WARNING

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

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

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,

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

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

(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

ONTARIO COURT OF JUSTICE

DATE: 2017-06-19

COURT FILE No.: Toronto C82144/15

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO

Applicant

— AND —

CH. TO. (MOTHER) AND KE. MC KI. (FATHER OF JO. AND CA.)

Respondents

Before: Justice Robert J. Spence

Heard on: 5-9 and 13 June 2017

Reasons for Judgment released on: 19 June 2017

Counsel

Ms. Lisa Hayes — counsel for the applicant

Mr. Sunny Vincent — counsel for the respondent mother

No appearance by or on behalf of respondent father, noted in default

No male parent for the child Mo.

SPENCE J.:

Introduction

[1] This is an amended Status Review application brought by the Children's Aid Society of Toronto ("society"). The society is seeking an order that the three children be made Crown wards, with no access, for the purpose of adoption.

[2] The children, all boys, are Jo. age 7 years, Ca. age 4 years and Mo. age 22 months. They were apprehended by the society, and have been in the society's continuous care since December 5, 2015. They have been living with the same foster family since that date.

[3] On May 18, 2016, the society and the mother signed a Statement of Agreed Facts ("SAF"), in which the children were found to be in need of protection pursuant to section 37(2)(b)(i) and (ii) of the Child and Family Services Act ("Act"). The children were all made society wards for a period of six months, with access to the parents in the discretion of the society.

[4] The mother is opposed to the society's current request. She seeks an immediate return of all three children to her care. She would be content with a supervision order.

[5] The mother has lived with the maternal grandmother ("grandmother") since the mother arrived in Canada in 2012. Her preference is that the children be returned to live with both herself as well as the grandmother. Her alternative request is that if the court does not conclude it is in the children's best interests to reside with the mother and the grandmother together, she is prepared to live alone and be the sole caregiver for the children.

Background

[6] The family first came to the society's attention in February 2014 when then three year-old Jo. wandered into the apartment unit of a neighbour in the building in which the mother and the children were living. The neighbour reported concerns to the police about lack of supervision. In turn, the police reported to the society.

[7] More specifically, the mother and the grandmother acknowledged to the society that they had allowed Jo. to discard garbage outside the apartment without adult supervision. The mother and grandmother told the society they would stop this practice after the involvement of the police and the society. The society then closed its file.

[8] On June 4, 2014, the society received a report from a community practitioner that mother was not managing Jo.'s behaviour issues; nor was she obtaining the necessary supports that had been recommended to her for Jo.'s speech and language deficits.

[9] The society investigated and determined that mother did not grasp the extent of the problems, even though those problems had been identified by a number of professionals, including Sick Kids Hospital. The society determined that mother would benefit from ongoing supports and parenting assistance so that she could better understand Jo.'s behaviour as well as his special needs. The society felt it was important for mother to learn more appropriate parenting techniques which would better allow her to set behavioural limits. The society also wanted mother to seek out appropriate resources and supports to assist in addressing Jo.'s needs.

[10] The society transferred the file to a family service worker in August 2014. In July 2015 the society's file was transferred to the present primary family service worker. The society's file has remained opened continuously since then, to the present time.

[11] The present family service worker testified that when she assumed carriage of the file in July 2015, she met with the mother, the grandmother and the prior family service worker. The prior worker identified the focus of the needed services and the three goals for the family, all of which were agreed upon between the society and the mother. Those goals were:

(a) Jo. and Ca. to attend speech and language therapy;

(b) Ca. to attend daycare; and

(c) Mother to attend individual counselling with Ms. Donaldson from Women's Health in Women's Hands.

[12] In the subsequent months, the society ascertained that a daycare spot had become available for Ca. However, mother failed to follow up with the daycare centre and take the steps necessary to secure that spot for Ca.

[13] The society also learned from mother that she was not prepared to follow up with Ms. Donaldson from Women's Health in Women's Hands because mother said it was too far from where she lived and she was too busy.

[14] In subsequent follow ups by the society, the worker learned that the mother had failed to make any headway in obtaining speech and language services for Jo. and Ca. The mother had also failed to obtain a dentist for the children.

[15] On November 24, 2015, the mother telephoned the worker from the office of a speech and language pathologist. However, that pathologist spoke to the worker and advised that she could not provide services for Jo. as he was over the age limit. The worker did tell mother that she was pleased that mother had at least taken some steps toward addressing the children's needs.

[16] On December 5, 2015, all three children were apprehended by the society as a result of certain events which are captured by the SAF which the mother subsequently signed on May 18, 2016.

[17] I extract the following from that SAF:

The family was investigated by the society on February 10 to March 11, 2014, as [Jo.] had wandered into another resident's apartment unit in her building. After the child had been returned to the family, the neighbour reported concerns of supervision to the police, who then made a report to the society. The concerns were verified, as [the mother and the grandmother] acknowledged having allowed Jo. [age 3 years] to discard garbage outside of the apartment without adult supervision.

On December 5, 2015 the police were notified that the children were left at home alone as the mother and grandmother had been taken by police to hospital due to erratic, threatening and concerning behaviour in the community. There was also a concern regarding the condition of the home. It was reported that there was dirt, cockroaches, feces on the washroom floor, limited and rotting food, items in the crib and clothing strewn throughout the surfaces of the home. There was a barrier of household items placed outside in the hallway and the door to the apartment was found to be ajar. The children were found asleep on a mattress (unharmed) and the baby was found to have no pants or diaper on. The children were apprehended that day as both caregivers (mother and grandmother) were hospitalized under the Mental Health Act and there were no other known caregivers for these children.

[18] On December 10, 2015, the case management judge, Justice Carolyn Jones made a temporary without prejudice order placing the children in the care of the society, with access in the discretion of the society. The maternal grandmother appeared in court on that day; the mother did not as she was still in the hospital, pursuant to her Mental Health Act admission.

[19] On December 17, 2015 the grandmother and the mother had their first supervised visit with the children.

[20] As a result of events which occurred at that visit, and which I will describe in greater detail later in these reasons, Justice Jones made an order on February 2, 2016, giving the society complete discretion over the mother's visits, and permitting the society to limit or restrict contact entirely between the grandmother and the children.

[21] The society did not permit the mother to have access with the children following that visit, until the access visits resumed on March 7, 2016. The society has not permitted any visits by the grandmother since December 17, 2015.

[22] On May 18, 2016, Justice Jones made an order approving irregular service on the father of the two older children, by mail, in St. Vincent. Justice Jones also noted the father in default, deeming service to have been effective as at March 9, 2016. On the same date, Justice Jones made an order that the biological father was not a "parent" of the child Mo., as defined in the Act.

[23] Also on May 18, 2016, the court accepted the SAF for filing, and made the requested order for a finding in need of protection and a 6-month society wardship order for all three children. Justice Jones ordered that access be in the discretion of the society.

