WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: February 16, 2016

Court File No.: Toronto CFO 14 11562 B1

Between:

Children's Aid Society of Toronto, Applicant

— AND —

A.L. and K.K., Respondents

Before: Justice P. J. Jones

Heard on: December 2, 9, 10, 11, 2015; January 25, 26, 2016

Reasons for Judgment released on: February 16, 2016

Counsel:

• Ms. Lisa Hayes — counsel for the applicant society
• Ms. Victoria Boger-Mull — counsel for the applicant A.L.

Judgment

JONES, P. J. J.:

[1] This is my judgment after trial on an amended protection application dated August 5, 2014 concerning the child A.L. born […], 2012.

[2] This amended application seeks a finding that the child is in need of protection under section 37(2)(b)(i) and 37(2)(b)(ii) of the Child and Family Services Act, R.S.O. 1990 c.C.11 as am (the Act). Section 37(2)(b) reads as follows:

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 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.

[3] In submissions, counsel for the Society invited the court to make a finding that the child is in need of protection under section 37(2)(g) of the Act as she contended that such a finding is supported by the evidence adduced. Section 37(2)(g) reads as follows:

(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) 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;

[4] Paragraph 37(2)(f) reads as follows:

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behavior, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results 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;

[5] In the event the child is found in need of protection, the Society seeks an order that the child be made a crown ward without access with a view to placing the child for adoption.

[6] A.L. (the mother) seeks the immediate return of the child to her care and custody with or without supervision and is prepared to consent to such reasonable terms of supervision as imposed by the court. In the alternative, if the child is made a crown ward, she seeks an order for access to the child.

[7] K.K. (the father) has never participated in these proceedings. An order dispensing with service on him was made by the case management judge on November 12, 2015 as she was satisfied that all reasonable efforts to effect service had been made.

Background

[8] A.L. is the first child born to the mother. By the time the child was born, the parents were living separate and apart and the mother was residing in a shelter. The mother told the court that they separated because the father was abusive to her. The father played no part in the proceedings and has never contacted the Society to seek access to A.L.

[9] A.L. has been continuously in care since his apprehension on March 31, 2014. Prior to that time, he spent approximately six months in care cumulatively under two temporary care agreements.

[10] When A.L. was born, his mother was living in a shelter without any familial supports in Canada. The mother had a very unfortunate upbringing. When she was three years old her mother abandoned her. When she was six years old her father died of cancer. From the age of six years to fifteen years she lived with an aunt who, according to the mother, never really wanted her and never showed her any true affection. When she was 15 years old her aunt contacted the Society to come and take her. From that time forward, the mother lived away from her family and grew up in the care of the Society.

[11] As a single parent without familial support of any kind, the mother looked to the Society for support in parenting. She was extremely anxious about her role as a new parent and expressed uncertainty about parenting and spoke with the Society, both before and after the birth of the child, about the possibility of placing A.L. for adoption.

[12] A.L. was only nine days old when he first came into care under a temporary care agreement and remained in care until the end of August, 2012. At that time A.L. was returned to his mother. According to the evidence, the mother was expressing a desire to parent A.L. and, according to the shelter staff, appeared able to provide adequate care for the child.

[13] The return of A.L. to his mother's care coincided with the mother's move from the shelter. At the end of August, 2012, the mother secured subsidized housing with Ecuhomes (supportive housing for people with mental health challenges). (The mother has a history of depression, anxiety and social phobias and was granted an Ontario Disability Pension in 2014 on this basis).

[14] From that time forward, the mother no longer had the support of the shelter system, and was left to raise A.L. on her own.

[15] A.L. lived with his mother until she approached the Society in January, 2013 and requested that A.L. come into care under a second temporary care agreement. She told her family service worker that she needed time to care for her own issues. At that time she once again questioned her long-term commitment to A.L.

[16] A.L. remained in care from January 23, 2013 until May 29, 2013 when he was voluntarily discharged to the care of his mother. The mother told the Society that she wanted to parent A.L., that she loved and missed him, and the Society was satisfied that the mother had made sufficient gains to warrant his return as evidenced by how well the reintegration visits were going.

