WARNING

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

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

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult

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

85.— (3) Idem.

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

Court Information

Date: May 17, 2017

Court File No.: TORONTO CFO-15-12855-A3

Ontario Court of Justice

Toronto 311 Jarvis Family Court

In the Matter of an Amended Amended Protection Application Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of A., born 2012

Parties

Between:

The Children's Aid Society of Toronto Applicant

— AND —

V.J. Respondent Mother

B.M.N. Respondent Father

Before Justice A.W.J. Sullivan

Reasons for Judgment

Trial heard: October 26, 28 and 31, 2016; November 1, 2, 4, 7, 8 and 9, 2016; March 14, 15, 16, 22, 27, 28 and 30, 2017

Decision Released: May 17, 2017

Counsel:

• Ms. C. Siviero and Mr. K. Atkinson for Applicant the Children's Aid Society of Toronto
• Ms. M. Ibghi and Mr. K. Anderson for the Respondent Mother V.J.
• B.M.N. self-represented

This is a bilingual trial. The French version of this decision to follow.

Introduction

[1] The Children's Aid Society of Toronto (hereinafter referred to as "the Society") has filed an amended amended protection application on April 22, 2016, seeking a finding that:

AMN (A), born 2012, is a child in need of protection pursuant to sub-clauses 37(2)(b)(i) and 37(2)(e) of the Child and Family Services Act (hereinafter referred to as "the Act"). The Society seeks an order for the statutory findings and a disposition order that the child be made a Crown ward, without access, for the purpose of adoption and an order that the Father be noted in default.

[2] The respondents V.J. (the Mother) and B.M.N. (the Father) are the child's parents.

[3] The Father did not attend the trial. The Father also did not file a plan of care and an Answer to the Society's amended application.

[4] The Mother did not ask for an adjournment in order for the Father to attend.

[5] The Mother, in her Plan of Care, has little support from the Father.

[6] The Mother did not take a position on the request by the Society that the Father be noted in default.

[7] As a preliminary order the Father, B.M.N. is noted in default of these proceedings.

[8] The Respondent Mother, in her Answer/Plan of Care, does not concede that A. is a child in need of protection. At trial the Mother focused her evidence both on the finding in need of protection issue as well as her plan for disposition for her son. Her request is that A. be placed in her care. It is her preference that this be without any conditions of supervision, however throughout the trial and in submissions Ms. J.'s position was that she is open to a supervision order and provided the Court with detailed proposed conditions of supervision.

[9] This trial was conducted as a blended proceeding. I did not consider evidence that went solely to the issue of disposition in determining if the child was a child in need of protection.

NOTE: This judgment is under a publication ban described in the WARNING page at the start of this document. If the WARNING page is missing, please contact the court office.

[10] The child, A., has been in the temporary care of the Society since July 30, 2015. On that date Justice H. Brownstone granted the Society's request for the temporary care of A. to the Society on a without prejudice basis.

[11] The child has remained in the temporary care of the Society since that date.

Factual Background of the Family in Alberta

[12] According to the Society, the circumstances surrounding A. coming into care are as follows:

1. The child, A., and his mother arrived from Alberta where they both were living. The Respondent Father B.N.M. was not living with them. He was out of Canada.

2. A. was born in Alberta. At his birth he had serious medical problems.

3. Before A. arrived in Toronto he had been hospitalized in Edmonton Alberta.

4. At the time of his arrival in Toronto he was in the care of the Northeast Child and Family Services (NCFS).

5. A.'s parents are black Africans. Ms. J. is originally from Niger and educated in French. She is a permanent resident of Canada. She testified at this trial in French. A.'s father is from the Democratic Republic of Congo. He did not testify nor participate in this trial.

[13] The Court was provided with a photo of A. who is a good looking Afro Canadian black child with a wonderful smile and a thoughtful look in his eyes.

[14] In December 2014 NCFS obtained an order to supervise A. in the care of his mother. He had been in the care of his mother from birth through to December 2014.

[15] For the first 10 months of A.'s life he lived at Stollery Children's Hospital in Alberta after having surgery which removed most of his small intestine because of an infection (bacterium) that destroyed his intestine following a procedure at birth while at the Royal Alexander Hospital in Edmonton.

[16] Ms. J. testified that during these 10 months she completed training at Stollery to be able to care for A. and did so generally on a full-time basis at the hospital after her training for a period of three weeks. She also stayed and lived at the Ronald McDonald House also caring for A., at which time some home nurses and other services were provided.

[17] Given Ms. J.'s care of A. he was discharged to her to bring him to her home in Fort McMurray on September 16, 2013.

[18] At the time of A.'s discharge in September 2013 he was on a total parental nutrition (TPN), and fed through a Gastrostomy Tube (G-tube). He also had an ostomy bag in place.

[19] Ms. J. reviewed in her testimony the care that she provided solely to A. on a regular day starting with his morning changing and feeding, clothing him, preparation of his food mixtures, providing medication, cleaning his ostomy bag, maintaining his G-tube, day and night feedings, preparation of his bolus feeds, general care of his hair and skin and interaction with her son.

[20] She testified that her day-to-day care for A. at this time was not easy and that when A. was sleeping she would care for herself but generally he consumed her time and was her priority.

[21] She had worked in a pediatric department in her home country of Niger, looking after children who were malnourished. Here she was responsible for preparing healthy "special diets" and explaining these to their parents.

[22] In Fort McMurray, her son's pediatrician was Dr. L. Nyati. Ms. J. would bring her son to see Dr. Nyati approximately once per month.

[23] Dr. Nyati testified at trial that Ms. J.'s care for A. and her ability to work with a child with special needs and feeding through a G-tube was most impressive to the point where she connected Ms. J. with another parent who also had a child of high needs similar to A., in order for Ms. J. to help this parent with the G-tube feeding, bolus preparation and to be a general support to this other parent.

[24] During the time that Ms. J. cared for her son in Fort McMurray she traveled every two months with A. from Fort McMurray to Edmonton, which is approximately a six-hour commute, with all of A.'s equipment and a cooler to ensure his medication and food was kept at an appropriate temperature.

[25] In Alberta Ms. J. worked with a nutritionist that reviewed a diet that she prepared for A. In addition, a homecare nurse visited once a week with a personal service worker for some respite care, usually on Wednesdays. Together with the nurse, A. would be weighed and his TPN was changed by her with the nurse present.

[26] In the spring/summer of 2014 Ms. J. discussed with medical staff in Alberta the possibility of moving to Toronto where she had friends and relatives. In April 2014 she took a trip with her son to Toronto with all the necessary equipment to care for A.

[27] In August 2014, A. was required to be hospitalized in Alberta and it was at this time that Ms. J. spoke about the possibility of removing his TPN line with the medical team. There were arrangements made for this to occur in December 2014 and A. was brought to the hospital but unfortunately he contracted a respiratory illness and stomach flu and this TPN procedure was delayed indefinitely.

[28] In early January 2015 Ms. J.'s work permit expired. Ms. J. was under the sponsorship of her husband, A.'s father. In addition, her EI maternity payments also came to an end. She had received 35 weeks of EI for parents with critically ill children after the birth of A.

[29] In addition, the administration of her subsidized apartment in Fort McMurray demanded an increase in rent which Ms. J. could not afford and she was forced to move.

[30] Just prior to this, given A.'s medical needs and Ms. J.'s difficulties, NCFS obtained an order from the local family court in Fort McMurray.

[31] The order was filed in this trial. It is a form of a supervision order in the sense that NCFS was given the right to visit A. No conditions of supervision were placed on Ms. J. regarding what she should do to care for A.

[32] During the course of this trial a worker from NCFS was scheduled to testify but never did. Ms. J. did admit at trial that A. was apprehended by NCFS on February 25, 2015. It is still not certain from the evidence the exact reasons why. At best, the Court concludes that it was a combination of A.'s medical needs and the difficulties that Ms. J. was having in the community, given her immigration status, income, and housing difficulties and possibly some concerns about Ms. J.'s plan at the time to address A.'s needs.

[33] Ms. J. testified that from her understanding, NCFS informed her that A. would be returned to her care if she secured a source of income, a place to live and an individual or second person that could help her with the care of A.

[34] It was at this time in April 2015 that plans were put in place for A.'s father to return from the Democratic Republic of Congo where he was studying to assist in the care of A. and that the family would move to Toronto.

[35] A. was moved with the assistance of NCFS to Toronto where he was admitted to the Hospital for Sick Children (HSC) on April 13, 2015.

[36] Given the fact that he had high medical needs, HSC needed to be assured that the transfer would be done in an orderly fashion.

[37] When A. arrived in Toronto the Society apprehended A., filed a protection application on April 17, 2016 and obtained a supervision order placing A. in his mother and father's care with conditions. The principal condition was to follow the recommendations of the medical staff at HSC before their son is released from the hospital.

The Child A.'s Medical Needs Upon His Arrival in Ontario

[38] Dr. Paul Wales, a pediatric surgeon with expertise in intestinal disease from the Group for Improvement of Intestinal Function Treatment Program (GIFT) at HSC, testified as a qualified expert in this field of medicine.

[39] Dr. Wales detailed A.'s medical needs as follows:

1. A. was admitted to HSC into the care of GIFT on April 13, 2015 and discharged from the hospital on August 26, 2015.

2. Dr. Wales testified that when A. was transferred there was a Telemedic transfer session with a team in Edmonton and the team at GIFT in Toronto. He recalls that at this meeting there was someone from the Children's Aid Society in Alberta.

It should be noted that Dr. Wales did not call to consult with A.'s pediatrician, Dr. Nyati.

[40] The GIFT program is a multidisciplinary program that cares for children with intestinal failure. Intestinal failure is an umbrella term that means that the gut of an individual has for whatever reason the inability to adequately absorb enough nutrition or fluids to maintain growth or hydration and in the case of children, growth is affected.

[41] The GIFT program at HSC has made great strides saving and improving the lives of children with intestinal problems. Dr. Wales explained that 15 to 20 years ago children with A.'s difficulties would die primarily of liver failure as a result of complications with their ability to absorb nutrition given the severe problems they have with their intestines.