[24] On November 24, 2016, the first return date of the Status Review application, the society advised the court that it would be amending its Status Review application to seek an order of Crown wardship for all three children.

[25] On February 8, 2017, the maternal grandmother brought a motion, seeking to be added as a party. On March 3, 2017, Justice Jones delivered oral reasons dismissing the grandmother's motion.

[26] On April 5, 2017, the father of Jo. and Ca. was once again noted in default, this time on the amended Status Review application, having been served effective December 8, 2016 in St. Vincent, and not having filed an Answer and Plan of Care. The case was then scheduled for the Assignment Court trial list and assigned to me for trial.

The Events of December 17, 2015

[27] This was the first scheduled access visit following the apprehension on December 5, 2015. When the three children were brought into the access room to visit with the mother and the grandmother, the grandmother began to roughly grab at Ca., pulling on his hair, opening his braids and roughly combing his hair.

[28] The grandmother also treated Jo. in a similar fashion. Jo. indicated that he was being hurt. When the access supervisor asked the grandmother to stop because she was hurting Jo., the grandmother responded "who are you, you are not his mother, she is his mother" (pointing to the mother).

[29] Both the mother and the grandmother angrily insisted that the children were being sexually abused by the foster mother. The mother placed Mo. on the hard floor, with nothing soft underneath him and she removed his diaper until he was naked. At the same time, the grandmother removed Jo.'s clothes, pointed to his penis and stated, "they sexed you didn't they". She grabbed his penis and his buttocks and stated, "say they molested you". Jo. appeared to be very frightened.

[30] The worker then intervened, taking Ca. by the hand, and advised the mother and grandmother that she was terminating the visit because the children had become so upset by their behaviour.

[31] By that point, the mother had completely removed Jo.'s clothes, and he was standing naked and crying. The mother was poking his body and pointing out certain marks. She had also instructed him to stand while she took pictures of him with her phone.

[32] Then mother turned to Ca., touched his penis and stated "They touched you didn't they, they pulled it didn't they?" Ca. was crying, tears running down his face. The worker deposed that mother then began to "screech" and pull Ca.'s buttocks apart, insisting that he had been abused. By this time, all three children were crying loudly, and they appeared very frightened.

[33] The children's cries attracted other society workers into the room who, in turn, assisted the access supervisor to calm the children and remove them into another room. Security personnel had to intervene to remove the mother and the grandmother from the building.

[34] In cross-examination, the mother was asked whether she genuinely believed the children were being abused by the foster parents. The mother responded: "it needs to be seen" and the entire incident was a "set-up", and she just needs to get her kids back.

[35] The mother was asked at trial what the children were doing when she was removing their clothes. She acknowledged that the children were crying, but she did not understand that the cause of their cries was the manner in which the mother and the grandmother were treating them. Instead, the mother stated, "there could be lots of reasons why they were crying".

[36] Mother also stated that she could not understand why the society stopped the visit on that occasion, and why the society prevented further visits by the grandmother.

The Society's Protection Concerns

[37] The society has a number of protection concerns, all of which taken cumulatively, the society argues, present such an overwhelming risk of harm to the children that returning the children to the care of the mother would be contrary to their best interests.

[38] I agree with the society. In the following sections of these reasons, I will discuss those protection concerns and the risk of harm to the children posed by those concerns.

a. The Grandmother's Mental Health

[39] As I noted at the outset of these reasons, the grandmother and the mother have lived together since the mother's arrival in Canada in 2012. Given that the two of them were jointly caring for the children prior to the apprehension, the status of the grandmother's mental health very much impacts on the children's wellbeing.

[40] On May 4, 2017 the society served on mother's counsel her Notice of Intention to rely on reports of practitioners, pursuant to section 52 of the Ontario Evidence Act. Mother's counsel did not respond to that Notice. More specifically, he did not express his intention to cross-examine the practitioners on their reports.

[41] The reports on which the society relies, pursuant to that Notice are:

(a) Consultation report of Dr. Lakha Singh dated December 8, 2015;

(b) Discharge summary of Dr. Lakha Singh dated March 13, 2016;

(c) Mental Health Progress report of Dr. Mohammed Hussain dated March 16, 2016; and

(d) Psychological report of Dr. Daniel Fitzgerald regarding Jo., dated December 6, 2016.

[42] Before I turn to the substance of the various reports, I wish to address the law respecting the opinions expressed in those reports. I do so out of an abundance of caution, notwithstanding that mother's counsel did not object to the admissibility of those reports.

[43] Traditionally, opinions expressed by witnesses could only be admitted into evidence if the witness was qualified by the court as an "expert". However, in the case of Westerhof v. Gee Estate, 2015 ONCA 206, the Court of Appeal clarified the distinction between experts retained strictly for litigation purposes and other experts such as treating physicians. While that clarification dealt with the wording of Rule 53.03 of the Rules of Civil Procedure, that same reasoning was subsequently imported into Rule 20.1 of the Family Law Rules, in the case of Jewish Family and Child Service v. S.K., 2015 ONCJ 246, a decision of Justice Roselyn Zisman. At paragraph 151 of her decision, Justice Zisman states:

In overturning the decision of the Divisional court [in Westerhof, supra], the court explained that experts "retained by or on behalf of a party" to provide opinion evidence in relation to a proceeding (referred to as "litigation experts") have an overriding duty to provide evidence that is fair, neutral and non-partisan and within the expert's area of expertise and are required to comply with the duties set out in Rule 4.101 and that their reports must comply Rule 53.03 and Form 53; whereas a broader group of witnesses who give opinion evidence that would include treating physicians who form opinions based on their participation in the underlying events (referred to as "participant experts") or other experts who form opinions based on personal observations or examinations relating to the subject matter of the litigation other than the litigation (referred to as "non-party experts") are permitted to provide evidence without complying with the requirements of Rule 53.03.

[44] The various reports I referred to earlier fall within the category of reports prepared by participant experts, as described by Zisman, J. in S.K., supra. As such, the opinions expressed in those reports are admissible, and this court is entitled to rely on the opinions expressed therein.

[45] I turn first to those reports that address the grandmother's mental health, beginning with the report of Dr. Hussain dated March 16, 2016. Dr. Hussain is a Psychiatrist registered with the College of Physicians and Surgeons Ontario. Since April 2010 he has been a staff psychiatrist with the William Osler Health System, working at the Etobicoke General Hospital.

[46] In or about December 7, 2015, Dr. Hussain attended on the grandmother when she was brought to the Etobicoke General Hospital emergency department for a psychiatric evaluation. She had been brought there as a result of the earlier-described incident on December 5, 2015 and, more particularly, because it had been reported to Dr. Hussain that she was found at a gas station with the mother, attacking other people, necessitating the involvement of the police.