[17] A.L. remained in the care of his mother until he was apprehended at the Hospital for Sick Children on March 31, 2014. On that date the mother had been called by the day care to pick up A.L. and take him to the hospital as the day care workers noticed that the child appeared to be suffering from pink eye. The mother took the child to the hospital. At the hospital she waited for over three hours to have the child seen by a physician, and during that time A.L. became increasingly hungry and agitated. (The mother, who did not have any snacks for the child, confirmed in her evidence that A.L. was drinking from the hand sanitizer dispenser and was eating food out of garbage cans.) Frustrated and hungry herself, the mother grabbed the toddler and threw him roughly onto the waiting room couch; he bounced off the couch onto the floor and landed on his feet.

[18] This incident was witnessed by Dr. Mark Feldman, a pediatrician, who happened to be passing through the waiting room. Dr. Feldman called the Children's Aid Society. The Society called the police. A.L. was apprehended by the Society; the mother was arrested under the Mental Health Act and taken for examination. After examination in the psychiatric department, the mother was released, but it was determined that A.L. would be kept in care and the matter would be put before the court.

[19] Since his apprehension, A.L. has remained in care.

[20] A.L. will be four years old on […], 2016. For all but fifteen months of his life he has been in the care of the Society.

[21] Since A.L. was born, and even before he was born, his mother has had the benefit of a number of supportive services, namely:

(a) a pregnancy and aftercare worker,

(b) a family services worker,

(c) a public health nurse,

(d) subsidized housing,

(e) a housing worker with Ecuhomes (self-described as a "social worker" for this supportive housing project),

(f) a budgeting counselor,

(g) day care for A.L. effective October 7, 2013 to the date of apprehension,

(h) a psychiatrist,

(i) speech and language support at the Nipissing Clinic,

(j) a worker from Central Toronto Community Health Centre provided to assist high risk families with budgeting and play skills,

(k) a modified therapeutic access program to teach parenting skills,

(l) a parenting capacity assessment performed by Dr. Betty Kershner,

Finding of Inadequate Care and Neglect

[22] Notwithstanding all the services provided to this mother, the level of care she provided to A.L. was woefully inadequate. I reached this conclusion for a number of reasons, including the following:

1. Housing Support Worker Testimony

Elizabeth Plank, the housing support worker with Ecuhomes testified that she visited the mother's home on a number of occasions and found it to be dirty and untidy. As well, she told the court that she received a number of complaints from other tenants in the building that the baby would cry non-stop for hours at a time.

2. Public Health Nurse Testimony

Stephanie Grossi, the Public Health Nurse, told the court that when she visited the mother her apartment was often very dirty. When she came for her scheduled visits around 10 or 11 in the morning, it was not unusual for her to find the baby awake in his crib holding his own bottle with the mother coming from her bedroom, in her night clothes, just recently aroused from sleep. When questioned, the mother would admit that the baby had awakened at 8 a.m. and that she had fed the baby in the crib, then she had gone back to sleep and left the baby to entertain himself. This behavior continued notwithstanding her advice to the mother that allowing the baby to feed himself was dangerous and harmful to the baby's development. As well, she noted a pattern of the mother running out of formula, and when questioned about this, the mother told her that she gave money to her boyfriends. She also told the court that the mother left the baby alone in the apartment to smoke outside or to go to the local grocery store for supplies for short periods of time. She also testified to a conversation she had with the mother who admitted that she was looking for her former husband's friend, a person she did not know personally, with the intention of leaving the baby with him while she went out to run errands. When questioned about the wisdom of such a plan, she replied, "Would you rather that I left the baby alone?"

3. Budgeting and Financial Priorities

The mother admitted to her family service worker, Greg Martyniuk that she bought an iPad and then was unable to buy formula for her baby; she said that she bought the iPad because she was bored. The mother was referred to a Society budgeting counselor but continued to have trouble budgeting her monies. For example, she admitted to giving money to boyfriends she had just met because she was lonely and they wanted the money even when she needed the money to support her son.

4. Developmental Concerns

Mr. Ross, a language pathologist employed by the Nipissing Clinic suspected that A.L. might be autistic because he was not making eye contact and not speaking at approximately nineteen months. He reported his concerns and sought a referral to a developmental pediatrician to further investigate whether A.L. was autistic.