[42] On the last day of trial Dr. Nyati testified that over the past two years since A. has been in care that no staff member from the Society or staff at HSC has been in touch with her about her observations and knowledge of A. or his mother's care of him while she was A.'s pediatrician in Fort McMurray Alberta prior to A.'s move to Toronto.

[43] Dr. Wales recalled A. arriving at the GIFT program in April 2015. His arrival was a planned medical transfer from Alberta as his mother wished to move to Toronto for social supports as well as medical supports.

[44] He was aware of A. in a general way as Dr. Wales spends time monthly in Edmonton assisting with his expertise in that province. Although he had not met A. in Alberta, doctors in that province that had treated A. had consulted with Dr. Wales about A.

[45] Dr. Wales testified that there are three categories of intestinal failure; one being the short bowel syndrome where a child loses significant amount of intestine which is related to generally neonatal diseases at birth particularly found in premature babies such as A. which is known as Necrotizing Enterocolitis.

[46] These children have short bowel syndrome and they are dependent on intravenous nutrition generally. This is the case for A.

[47] The second category is individuals with all of their intestine but they have difficulty with the intestine being able to move nutrition along its track as the muscles generally do not contract properly. This is known as motility disorders or difficulties with the nerves and muscles in the bowels. These patients tend to have distended or bloated abdomens.

[48] The third category is known as Mucosal Enterropathies which is a form of the disease in which the lining of the bowel cannot absorb nutrients, causing severe diarrhea in patients.

[49] A. has Short Gut Syndrome and A.'s intestinal failure would fall into that category which means that he has an inadequate functioning intestine and will be dependent on intravenous nutritional feeding for most of his life, but this depends on a number of factors.

[50] The doctor testified, as did others at this trial, that A. has very good mobility. In other words, he is able to run around and if one was not aware of his limitations it would not be immediately evident that he has other challenges.

[51] The Court also heard from his current caregivers that A. is fearless of his surroundings and his caregivers need to be vigilant to direct him from hurting himself.

[52] Children with short bowel syndrome, as noted by Dr. Wales, continue to grow and the good news is that they can develop their intestine so that it can keep them healthy and their intestines can adapt and compensate.

[53] At a young age, and in particular premature babies, patients with sort bowel syndrome are particularly sensitive to intestinal complications and infections and young babies with immature livers are prone to liver failure.

[54] He also has a number of other complications which together require an understanding by his caregivers on how this affects his care and were explained at this trial as follows.

[55] A. is oral-adverse, meaning that when he was sick and in the hospital at such a young age for such a long period of time, he really did not have an opportunity to learn to eat orally.

[56] The Court also heard from Dr. Elinor A. McDonald, a child developmental specialist from Kingston General Hospital where A. was seen as he was placed north of Belleville in a group home called Susie's Place. Dr. McDonald was called as an expert in pediatric neurology at trial and was qualified in this field for this trial.

[57] Dr. McDonald testified to A.'s overall development and noted that hospitalization and institutionalization for young children can contribute to their developmental delay in that they, at such a crucial formative time of their lives, are hooked up to so many tubes and devices that they simply do not have the normal opportunity to explore the world which in turn helps their brain develop.

[58] Dr. McDonald was called as an expert in pediatric neurology at trial and was qualified in this field for this trial.

Dr. McDonald works out of Kingston General Hospital. A. was introduced to Dr. McDonald through his then pediatrician, Dr. Keith Gregoire. Dr. Gregoire had asked Dr. McDonald to assess whether or not A. had cerebral palsy and whether he required an MRI.

[59] Dr. McDonald indicated that when she examined A. on June 6, 2015 she concluded that he did not have cerebral palsy. She had reviewed with Ms. J. at this session that an MRI had been conducted in Edmonton and that he should not be put through another. At this examination A. had difficulty interacting with Dr. McDonald. She attempted to conduct a sensory examination which seemed normal as well as his motor development.

[60] She again saw A. for the second time on June 2016 for about 20 minutes.

[61] She reviewed with A.'s placement at the time that was Susie's Place how he was getting along. The staff noted that A. was empathetic and interacting with other children and it was reported that he seemed to understand directions in both English and French, his mother's cultural language in Canada.

[62] Dr. McDonald reported that A. suffers from a global delay. His speech is delayed both in English and French and possibly he might be autistic but this requires a full examination by a developmental pediatrician.

[63] The Court learned after Dr. McDonald's testimony that this full assessment of A. is being conducted currently at the Grandview Centre for Children.

[64] Dr. McDonald explained that prolonging medical hospitalization for young preemie children can cause developmental problems.

[65] From her perspective, A.'s long-term needs are that he receives daily socialization, preferably in a classroom setting and in the community where there are playgrounds and cultural activities.

[66] She recalls when meeting Ms. J. that she asked if possibly some of her son's delays might be caused to overexposure to anesthesia given the multiple operations A. has had in his life. Dr. McDonald observed A. and Ms. J. and noted that they were very close and comfortable with each other and noted only a positive interaction between them.

[67] In conclusion, Dr. McDonald indicated that although A. poses a number of challenges in working on his developmental needs given his speech levels and cognitive ability, what he can benefit the most from is a nurturing environment that will care for his emotional and nutritional needs in the context of socializing with other children of his age in a normal community setting and other forms of socialization when not in school.

[68] From Dr. McDonald's perspective A. needs consistency with one caregiver. Inconsistent parenting causes a child with A.'s long-term delays to have difficulty establishing a relationship of trust.

[69] For Dr. McDonald this is one of the important aspects to A.'s life in order to permit him to maximize, develop and thrive.

[70] The Court heard some evidence that both in Alberta, when in the care of his mother and here in Ontario in his special care homes, that A has had some small advances in taking liquid in a cup and exploring eating.

[71] Dr. Wales, as well as the staff at A.'s specialized group home, have encouraged A. to sit and watch other individuals eat in order to develop his willingness to eat orally.

[72] A.'s main nutrition or food is received by him his through his skin into his stomach using what is known as a Gastrostomy Tube (G-tube). This requires cleaning to remain clog-free and some training to manage as it is important to A.'s wellbeing.

[73] Testimony at trial was that while A. was at HSC he was receiving five bolus feeds a day and that it takes a while for the food to pass through the tube and into A. This is assisted through a pump. When he is at school, A. carries this pump on his back at lunchtime in a "kangaroo" type backpack. A.'s community nurse from the local Community Care Health Centre (CCHC) assists daily to prepare the bolus food from powder form and mixing it in a pouch which is connected to the pump to assist A. to eat. This takes about one hour at lunchtime. The Court heard that A. eats in the morning, at lunch and at about 4:30 p.m. He also has constant evening feeds.

[74] The evening feeds has been reduced in terms of volume and it is required to be administered at a slower pace as he is sleeping and not active. The formula needs to be refrigerated and therefore broken down into two smaller amounts as the feeding bag is exposed to room temperature and a large amount would spoil over the evening.

[75] This therefore requires the feeding to be divided into two and given at about midnight and the balance at about 2:30 a.m. This requires monitoring through the night as well as listening to the pump that gives off a signal requiring the second bolus feeding to be administered. The feeding line must also be monitored not to block. The obvious difficulty with this is that A.'s caregiver needs to be up and aware at different times of the evening of his needs, including changing his diaper and cleaning him.

[76] The latest evidence heard in March 2017 is that A.'s feeds are now three per day and two smaller ones at night. Evidence of his recent care and advances were provided when staff from Stuart Homes testified at the resumption of the trial.

[77] The next overall issue that A. has which impacts his immediate and long-term care is that he has been assessed with global or generalized developmental delay. Currently he is being assessed at the Grandview Children's Centre in this regard.

[78] A. has some deficits related to gross and fine motor functioning and, in particular, language. It has not been confirmed but there are some features according to Dr. Wales that might place A. on the autism spectrum. This is yet to be diagnosed.

[79] In terms of his fine and gross motor skills, A. is receiving both occupational and physiotherapy in the community and at home. What complicates his care as noted by Dr. Wales is A.'s ability to communicate and understand things around him and communicate with others.

[80] Through the course of the trial the Court heard that A., although limited in the number of words he uses, has developed a form of communication by his facial expressions and daily actions that are understood by his caregivers. Examples of these are as follows: he covers his ears when he does not like something and he goes to his room on his own to indicate that he wants to rest.

[81] Another complication when A. arrived in Toronto was that he had what is known as a central or main line that he had to support his life through intravenous nutritional feeding. At birth the left side of his veins in his upper neck and chest that drain into the heart were blocked. Therefore, this central line that was required to supplement his G-tube feeding was rerouted via other veins to help support A.'s daily nutritional intake. He no longer has this line because it was removed.

[82] Two significant medical operations by Dr. Wales at the GIFT program was, first, removing A. off intravenous nutrition, thus eliminating his main line. This was a major step forward and simplified A.'s care. The second operation by Dr. Wales connected A.'s small intestine, which he has less of, to his large intestine which is normal. This procedure allows A. to discharge a bowel movement through his anus and not into a bag. Again, this is a large step forward in his care and quality of life.

[83] The last two medical issues that A. has is related to his heart and penis. In relation to his heart he has what is called a prolonged QT syndrome which is an irregular heart rhythm. Effectively the heart muscle is not receiving proper electrical impulses and the rhythm is off.

[84] The urological issue with A.'s penis is called Hypospadias. Rather than urinating out of the tip of his penis he urinates under the surface of his penis along the shaft. This can be corrected with a urological procedure as testified to by Dr. Wales.

[85] Dr. Wales indicated that at the GIFT program they aggressively promote oral feeding. However, given A.'s cognitive developmental issues, this process is more complicated in that it is hard to instruct and teach oral feeding when A. has a limited understanding.

[86] In addition, his speech is quite delayed. At one point Dr. Wales indicated that a psychologist that saw A. at HSC when he was initially admitted to hospital indicated that his language expression level was at about a six-month-old level.

[87] A. is on a number of daily medications, those being Loperamide, which is an antidiarrheal medication, Nadalol, which is a beta blocker for his QT syndrome and vitamin D. He also was on a puffer which was prescribed by A.'s pediatrician.

[88] It is important that the prescribed medications are provided consistently to prevent diarrhea when it comes to A. to assure that his hydration and nutritional levels are maintained.