[47] Dr. Hussain restarted her on psychotropic medication and admitted her to hospital from December 7 to December 9. Upon discharge Dr. Hussain advised her to continue taking Seroquel XR 50 mg in the morning and 150 mg at night. In his report, Dr. Hussain states:

She is not able to understand the fact that it was not wise to leave the young kids unattended [when she and the mother left the home on December 5th]. . . . She has also not been taking any psychotropic medications and throughout the interview with the writer her speech was pressured and her mood was somewhat labile. She continues to have no insight into the circumstances leading to having Children's Aid Society involved in the care of the children . . . . She continues to minimize the whole situation leading to her grandchildren to be under the care of the Children's Aid Society. . . . She seems to have limited insight into the needs of taking her medication and her judgment remains questionable.

[48] Dr. Hussain did not provide the grandmother with any follow-up appointments, as he felt it would serve no purpose given the grandmother's stated intention to not take her medication. He stated: "her care will be terminated due to lack of compliance with treatments".

[49] Dr. Hussain diagnosed the grandmother with "Schizoaffective disorder".

[50] Grandmother testified at trial that while she was still living in St. Vincent, she had been taken to a mental hospital because it was thought that she was at an immediate risk to commit suicide. She said that she had no intention of doing so; nor was she actually diagnosed with a mental illness until she later came to Canada.

[51] In her testimony, the grandmother stated that when she was subsequently diagnosed with a mental illness in Canada, she was the only one of 12 siblings to be so diagnosed. Dr. Driver at St. Mike's Hospital had prescribed her with Seroquel some years earlier. However, in 2011 she left Dr. Driver and made an appointment to see Dr. Hussain. She then stopped seeing Dr. Hussain in around 2014 and she did not see him again until the incident in December 2015.

[52] The behaviour and testimony of the grandmother at trial tended to reinforce the disorganized state of the grandmother's mental health, as discussed in the following paragraphs.

[53] She acknowledged removing the children's clothing at the December 17th access visit, the visit which caused such distress to the children. She acknowledged that the society told her later that it had investigated her concerns about sexual abuse and that the investigation did not substantiate the grandmother's concerns. Notwithstanding this, the grandmother kept insisting in her testimony that the children were in fact sexually abused. She had no evidentiary basis for continuing to assert this belief.

[54] She was asked whether she might have handled the children more appropriately during that visit, rather than the way she acted. She insisted she had the right to do what she did. So even with the hindsight of 18 months, and the opportunity to reflect on her actions over that period of time, she remained absolutely unmoved in her position and in her belief that the children had been sexually abused.

[55] Perhaps more significantly, she remained adamant that regardless of her belief, there was nothing wrong with the way she had treated the children on December 17, 2015.

[56] Between December 28, 2015 and January 12, 2016, the grandmother left a series of telephone messages for the family service worker. Those messages included such things as:

(a) Denial that she had a "nervous mental breakdown";

(b) Accusations that the worker was a thief and a racist;

(c) The children continued to be abused by the foster parents; and

(d) One message specifically stated:

I suck up your head and your foot with the blood of Jesus with the lightening and your whole body and your hand them. If you make an attempt, an attempt to call the police I visit the Holy Ghost fire, I'll burn you with the fire of god, I'll blindfold you. I'll blindfold you, I'll cripple your hand with the blood of Jesus.

[57] The society made it clear to the mother and the grandmother that the grandmother's visits would not be reinstated until such time as the grandmother was following the medically recommended treatment, and the society could satisfy itself that the grandmother would no longer present as a danger to the children during any future access visits.

[58] It was apparent that while the grandmother had – at one time – taken medication for her mental health disorder, she had stopped doing so a long time ago. Dr. Hussain commented on this, as discussed above in these reasons.

[59] At trial, the grandmother was unable to state what she needed to do in order to satisfy the society that she no longer posed a risk of harm to the children. When she was asked whether she knew what the society's expectations were in order to permit resumption of contact between the children and herself, she replied, "No". When she was asked whether she would be prepared to undergo a medical assessment, she said she would, but only to prove that the society is wrong.

[60] Mother's lawyer asked the grandmother whether she would be prepared to resume taking her medication if Dr. Hussain were to prescribe it to her. She responded, "medication for what?"

[61] Much of the grandmother's testimony was rambling and incoherent. At times she was completely non-responsive to questions from mother's lawyer. From time to time, when mother's lawyer was asking her questions, she would reach into her bag and pull out documents or pictures and wave them around the courtroom. These were random actions from the perspective of the court; they had nothing to do with the questions she was being asked by the mother's lawyer.

[62] She was asked whether she understood what Jo.'s psychological problems are about. Once again, her response was rambling; but it was clear from her response that she had no understanding at all about Jo.'s psychological problems and his particular needs.

[63] Regrettably, nothing in the grandmother's testimony, or the other evidence which I heard throughout the trial suggested that the grandmother does not have the mental illness which Dr. Hussain's report described. In fact, virtually all the evidence in this trial reinforced Dr. Hussain's conclusions about the grandmother.

[64] Even more problematic for the grandmother is the fact that her mental illness is not only actively affecting her life, but it is unlikely to abate so long as she refuses to seek out treatment. And this mental illness, in its active state, would impact directly on the children were she to spend any meaningful amount of time with them.

[65] The grandmother and the mother have lived together continuously since the mother arrived in Canada in 2012. They were living together at the time of the apprehension in December 2015. Their lives have been inextricably entwined. While both mother and grandmother said they'd be willing to live apart if the children were returned to the mother alone, there is no evidence at all that they would actually remain apart.

[66] In fact, the many comments of the mother and the grandmother which they have made since the litigation began in December 2015 reveal that their genuine desire is to remain living together for their mutual benefit and (they believe) for the benefit of the children.

[67] While this entanglement exacerbates the risk of harm for the children, even if I were to accept that mother and grandmother would genuinely separate from one another, the risk of harm to the children is far too great even if they were to live with mother alone. I will discuss this in the next section of these reasons.

b. Mother's Mental Health

[68] Dr. Samuel Packer is a staff psychiatrist at Humber River Hospital, where he has worked since 2010. Since 1995 he has also been an associate Professor at the University of Toronto. Since 1996 he has been responsible for the psychiatric Outreach Program at the Canadian Association for Mental Health ("CAMH"). He specializes in patients with schizophrenia. About 90% of the patients he treats suffer from this disease.

[69] Based on his education, publications and experience, the court qualified him at trial as an expert in the field of psychiatry and, more specifically, in the assessment and treatment of patients with schizophrenia.

[70] Dr. Packer first saw the mother on January 20, 2016. She was referred to him from the in-patient unit at Humber River Hospital following her involuntary admission on December 7, 2015.

[71] Dr. Packer conducted a "mental status examination" of the mother and concluded that she had been admitted to the hospital in a "psychotic state". I will return to his observations and assessment of the mother; but first, it is important to understand something about schizophrenia and how this can impact on persons with that disease, according to Dr. Packer.