5. Foster Father's Observations

Mr. H. B., A.L.'s foster father since March, 2014 described the child in the following way. When A.L. first came to his house, he was:

• a very angry child,
• with a vacant look on his face,
• who refused to make eye contact with anyone,
• a child who, for the first two weeks, would constantly scream and yell,
• who seemed to have no sleep pattern and did not know how to calm (soothe) himself,
• who had no concept of play (if someone gave him a car, he would throw it),
• who seemed to have no words at all,
• a child who rejected any expression of affection (if someone tried to hug him, A.L. would get stiff),
• as well, A.L. seemed to have no ability to regulate his appetite (if he was given food, he would stuff it in his mouth with both hands and physically force it down his throat until there was no more food; if he was not given food immediately, he would scream),
• A.L. was a child who was afraid of water, and who refused to get into the bathtub.

Mr. B. testified that A.L. is a very different boy today. He indicated that although A.L. still has a long way to go, he is making remarkable progress. He now has words to express himself; he now eats in bites and chews his food. A.L. now enjoys his bath. He describes A.L. as a happy boy who is affectionate with his foster family. In conclusion, Mr. B. expressed the belief that, in the right circumstances, A.L. will grow to be a remarkable young man.

6. Developmental Pediatrician Assessment

In June, 2014, after A.L. had been at the B. foster home for a couple of months, he was examined by Dr. Janine Flanagan who is a developmental pediatrician who specializes in identifying autism and global delays in children under the age of four years. After a thorough examination of A.L., she ruled out autism as a possible diagnosis. She testified that when she saw A.L., she was pleasantly surprised because, from the reports she had received from Mr. Roth, she had been expecting quite a different child. Instead, she found a child who was making eye contact, who had 20 words, who had social skills and who was quite bonded to the foster father. When she examined A.L., she found that he was interested in toys and was developing play skills. It was her opinion that A.L. did not meet the criteria for autism spectrum disorder.

She told the court that no amount of hugs and love would have resulted in the changes she saw in A.L. if he were actually autistic. She reached the conclusion that A.L.'s presentation when he was 18 months old was caused by environmental deprivation similar to children who spent the first few years of life in a foreign orphanage where their need for stimulation was not being met. She noted that she had treated a number of such children who came to Canada by way of an international adoption and she has found that if these children were placed in loving homes where their need for stimulation is met, most are now doing very well.

Finding in Need of Protection

[23] On the facts I have found, I am satisfied that A.L. is a child in need of protection under section 37(2)(b) and 37(2)(g) of the Act.

[24] Given the mother's failure to adequately care for, provide for, supervise or protect the child, and her pattern of neglect in caring for, providing for, supervising or protecting the child, A.L. while in her care, was at risk of likely suffering physical harm. I am satisfied that while A.L. was in her care she:

• Would leave the child alone in his crib with a bottle for hours at a time and expect him to feed himself notwithstanding being advised that such a practice placed the child at serious risk of harm from choking.

• Left the child alone in the apartment while she went out for a cigarette or to the store,

• On March 31, 2014 at the Just for Kids clinic at the Hospital for Sick Kids she let A.L. drink hand sanitizer and forage in the garbage cans for food and when she became frustrated with him, she tossed him onto the waiting room couch where he bounced off the couch and landed on his feet. Fortunately, the child was not injured but might not have been so lucky.

[25] I also find that A.L. is a child in need of protection under section 37(2)(g) because, when he was in his mother's care, he was likely to suffer emotional harm of a kind described in 37(2)(f) resulting from the actions, failure to act or pattern of neglect on the part of the mother. In this case, I am satisfied that A.L. was likely to suffer emotional harm due to delayed development due to his mother's actions and pattern of neglect. The evidence in support of a finding under this section is very strong. When A.L. was 18 months of age, and was examined by Mr. Roth at the Nipissing Clinic, he had a vacant look on his face, had no words, refused to make eye contact and had no idea how to play with toys. Mr. Roth was so concerned about A.L.'s presentation that he referred the child to Dr. Janine Flanagan to determine whether A.L. met the criteria for autism spectrum disorder. A.L., who had at the point of examination by Dr. Flanagan had been in care for over two months at the B. foster home, was quite a different child than the one seen by Mr. Roth. A.L., when seen by Dr. Flanagan, was speaking, making eye contact, was affectionate with his foster father and was learning to play with toys. Dr. Flanagan ruled out autism and substituted a diagnosis of environmental deprivation while in his mother's care.