[89] Dr. Wales indicated that working with families with children with A.'s needs requires a high level of cooperation between the family and the GIFT program when the child is discharged into the community. The family is essentially the eyes and ears for the GIFT program while the child is in the community. In other words, there must be a high level of trust between the caregivers and the medical team at the GIFT program.

[90] When A. was discharged there was a plan in place as there is today to see him every 4 to 6 months, depending on his needs.

[91] Dr. Wales testified that depending on the community that families come from in Ontario, the community resources available for children such as A. can be quite variable. Families will require respite care, potentially some nursing care, occupational therapy and physiotherapy.

[92] One key area for A.'s care will be his feeding, both during the day and during nighttime hours. During the day, while A. is at school, a nurse is needed for about one hour per day to assist with his bolus feeding and this is available through community health services. In the evening this will require A.'s caregiver to do so during the night. This is where families need help as this can cause burnout.

[93] Dr. Wales indicated that he is very happy with A.'s development and prognosis. A.'s growth is progressing and now the need is to assure that he continues to grow within the normal parameters and receives the community support for his overall development. Children with A.'s needs are at risk of micronutrient deficiencies.

[94] Dr. Wales and his team want to be assured that A. and other children with his needs are plugged into all the necessary community resources.

[95] Dr. Wales indicated that he and a nutritionist at HSC reviewed with Ms. J. a homemade bolus preparation which she had been administering to him in Alberta. This homemade bolus feed mixture was considered to meet his needs. Dr. Wales indicated that his team at HSC works with families to adapt and adjust procedures and nutrition whenever possible to incorporate cultural and personal preferences with the family, so long as it meets the child's needs. This assists the family in understanding and involving the family members organically in the process of care for their children.

[96] The Court heard that A.'s food or dry bolus mixture is prepared via a pharmacy based on a formula that the GIFT team at HSC supervises or oversees. The cost according to the staff at A.'s current placement at Stuart Homes is about $200 per week.

The Apprehension of A. and Ms. J.'s Working Relationship with Medical/Caregiver Staff

[97] When Dr. Wales was asked about his impressions of Ms. J., he recalled working with her when she arrived at HSC. He recognized that there were challenges in Edmonton regarding promises made to her both in terms of the short and long-term care for her son. He recognizes that she had some trust issues in relation to what the experts said and suggested to her at birth and during the subsequent hospital care that A. received.

[98] Ms. J. testified that the doctors had suggested that she should take her premature son off life support. She refused to do so and prayed and sought support from friends and has been her son's strongest advocate over his years of medical interventions. She sees his life as a miracle.

[99] Ms. J. responded to criticism of her at trial from hospital staff, Society workers and in the community that at times Ms. J. was rude, argumentative and misfocused on issues while advocating for her son to the point that she alienated caregivers. She stated that she has reflected on this and why she has reacted in this fashion at times. In part a reaction has to do with how her son was historically treated from her perspective in Alberta in the early hours and days of his life. She recalled that it was suggested that she "let him go" in the early hours of his life. In retrospect she felt at times that he was treated like a guinea pig with the many procedures that he was subjected to in Alberta. She has come to learn that possibly some medications that he is has been given might not be the best practices as her son inherited her heart difficulty known as prolonged QT. She testified that she was concerned about repeated operations in which her son was under general anesthesia. She recognized that she shut down when people question her abilities to care for A. given the fact that she had cared for him in Alberta. Ms. J. did testify that part of this might be cultural. An example she gave was that she often will not look into somebody's eyes in certain circumstances which may causes misunderstanding, but not something unusual in her African cultural background.

[100] Dr. Wales spoke of the fact that he and the team are well aware that family members are stressed over time with the long stays at their program and that nerves at times can be challenged and frayed. He worked with Ms. J. and indicated that overall she had a good working relationship with him and the team and a base of medical knowledge about her son's medical situation.

[101] There was a concerning incident on July 25, 2015 when it was witnessed by an aid at HSC that Ms. J. administered through his feeding tube some liquids which were eventually discovered to be a ginger liquid and a fruit extract from a fruit called Baobab. This was a fruit used for years by Ms. J. in Niger and in Canada, both in her family and the community, to treat diarrhea, amongst other ailments.

[102] Ms. Christina Belza, a nurse practitioner from the GIFT team at HSC caring for A., testified that the team's concerns regarding Ms. J. leading up to the discharge of A. in August 2015 were around three major areas:

1. How Ms. J. was not forthcoming when she was asked about what she administered to A. when she gave ginger and the Baobab fruit extract.

2. That at times Ms. J. was rude with staff and would not voluntarily provide information and write down on A.'s chart the amount of bowel movements or vomiting that she had observed when caring for her son during the evening when staff might not have been there. Nurse Belza described Ms. J.'s interactions with her as follows: "…at times she was frustrated, rolled her eyes at me and accused me of being racist. … She also spoke French to me. Nurse Belza stated she did not understand French.

3. That the amount of respite hours Ms. J. was using during her stay at the hospital which at the time appeared to be somewhat higher than the norm provided.

[103] The protection issue that arose when Ms. J. gave her son the ginger and fruit extract was not as much the contents of the substance, although it contains some sugar which A. should not have had at the time, but rather that when asked about this Ms. J. did not voluntarily inform the care team.

[104] At the time, A. was suffering from a long bout of diarrhea. It was important for the care team and Ms. J. to note all of his intake and discharge. This was done by weighing his diaper as well as noting on a chart the amount of food he received and the amount of discharge, thus being able to calculate his nutritional intake and his weight gain or loss.

[105] This was a sensitive time in his care and when Ms. J. administered herbal remedies to A. through his G-tube and was not open in discussing this, this went to the issue of trust between the GIFT program and the parent caregiver, both in the hospital and potentially when A. would be with his mother in the community.

[106] In addition, given A.'s short bowel syndrome, his tolerance to non-complicated sugars is very sensitive. These sugars cannot be given to him. This was another concern as ginger and the Baobab fruit contains sugar.

[107] It was reported to Dr. Wales from the nursing team that at times Ms. J. could be rude to the nursing team.

[108] However, Dr. Wales underlined that over time at the hospital the nerves of family members slowly deteriorate and it is not uncommon during long admissions that the tolerance of parents at the hospital starts to drop and quite frankly, as he put it, everyone just wants to go home. Dr. Wales noted that he actually describes and reviews this dynamic with families at the start of their child's stay with his team and he understands the chronic fatigue that exists in these situations both at the hospital and at home.

[109] Dr. Wales noted in questioning that A.'s mother came with a body of knowledge regarding A. that other families might not have had about their child's medical condition and level of care. She also had promises made to her in Alberta that were not followed through with or materialized. She was aware of A.'s feeds and had developed a nutritional bolus program that was reviewed at the hospital by the nutritionist and was considered quite appropriate.

[110] When a child goes home it is important that the main caregiver has the knowledge of care as well as some respite and backup individuals with the same knowledge of the necessary care for the child. It is challenging but not impossible for one person to do the 24/7 care required.

[111] Dr. Wales testified that it is not impossible for a single parent to do so with some community supports.

Additional Testimony Relevant to the Apprehension of A.

[112] Ms. J. testified that from April to when A. was discharged in August, he spent a total of 2,520 hours at HSC during which time she spent 2,273 hours caring for him and it was only on or about May 29, 2015 that she asked for some respite care at least one day a week, which was the equivalent of 24 out of 168 hours.

[113] On May 1, 2015 a transfer meeting was held between Ms. J. and hospital staff and a new worker for the Society, Ms. C. Lutfy, that began working with the family to plan for A.'s discharge which was to take place on or about May 15, 2015.

[114] Discussions and planning began regarding the return of A. to his parent's care and for this they needed to secure financing for themselves and A.'s needs. There was the need for him to return to the hospital after his discharge on a regular basis to assure that his main line was maintained. The parents were resistant to this as Ms. J. had been caring for A. in Alberta. There were discussions about the need for them to purchase a pump to help with his feeds as they did not have OHIP or assistance in place as they had just moved to Ontario. Further, it was not certain where the family was going to live.

[115] Initially there was discussion about A.'s family having an apartment which proved to be an apartment belonging to a brother of A.'s father. This brother eventually moved, leaving them without a place in Toronto. When the Society assisted Ms. J. to locate a home through the Toronto Housing Authority (THA) it was discovered that A.'s father had a previous outstanding debt owing to THA which caused some difficulties between Ms. J. and A.'s father as she was not aware of this. There was some planning that A. and Ms. J. would move to a shelter.

[116] In June 2015 A. had ostomy reversal surgery at HSC and then developed chronic diarrhea and also was vomiting quite a bit. Ms. J. testified that according to her understanding, the practice she was aware of from Stollery Hospital in Alberta was to reduce or stop his feedings and hydrate A. for two continuous days. This was not done at HSC. It was at this point that Ms. J. and the hospital staff had differences about A.'s care. The hospital staff noticed the times that Ms. J. would stop his feeds and as well she provided to A. in July both ginger water and a diluted fruit known as Baobab.

[117] At trial Ms. J. admitted to providing her son with these liquids. This evidence came second-hand through Nurse Belza who testified that she was informed of this through other staff that witnessed Ms. J. administering the ginger water. Nurse Belza testified that the hospital's main concern with Ms. J. was not being open and being reluctant to share this information. The hospital initially felt it was a sugar drink when it turned out to be less so. The main concern also was that Ms. J. was not forthcoming in sharing information regarding A.'s intake and discharge monitoring his fluids in order to assess whether or not he was properly hydrated.

[118] It appears that Nurse Belza spoke to the Society about Ms. J. giving A. these substances prior to having an opportunity to review the same with Ms. J. as she had left the hospital that evening when this was brought to the hospital staff's attention.

[119] It was the Society staff that first broached this issue with Ms. J. on July 24, followed by Dr. Wales. When Dr. Wales testified he spoke to Ms. J. about the need for communication and trust, and open dialogue in order for all to feel comfortable with the plan going forward to care for A.'s needs. He noted in fairness to Ms. J. that the substance that she provided to A. has been used to manage diarrhea in different parts of the world. The issue is the need for open communication so that all are aware of A.'s care.