[72] Schizophrenia is a "cluster of symptoms" which are usually grouped into two main types of symptoms – positive/active symptoms and negative symptoms.

[73] The positive symptoms include such things as hallucinations, delusions and disorganized speech. The negative symptoms typically include such things as lack of motivation and flat mood/affect.

[74] Schizophrenia usually has its onset in a person's late teenage years, or early twenties. The illness is chronic. It cannot be cured. Treatment is medication in order to address the active symptoms. Treatment is less effective for the negative symptoms.

[75] There is a great variation in terms of a person's ability to return to a more normal type of life. The only way to ascertain a person's progress is to follow that person for a period of time after they have begun treatment, more specifically, taking the prescribed medication. The most desirable way to take medication is by injection. Only in that way, can the physician be certain that the patient is compliant with the needed treatment, whereas this is not possible if the patient simply says she is self-medicating by oral dosage. And the likelihood that the patient will actually be compliant is very low where the patient does not have insight into her illness and in fact rejects that diagnosis altogether.

[76] Given this understanding of schizophrenia, I turn to what this means for the mother.

[77] Here is what Dr. Packer had to say in respect of the mental status exam and his impressions of mother:

Speech is normal in rate and volume. Thought form may show mild disorganization, but this was hard to evaluate especially as I was not able to always understand her. Cognitively she was grossly intact. She denies any perceptual abnormalities and in terms of thought content, denies any delusions or ideas of reference, and denies any thoughts to harm herself or anyone else. Her judgment is impaired by her denial of problems. Intelligence is difficult to judge presently. Insight is poor. It is clear that [mother] was admitted to hospital in a psychotic state, the origin of which is unclear at the present time. It is very difficult to understand what is transpiring and has transpired because of her wanting to paint a picture of perfect health . . . . The current treatment of an antipsychotic medication has liked [sic] helped in terms of attenuating her psychosis at the present time.

[78] Dr. Packer recommended ongoing interventions, including antipsychotic medication, administered by injection. He expressed the preference to follow her "at least biweekly".

[79] By May 2016, mother had stopped taking her injectable medication. She had complained to Dr. Packer that she was having side effects. However, rather than allowing Dr. Packer to adjust her medication, and to continue by injection, she insisted on taking the medication orally.

[80] Dr. Packer continued to see the mother over the following months. His ongoing impression of mother was that she had impaired judgment and poor insight.

[81] He had no way of knowing whether she was actually continuing to take her medication orally because that was dependent on mother's willingness to comply with treatment recommendations. However, Dr. Packer stated that typically, persons with little or no insight do not believe they have a problem and, because of that, there is a reduced likelihood of voluntary compliance with medication.

[82] Non-compliance with medication means that the disease is not controlled, with the result that psychosis can re-occur, and the patient's judgment will remain poor. In fact, Dr. Packer testified that medication is the cornerstone treatment for persons with this disease, and those persons must take medication for the rest of their lives. While medication does not ensure that relapse will not occur, without medication, 70% will relapse within one year and 90% will relapse within two years.

[83] Dr. Packer believes that mother is at real risk for relapse because her denial of mental health problems demonstrates a lack of insight. Furthermore, her refusal to take medication and her failure to follow up with community resources places her at even greater risk.

[84] By January 2017, mother began to miss appointments with Dr. Packer. Between January and May 2017, he did not see her at all.

[85] When Dr. Packer later asked mother why she wasn't attending any of the groups that he had recommended to her, mother responded there was nothing wrong with her and she didn't need those groups.

[86] On cross-examination, Dr. Packer was asked if it was possible that his diagnosis of schizophrenia could be mistaken. Dr. Packer responded that while it is possible, it is "unlikely".

[87] Mother's own testimony very much reinforces Dr. Packer's diagnosis.

[88] Mother said that the incident on December 5, 2015 when the police came to take her and the grandmother to the hospital resulted from an altercation outside the gas station. The altercation occurred because a "white guy" she met said something "racist" to her.

[89] While she was being driven to the hospital by the police she told them about the children who were at home. She told the police that when she was released, the police would experience the "wrath of god".

[90] She testified that the entire incident and the apprehension of her children by the society was a "plan and a set-up". The society had been planning all along to take her children away from her.

[91] She acknowledged that the police were called to once again take her to the hospital on the following day, December 6th, as a result of an incident at her apartment. Once again she was released.

[92] On December 7th, the police were called again as a result of a further incident; and this time, she was admitted and remained in hospital until December 23, 2015.

[93] When mother met with Dr. Packer, she says he prescribed "needles", but she didn't understand why she needed to take medication. She said "I never believed anything . . . I did everything they said to get back my kids . . . everything was false".

[94] She agreed with Dr. Packer that she did stop taking her injectable medication and switched to oral medication because, as she described it, she was having certain side effects. Eventually she stopped taking medication entirely.

[95] By her testimony, mother reveals that she has no belief whatsoever that she has a mental illness. Rather, she believes that all of this – the apprehension and the involvement of the doctors – is some sort of a conspiracy designed to separate the children from her life.

[96] The diagnosis of active and untreated schizophrenia, resulting in poor insight and poor judgment, is likely sufficient in and of itself to conclude that the children would be at serious risk of harm were they to be returned to mother's care. But beyond the diagnosis alone, the on-the-ground actions of mother during her access visits reveal considerable deficits respecting her judgment and her ability to parent the children. I turn next to those access visits.

c. Access

[97] Erin May is a family support worker with the society. Between March 2016 and the trial, Ms. May supervised more than 80 access visits.

[98] Although there were some changes during the time the children have been in care, the typical visit routine was two visits each week; one two-hour visit for mother was with all three children; the second visit, of one-hour in duration was between mother and Mo. alone.

[99] All visits have been supported and supervised by the society.

[100] For a brief period of time, separate access visits were set up between mother and each of the two older children. However, as I will discuss later in these reasons, both Ca. and Jo. subsequently declined to visit with their mother alone, and the society terminated these individual visits.

[101] During her time as access facilitator, Ms. May conducted formal access plans with the mother, as well as seeking input from the mother as to how access should best work, with a view to enhancing her parenting skills.

[102] Throughout, Ms. May would provide feedback to mother, respecting both the positives as well as the negative aspects of the access visits.

[103] Ms. May observed a number of strengths during the period of time that she supervised mother's visits.

[104] Her evidence in chief documents 11 occasions between March 2016 and April 2017 when some of mother's positive attributes revealed themselves. For example:

(a) Mother attended her scheduled access visits regularly and in a timely fashion;

(b) Mother often demonstrated the ability to show affection toward her children;

(c) Mother would sometimes praise the children and express her love to them;

(d) Mother was consistent in expressing her desire to have the children returned to her; and

(e) There were visits when the children responded positively to mother by smiling or giving her kisses.

