. The grandmother, she said, was pleasant and cooperative during the assessment process.
[135] The grandmother, Dr. Perlman reported, tested at the low average range of cognitive abilities.
[136] Dr. Perlman expressed concerns about the grandmother's parenting history. She wrote that the grandmother had left 5 children behind in Jamaica. Her marriage to the grandfather was abusive. She failed to protect her children from witnessing a dysfunctional and abusive relationship. The grandmother also failed, she said, to protect T. from instability, multiple placements, separations and trauma.
[137] Dr. Perlman observed two visits between the child and the grandmother. The first visit was a joint visit with the mother that took place in April of 2015. The second visit was with the grandmother and the child alone. This took place in October of 2015. Dr. Perlman did not view the interaction between the child and the grandmother as positive. She observed that the grandmother had failed to gain the child's confidence.
[138] Dr. Perlman felt that the grandmother had a limited ability to act in an empathetic manner. She based this on psychological testing of the grandmother, her interviews of the mother and the grandmother and her observations of the grandmother with the child.
[139] Dr. Perlman agreed that the mother not being involved in a domestic violence incident for the past 10 years is a good thing.
[140] Dr. Perlman wrote in her assessment:
In view of the child's lack of confidence in her grandmother, the grandmother's history of failed relationships and poor insight, the concern is that she will not be able to support the child during the crisis of separation from her foster mother and transition to a new home. There is a concern that in the long term she will not be able to respond to the child's needs. Placing the child with the grandmother is likely to set the child and the grandmother up for failure. Such a failure will cause the child irreversible harm.
10.2 - Analysis of Dr. Perlman's Evidence
[141] Courts should always treat assessments with caution. A psychological assessment is not determinative of a parent's ability to parent. The assessor does not have the benefit of the full evidentiary record that the judge has. These reports, by their very nature, are predictive. They are just one piece of evidence and what is important for the court is to evaluate how the findings do or do not correspond with the evidence presented.
[142] The court treated Dr. Perlman's assessment of the grandmother with considerable caution.
[143] The major limitation in her assessment of the grandmother is that Dr. Perlman only saw the grandmother twice with the child, once in April of 2015, jointly with the mother, and then again, on her own with the child, in October of 2015. Dr. Perlman's recommendations placed considerable emphasis on her observations of the child with the grandmother (particularly during her second visit) and her conclusion that the child lacked confidence in the grandmother.
[144] The evidence the court received about the nature of the relationship between the grandmother and the child was overwhelmingly different from that observed by Dr. Perlman. This evidence came from multiple society witnesses. These observations led the court to the conclusion that the child did have confidence in the grandmother and looked to her for comforting. The access observations indicated that the child was very comfortable with the grandmother and excited to see her. The child and grandmother interacted closely together.
[145] Dr. Perlman placed considerable emphasis on a perceived lack of empathy of the grandmother to the child. Again, the evidence was overwhelmingly to the contrary, as it pertains to the child. The society witnesses, for the most part, observed that the grandmother was very attuned to the child's needs and feelings.
[146] It is unfortunate that neither party sent Dr. Perlman a sampling of the access observation notes in 2015. A review of those notes would have revealed observations that the grandmother was attuned to the child's cues and did demonstrate empathy with the child and that the child had confidence in her.
[147] It is also unfortunate that no one asked Dr. Perlman to speak with Shannon Deacon from the TAP. If Dr. Perlman had spoken to Ms. Deacon, she would have heard that the grandmother was very attuned to the child's needs and that the child viewed the grandmother as a safe caregiver.
[148] The failure to provide this important information to Dr. Perlman affects the foundation of her report. She made important findings based on an incomplete picture of the nature of the relationship between the grandmother and the child.
[149] Dr. Perlman could not recall if she was physically present at any time with the child and the grandmother together during the October 2015 visit. She said that she usually is not in the room during the visit. However, the grandmother had a very detailed memory of this day. She testified that she was in an interview room with Dr. Perlman when the child was brought into this room in her stroller. The grandmother said that the child was very shy and wary with Dr. Perlman present. She wouldn't engage with the grandmother. Later, the child and the grandmother went into the observation room and that is when Dr. Perlman went behind the one-way observation window to watch them. The child's encounter with Dr. Perlman might have affected the nature of the visit. Since she couldn't remember this, Dr. Perlman did not take this factor into consideration.