[120] It was after this incident that the Society received reports that Ms. J. was not open to sharing information with the nursing staff. It was noted that Ms. J. at times lacked control over her emotions and her temper would flare up, challenging medical staff and other professionals and making it difficult to have any conversation regarding A.'s needs.

[121] In addition to the above, the Society felt that Ms. J. did not have realistic and consistent plans for the care of A. to address his complex needs both in the short-term and long-term.

[122] The Society had concerns about A.'s 24-hour medical attention that he needed as well as the conflict that Ms. J. showed to both medical and social workers assisting in A.'s life.

[123] It was these concerns that led the Society to return to court on July 30, 2015 and requested the apprehension of A. which Justice Brownstone granted.

[124] This led to a long period of time of difficulties between Ms. J. and the Society that has impacted on A.'s care. Ms. J. was open at trial that she shut down and at times was argumentative because of the accusations that she could not care for her son and might have been accused of hurting him when she provided to him ginger and Baboa, both substances that she has used culturally and had provided to her son in preparing his foods while they lived in Alberta.

Finding in Need of Protection

[125] The Society seeks a finding that the child A. is in need of protection pursuant to sub-clauses 37(2)(b)(i) and 37(2)(e) of the Act. These clauses read as follows:

Child in need of protection

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

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

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

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

(e) the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child's parent or the person having charge of the child does not provide or refuses or is unavailable or unable to consent to, the treatment;

[126] Upon review of the evidence it is my opinion that there is evidence to support a finding that A. is a child in need of protection pursuant to section 37(2)(b)(i) of the Act in that there is risk A. may suffer physical harm caused by Ms. J.'s failure to adequately care for, provide for, supervise or protect her son.

[127] The Society must prove causation by act, omission, or pattern. It is not necessary to prove intention: Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903, 2009 ONCA 903 (Ont. C.A.). Physical harm caused by neglect or error in judgment is still physical harm. But, it must be more than trifling physical harm. CAS Niagara v. P.T. (2003), 35 RFL 290; Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458.

[128] This is based on the following findings of fact:

1. When Ms. J. and her son arrived from Alberta she had a tenuous support system with none at all in place in Toronto.

2. The transfer from Alberta was done under the supervision of NCFS. A. had been apprehended as there was a "perfect storm" at the time that hit Ms. J. in Fort McMurray with her losing housing, her work permit had expired without permanent residence being granted and her EI benefits had run out.

3. At the time her husband B.M.N. was not in Canada to help in A.'s care.

4. When Ms. J. and her son arrived at HSC her son was assessed with significant ongoing medical and developmental needs that required the close attention of the GIFT team. These have been reviewed in detail above in Dr. Wales and Dr. McDonald's testimony which the Court accepts as factual findings re A.'s medical and development state at the time of apprehension and fundamentally today.

[129] It is my finding that A.'s medical needs were substantial when he arrived in Ontario and continue to be significant, although improved now.

[130] The Court can easily see how at first blush A.'s medical needs could overwhelm and in themselves cause one to consider these enough to tip the balance for a finding in need of protection if a parent is having difficulties in addressing the basic needs to plan for the adequate care for a child with A.'s needs.

[131] During the trial Ms. K. Botkova, the mother of three from Edmonton, testified regarding Ms. J.'s care for A. just after his birth. She met Ms. J. in November 2012 as her son and Ms. J.'s son were hospitalized at the same time around their births.

[132] Ms. Botkova's son also feeds through a G-tube and has other significant medical needs that require her daily attention similar to those as A. In particular, her son is fed in the evening similar to A. This requires her to be up in the evening to monitor the feeds and the pump that assists in his feeding via the G-tube and to listen to the pump alarm when the bolus feed is to be replenished.

[133] Ms. Botkova was called as a witness in this trial in part because she is doing this by and large on her own during the week while caring for two older children. Her husband is at home on weekends but works out of town during the week.

[134] She recalls while their sons were at the hospital she witnessed Ms. J. from approximately November 2012 through to June 2013 caring for A. daily while hospitalized. She recalled Ms. J. would be there in the morning to help wash, dress and feed her son. She would be at the hospital on her own working with him throughout the day and interacted with staff to approximately 9:30 in the evening during this period of time.

[135] She recalls having heart-to-heart discussions with Ms. J about their children with permanent high medical needs and how this would shape their lives as mothers to their sons.

[136] It is the Court's finding that A.'s medical needs had been addressed more than adequately by Ms. J. while in Alberta when she had a plan and resources around her. The problem that existed towards the end of her stay in Alberta, in early 2015, was that her support system and some of the basic needs for her son's care, such as a stable home and income, were crumbling around her, all without family support to assist Ms. J. in the care of A.

[137] Dr. Wales, when he testified, indicated that a single mom could care for a child with A.'s needs but needed to be linked and connected to community resources. This was not the case when Ms. J. arrived in Ontario.

[138] In addition, when workers from the Society met with Ms. J. and her husband, who returned to Canada to assist in caring for his son, the family had suggested they had housing, however this quickly dissipated when the relative, with whom they were sharing an apartment, decided to leave Toronto.

[139] Around the period May - June 2015, Ms. J. began living at HSC both to care for her son and it appears she herself needed a place to stay.

[140] In planning for A.'s discharge, the family resisted the request of the medical team at HSC to bring their son to the hospital weekly if not more frequently to tend to his main line (intravenous line) and they also had difficulty around obtaining a pump to assist with A.'s feeding. Both these needs required time and money. At the time Ms. J. was not connected with OHIP or with social assistance in Ontario because of the 6 month residence requirement to receive services locally.

[141] It was discovered in discussions between the Society and the family that the Respondent Father B.M.N. had a previous debt with the Toronto Housing Authority. This caused difficulty for Ms. J. to obtain a subsidized home in time for herself and her son and caused some difficulties between herself and her husband.

[142] The staff at HSC rarely if at that all saw Mr. B.M.N. At the hospital caring for his son. This was left entirely to Ms. J. and hospital staff and for that matter workers from the Society that were assisting in helping Ms. J. prepare a plan for A.'s discharge.

[143] Through this trial the Court has only heard about Ms. J. being there for him, along with the workers from the Society, Susie's Place, Stuart Homes and the many professional medical staff from several excellent institutions in Ontario.

[144] Anyone who is going to be caring for A. in the future requires considerable determination, skill and perseverance as well as compassion and love for this boy. His care requires consistency as noted by Dr. McDonald, in an environment that is stimulating and is as close to a home environment as possible.

[145] When Ms. J. arrived in Ontario with her son her plan was fluid. It was not certain if her husband was staying or helping. Ms. J.'s immigration status was not decided. Her housing was essentially nonexistent. OHIP and social assistance or a secure income stream required time for her to obtain the necessary residency within the province. Her son required a considerable period of time to stabilize his medical needs at the hospital.

[146] From April to May 2015 while A. was at HSC Ms. J. spent a considerable amount of time assisting the staff at the hospital to care for him. However, she also at times was frustrated and argumentative if not defiant with medical staff, which is a concern for the Court.

[147] I find that Ms. J. at times can be unnecessarily argumentative and misfocused on the primary needs of her son. In July 2015 Ms. J. failed to communicate or was unwilling to communicate for whatever reason with staff at HSC when asked what liquid she had been witnessed giving her son is concerning to the Court.

[148] The Court heard that at times Ms. J. can continue to be mis-focused and argumentative with medical professionals. She did this with Dr. McDonald during one assessment when Ms. J. was focused on a French speaking school rather than the assessment at hand. She argued with staff at Susie's Place and was at times disruptive in the care of her son. The Court also heard that at a recent meeting with Dr. Wales he was required to cut short his discussion with Ms. J. surrounding her son's developmental abilities.

[149] The Court heard that Ms. J. at times questioned whether her son's abilities are greater than what has been assessed. Although on one hand the Court can understand how a mother wants to promote a child's ability when it comes to A., it is crucial for all concerned to be clear about his needs and be willing and open to find all the resources necessary to assist him now and in the future. His needs will be physical, developmental, medical and cultural.

[150] The Court has no illusions about the fact that the caregivers of a black child from a French speaking family with developmental and medical challenges will have their advocacy skills tested when seeking both resources and respect in our community for A.

[151] There is a concern for the Court that Ms. J. can at times shut down when confronted at different times by difficulties in our community and its institutions, be it in health or education. At times she has misfocused on the issue at hand for her son which a protection concern is given the limited resources and the busy schedules of professionals as the Court has heard in this trial.

[152] On one hand the Court understands how historically unfulfilled promises and care for her son would cause Ms. J. to be cautious and defensive. It is, however, puzzling for the Court as to why she did not marshal the objective information regarding her ability to care for her son for a significant and difficult period of time in Alberta well before this trial. Rather, she simply went into, as she admits, a defensive posture when her abilities were questioned.

[153] The Court finds another risk factor to be the fact that although Ms. J. has identified similar resources in the Bowmanville area where she lives to assist her in the care of her son that are quite similar to and may overlap with those offered to him while he is in Durham in the care of the Society, her identified resources have not yet been put in place and tested.

[154] Through the course of this litigation her visitation with her son has been primarily supervised. There has been no attempt to see what she can do on her own although she has done this in the past. It is not certain to the Court why this situation persisted through to this trial and contributes to the risk at hand.

Society Planning for A.

[155] With the apprehension of A. the Society began to plan for his release from HSC.

[156] On August 26, 2015 he was placed in a specialized foster home that had skills in caring for high-needs children. Within approximately 48 hours after his placement at this first foster home the family informed the Society they could no longer care for A. It was not certain why this was the case by the end of this trial.

[157] The Society's placement department eventually found Susie's Place and on September 1, 2015 A. was transferred there. This specialized group home is located west of Belleville Ontario.

Susie's Place

[158] A. was placed at Susie's Place on or about September 1, 2015 after the specialized treatment foster home informed the Society that they could not continue to care for A.

[159] When this trial resumed in March 2017 from the last sittings in November 2016 the Court learned that A. was no longer at Susie's Place. He is now at a fourth placement in Durham Region known as Stuart Homes.

[160] The Court heard from Susie's Place's manager, Ms. A. Haggar, about the care offered by Susie's Place as a specialized treatment home that cares for persons and young children with high medical and developmental needs. It is located in Sterling Ontario, about 10 minutes north of Belleville.