[105] Ms. May's evidence in chief documents those occasions when mother actively engaged with the children. For example she might choose a ball from the toy cupboard in order to play with the children. The boys would respond enthusiastically.

[106] On other occasions, she would sing with the children and encourage them to smile and laugh.

[107] From time to time, the society permitted her to take the children into the park where she would actively engage the children in games and other forms of play.

[108] Mother was aware that part of the supportive access was about receiving feedback and advice from the worker. The worker would provide that feedback and mother would generally listen. She would listen even on those occasions when she did not agree with the feedback that was given to her.

[109] From time to time the mother would turn to Ms. May and ask her how she was doing with her visit and in her interaction with the children.

[110] On occasion, mother was able to implement some of the feedback suggestions she had been given and to use that feedback to direct the children in a positive manner.

[111] Mother enjoyed bringing food for the children to eat at access visits. The food was typically homemade and often healthy. The children seemed to enjoy the food which she brought to the visits.

[112] Ms. May also noted that periodically, mother was able to be responsive to the children's physical needs. For example, she periodically noticed when Mo.'s diaper needed changing and she attended to that. She would also take the older boys to the washroom when they needed to go. She also occasionally brought oil to put on their hair or skin to make it easier to comb their hair, or to relieve skin dryness.

[113] However, there were areas of concern where mother demonstrated an inability to ensure the safety of her children during access visits. Ms. May documents 17 instances during access visits from April 2016 to March 2017 where mother was unable to protect her children from potential harmful situations – either physical or emotional. I will refer to just five examples from those 17 visits:

(a) In April 2016, 9-month old Mo. fell over while sitting on his own. He bumped his face on the floor. Ms. May intervened to pick him up and bring him over to mother, who had done nothing when this occurred. Mother didn't comment on the fall; nor did she reach out to take Mo. into her own arms to comfort him.

(b) In May 2016 Jo. climbed into a pretend shopping cart. He was six years old at the time, and Ms. May told him to stop. When he did not do so, she went to him and removed him from the cart. Mother, who was sitting near to Jo., made no attempt to stop him; she simply remained seated and laughed, without understanding that Jo. was endangering himself by climbing up into something that could easily tip over.

(c) During a visit in June 2016, mother simply walked out of the access room while holding onto Mo., and without telling either Ms. May or the other two children where she was going. She later said she wanted to talk to another parent and that she simply forgot to tell Jo. and Ca. where she was going.

(d) In February 2017, mother put gummy candies on Mo.'s tray. Mo. was about 1-1/2 years old at the time and she did not understand this was a potential choking hazard. Ms. May had to tell mother not to do this. However, mother ignored Ms. May and continued to give the candy to Mo. Even though Mo. was spitting out the candy, mother was unable to acknowledge why she shouldn't have fed the candy to her young child.

(e) During a visit in March 2017, Mo. wandered out of the access room. Mother did not notice this. Ms. May had to tap on the observation window to get mother's attention. Mother then called out for Mo. but she never got out of her chair. Mo. returned to the access room shortly afterwards.

[114] In addition to these problems, mother had difficulty reading the children's cues, and understanding when – and why – it was important to engage the children in activities in order to stimulate them. Despite some of the earlier-discussed observed strengths, Ms. May documented 23 different occasions when mother had difficulty reading and responding to the children's cues. Again, it is not necessary to provide more than just a few examples:

(a) During a visit in April 2016, the mother refused to leave her chair to engage with the children, despite the fact that Ms. May had set up mats on the floor.

(b) During a visit in May 2016, mother played with Mo., while ignoring Jo. and Ca. She then moved to a couch and sat there while not interacting with any of the children. She sometimes issued directions while sitting on the couch, telling the children to "clean up" or "put that in the bin", while not helping them at all.

(c) During a visit in June 2016, mother spent much of the time sitting on a couch, simply letting the boys play independently.

(d) In July 2016, mother did not attempt to engage the boys in play. It was left to Ms. May to bring the children to the toy cupboard. Mother simply preferred to watch TV. When Ms. May brought the boys back into the access room, mother was on her cell phone. She got off the phone for a few minutes and played with the boys, but then she returned to talking on her phone.

(e) In August 2016, mother realized that Ca. had soiled himself. She said "Ca. shit his pants". When Ms. May reminded mother not to use that language and to change Ca.'s pull-up, mother responded, "not now, I'm eating". The worker had to keep pushing mother by telling her that it must have been uncomfortable to Ca., before mother finally relented and changed Ca.'s pull-up.

(f) In December 2016, Mo. pointed at a book mother was holding. Mother did not understand that Mo. wanted her to read to him. She put the book down and did not read it to Mo.

(g) In February 2017, Mo. was acting bored. Mother did not offer toys or attempt to engage him in play. At one point she said to him in a firm voice "Come here shitter".

(h) In March 2017, while all three boys were playing together, mother was sitting apart from them and texting on her phone. Prior to that she had been watching a DVD while the boys played together.

[115] Mother's position was that the repeated instances of mother ignoring the children, or not engaging them in play, was more about helping them to develop independence. So, for example, on one particular occasion when she sent Jo. and Ca. to the washroom on their own, she felt that was a constructive thing to do, even though they were respectively six and three years old at the time.

[116] What mother did not attempt to explain in her testimony was how it was beneficial to her children that she not respond to their emotional and physical needs. So that while she was able to do this from time to time, there were many instances where she seemed oblivious to those needs.

[117] There were literally dozens of other instances where mother engaged inappropriately with the children, or failed to engage with them at all when she ought to have done so. I provide just a few of those instances as follows:

(a) She failed to set limits for the children, for example, not intervening when the children were engaged in fighting, or engaging in unsafe behaviour, or responding inappropriately to dysregulated behaviour by the children;

(b) She failed to understand the importance of being emotionally attuned to the children's needs, for example, focusing on Mo. and ignoring Jo. and Ca., admiring herself in the mirror and commenting to the children, "Is mamma sexy", or refusing to get on the floor to play with the children, stating "I look too pretty to get on the floor".

(c) She would often be openly critical of the society directly to the children. For instance, she would say to Mo. "Tracy [referring to the family service worker] has no sense. Tracy is an animal".

(d) Would often call the children by names other than their real names, for example, often calling Mo. "Isaiah" calling Jo. "Matthew" and calling Ca. "Peter", or "Sarani". She did not seem to understand that the children did not like being referred to by names other than their own.

(e) She commented to Jo. that he looked ugly in his eyeglasses. She did not understand how that comment might impact emotionally on him. Ms. May had to intervene to tell Jo. how good he looked in his glasses.