[150] A more thorough process might have caused Dr. Perlman to question the disconnection between her observations and those of the society workers. Perhaps the child was nervous seeing Dr. Perlman and the visit was not typical? Perhaps the grandmother was nervous and this affected her visit? It would have been helpful to observe another visit (or two) and further explore the disconnection in this evidence.
[151] The court observed that Dr. Perlman was unsure about some of the details of her assessment. She wasn't sure what documents she had read before or after her observation visits. She wasn't sure if the child saw her at any time with the grandmother during the second observation visit. This reduced the weight given to her report.
[152] The court preferred the evidence of the society workers to the evidence of Dr. Perlman regarding the nature of the relationship between the child and the grandmother.
[153] The court also was concerned about Dr. Perlman's reaction to her questioning. The court found her to be defensive and avoidant at times. When confronted with the society observation notes showing close interactions between the grandmother and the child, she would grudgingly say, "That was appropriate behaviour. I didn't see it". When asked if the grandmother coming on time for each visit showed commitment to the child, Dr. Perlman agreed, but added this was evidence of the grandmother being compulsive. She acknowledged being compulsive could be a good thing, but added this was often indicative of suppressed anger. It appeared to the court that Dr. Perlman was intent on defending her conclusions and giving minimal credit to the grandmother.
10.3 - Reaction of the Society to Dr. Perlman's Assessment
[154] It was apparent from Shannon Deacon's internal emails on May 19, 2015, that strong consideration was being given to increasing the grandmother's visits with a view towards placement with her. This all stopped after Dr. Perlman's assessments were received.
[155] The society's Family Service Worker testified that the society placed considerable emphasis on Dr. Perlman, stating that, "she is the expert".
[156] The evidence indicates that the society effectively decided not to pursue the plan to place the child with the grandmother after receiving Dr. Perlman's reports. It resisted the motion for community access and did not speak to any of the grandmother's service providers.
Part Eleven - The Kinship Report
[157] The society's kinship department updated its kinship assessment of the grandmother from 2012, in March of 2016, just before the trial, at the request of the society's child protection service team.
[158] The kinship worker testified that she interviewed the grandmother. She said that the grandmother had a poor memory of her child protection history. The grandmother was surprised that there had been 11 openings with the society. The grandmother questioned the worker about the relevance of her prior child protection history.
[159] The kinship worker testified that the grandmother showed limited insight about the child protection history. The grandmother attributed the society's involvement to the mother having poor self-esteem due to weight issues and being bullied and the mother acting out.
[160] The grandmother told the kinship worker that her lawyer had advised her to go to parenting courses and counselling, but she felt that she was a good parent. When she asked the grandmother about what she had learned, the worker felt that the grandmother was just reciting a list to her.
[161] The kinship worker did not speak to the grandmother's collateral service providers to determine the sincerity of the grandmother's involvement in these programs or what she had learned.
[162] The kinship worker gave a good explanation about the requirements for the kinship department's approval of a caregiver. She said that there cannot be any child protection concerns or safety concerns about the caregiver. If a supervision order is required for the caregiver, then kinship approval should not be given.
[163] The kinship worker explained that these standards are much higher than those for the society's child protection service team to approve a caregiver's plan. There are times where the society's child protection service team will approve a plan not approved by the kinship department.
[164] It was not surprising that the grandmother could not meet the kinship department's high standards. Even if the child is placed with her, supervision terms will be required.
Part Twelve – The Grandmother's Service Providers
[165] The grandmother contacted the Jamaican Canadian Association (the JCA) on September 25, 2013 to obtain parenting help. The parties consented to a letter being filed from the JCA.
[166] The JCA reported that the grandmother attended a 10-week parenting program from January 27 to March 31, 2014. This program was designed to assist parents to build skills deemed necessary to prevent parent-child conflict, abuse and to encourage parent-child bonding and attachment.
[167] The grandmother participated in 8 group sessions, 2 face-to-face sessions and 3 telephone consultations. She successfully completed the program and was awarded a certificate of participation.
[168] The JCA reported that the grandmother was punctual, cooperative and eager to learn. She was receptive to counselling. It reported that the grandmother had demonstrated an increase in her parenting knowledge.
[169] The grandmother was referred to the Just For Today Harm Reduction program (JFT) in September of 2015 by her counsel to assist her in creating boundaries with the mother.