[161] When A. was there, there were nine other individuals with high needs, mainly children, ages 5, 9, 12, 15, 16 and a 23-year-old. All had fragile and continuous medical needs and several cognitive delay difficulties.

[162] From all accounts, A.'s needs were being met both physically, medically and developmentally while he was at Susie's Place.

[163] Ms. Haggar reviewed his daily routine, including the evening programs available to A. There are 24-hour staff that would assist with A.'s feeding in the day and evening as well as the need to change and clean A. as he wears diapers and at the time there were six to nine diaper changes depending on his overall health.

[164] Susie's Place offered internal programming that would assist A. in exploring his environment. A. also started school at the grade 1 level in a local school. Here he was receiving extra assistance through an EA (Educational Assistant) as well as an ECE (Early Childhood Educational) teacher in addition to the main teacher in the classroom. The community nurse came in at 12 noon to his school to assist in his feeds.

[165] Ms. J. was visiting her son at Susie's Place on Wednesdays and Sundays and she was consistent in attending the majority of visits.

[166] Ms. J. was supported by the Society in taking trains and taxis to Belleville and from the train station to Susie's Place and on occasion Susie's Place staff was assisting in transportation from the train station but this proved to be not workable.

[167] Ms. Haggar did testify that at times Ms. J.'s behavior toward Susie's Place staff was challenging. She recalled Ms. J. arguing with staff, slamming doors in A.'s room and hanging up on them during attempts to have telephone contact with her son. One difficult occasion occurred March 17, 2016 when Ms. Haggar received a call indicating that Ms. J. had arrived early at Susie's Place. On this occasion there was to be a Plan of Care meeting at about 11:30 and that visits between A. and his mother were to accommodate that meeting. On that date it appeared that there was a great deal of confusion as to when Ms. J. was to begin her access and as well after CAS staff arrived for the Plan of Care meeting there was no interpreter. Because of this, Ms. J. did not participate in the meeting that was required to take place pursuant to Ministry requirements.

[168] Ms. Haggar also recalled in May of 2016 at a meeting with Dr. McDonald that Ms. J. was also arguing with the doctor and spending an inordinate amount of time talking about how A. should be attending a French language school rather than focusing on the meeting with the doctor about A.'s overall developmental needs.

[169] There was also the issue of whether or not Ms. J. interfered with the work of an outside nurse being directed by HSC to care for A.'s central or main intravenous line that he had attached to him at the time. There was some testimony at trial although not directly from the nurse about how Ms. J. and the nurse had differences of opinion regarding the placement and care for the connection to A. of this line. This line has subsequently been removed from A.

[170] According to Ms. Haggar, A. also had some developments in terms of his overall interaction with people and has accepted water in a sippy cup while at Susie's Place from time to time which was something that he did in Alberta which was an advancement in Ontario as he is overall oral-adverse.

[171] Although the Court heard that A. is no longer at Susie's Place, the Court did not receive direct evidence as to why this placement needed to be changed and was left to speculate.

[172] The Court did hear from staff at Stuart Homes, A.'s fourth placement since his apprehension.

[173] The Court asked the Society to assure that a member of this agency could testify at trial, although that was not the plan at the resumption of the trial in March 2017.

[174] These changes in A.'s caregivers are of concern to the Court. Dr. McDonald, in her expert testimony, underlined the fact that multiple caregivers for A. do not address his developmental special needs. The doctor testified that consistency in A.'s care and nurturing in a setting that is as normal as possible is the optimum environment that will allow A. to reach his full potential.

Current Society Plan for A.

[175] Ms. Cole and Ms. Holland Green gave updating testimony at the resumption of this trial in March 2017. The previous date of the trial was November 9, 2016.

[176] Both social workers provided updating affidavits: Ms. Cole's is Exhibit 16 and Ms. Holland Green's is Exhibit 17, which the Court has reviewed.

[177] From their affidavits and testimony, the Court learned that the specifics in the Society Plan for A. has changed but not its legal position of Crown wardship.

[178] A. is now placed at Stuart Homes in Durham Region. He was moved from Susie's Place on December 28, 2016.

[179] In the testimony and the questioning of both workers, it became evident to the Court that it would be important for the Court to be able to fairly evaluate the Society's plan to have someone from Stuart Homes present at trial.

[180] The Society was able to call a witness from Stuart Homes in order to evaluate their ability to care for A.'s medical, physical, developmental, cultural and spiritual needs.

[181] Since the recess of this trial in November 2016, both workers noticed an improvement in Ms. J.'s willingness to be open with the Society and her level of cooperation with both the Society and resources assisting A. in the community.

[182] Another significant development during the adjournment is that A.'s visits shifted from the Society's office to Ms. J.'s home in Bowmanville. From the workers' review of their observed visits, this has proven to be a good development for A.

[183] Both workers indicate that A. is well-cared for by Ms. J. during visits. He enjoys seeing his mother. A. recognizes and is happy to see her as she is to see him. They both described how Ms. J. is able to care for A. by changing him when required, attending to his feeds through his G-tube and grooming him.

[184] When asked if there were concerns during visits it was noted that at times there appeared to be a lot of screen time type of entertainment with A., either with an electronic device, or Ms. J.'s cell phone, which he enjoys as he loves watching cartoons such as Paw Patrol.

[185] In particular, Ms. Holland Green noted that it would be more beneficial for A.'s, linguistic and developmental skills if he was entertained through cartoon books, reading and other forms of toys that would assist him with his language, development and overall cognitive development.

[186] When asked if the workers knew if there was any particular report and/or specific direction from the numerous professionals involved in A.'s life over the past several years that screen time should be limited or some suggestion as to how to work with this issue given A.'s needs, no professional direction or report could be provided. In other words, there is no direct evidence from the professionals that would discourage this as it relates to A.'s particular needs and age and stage of development given his medical and developmental profile.

[187] Ms. Holland Green also had concerns that Ms. J. underestimates her son's medical needs and current developmental assessment. In other words, Ms. J. suggests that A. has greater developmental ability than what has been assessed.

[188] Further, Ms. Holland Green indicated that on one recent visit that she supervised, Ms. J. claimed that she does not need assistance in caring for her son.

[189] Ms. Holland Green also noted safety concerns with Ms. J.'s ability to negotiate stairs with A. She gave an example of how A., during a recent visit to Ms. J.'s home, was upstairs with her and A. fell asleep. Ms. Holland Green witnessed her bringing A. down the stairs with some degree of difficulty as he was asleep in her arms and he was slipping from her arms as she descended the stairs.

[190] In addition, on one visit Ms. Holland Green went out with A. and Ms. J. along the road near the home. This is somewhat of a rural area and cars are close by. She was concerned about a being close to the cars and suggested that he changed sides when walking with his mother outside. Ms. J. addressed this issue, however, Ms. Holland Green had some concerns, principally around Ms. J.'s ability to react quickly as she does have poor knee joints.

[191] Both workers indicated that there is a concern that A. is oblivious to danger. At times he could be a flight risk in that he could dart about or away. It should be noted, however, that when staff from his current placement at Stuart Homes testified they indicated that they did not see him as a flight risk, but rather a parent or caregiver must be careful as a child of this age tends to be spontaneous in regards to their surroundings.

[192] Most individuals that testified, either on behalf of the Society or Ms. J., did indicate that A. tends to be oblivious to danger and therefore there has to be close watch over him at all times when in the community and in general.

[193] Ms. Holland Green described the first visit that she observed at Ms. J.'s house to be "sweet" and "very nice". She kept her distance in another part of the home in order to allow the visit to unfold.

[194] She noted that they both watched TV in Ms. J.'s bedroom while she stayed in the living room and popped up from time to time to check on them. She noted that Ms. J. and A. we're cuddling together and that A.'s mother sang to him as she often has during visits and appropriately cared for A. and addressed his needs. It was here that she noted that she would like Ms. J. to do more language training with A. to encourage his language skills.

[195] Both workers were questioned about A.'s health. Both indicated that from their understanding his health is stable and that he is developing some language skills. Both indicated that they understood and noticed his expressions and gestures were developing in terms of his ability to communicate. His language is limited. They gave as an example how he covers his ears when he is unhappy or scared. This was noticed when he watched a cartoon he did not like.

[196] His ongoing challenges are medical, developmental and educational. The workers testified that his food needs are to be specially-ordered from a pharmacist. When asked what this would cost per month, the Society estimated the amount of $1000. The worker from Stuart House testified that the cost each week is $200.

[197] A. currently feeds three times during the day and continuously at night. It was noted by the workers that his bowel movements have adjusted to two to three times in the evening, which is less than before.

[198] When questioned by Ms. J.'s counsel it was agreed that Ms. J. has attended all visits since A. has been in care and in particular all important medical appointments and key Plans of Care meetings except one, which was on March 17, 2016 at Susie's Place described earlier in this Decision.

[199] On that event it appears to the Court that the March 17 2016 event was a singular, difficult and an unusual day for all concerned and not one that can be described as a continuous event throughout this matter.

[200] The Society and the workers do, however, suggest that at times Ms. J. has been argumentative to the point that it is disruptive and does not address A.'s needs.

[201] When questioned by Ms. J.'s counsel the workers did agree that she at times does sit and read with A. and has done number-counting and cuddles with him with a blanket. She has managed short walks in the community in which A. was safe and he enjoyed. She has properly fed A. through his G-tube, which is the only source through which he receives nutrition and she has properly flushed out and cared for this device.

[202] A. continues to be oral adverse which means that he does not accept food or even touching around his mouth.

[203] The workers described one incident at Stuart Homes where he grabbed up a piece of popcorn that was left on the counter and it appeared to create a concern and fuss. It is not certain from the testimony of the workers whether there is a clear direction at this point in time from the GIFT program as to what he can and cannot eat orally. In any case, on this occasion regarding the popcorn it was taken away from him by the staff at Stuart Homes.

[204] The workers in their testimony indicated that when Ms. J. was informed of this she said they could have let him have it.

[205] Subsequent to their testimony the Court heard testimony that A. has indeed accepted "food" orally from staff at Stuart Homes during their therapeutic baking classes with A. and other residents. Ms. Jones from Stuart Homes described how A., when assisting in preparing a cake, chose between two flavors of icing on a spoon. His preference is vanilla. This might appear to be nothing to the outside observer but when it comes to A., this is a step in the right direction and positive in the Court's assessment of the evidence regarding this child.