(f) On one occasion she gave Mo., who was then only eight-months old, French fries to eat. She was told at the time that it was inappropriate to give that kind of food to a child so young. And yet, having been told this at the time, she nevertheless insisted at trial that feeding Mo. french fries was acceptable because that is food from the "soil", and she, as the mother, knows "what is best for their health". She also insisted that her way of feeding the children is "cheaper". Mother's own lawyer in the examination in chief, kept trying to get the mother to acknowledge that she did in fact understand that this was a problem; but mother kept insisting that her way was the right way, and that this was just about cultural differences. Again, when he asked her if she understood that what she was doing was wrong, she responded "Nope", in absolutely rejecting any notion that perhaps the society was teaching her to do things the right way for young children. Finally, as her own lawyer kept pressing her over and over again, mother said that she would have no choice but to do things according to the rules if the children were returned to her.

(g) She repeatedly spent time on her cell phone during access visits. She was unable to divide her time between the children even when she was not making telephone calls. She explained her cell phone usage during access visits as an opportunity to speak with relatives, including the children's father and Jo.'s godparents who telephoned from St. Vincent. She was having only very limited access to her children and she seemed not to understand that the most beneficial way to spend that time was to focus solely on the children, rather than someone else who was at the other end of her cell phone. While she, the mother, may have felt that those calls were acceptable, the children at their very young age would not. All the children would have seen is their mother paying attention to a cell phone and talking to an unseen person, rather than focusing on their direct and immediate needs.

[118] Problems continued to arise during access visits. Although Ms. May did comment on the often healthy food that mother brought for the children, there were often occasions when mother brought unhealthy snacks and treats for the children, for example:

(a) During a visit in April 2016, she allowed Jo. to eat an excessive number of cookies, to the point where Ms. May had to intervene to tell him that he had eaten enough; mother had been unable to take that initiative or redirect Jo.

(b) During a visit in May 2016, mother brought chocolate covered bananas and insisted that Mo. be allowed to eat them, notwithstanding Ms. May's directive that she refrain from doing so. Mo. was 10 months old at the time.

(c) During a visit in November 2016, mother brought an excessive amount of junk food and allowed Jo. to eat two Kit Kat bars, chips and gummy worms.

(d) During a visit in March 2017, mother gave a spoonful of either sugar or salt to eat. Ca. spat it out and Jo. simply declined to eat it.

(e) During a visit in April 2017, mother gave each of Jo. and Ca. a bag of marshmallows and then allowed them to eat multiple handfuls. When Ms. May suggested that was too much sugar and that perhaps they should be limited to one handful each, mother responded that marshmallows were fine because there was no sugar in them.

[119] While Ms. May made a point of giving mother positive feedback on those occasions when mother did things well, she testified that mother was simply unable to sustain an emotionally and physically safe environment for the children. It seemed to Ms. May to be a case of possibly one step forward and (at least) one step back, with no sustained progress between December 2015 and the date of trial.

[120] In or around the summer of 2016, the society service team decided to try one-on-one access visits between each of Ca. and Jo. and their mother. Each of the two older children would have the opportunity to spend undivided time with mother in separate access visits. It would give mother the opportunity to demonstrate her parenting abilities, with only one child at a time on which to focus her attention.

[121] However, those individual visits were short-lived. Jo. participated in only three or four visits, and Ca. attended perhaps three more visits than Jo. before all of those individual visits were ended by the society's service team. Why did that happen?

[122] A number of events eventually brought those visits to an end. On one occasion, Ca.'s teacher reported that Ca. had a temper tantrum and kicked the wall when he found out the society's driver would be picking him up from school to bring him to a visit with the mother.

[123] The driver reported that Ca. cried during the entire drive from Barrie to Toronto for a scheduled visit with his mother.

[124] Both children exhibited signs of anger, sadness or distress when those scheduled access visits were on the near horizon. Ca. would often demonstrate physical resistance, such as kicking a wall. Or he would walk to the driver's car with his head down and his shoulders slumped. He would also make "angry sounds" on his way to the driver's car.

[125] Jo. exhibited less overt resistance to those visits but, according to the foster mother, he was clearly unhappy about having to attend with his mother alone, without his other siblings present. The foster mother said that Jo. used the words "sad" and "mad" to describe how he felt about the visits, whereas Ca. was more "angry" about going to those visits.

[126] The foster mother tried to encourage the two of them to go to the visits, but she eventually stopped because, when she asked them if they wanted to go, the answer was always the same, "No".

[127] The foster mother was asked if she knew why Ca. and Jo. objected so strenuously to those individual visits but they seemed to be okay with the group visits. She said Ca. (in particular) seems more willing to go to the group visits because he is "with his brothers".

[128] The foster mother was asked about her overall impression of the impact of the group visits on the boys. She responded that "they don't love the visits", but they go anyways.

[129] Eventually the society service team felt that forcing the boys to attend these visits would do more harm than good, given their clearly expressed very negative feelings about having to participate in them. It was because of this that the individual visits were terminated and the access for the older boys continued as before, with all three children together.

[130] The children's service worker testified that in her 16 years of experience doing this sort of work, and averaging about 30 cases per year, it is very rare for young children of the ages of Ca. and Jo. to express such negativity about spending time with a parent. She testified that young children of this age usually want to spend more time with their parents, not less time.

Mother's Cognitive Functioning

[131] To some extent, the issue of mother's possibly impaired intellectual functioning overlaps with her mental health issues. The two are not necessarily independent silos. Nevertheless, the evidence suggests that there is reason to be concerned about mother's level of intellectual functioning, even if her mental health issues were somehow otherwise brought under control.

[132] Returning to the evidence of Dr. Packer, in his report to mother's counsel dated November 16, 2016, he stated:

She has responded well to medication, apparently free from psychotic symptoms, but she always attempts to present herself as free from symptoms, and has no insight into what led to her hospitalization and to the idea that she might have a mental health problem. . . . My only other concern . . . is whether she has the intellectual capacity to care for her children without supports.

[133] In her evidence in chief, the family service worker stated:

On July 26, 2016, my supervisor . . . directed me to make efforts to arrange a psychological assessment for [mother] with a focus on the assessment of her cognitive ability and functioning. This recommendation was made based on my own observations and the concerns reported by others about [mother's] ability to remember and process and apply information provided to her.

[134] Later in that same family service worker's evidence, she stated that she met with mother on October 27, 2016 to discuss long term planning with her. She pointed out that the society was scheduled to hold a Branch Conference to consider permanent planning for the children. The worker expressed to the mother her concern that perhaps mother was not understanding what was being discussed or asked of her regarding her parenting of the children. In response, the mother told the worker that she had no difficulty understanding what was being told to her. The worker testified:

I suggested to her that a developmental assessment may be helpful. [Mother] responded that she has no difficulty understanding and that she is "not that kind of person" and does not need an assessment.

[135] Much of mother's own evidence also suggested that there was a serious cognition issue. For example, she was directed in her testimony to the incident of December 5, 2015 when she and the maternal grandmother left the children alone in the home in the early hours of the morning in order to go out and find shopping carts to use for carrying their laundry. When pressed by her own counsel, mother finally did acknowledge that she had made a mistake by leaving the children alone.