[170] The parties consented to a letter being filed by JFT. The court also heard from the grandmother's counsellor from JFT.
[171] The grandmother participated in individual counselling sessions from September of 2015 until early January of 2016. She had 8 individual sessions and attended a few group sessions.
[172] JFT reported that the grandmother completed the program, which dealt with topics such as appropriate versus inappropriate co-dependent boundaries and communication skills. It reported that at no time did the grandmother attempt to justify or rationalize her historical behaviour regarding the mother.
[173] The counsellor testified that the grandmother was initially hesitant to trust her, but then opened up and they had easy conversations. The conversations were focused on her loss of T. and what the grandmother had to do to plan for the child.
[174] The counsellor reported that the grandmother was responsible in attending on time for the sessions. She felt that the grandmother was open to feedback and made gains in the program.
[175] In an effective cross-examination, society counsel established that the counselling provided by JFT was not intensive and had its limitations. The grandmother did not talk to the counsellor about her child protection history (prior to T.) or about exposing her children to an abusive relationship with the grandfather.
Part Thirteen – Limitations in the Plan to Place the Child with the Grandmother
[176] Some of the protection concerns identified by Justice Paulseth in her decision continue.
[177] The grandmother continued to demonstrate a lack of insight into her role in the mother's problems and development. She blamed the mother's issues on the mother and the grandfather. She did not accept any responsibility for exposing her children to an abusive relationship for at least nine years. She only said that she had been in denial.
[178] This lack of insight creates some risk of the grandmother repeating her mistakes. However, that risk is mitigated by the grandmother not having been involved in an abusive relationship for the past 10 years. The grandmother has been soured from entering into any relationship since then. She testified that she has no interest in becoming involved in another one. She said that the child will get all of her attention.
[179] The grandmother also showed a lack of insight into the sister's anger issues. The sister did not present well at court. She came across as immature, sullen and short-tempered. The sister described an incident at the end of June of 2015 that led to the mother leaving the grandmother's home. The sister testified that she and the mother had a physical confrontation that involved pushing and throwing objects at one another. The sister said that she threw a rocking chair and side table at the mother. The mother threw a bottle at her. The sister was cut and called the police. An ambulance came and the sister received stitches in her hand. The grandmother minimized this incident claiming that all children fight (although she did require the mother to leave her home).
[180] The sister testified that the grandfather did not abuse her. The court observed that the sister minimized the grandfather's physical abuse of the mother.
[181] The level of anger and immaturity demonstrated by the sister is concerning, particularly when she will play a supportive role in the grandmother's plan. This concern is tempered somewhat by the sister being in nursing school, holding a part-time job, having no criminal record and there being no evidence of similar outbursts with someone other than the mother.
[182] The kinship worker testified that the grandmother continued to have a poor recollection of her substantial child protection history. The grandmother presented in court as a weak historian and often was confused by questions about her history. It appears that the grandmother has coped by minimizing or forgetting much of this history. This poses some risk of repeating the parenting mistakes she has made.
[183] Although the child protection history is very old, the court does take it into consideration. The grandmother struggled to manage the behaviour of the mother. She was unable to protect her children from being in an abusive home for many years. She had opportunities to protect the children as the society was actively involved with the family, but she would not consistently use its assistance. She continues to lack insight into her role in this history and appears to be unable to engage in any meaningful discussions or therapy about it. At this point, this seems unlikely to significantly change.
[184] The plan to place the child with the grandmother has other weaknesses, including:
a) The grandmother plans to have the sister take the child to daycare each morning. The court is concerned with the sister's maturity and whether she will be able to responsibly do this.
b) Until recently, the sister has not seen the child much due to school and work commitments. It is questionable how much assistance she can provide the grandmother.
c) The reality is that the sister might not stay at home for long. The grandmother would need to make alternate child care arrangements. This will not be a problem once the grandmother retires at age 65.
d) No other persons testified that they can assist the grandmother in the day-to-day parenting of the child.
e) The grandmother is 62 years old. It will be challenging for her to care for an active toddler with limited assistance. However, the evidence indicates that the grandmother is an energetic person. She is able to work late shifts, come to all visits on time and still actively play with the child. She gets down on the floor and engages in physical activities. She is an active, not a passive, caregiver.
f) The court has some concern about how well the grandmother will parent the child if the child develops behavioural challenges. The mother advised Dr. Perlman that she experienced the grandmother as being harsh and punitive. The grandmother has used physical discipline (spanking) in the past. Her history of parenting difficult children is not good.