Disposition

[26] A.L. is now forty-six months old. During his short life, he has spent only fifteen months in the care of his mother. At this point, given that he is under six years old and has been in care for over one year, under section 70 of the Act, he must either be returned to his mother, with or without supervision, or be made a crown ward.

[27] The mother is seeking the immediate return of A.L. and the Society is seeking a crown wardship order for purposes of adoption.

[28] Now that I have found A.L. to be a child in need of protection, I must decide which of these two dispositional options would be in A.L.'s best interests. The Act is clear that if the paramount purpose of the Act is satisfied (i.e. the promotion of the best interests, protection and well-being of children), the autonomy and integrity of families should be respected and the least disruptive course of action that is available and appropriate should be considered.

[29] In this case, there are only two plans of care, the mother's and the Society's and the Society is seeking the most intrusive order into the life of this family i.e. crown wardship. With that in mind, I begin with assessing the mother's plan of care.

In an attempt to understand whether the mother, with the right supports, would have the ability to parent A.L., the parties agreed to a parenting capacity assessment.

[30] Dr. Betty Kershner agreed to carry out the assessment. She did so by reviewing the documents, including the pleadings and affidavits, speaking to collaterals, performing psychological tests including an intelligence test, interviewing the mother and observing the mother with A.L. Her report was filed with the court and she was cross examined on her findings. Her professional opinion on the issue of the mother's parenting capacity was not shaken in cross examination.

[31] Dr. Kershner reached the conclusion that the mother does not have the ability to parent A.L. She concluded that "A., sadly, lacks the insight, comprehension, judgment, motivation for change, or ability to parent appropriately." (p. 28) She wrote, "Her thinking is concrete, Ms. L. focuses on the activity and misses implication, motivation, feelings, consequences, etc. Her ability to generalize from one thing to something similar, as measured on the cognitive testing, is in the Borderline range." (p. 29). She concluded that neither parenting programs, nor a form of continuous support nor instruction would enable the mother to parent. In her opinion nothing other than "someone else as primary caregiver who was with the mother and the child at all times would enable this mother to parent a three year old child." (p. 29)

[32] It was her opinion that if A.L. were to be returned to his mother, she would fail to provide him with the necessary stimulation for healthy development, and his cognitive abilities would be depressed and there would be a regression in his language development. Dr. Kershner was also concerned that if A.L. were returned to his mother, there was a risk that she would not only ignore the child, but might also do something really inappropriate, such as beat the child, because, from her testing, she saw a high potential for child abuse. In the Child Abuse Potential Inventory Test the mother scored very high on the Rigidity scale suggesting rigid and unrealistic expectations for good behavior from children. As well, the mother's lack of sensitive attunement to the child, her poor self-esteem, and her insecure attachment to the child all added up to the risk of emotional and physical harm to A.L. should he be returned to his mother.

[33] Dr. Kershner observed the mother and A.L. together. It was her opinion that A.L. had no attachment to his mother. For example, when the visit was over, he left without even waving good bye. She also opined that the mother's attachment to A.L. was weak given her narcissistic personality and her tendency to care only about herself and to value others only as they are useful to her. For example, during the access visit the mother read bible stories to herself that meant nothing to A.L. and on occasion would insist on playing games she enjoyed that A.L. was clearly not interested in. When the visit neared its end, she made preparations to leave and left and then never looked back.

Discussion as to Disposition

[34] I have concluded, after reviewing all the evidence, that A.L.'s best interest does not lie with a reunification with his mother.

[35] In his short life, he has been in and out of care on three occasions. Since A.L. was born, his mother has been uncertain as to her long-term commitment to parenting A.L. Shortly after he was born, she requested that he come into care and questioned whether adoption might be the preferred route, and then worked toward getting him back because she was lonely and missed him. When he was nine months old she asked that he be brought into care so that she could work on her own issues and again questioned whether adoption might be the best option for A.L. On this second occasion he was in care for four months and once again his mother worked towards getting him back because she was lonely and missed him. A.L. was returned and lived with his mother until he was apprehended on March 31, 2014. She told the court that she wanted her son returned because she loved him, she missed him and was lonely without him.