[136] She testified that both she and the grandmother had to leave the apartment together because they needed two shopping carts to carry their laundry. She was asked why either she or the grandmother did not remain behind in the apartment to be with the children. In this way, the other person could go out to get a shopping cart, and then that same person could make a second trip for the other shopping cart. She responded, "We needed to make one trip".

[137] She was asked if she understood why leaving the children alone was a "mistake". In other words, did she understand the protection concerns that arose from her decision? Her response was, "No one had told me about the system's rules".

[138] She did not demonstrate any comprehension that leaving three very young children alone at 4:00 a.m. or 5:00 a.m. could be dangerous for those children – for a number of different reasons. And although she had been criminally charged as a result of leaving the children alone, she ultimately felt justified in having done this when she testified that the criminal charges against her were later dropped.

[139] Returning to the society worker's suggestion that mother participate in a cognitive assessment, mother did acknowledge that this was recommended to her. However, mother testified that she told the worker to "prove" that she needed such an assessment. And because the worker didn't prove it (according to mother), mother refused to proceed with that assessment at Surrey Place.

[140] Much of mother's testimony also tended to buttress the suggestion that she has trouble understanding and processing information. When it was pointed out to her that the worker had offered information to her about supports available through CAMH and Across Boundaries, mother testified, "I don't need help from anyone".

[141] She acknowledged missing her last scheduled appointment with Dr. Packer on June 2, 2017. She said she didn't want to see him anymore because he doesn't understand how she feels. She said, "I need proof".

[142] She absolutely denied that either she or the grandmother had a mental illness. She was asked if there were other occasions when she had left the children alone. She replied "I cannot judge my mom".

[143] She was directed in her testimony to the events of December 17, 2015 when she and the grandmother forcibly removed the children's clothing and touched and examined the penis of at least one of the children. She acknowledged doing this. She acknowledged that the children were crying and very upset. She was asked whether, in retrospect, she could have handled this differently. As I noted earlier, she responded, "there could be a lot of reasons why they were crying".

[144] Beyond that, she testified that she had no understanding of why the grandmother was stopped from having further visits after that incident. She simply referred to the society worker as "my enemy".

[145] In short, mother had no understanding at all that what she and the grandmother did on December 17th had the likely effect of inflicting emotional harm on the children.

[146] Mother attended a visit on March 15, 2017, where Jo. was present. Jo. was wearing new eyeglasses which the society had arranged and paid for. When mother saw Jo. wearing those glasses, she told him that he shouldn't wear the glasses because they "look stupid". Jo. began to cry and the worker had to speak to mother privately about not being mean to the children.

[147] Mother was asked about this incident at trial. She said that Jo. misunderstood what she was saying at the time. At trial, mother attempted to clarify what had occurred by stating that what she meant was, she did not like the glasses because, "I don't appreciate the glasses because I like fancy stuff and those glasses were not fancy."

[148] The foregoing are just a few of the many examples of things which occurred which suggest that mother may have a serious cognition issue. She may simply not have the intellectual capacity to understand, process and implement information and suggestions about how to improve her parenting.

[149] However, in the end, it does not really matter whether all of these examples are reflective of diminished intellectual functioning or mental health issues, or a combination of the two. The bottom line for the children is that mother's judgment is severely impaired. Her inability to often interact appropriately with the children, her inability to understand the consequences of her own actions and the impact of her actions on the children and her inability to recognize the risk of harm which she exposes her children to, are what matters, more so than the genesis of that impaired judgment.

Dr. Paulette Crooks-Drummond

[150] Dr. Crooks-Drummond was the only witness called by the mother, apart from the grandmother. Dr. Crooks-Drummond is a counsellor, working at the Caribbean African Canadian Social Services ("CAFCAN") (formerly the Jamaican Canadian Association). She is a registered member with the Canadian Professional Counsellors Association; she has a Ph.D. in International Missions/counselling, which she obtained in 2006.

[151] She testified that mother participated in 10 therapeutic counselling sessions, once each week, beginning around June or July 2016, and ending in September 2016.

[152] She testified that the goal of the sessions was to teach strategies and techniques to parents to address issues such as anger management, time management, relationship building, child management, and anxiety/stress issues.

[153] Mother attended all ten sessions. Dr. Crooks-Drummond testified that mother was an active participant and seemed to learn what was being presented and taught to her.

[154] As part of her involvement with mother, Dr. Crooks-Drummond also attended at the society to observe mother at three supervised access visits. It is important to note that all three of these attendances occurred after the completion of the 10-week session.

[155] She described mother's visit on October 27, 2016 as a "healthy visit with her children".

[156] She described mother's visit on November 3, 2016 as "better" than the first visit.

[157] She described mother's visit with the children on November 10, 2016 as "fantastic", much better" than the two prior visits.

[158] She testified that the concerns she observed were quite minimal, and the children appeared happy and attentive to their mother.

[159] However, on cross-examination, a somewhat different story emerged. First, it appears that Dr. Crooks-Drummond did not have a full understanding of the presenting problems when she initially met with mother. She testified that mother told her she was admitted to hospital because of "depression". She had never spoken with mother's psychiatrist, nor did she have an understanding of the mental health diagnosis, or whether mother was compliant with treatment recommendations.

[160] I turn to the third and final access visit which Dr. Crooks-Drummond observed – the visit which she described as "fantastic". In fact the unchallenged evidence reveals that the following took place during that visit:

[Mother] engaged in joint activities with the children during this visit. For example, she sang and danced with them and played a "catch me" game. The children appeared to enjoy the joint activities.

[Mother] struggled to pay attention to Mo. and what he was doing during the visit. At one point Mo. was pulling on a small shopping cart and was trying to get into it when it fell on him.

On another occasion, Mo. climbed onto a chair and fell off. On two other occasions he fell after being bumped into by his siblings and once by his mother. [Mother] seemed unaware of any need to watch out for Mo. and to avert danger for him. She would, however, go to him to comfort him when he cried.

On another occasion during the visit, Jo. spoke to [mother] in a disrespectful manner. [Mother] responded by holding Jo. down in a chair and speaking to him sternly. After this incident, [the worker] took [mother] aside and discussed how a time out could be used in this kind of situation as an alternative to physical restraint.

[161] Dr. Drummond-Crooks was asked whether she had seen all of this during her observation visit on that day. She responded that perhaps where she was standing outside the room, some of her vision may have been blocked. She may not have seen everything. She said that perhaps the society worker had a clearer view than she, of what was going on during the visit.

[162] And, importantly, if these things did occur, and if she had seen them, she would not have described the visit as "fantastic". In fact, what she would have said is that mother needs to do "more to work on with her parenting skills".

[163] It is significant that this visit occurred more than two months after mother had completed the 10-week course, more than two months after a course that Dr. Crooks-Drummond described as a success in terms of learned parenting skills for mother.