[185] The society argued that the grandmother has a history of not being available for her children and that there is a risk that this behaviour might be repeated with the child.
[186] Dr. Perlman expressed concern about the grandmother having left her 5 children behind in Jamaica with their father, coming to Canada and not seeing them for 10 years. The court is not convinced that this is proof that the grandmother will be unavailable for the child. There is a cultural component to the grandmother's actions. She testified that she had the opportunity to come to Canada to make a better life for her family. She did not expect it to take 10 years to obtain legal status in Canada. Once she obtained legal status, she was able to sponsor three of her five children to come to Canada.
[187] The society also points to the grandmother not protecting the children from the grandfather. This is a concern that the court has taken into consideration. It is often a sad reality in cases of domestic violence. This risk factor is mitigated by the grandmother not having been in an abusive relationship for the last ten years.
[188] Lastly, the society submitted that the grandmother has coldly cut the mother out of her life when the mother needs her – the risk being that she may one day do the same thing to the child.
[189] The court views the grandmother's actions more generously than the society. The evidence indicates that she has been very supportive of the mother – to the detriment of her plan to care for T. The grandmother's distancing of herself from the mother has been painful for her. She is not taking this step for lack of love. The grandmother is not sophisticated. This case became a "Sophie's Choice" for her. In her mind, she has to either choose the mother or the child. Her previous attempts to balance the needs of the mother and T. failed. She has now clearly chosen the child over the mother. These are highly unusual circumstances. It is unlikely, based on the grandmother's demonstrated love for the child, that she would ever abandon the child.
Part Fourteen – Positive Factors in the Plan to Place the Child with the Grandmother
[190] Much has positively changed for the grandmother since Justice Paulseth released her judgment including:
a) The grandmother has obtained stable and appropriate housing for the child. It was described by one worker as immaculate.
b) The grandmother has been totally cooperative and open with the society. This was not so in the previous case. She is respectful to staff and is understanding if the child is late for visits.
c) The grandmother has worked well with and has been supportive of the foster parents. This was not the case with T's foster parents.
d) The grandmother has not been involved in an incident of domestic violence for 10 years.
e) The quality of the grandmother's parenting has improved. In particular:
i) The grandmother has made effective use of the TAP process and has shown an ability to be open to parenting teaching.
ii) The grandmother has incorporated new parenting techniques into her visits with the child, demonstrating an ability to learn and improve her parenting.
iii) The grandmother has no difficulty managing the child's behaviour and is able to calmly redirect her if she acts out.
iv) One society worker deposed that one of the grandmother's strengths was her ability to remain present, attuned and responsive to the child. She was able to adapt and follow the child's needs, "remaining in sync to the child's cues and needs".
v) The same worker observed the grandmother stimulating the child's development, using age-appropriate stories and an animated tone.
vi) The grandmother was observed as consistently watching the child and ensuring her safety.
vii) The grandmother is organized, structured and sets up routines for the child at visits. She comes to the visits well prepared, with home cooked meals and nutritional snacks for the child.
viii) The grandmother engages the child in age-appropriate activities. She was observed as being very attuned to the child's needs and responsive to them.
ix) The child's extended community access with the grandmother has been a success.
x) The society's counsel, in submissions, aptly described the grandmother as "an access angel".
f) The grandmother has taken steps to be the best possible parent she can be for the child. On her own initiative, she went to parenting courses and participated in counselling. She was an eager participant in the TAP process. She testified that it is "never too late to learn to be a better parent". Previously, the grandmother had not been open to referrals to services to support her parenting.
g) The grandmother has demonstrated unwavering commitment to the child. This was not the case with T. She has come to each visit. She comes on time. She rearranged her work schedule to night shifts to always be available for the child.
h) The grandmother has developed a much closer relationship with the child than she had with T. In particular:
i. It has been apparent to everyone involved how much the grandmother loves the child and how motivated she is to positively parent her.
ii. The child is closely bonded with the grandmother. She is an important person in her life. She is affectionate with the grandmother on visits. She is excited to see her and has sometimes called her mommy. She is sometimes sad to leave the visits. She views the grandmother as a safe caregiver.
iii. The grandmother is often seen speaking to the child with warmth and affection. She is observed to encourage and praise the child.