[36] When A.L. came into care this last time, he was seriously delayed in his development, he was under socialized and he was showing extreme symptoms of neglect and under-stimulation -- to the point that a diagnosis of autism was being considered.

[37] A.L. is now making gains and is adoptable according to the adoption worker. It is the plan of the Society, should A.L. be freed for adoption for a permanent home to be found for the child as soon as possible.

[38] I am satisfied that when the mother had A.L. with her, her parenting fell far below acceptable levels as evidenced by the child's delayed development at the time of apprehension and his steady progress since then. Although the mother has visited A.L. regularly, and has shown a commitment to maintaining the relationship, I see no evidence that her ability to meet his needs has changed for the better. Even after participating in a therapeutic access program, the mother showed herself incapable of internalizing the parenting skills taught there. For example, even after being told/shown how to respond, the mother needed frequent prompts to follow her son's cues in play, to show affection to her son (even at greeting and good byes), to be consistent in her directions to her son when disciplining him and not to be harsh with him when she disapproved of his actions, and to comfort the child when he cried and needed comfort.

[39] Ultimately, the reason why the mother is unable to meet A.L.'s needs, even to a minimally acceptable standard, doesn't really matter. Whether she cannot provide adequate care for A.L. arises from her ambivalence to the care-giving role, her mental health, or to her unfortunate upbringing becomes a question that need not be answered. My focus must be A.L., and once I am satisfied that all reasonable efforts to assist the mother in meeting A.L.'s needs have been made without such efforts making any discernable difference, the path forward is clear.

[40] A.L. needs a permanent home where his needs can be met and where he can grow up to be the "remarkable young man" described by his foster father H. B. Unfortunately for his mother, she is not the one who will be providing this home for A.L.

[41] Accordingly, I make an order that A.L. become a crown ward for the purposes of adoption.

Crown Wardship With or Without Access

[42] The mother is seeking an access order now that a crown wardship order has been made. This request for access is opposed by the Society.

[43] Before the court can make such an access order at this stage of the proceeding, the court must answer both of the following questions in the affirmative, namely:

1. Is the relationship beneficial and meaningful to the child?

2. Will the ordered access not impair the child's future opportunities for adoption?

[44] This test is set out in section 59(2.1) of the Act. The onus of satisfying the test lies with the person asserting the claim. After a crown wardship order is made, there is a presumption against access and it is the exceptional case in which an access order will be made. The statutory path is "clear and mandatory" and a person seeking access must first prove that the relationship between them and the child "is beneficial and meaningful to the child." If this test cannot be met, the court need not consider the matter further. See Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638, para. 58.

[45] In determining what constitutes access that is "meaningful and beneficial" to a child, Justice Joseph Quinn's interpretation of the first branch of the test as set out in Children's Aid Society of Niagara v. M.J., [2004] O.J. No. 2872 (S.C.) is often cited. It reads as follows:

"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.

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".

[46] From the evidence I heard I am not satisfied that the relationship between A.L. and his mother is meaningful and beneficial to the child in that the relationship between the mother and the child is "significantly beneficial" to the child. I say this for the following reasons:

1. Although A.L. recognizes his mother as his mother and there are times in access visits when he enjoys his time with his mother and shows affection for his mother, this is not enough to constitute a relationship that is "significantly beneficial" to the child.

2. In this case, I find that the relationship between the mother and the child has not been "significantly beneficial", but actually has been quite the opposite. Unfortunately, given the mother's inability, for whatever reason, to meet the child's needs, her relationship with the child actually harmed the child's development in a significant way.

[47] Having found that the first prong of the test for access has not been met, my inquiry need go no further and I dismiss the mother's claim for access to A.L.

Order

[48] Accordingly, a crown wardship, no access order will issue.

[49] I would like to express my sympathy to the mother as I accept that she loves A.L., and that the prospect of not seeing A.L. will be very hard for her. I want to assure her that it is never easy to make these decisions knowing how difficult such decisions will be for the parents to accept and how difficult it will be for the parents to move forward in life without their child. Please know that it is my duty to decide this case in accordance with my view of A.L.'s best interests, and I have done so.

Released: February 16, 2016

Signed: Justice P. J. Jones