[206] It was noted in cross-examination that the Society was aware that Ms. J., when she cared for A. in Alberta, had informed medical staff there that she fed her son orally from time to time. Earlier in this trial, it was noted that A. did accept water and/or some fluid orally in a sippy cup.

[207] The staff at Stuart Homes, under the direction of the GIFT program at HSC, are encouraging A. to participate at the dinner table to watch other residents and individuals eat and generally to accept nutrition orally. This remains a brackish area of development for A. There is no question that overall, however, this must be monitored as the staff at Stuart Homes have noted that touching his cheeks and generally the area around his mouth causes A. some upset.

[208] Ms. Holland Green conceded that she has actually left Ms. J. and A. alone when she went out during a home visit recently in late February or early March 2017 to buy her lunch at a local restaurant. She indicated that she estimated this was for about 20 to 25 minutes.

[209] When questioned about why A. moved from Susie's Place to Stuart Homes the Society provided the Court with general information about how the Society concluded that Susie's Place was going to provide or give notice that they could no longer care for A. It was not clear why, nor was there direct evidence from Susie's Place as to the reasons.

[210] When questioned by Ms. J.'s counsel, Ms. Holland Green indicated in her affidavit and testimony that she anticipated there might be a placement breakdown.

[211] Both in direct and cross-examination, Ms. Holland Green indicated that it was the Society that gave Susie's Place seven days' notice that their services would be terminated under their agreement.

[212] When questioned about how the Society came to find Stuart Homes as a placement for A., both workers indicated that this was done through the Society's placement department.

[213] Ms. Holland Green testified that in order to be assured that this was a good fit for A., she went to the specific home where A. was to be placed within the Stuart Homes agency to assess the services for herself. As she put it, although this agency was known to the Society she wanted to do her own gut assessment of this location. While there, prior to A.'s placement, she met informally with staff to ask how long they had been working there and toured the facility. She recommended and insisted on a new bed for A. in the room that he would be sharing with other residents. Since A.'s placement at Stuart Homes Ms. Holland Green returned for a routine visit and noted that A. has a great connection with one particular worker named Keisha whom she had met and talked to when she conducted a pre-placement screening visit at Stuart Homes.

[214] When questioned about other parts to the Society's current plan for A., Ms. Holland Green noted that most of the services currently are all in Durham Region, such as:

1. The Grandview Centre, where A. is receiving a global developmental assessment which should be completed in May 2017.

2. His primary community doctor is Dr. Godfrey.

3. Occupational therapy and physiotherapy through the local Durham Community Care and Access Centre (CCAC) which coordinates health and outreach services for families in need.

4. His school is in Durham Region.

5. He continues to receive all of the services through HSC's GIFT program.

[215] There was some discussion that the Society has also been in touch with a Sue Baszczynski to coordinate services for A. in this region of the province. Ms. J., in her Plan, also has been in touch with Ms. Baszczynski for the same reasons.

[216] Ms. Holland Green was quite open and willing to suggest that A. is "just a lovely boy" who has made more gains since the Court heard about his development and progress at the last sitting of this trial.

[217] Ms. Holland Green agreed when questioned that she, in part, has used her professional gut assessment of the services that A. would receive through Stuart Homes. She did not necessarily question individually the qualifications of the workers at Stuart Homes. She did rely on the understanding from the placement department within the Society that this placement would address A.'s needs. She did, however, testify earlier to the fact that she wanted to be directly assured and therefore as A.'s Children's Service Worker, she conducted her own direct visit as noted above.

[218] The Court recognizes Ms. Holland Green's concern as a professional for A.'s needs, and further recognizes that she went out of her way to assure that this current placement would address his needs. The Court commends Ms. Holland Green's efforts. The Court further finds that she carried out her work on behalf of A. professionally and emotionally at the highest degree.

Stephanie Jones - Stuart Homes

[219] Stephanie Jones is a supervisor at the Shepherd residence location of Stuart Homes, located in Durham Region.

[220] Stuart Homes has taken over the primary care of A., and is the new plan for A. presented by the Society at the resumption of this trial.

[221] The Court wanted to hear directly from a representative of Stuart Homes about the services offered to better understand this new plan for A. presented by the Society.

[222] Ms. Jones testified to the following:

[223] Stuart Homes works with medically fragile children and adults with multiple disabilities. It provides 24 hour care and has worked with the Society and other agencies to provide services for children. It also contracts with private individuals for services to family members who contract with them to provide services for children and adults in one of their several residencies or provide respite care.

[224] A. is in the Shepherd Street location of Stuart Homes. Ms. Jones is the supervisor of that location. Here there are approximately 12 staff with four staff on duty during each shift. The staff is made up of developmental social workers, personal support workers, and individuals with training as early child educational training. At times there are students assisting at the home. Ms. Jones added that some of her staff were nurses that had been trained in the Philippines. These individuals currently, however, are not acting as nurses.

[225] The home has access to a program manager, a doctor, the GIFT team working with A. at HSC and a pharmacist.

[226] Ms. Jones testified that on or about December 28 2016 she went to Susie's Place after Stuart Homes' head office was contacted to offer services to A. Here she learned more about A.'s needs and whether or not Stuart Homes could accommodate his needs.

[227] Stuart Homes offers assistance to individuals with A.'s same feeding regime and through the use of a G-tube. She indicated that at the Shepherd location where A. is, there are nine residents from age 4 to 23. All but A. are wheelchair-bound and require direct assistance for most, if not all, of their daily needs.

[228] Many of the residents have similar needs, such as feeding, bathing, helping them change and transportation to medical appointments and school.

[229] Each resident's medical needs is tracked through a medical treatment report charting program known as Shared Vision into which staff input a residence's changing medical needs and appointments.

[230] Ms. Jones noted that they try to make the house as non-institutional as possible. There are four bedrooms in the location where A. resides. He has one bedroom with two other residents. In addition, there is a living room space and a quiet room space where they work with the residents doing occupational therapy and other therapeutic work. There is a basement which is off limits to most of the other residents as they are wheelchair bound. There is a door to the basement.

[231] When talking about what A. likes, Ms. Jones noted that he does like helping with laundry and is under full supervision going down the basement stairs to the machines. This activity is used to help A. with his cognitive and physio abilities. The current location where A. lives is very close to the school that he is attending, which is called Finn school.

[232] During each shift a resident is assigned a staff member. The staff, however, works in two-person teams and attempts to share some of the work involved in caring for each resident.

[233] When questioned about the training that the staff have received, they have all received training with the use of the G-tube to feed an individual as well as non-violent intervention. They do not employ restraint as well. They have CPR training and in-training on the medication yearly. A. needs assistance with his physical needs, personal care, changing of his diaper and bathing. He also is receiving assistance to properly learn how to go up and down stairs safely. He needs to hold someone's hand and the handrail when going up and down the stairs.

[234] Ms. Jones indicated from her assessment that at times A. does not have any concept of safety. He just goes. When asked if he is a flight risk she indicated not particularly or any more than a child of his age, being 5.

[235] When speaking of the gains that she has seen in A., Ms. Jones indicated that he at times helps clean and flush out his feeding tube and puts on his own feeding backpack. He is very mobile and loves getting about.

[236] He now has three meals during the day, at 12, 4, and 7:30 p.m. When one speaks of meals for A. he is fed through his G-tube in a liquid form. He has 1330 mm of Nutragram. This is a special premixed and prepared powder from food that is directed and recommended by GIFT at HSC.

[237] This food costs approximately $200 a week and needs to be pre-ordered through a pharmacist. The powder is mixed daily based on the correct amount that A. requires. What is not put in his food pouch during each meal is refrigerated.

[238] A. receives food through an evening feed, which is continuous. Basically what he does not consume during the three daily meals is given to him while he sleeps at night.

[239] In the evening his feed is continuous and at a lower amount per hour. The issue surrounding his night feeds is that as he is lying down the flow of food is reduced and the bag that contains the food must be replenished every two hours. The food otherwise must be refrigerated, which requires a caregiver to replenish the food during the evening feed every two hours.

[240] During the day when he is having his meal he can do anything. There are no restrictions.

[241] At school there is a public health nurse that attends at 12 noon to assist in preparing and arranging the G-tube for his meal.

[242] A. is getting better at dressing himself. He likes to choose certain articles of his clothes and is able to put on his shirt.

[243] When he is eating, the routine at Stuart Homes is to use his feeding time for his screen or movie time as he enjoys movies and in particular Paw Patrol.

[244] A. is very fond of electronic gadgets as any child of his age is. He is limited to approximately 3 hours per day at Stuart Homes which is spread out. At school, he has about one hour screen time as well. They do not use smart boards.

[245] Ms. Jones did speak about how A. loves to read and play board games. This helps him develop his language skills and repetition.

[246] Ms. Jones noted that A.'s language now contains the vocabulary of "bye", "help me", "I do", and he tries to say people's names. It was noted that A. is also good at saying sorry when he has thrown objects around when angry.

[247] It was noted that A. is not upset or angry a lot, but at times he can get angry, especially when he does not get movie time. When he is angry he tends to throw whatever he might have in his hand. The home tries to do recreational programs such as crafts, baking and board games in order to assist him in building his fine motor skills as well as just overall cognitive development.

[248] Ms. Jones explained that on one occasion after a meeting with his current family pediatrician, Dr. Godfrey, it was suggested by her that they go grocery shopping together. He loves the opportunity to take items that she points to from the shelf and place them in the shopping basket. On this occasion Ms. Jones was alone with him and had no difficulty working with him in this public setting.

[249] Ms. Jones ran through A.'s daily routine and medical appointments that he is required to maintain. A significant overall development assessment is awaited to be completed by Grandview. This should be done in May 2017. He of course continues to see the medical team at the GIFT program at HSC every six months.

[250] At school he works, in addition to the teacher, with an educational assistant that he will need and of course the nurse visits him for one hour to assist him with his lunch meal.

[251] Ms. Jones reported that he is well-liked at school and is making friends.