iv. The grandmother was observed to act calmly and appropriately when the child is upset. She also has been observed to calmly assist the child in leaving visits when the child doesn't want to leave.
i) The society expressed no concern about the grandmother's ability to meet the instrumental needs of the child (food, clothing, medical care and hygiene).
j) T. was a child with special needs who required a higher level of parenting to meet those needs. The child here is developing normally and does not require an enhanced level of parenting to meet her needs. The court repeats the comment of the TAP supervisor to support its finding that the grandmother is capable of meeting the child's needs:
At this time, our assessment of grandmother as a caregiver is that she is competent, caring, attentive and attuned.
k) The grandmother has been much more proactive in developing a viable plan for the child. She has arranged to change her work hours. She has contacted a local daycare. She has arranged a doctor for the child. She knows where to take the child for activities.
l) The grandmother presents as organized, focused and a strong advocate. She should be able to work well with the child's service providers and teachers to meet her needs.
m) The grandmother is now presenting a permanent plan for the child. Her plan for T. was more of a holding plan until the mother was able to parent him.
n) The nature of the grandmother's relationship with the mother has significantly changed. This will be discussed in more detail below.
[191] Placing the child with the grandmother would have additional benefits for the child, being:
a) She would have the opportunity of living with her biological family.
b) She would have the opportunity of knowing her extended biological family.
c) She would have the advantages of being raised in her own culture. This is an important factor, particularly in a community that is having so many of its children involved in the child welfare system.
d) She would have the opportunity of being raised in her own religious faith. The grandmother is very religious and involved with her church. She would bring the child to church to Sundays and have her participate in its programs. This would integrate the child into the fabric of her community and its values.
e) Other than the foster parents, no one understands the child and her needs better than the grandmother. The child has to be moved in any event. It will be a much easier transition for her to move into the home of a caregiver who she loves and is familiar with. It will provide her with continuity of care.
Part Fifteen – The Grandmother's Ability to Set Boundaries
[192] In weighing the myriad positive and negative factors, the court kept coming back to the fundamental question: Can the grandmother protect the child from the mother's instability and the risks she poses?
[193] Justice Paulseth answered that question with a resounding no regarding T. The evidence in the trial before her was that the grandmother had an ambivalent relationship with the mother and couldn't prioritize T's needs to those of the mother. The evidence clearly showed that the grandmother was not able to protect T. at that time.
[194] This is an area where the grandmother has made profound changes.
[195] The grandmother sought out counselling to assist her in creating boundaries with the mother and appears to have made positive use of this resource.
[196] The grandmother presented at trial as no longer being ambivalent about keeping the mother away from the child. In her mind, the consequence of permitting such contact is to lose the child. She testified that she cannot bear the thought of that. She testified that it still causes her tremendous pain that T. was made a crown ward and "to lose the child would be like losing T. all over again".
[197] The grandmother was able to demonstrate to the court an adequate understanding that the mother is not capable of parenting the child and of the risks the mother poses to the child. She does not want to expose the child to this. She testified that "the mother has anger issues, anxiety, not stable for sure, she is upset easily and she is not ready to care for the child. I have seen that for quite a while".
[198] The grandmother made it very clear to the court that her main priority now is to protect and positively parent the child. She presented as very determined to accomplish these goals.
[199] However, words and intentions don't count for much if they are not backed up by actions. The grandmother has shown, as well as it can be shown, that she is willing and able to establish boundaries for the mother. The grandmother has not permitted the mother to come to her home since July 1, 2015. She changed the locks on her home. The mother does not have a key. The grandmother has also has not permitted the mother contact with the child during her community visits. These visits have been ongoing since November of 2015.
[200] The court is also impressed with the personal sacrifices that the mother is making. It was very clear to the court how painful it has been for her to lose T. and not be able to parent the child. Despite her pain and natural impulses to be involved with the child, she has respected her mother's directive to stay away from her home since July 1, 2015. She has voluntarily chosen not to see the child at the society office since September 15, 2015. In her mind, not visiting the child improved the child's chance to be placed with family.
[201] The mother has also shown courage and sacrifice by redefining her relationship with the grandmother. This has also been painful for her. She testified, "she is my best friend. I used to call and bother her 20 times a day". Now, she only sees the grandmother at court or at the lawyer's office.
[202] The sister testified that the grandmother has made it very clear to her that the mother is not to come to the home or see the child. The sister testified that she understands that if this rule is breached, they will lose the child. The court does not believe that she would take this risk.
[203] The society submitted that the grandmother's lack of insight about her prior child protection history and her unrealistic plan to have no contact with the mother makes it likely that she will not be able to protect the child from the mother. The court disagrees. While the court would prefer that the grandmother had insight into her child protection history (and her role in it), it does not presumptively follow that this means that the grandmother will be unable to protect the child from the mother or that she will breach a court order.
[204] The grandmother is not a sophisticated person, but she is focused and goal-oriented. Her clear goal in life now is to parent the child. She is determined that nothing will interfere with this goal. She views her relationship with the mother as an impediment to this goal. If given a clear and simple directive about what she needs to accomplish her goal, the grandmother strikes the court as a person likely to accomplish it.
[205] When initially asked about whether she believed that the grandmother would comply with a court order, the society's Family Service Worker answered, "I have no reason to believe she would ever breach a supervision order based on my experience with her. She has always done the things I have asked of her".
[206] The grandmother struck the court as a law-abiding person. She has no criminal record. There is no evidence that she has breached a court order or that she will breach a court order. She has kept the mother away from her home and the child in the absence of a court order.
[207] The grandmother's ability to maintain these boundaries since July 1, 2015 and the court's observation of her determination not to do anything that puts her ability to parent the child at risk gives the court confidence that the grandmother will comply with the terms of a supervision order and keep the mother away from the child.
Part Sixteen - Summary of Factors in Support of the Mother's Plan as Set Out in Subsection 37(3) of the Act
[208] In addressing the relevant clauses in subsection 37(3) of the Act in support of the mother's plan, the court finds that:
a) The grandmother can adequately meet the child's physical, mental and emotional needs.
b) The grandmother can adequately meet the child's physical, mental and emotional level of development.
c) Placing the child with the grandmother will best meet the child's needs for continuity and a stable place in a family.
d) Placing the child with the grandmother will provide the child with the benefits of her cultural background.
e) Placing the child with the grandmother will provide the child with the benefits of her religious faith.
f) Placing the child with the grandmother will maintain the child's blood relationships.
g) Placing the child with the grandmother best meets the child's needs for continuity of care.
h) The mother's plan to place the child with the grandmother better addresses the child's needs than the plan proposed by the society.
i) This case should not be delayed any further and the child should receive a permanent home as soon as possible.
j) The court finds that supervision terms are sufficient to adequately address the risk concerns set out in this decision. It finds that the grandmother will comply with such terms. She is very aware of the consequences if she fails to comply with the court order.
[209] The least disruptive disposition, consistent with the child's best interests, is to place her in the care and custody of the grandmother, for a period of six months, subject to terms of supervision that will be set out below.
Part Seventeen – Transition and Supervision Terms
[210] The court's concerns about the plan to place the child with the grandmother dictate that there should be clear terms of supervision. The grandmother will be required to permit scheduled and unscheduled visits by society workers and permit them to meet privately with the child. She shall sign any consents required to permit society workers to speak to service providers for the child.
[211] The mother took the unusual approach of suggesting that she have no access to the child and no contact with the grandmother. This was supported by the grandmother. The two of them were incorrectly under the impression that they were not permitted direct contact prior to now and seemed surprised at trial that they could have been speaking with each other for several months.
[212] Based on the evidence before it, the court would have ordinarily made an order that the mother could have access supervised at the society office. It is clear that she loves the child. There were some positive interactions between the mother and the child at visits. She appears to be taking some preliminary steps to address her issues. However, it appears that both the mother and the grandmother feel that strict lines need to be drawn at this time to make sure that the placement of the child is not jeopardized. The court agrees that the security of this placement is now the priority. While a no contact provision might be unrealistic in the long term as submitted by the society, it is not unrealistic in the short term. In the meantime, the child's placement with the grandmother can be stabilized and the mother can take steps to address her issues to mitigate future risk concerns.
[213] The court will make an order that the mother have no contact with the child during the term of this supervision order. The mother shall also not attend at the grandmother's home or anywhere she might reasonably expect the child to be. The issue of the mother's access can be reviewed on the status review date.
[214] It is not necessary to go as far as granting a restraining order to protect the child. Both the mother and the grandmother clearly understand the consequences of breaching this order.