[252] There is some discussion about how he gets to and from school. Currently he is being driven by the staff of Stuart Homes. There is some talk about a wheelchair being developed for A. to be transported by a wheelchair-accessible bus in order that he be able to go to and from school in a safe manner. Currently, the buses in Durham Region do not have seatbelts and he cannot simply sit in his seat without supervision, which does not exist on the bus.

[253] In addition to his vocabulary, A. does have the ability through his facial expressions and his actions to have some communication as well as some sign language which is rudimentary at this point in time.

[254] Ms. Jones was certain that he also is speaking on occasion in French with them.

[255] The particular Stuart Homes location where A. lives does not have French-speaking staff. Any reports provided to Ms. J. to date in writing have been in English, such as Plans of Care.

The Mother's Plan of Care

[256] Ms. J. currently lives at C[…] Street East, Unit […], in Bowmanville Ontario. This is a two bedroom home where she and A. would live. Her home is subsidized.

[257] She currently is in receipt of social assistance in the amount of $760 per month.

[258] A. would be placed on her social assistance. He would also be entitled to discretionary benefits, including a special diet and the Ontario Drug Benefit Program. She would also receive the Canadian Child Tax Benefit for one child.

[259] Ms. J. would be applying for special services at home to assist A. This is a program for children with severe disabilities that assists with costs related to the care of disabled children. This fund is managed by the Ministry of Community and Social Services. She would be relying on this service to assist with A.'s communication skills and for respite support to her.

[260] A. will continue to be a patient and be seen by the GIFT program at HSC as need be and by his cardiologist, Dr. Gross, at HSC.

[261] Grandview Children's Centre is also part of Ms. J.'s plan. In August 2016 Ms. J. attended the Durham Preschool Speech and Language Program. Grandview provides specialized programs in assessing, diagnosing and providing clinical treatment and suggested resources for children with rehabilitation needs. This will assist in A.'s global delay diagnosis providing services such as occupational therapy, speech and language therapy and physiotherapy.

[262] Ms. J. wishes to enroll A. at school at Campbell's Children's School. This school is an educational partner with Grandview Children's Centre. The school services children with communication and/or multiple disabilities. Educators and therapists work together to address the child's needs. A. would attend school daily and be transported through the educational busing system.

[263] Ms. J. indicates that if A. cannot attend school at Campbell she would try to enroll him in a French language school in the Oshawa area.

[264] Ms. J. has also contacted Community Living Oshawa/Clarington. She has been in touch with the worker in charge of resources for exceptional children and youth, Ms. Sue Baszczynski, who is the same individual that the Society has been in contact with. It is through Ms. Baszczynski that referrals to relevant resources for children with high needs and disabilities are made in Durham Region. Children in this region would receive services until their 18th birthday through this agency. It is this agency that would also assist in coordinating occupational and physiotherapy workers to work with A.

[265] A. has a pediatrician, Dr. Godfrey, located in Whitby as well as a neurologist in the greater Toronto area referred by Dr. Godfrey. Dr. Godfrey is the same doctor that the Society has connected with regarding A.'s needs when moved to his current placement at Stuart Homes.

[266] As for Ms. J.'s respite care program she will be applying for this through the Community Living Oshawa/Carlton agency.

[267] It is Ms. J.'s plan to be the primary long-term caregiver of A. She will be the one in her plan to attend to A.'s daily needs as well as addressing some of his occupational and physiotherapy needs through training. She will also attend A.'s medical appointments.

[268] In addition, Ms. J. has the following individuals that are part of her plan: Kadidja Mone, Fatouma Koulibaly and Ramatou Chekaraou. These three individuals testified that they would be prepared to assist Ms. J. with respite care and hands-on care of A. All are prepared to learn from the professionals caring for A. and Ms. J. regarding his needs. They would be available to assist if A. requires to attend hospital in Toronto and if A. and Ms. J. needed to stay close to HSC in Toronto as well as assist at times at home. They address A.'s linguistic and cultural needs and as an informal community support to Ms. J. who is A.'s primary caregiver.

[269] Also part of Ms. J.'s plan is to love her son and continue to advocate for A.'s needs in our society.

Disposition

Legal Considerations

[270] 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

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

Society wardship

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

Crown wardship

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

Consecutive orders of Society wardship and supervision

4. That the child be made a ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57(1); 2006, c. 5, s. 13(1-3).

[271] Subsection 57(2) of the Act requires that I ask the parties what efforts the Society or another agency or person made to assist the children before intervention under Part III of the Act.

[272] Subsection 57(3) of the Act requires that I look at less disruptive alternatives than removing children from the care of the persons who had charge of the children immediately before intervention unless I determine that these alternatives would be inadequate to protect the children.

[273] 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 children, provided that it is consistent with the best interests, protection and well-being of the children.

[274] Subsection 57(4) of the Act requires me to look at community placements, including family members, before deciding to place children in care.

[275] In determining the appropriate disposition, I must decide what is in the children's best interests. I have considered the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

[276] In Children's Aid Society of Halton Region v. E.S.M., 2010 ONCJ 776 Justice Zisman summarizes the factors in this subsection of the Act:

The statute lists a number of factors to be considered in determining the "best interests". These include the child's needs and the appropriate treatment to meet those needs; the child's level of development and cultural background; the importance of the child's development of preserving the relationship with her parents and being a secure family member; the importance of continuity of care and the possible effect of the disruption of that continuity; the relative merits of each plan; the child's views and the degree of risk that would justify the finding that the child was in need of protection [CFSA, subsection 37(3)].

[277] 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. Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J) (1997) 23 R.F.L. (4th) 79 (SCJ- Family Branch).

[278] In determining the best interests of the children I 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 children's perspective. Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

Review and Court Findings of Evidence Since the Child Came Into Care

[279] Since A.'s discharge from HSC he is currently in his third community placement at Stuart Homes.

[280] The Society's plan for A. is a request for Crown wardship with the plan for adoption.

[281] Currently Stuart Homes is addressing the child's medical, physical and developmental needs. There is no certainty that he will not have to move over time and would do so with an adoption.

[282] A.'s medical and developmental needs continue to remain complicated and multifaceted.

[283] At the time of writing this Decision an updated developmental assessment was being completed.

[284] Evidence at trial indicated that most likely he will continue to feed through his G-tube for the foreseeable future, although there has been some progress in accepting some liquids and small amounts of food orally. Presently he requires a number of day feedings as well as a number of night feedings which requires attendance for effectively 24 hours.

[285] Most, if not all of Ms. J.'s visits with A. have been semi-supervised. During the course of this protection file Ms. J. has not cared for A. by herself other than during visits. Between the November 2016 sitting of this trial and the March 2017 sittings, Ms. J.'s visits have moved into her home and these have proven to be positive and dynamic in nature. The Society workers have noted a marked improvement in Ms. J.'s communication and cooperation.

[286] The evidence is that Ms. J. has been quite capable of caring for A.'s needs during visits both physically and emotionally. The evidence is that there is a beneficial and meaningful connection and bond between A. and his mother. This is acknowledged by the Society.

[287] There remain concerns regarding Ms. J.'s ability and her willingness to assure that when she has her son in her care that more than computer and screen time is used as a means of entertainment and educational tool such as books, board games and puzzles. Evidence of Ms. J.'s reading, singing and chatting with her son has been noted.

[288] Ms. J. has stable housing and social services for her needs and this would be available for her son. Many of the resources that she has proposed for her son's needs are the same that are currently being accessed by Stuart Homes and are in the same catchment area where she currently resides in the Bowmanville/Durham region of Ontario. These would be available to her as well.

[289] Ms. J. and a number of her friends that have testified at trial have met with the Society to explain how they fit into Ms. J.'s plan and have explained how they could help and work with her, the Society and other professionals in assisting Ms. J. in caring for her son.

[290] Evidence at trial was that although a single parent could care for a child with his needs, resources and a network of support would be important and essential. These now have been identified and established or could easily be established.

[291] A. continues to be monitored every 4 to 6 months at the GIFT program through HSC. This program is available to A. through to his 18th birthday. Ms. J. has praised this program and Dr. Wales and has worked with the program and is willing to continue.

[292] Ms. J.'s immigration status has been clarified and settled. She is a permanent resident of Canada.

[293] There remains some evidence and a concern that at times Ms. J. does question the developmental diagnosis of her son and she suggests his abilities are greater than how they been assessed thus far by the professionals. It should be noted that A.'s overall developmental assessment through Grandview has not yet been finalized or updated.

[294] In listening to different witnesses it appears that A. has moved forward developmentally in terms of his likes and dislikes and how he interacts and communicates.

[295] At trial, Ms. J. has acknowledged her short temper, frustration at times anger with individuals caring for her son and the institutions involved in the process. She attributes this in part to her feeling that her son was a guinea pig in the medical system in the early days of his life and how in part she perceives her ability to care for his needs has been discounted and put into question.

[296] The Society, throughout the time that it has worked with Ms. J. from the early days when her son was admitted to the HSC through to today, has provided services to A. to assure that his physical, medical and emotional needs have been addressed and developed.

[297] Ms. J., as well as the Society, recognizes the amazing professional services that HSC has provided to A. and will continue to do so. Ms. J. acknowledges that Dr. Wales and his team have improved if not saved her son's life.

[298] The Court finds that the Society's social workers have gone out of their way to assist Ms. J. in linking up with services, making suggestions and asking for clarification as to what her plans were in addressing A.'s needs in the community. At times communication has been strained and as noted in this Decision at times, Ms. J. circled the wagons and was not forthcoming with information which prolonged this litigation and was not in her son's best interests.

[299] The Court finds that the workers have shown professionalism and affection in the care and services that they have provided to A.

[300] Ms. J. at times felt that culturally the Society did not match her with the appropriate internal services of the Society. French-speaking workers have been assigned to work with Ms. J. through most of this process and/or interpreters available which has not been at all times as smooth and consistent as possible. Culturally, the Society might have assigned as a main worker to Ms. J. staff from the African/ Caribbean community as this is one of several communities that the Society provides services to in Toronto. Ms. J. would need to be creative in finding French language services in the health sector which she and her son have a right to.