[215] The court encourages the mother to obtain services to address her issues. She likely needs to engage in long-term therapy as her issues are deep-rooted. It is the court's hope that she can make sufficient gains to eventually play some positive role in the child's life.
[216] Once the child is stabilized in the grandmother's home the court suggests that the grandmother and mother look into family counselling. The court wants to make it clear that the mother and the grandmother do not have to sacrifice having a relationship to keep the child in the grandmother's care. However, they need to work on their issues, to make sure that the child is not exposed to chaos and instability. The grandmother could contact the JCA to find an appropriate resource.
[217] The court wishes to emphasize that this is a permanent plan. The plan will not be to return the child to the mother. The intention is for the grandmother to be the child's permanent caregiver.
[218] The supervision order will provide that the grandmother is to immediately advise the society if the mother comes to her home or attempts to contact the child.
[219] It is important for the grandmother to understand that she will not be in trouble if the mother tries to breach the court order. However, she will be in trouble if she does not tell the society about this right away.
[220] This order does not prevent the grandmother and the mother from speaking with each other or seeing one another in the absence of the child.
[221] The court has expressed its reservations about the sister's role in the plan. It seriously considered including a supervision term that the sister not be left alone with the child. However, in deciding not to impose such a term at this time, the court considered that there is no evidence of the sister acting irresponsibly with anyone but the mother (who will not be present), the sister appeared to be respectful of the grandmother's directions and it will be very helpful for the grandmother if the sister can take the child to daycare each morning. The court will trust the grandmother to ensure that the sister acts appropriately with the child and to take the necessary steps to protect the child if she does not.
[222] The child will undoubtedly have some distress in transitioning to a new home. She has lived with the foster parents for almost all of her life. The transition should take place in a sensitive and child-focused manner.
[223] It is in the best interests of the child to transition into the grandmother's home over the next month. In the first two weeks, she is to have full-day visits on Saturdays and Sundays in the grandmother's home. In the following two weeks, she shall spend the entire weekend with the grandmother. The child will then move into the grandmother's home at the end of the fourth weekend.
[224] The court wants to provide the society and the grandmother with some flexibility with the transition plan, as they will be best positioned to assess the adjustment of the child to the grandmother's home. If they both agree, they may modify the transition schedule, including dates. However, they are not to extend the return of the child to the grandmother beyond June 5, 2016 without the court's prior approval.
[225] The court suggests (not orders) that the society arrange a meeting with the grandmother and the foster parents to facilitate the child's transition. Relevant information can be exchanged. It might also help the child to arrange some contact with the foster family after the transition to the grandmother's home takes place to ease the child's adjustment.
[226] Although this will be a six month supervision order, the court does not envision the court action ending for at least one year. The court wants to check in after six months to make sure the plan is progressing well.
Part Eighteen - Conclusion
[227] A final order shall go on the following terms:
a) The child shall be placed in the care and custody of the grandmother, subject to terms of society supervision, for a period of six months.
b) The child shall transition into the home of the grandmother as follows:
i) She shall spend the full day with the grandmother on April 30, May 1, 7 and 8, 2016.
ii) She shall spend the weekends of May 14-15 and May 21-22, 2016, with the grandmother and remain there thereafter.
c) If the grandmother and the society agree, they may modify the transition schedule above, including the dates. They may also agree to extend the transition of the child into the grandmother's home up until June 5, 2016, without the prior approval of the court.
d) The mother shall have no contact with the child or attend anywhere that she may reasonably expect the child to be.
e) The mother shall not attend at the grandmother's home.
f) The grandmother shall immediately contact the society if the mother attends at her home or attempts to have any contact with the child.
g) The remaining terms of the supervision order are as follows:
i) The grandmother shall permit announced and unannounced visits by society workers to the child and her home.
ii) The grandmother shall permit the society workers to meet privately with the child.
iii) The grandmother shall sign any consents or authorizations required by the society to speak to the child's daycare provider, doctors, or other service providers.
iv) The grandmother shall enroll the child in daycare and notify the society once this has been done.
[228] The status review date will be on October 24, 2016, at 10:00 a.m. before the case management judge, Justice Curtis.
[229] The court wants to thank counsel for their excellent and sensitive presentation of this difficult case. In particular, the court thanks the society for providing the court with a thorough presentation of the evidence, both positive and negative.
Released: April 26, 2016
Justice Stanley Sherr