[301] When considering the best interest test set out in section 37(3) of the Act in relation to the respective plans, the Court makes the following findings:

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

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

[302] The evidence presented to date indicates that Ms. J. has historically been able to address her son's physical and medical needs when resources have been in place. She did this in Alberta when his physical and emotional needs were greater than today although today they still remain substantial. The Society's current placement at Stuart Homes addresses these needs as well.

[303] A.'s needs during the evening feeds are addressed at Stuart Homes as there is 24 hour staff. Ms. J. would be required to do this on her own, which remains a concern. She has explained how she has done this in the past and intends to sleep between times of feeding and while he is at school. Her son's evening feedings are somewhat less than they were in the past but is still essential to his wellbeing.

[304] Currently the Society's plan, as compared to Ms. J.'s, is through a professional care service setting although from the evidence directly from Stuart Homes it appears that the staff are loving and caring and attempt at all times to make their services a home for the individuals that they are caring for and from all accounts A. seems happy here and has taken to this placement.

[305] Ms. J.'s plan presents a home setting where the necessary services would need to be plugged in and respite care provided to her. Stuart Homes has indicated that it offers respite care to individuals in Durham Region as well as it would be willing to provide training to the friends of Ms. J. regarding its work with A. to address his emotional, physical and educational development.

[306] When comparing the plans, Ms. J.'s plan for her son is a cultural match as well as one that addresses his religious and linguistic needs. Her testimony is that she is a Christian and a spiritual individual who prays and sings to her son regarding her faith which probably sustained his life during the difficult early days when it was suggested that Ms. J. should "… let him go". In Ms. J.'s plan her son would be part of his black African/Canadian heritage daily in all aspect of his life

[307] In relation to the child's ties to the family and extended family and community as well as the importance of continuity of care and the effect of disruption in care overall historically and presently, Ms. J.'s plan better addresses these needs. From birth through to his apprehension as well as since apprehension, A. has known his mother as a constant caregiver in his life, although the Society's services have contributed to A.'s progress there have been several moves to date. Dr. McDonald stressed that for a child with A.'s needs he requires consistency in a caregiver to develop relationship of trust and maximize his developmental potential.

[308] All concerned recognize that A. has a close emotional and loving bond with his mother. Although at times a combination of her care and professional intervention sustained A.'s life as well as the level of care, it is Ms. J. that holds the institutional memory and the overall comprehensive understanding of her son's needs and the interplay between his physical and changing developmental needs.

[309] In Ms. J.'s plan it is this last point that needs strengthening. It will require her to work closely with the professionals to better understand her son's developmental profile to maximize services to assist A. in his development. Ms. J. will need to maintain and implement therapy and services on a daily basis for A. to sustain gains in his development.

[310] Ms. J. was the individual that questioned professionals along the way from birth through the years of care on a number of fronts. This aspect of Ms. J's advocacy for her son, needs to be refined. She must find the balance of accepting advice and help and when to question or challenge this advice, never losing sight that it's all about services for her son and not about her. This will be challenging in our evolving community that struggles with racial profiling in all our institutions and availability of French language services as well.

[311] The Court however recognizes that it was and is Ms. J.'s persistence that has permitted A. to contribute to us all.

[312] From all accounts, A. expresses his likes and dislikes. He enjoys activities, fun, learning, laughter and shows love, affection and empathy. He has his own limited language and expressions. It is evident to the Court in listening to the witnesses that have interacted with A. that he has touched them all - in particular the social workers from the Society. This young boy challenges us all to reflect on how we go about our lives and makes us humble. This is a great contribution of A. to our community.

[313] In relation to section 37(2)-8 of the best interest criteria, the above has reviewed the respective merits of the proposed plans of the Society and that of Ms. J.

[314] In terms of subsection 9, the child's views and preferences, to the extent that A. has shown his love and affection to his mother, can be recognized.

[315] In determining the best interest of the child, the Court must assess the degree in which the risk concerns that existed at the time of apprehension still exist today. This must be examined from the child's perspective: Catholic Children's Aid Society of Metropolitan Toronto v. CM., 1994 Can LII 839 (SCC), [1994] 2 S.C.R. 165 (S.C.C.).

[316] In terms of points 11 and 12 in the best interest test there remains a degree of risk for A. in the care of his mother. This is much less than when Ms. J. first arrived with her son in Ontario in 2015. Ms. J. has progressed both in her attitude and views in working with professionals. Her frustration and argumentative style at times is still present but much less so. A.'s medical profile has improved.

[317] A. has grown physically and developmentally. This last part has yet to be fully analyzed and will need close attention to implement proper services in order for A. to maximize his development.

[318] Ms. J. indicated that she is thankful of the work of HSC and is prepared to continue to work with the Society to address her son's needs. In addition, her level of cooperation with the Society has improved as noted by the workers at the resumption of the trial in March 2017.

[319] It is the Court's finding after considering the above evidence that Ms. J. has moved and changed in her attitude and is able to work with professionals needed to address her son's needs and is capable of caring for her son's physical, developmental and emotional needs and it is in A.'s best interests to be in her care.

[320] This is not an experiment or giving Ms. J. one last chance, but rather there is a demonstrated basis for such a determination that Ms. J. is able to parent her son without endangering his safety. Children's Aid Society of Winnipeg (City) v. R., 19 R.F.L. (2d) 232 (Man. C.A.); Children's Aid Society of Brockville, Leeds and Granville v. C., 2001 Carswell Ont. 1504 (Ont.Sup. Ct.).

[321] Based on the above, the Court finds that it is in the best interest of A. to be placed in the care of his mother, Ms. J., for a period of six months, subject to Society supervision.

Transition and Supervision Terms

[322] The Court has considered the logistical challenges that the mother will be facing transitioning her son into her care. There will need to be a transition of her son to her care between his current placement and services to her. A meeting should occur between the staff at Stuart Homes Ms. J. and the Society.

[323] Ms. J. will be required to put in place school and/or daycare and other activities for her son that should to be available to him on a daily basis. Financing for his food prepared by a pharmacist under the direction of the GIFT program, speech and physiotherapy will need to be put in place either in the community or at Ms. J.'s home.

[324] The results from the Grandview overall developmental assessment should be available now and a meeting between all parties and Grandview should take place, if it has not already, to review what their professional assessments and recommendations are. These will need to be acted on.

[325] The medical team at the GIFT program will need to be notified of this change in custody as well as A.'s pediatrician.

[326] It is the expectation of the Court that the Society and Ms. J. will arrange a schedule that will see A. spending of full days, weekends and weekdays overnights leading to full integration of A. into his mother's care over the next 30 to 40 days. The Court will not set the schedule as this must be done in coordination with services to assure that it is a successful transition.

[327] It is highly recommended by the Court that a meeting between legal counsel and their respective clients is held to map out this transition.

[328] Given that this will take some time between the Court's order as noted in this Decision, I have considered the need under sections 70(1) and 70(4) of the Child and Family Services Act and have determined that a brief extension of time for A. to be in the care of the Society is in A.'s best interests. Kawartha – Halliburton Children's Aid Society v. K.M., O.J. No. 5047 (Ont. Sup. Ct.). It would be detrimental to A. in this case to rush this process for the sake of a strict compliance with a time limit. Catholic Children's Aid Society of Toronto v. S.S., 2001 ONCJ 803.

[329] The Court is acutely aware of the need to address A.'s best interests which includes a consideration of the time requirements set out in the Act, to achieve a resolution that does not prolong the uncertainty of a child's life. Children's Aid Society of Ottawa v. J.S., 2017 ONSC 108; F.B. v. S.G., 16 R.F.L. (5th) 237 (Ont. S.C.).

Final Order

1. Mr. B.M.N. is noted in default of these proceedings.

2. The statutory findings are made as set out on page 2 of the amended protection application pursuant to subsection 47(2) of the Act.

3. The child A. is found to be in need of protection pursuant to sub clause 37(2)(b)(i) of the Act.

4. A. shall be placed in the custody of his mother, Ms. J., subject to the terms of Society supervision for a period of six months.

5. A. shall transition into Ms. J.'s home as follows:

   a. A week from the release of this Decision the child shall spend full days at his mother's home followed by overnights extending these into a full-time stay with the schedule to be set between the Society and the mother.

   b. This transition schedule shall be set and modified by the parties, such as times and dates, with the understanding that the transition shall not exceed 40 days without prior approval of the Court.

6. Ms. J. shall permit announced and unannounced visits by Society workers to the child A., whether the child is at home, at school, at daycare or in the community.

7. Ms. J. shall permit a Society worker to meet privately with the child.

8. Ms. J. shall sign all consents and authorizations required by the Society after a brief period of consultation with her counsel, if required, in order for the Society be able to speak with the child's school, daycare, doctors, or any other service providers.

9. Ms. J. shall register her son as a patient with a pediatrician and notify the GIFT program at HSC that she is caring for her son and that he is in her custody.

10. Ms. J. shall take the child to all scheduled therapy evaluations and treatment sessions such as speech and physiotherapy.

11. Ms. J. should develop a home educational/entertainment program for her son that balances electronic screen time with books, music and board games and share this with the Society.

12. Ms. J. shall take the child to all necessary appointments with the child's pediatrician and the GIFT program at HSC.

13. Ms. J. shall be the child's primary caregiver and notify the Society of the name of any individual that is assisting her in the care of A. at home or in the community. Any member of this "community care team" should receive the necessary training to care for A. by attending a transitional meeting with A.'s current caregivers, and be trained by Ms. J.

14. Ms. J. shall notify the Society of any change of her address or family constellation within 24 hours of such changes occurring.

15. Ms. J. and the Society shall mutually work to assure that A. obtains and attends school, daycare and camp programs daily and obtain all subsidies necessary to assure that these programs are available to him to properly address his developmental needs.

16. Ms. J. and the Society shall work mutually to assure that a public health nurse is located and engaged to assist with the feeding of A. while at school and all day programs.

17. Ms. J. and the Society shall mutually work to access all funding sources to assist Ms. J. to financially support the child and provide for A's needs.

[330] Finally, the Court wishes to thank counsel for the Children's Aid Society of Toronto and Ms. J.'s counsel for their professional assistance throughout this trial and for the professionalism and care provided to A., and his family by Society social workers, community workers and medical personal and doctors.

Released: May 17, 2017

_______________________________

Justice A.W.J. Sullivan