[164] On the day following that November 10, 2016 observation visit, Dr. Crooks-Drummond wrote a report which essentially praised the mother for learning the "importance of being an effective parent". And she recommended that the "family unit should be intact".

[165] What unfolded during her cross-examination is that Dr. Crooks-Drummond has never worked for a children's aid society; nor has she ever been trained in the risk assessment tools used by the society.

[166] Dr. Crooks-Drummond acknowledged that one of her functions is to advocate on behalf of families. And by recommending that the family unit be intact, Dr. Crooks-Drummond acknowledged that perhaps it is sometimes "difficult" for her to keep her counselling function separated from her advocacy function on behalf of those families.

[167] What I conclude from the evidence of Dr. Crooks-Drummond is this. She is a sincere person who wanted very much to assist this family through counselling and teaching techniques. However, her role as an advocate for the family tended to cause her to see things through a rose-coloured lens. She wanted to believe that mother had learned effective parenting skills and so she interpreted what she saw in the most favourable way possible to that end.

[168] Because of all this, her evidence was not helpful to mother's case.

[169] Nor, despite the "Certificate of Participation" given to mother at the conclusion of the 10-week program, is the court able to conclude that mother learned and was able to implement any meaningful parenting techniques which were discussed and taught during that program.

The Statutory Path

[170] The Act sets out the statutory path which the court must follow where a child has been found in need of protection, as is the case here. I set out the relevant portions of that statutory path:

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).

Court to inquire

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4).

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15 (1).

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4) ; 2016, c. 23, s. 38 (18).

Applicability of the Statutory Path to the Facts of This Case

[171] Ca. and Mo. have been in care beyond the maximum 12-month statutory time limit imposed by section 70(1)(a) of the Act. Jo., while not having yet reached the maximum permissible time in care pursuant to section 70(1)(b), nevertheless is entitled to permanency planning. Simply because the Act sets out the maximum permissible time in care, that does not detract from the need to ensure timely permanency planning for children. See for example Children's Aid Society of London and Middlesex v. M.O., 2014 ONSC 2435.

[172] Accordingly, two of the possible outcomes are not available, specifically, society wardship (paragraph 2) and a combination of society wardship followed by a return to the mother (paragraph 4).

[173] There are no community placements available, as the mother has always been insistent that the children be returned to her. Accordingly, she has never advanced an alternate plan involving any kith or kin.

[174] Moreover it is apparent from the long involvement of the society in the life of the family, that the mother has virtually no supports – friends or family (apart from the grandmother) in the community.

[175] Accordingly, the only possible orders available to the court are a supervision order with mother or an order for Crown wardship.

[176] As stated in the Act, the test for the court to apply is what is in the best interests of the children. In determining the "best interests" of the children, the court is directed to considering the various factors set out in section 37(3) of the Act. The court does not find it necessary to list those various factors, as the factual findings in these reasons make clear that the court has in fact considered the relevant circumstances which apply.

[177] Based on my review of the evidence I have concluded the following about the mother:

(a) She has been diagnosed with schizophrenia;

(b) She exhibits both the positive as well as the negative symptoms described by Dr. Packer;

(c) She rejects that diagnosis;

(d) She is not actively seeking out treatment, either in the form of medication or through programming;

(e) She believes she has nothing to learn about being an effective and nurturing parent;

(f) She does not really understand why the children were apprehended from her, or the risk of harm that she exposed her children to on the day of the apprehension;

(g) She is not able to articulate why any of her children may be at risk of harm as a result of the various behaviours she herself engages in during her access visits;

(h) In addition to her mental illness, she may have cognitive limitations which prevent her from learning effective parenting skills;

(i) In any event, whether strictly due to her mental illness, or a combination of her mental illness and her cognitive deficits, her judgment is highly compromised, such that her children would be at real risk of harm, both physically as well as emotionally, were they to be placed in her full time care and custody, even with a supervision order;

(j) In approximately 18 months of exercising access, in over 90 access visits, she has made virtually no progress in learning how to be a more effective parent, and a parent who is capable of protecting her children from risk of harm; and

(k) If she is unable to demonstrate safe and effective parenting during about three hours per week of supported, supervised access, it is not possible to conclude that she would be capable of effective and safe parenting during the course of a 168-hour week.

[178] In considering what is in the best interests of children, it is always preferable to keep the biological family unit together and to preserve the bond and cultural identity which flows from that family unit. However, that can only be done where it is safe to do so, where the children are not exposed to harm or risk of harm that cannot otherwise be ameliorated by terms of a supervision order.

[179] A supervision order in this case, regardless of the terms, would not protect the children from risk of harm.

[180] Moreover, a supervision order necessitates a reasonably cooperative working relationship between the parent and the society. That would be next to impossible to achieve in this case. The mother has made it clear, many times, including in her testimony at trial, that she considers the society to be her enemy and that she doesn't trust anyone "within the system".

[181] She has made it clear that she does not require any help from anyone because there is nothing wrong with her and she would not benefit from medication or programming. With that attitude of resistance, it is most unlikely that she would cooperate with the society recommendations, any more than she has previously done. She has demonstrated by her actions that she is simply not interested in a working relationship with the society.

[182] She drove this point home even more dramatically during her testimony when she refused to answer certain questions about her life and how she spends her time. She testified that since her children have been in care, she travels to Montreal from time to time. Society counsel asked her who she sees and what she does when she is in Montreal. She responded "my spending time in Montreal has nothing to do with this" [the issues at trial].

[183] Society counsel gave mother a number of opportunities to tell the court about her visits to Montreal, but mother continued to refuse to answer any of those questions. Counsel asked whether she has relatives in Montreal. Mother responded, "I will not answer that question".

[184] It is trite to state that a parent who is being supervised by the society, when her child has been found to be in need of protection, must be fully open and transparent with the society. Mother is secretive; she is almost the polar opposite of transparent.

[185] Beyond all of this, any parent with the kinds of limitations that mother suffers from, would require significant supports in the community, from family, friends and outside resources. It is noteworthy that mother called no family or friends to testify on her behalf. There is no one in the community with whom she has a positive and ongoing relationship, and who would be available to spend supportive time with mother, or come over to mother's residence on short notice if she needed assistance. Even Dr. Crooks-Drummond made it clear that her involvement with mother was time-limited and limited in scope. Apart from this trial she had not seen the mother since her last observation visit at the society on November 10, 2016.

[186] The society also argued that the mother and grandmother had made it clear that their lives were inextricably bound and that they had no genuine intention of separating. The society argued that because of this, even despite mother's stated willingness at trial to live separate from the grandmother, if she had to, the existence of the grandmother in the children's lives would add a further element of risk of harm to the care and upbringing of the children.

[187] I agree with the society's argument. However, as I stated earlier, my decision would be the same in either eventuality. While the grandmother's caregiving presence in the lives of the children would undoubtedly exacerbate the risk of harm and, accordingly, not be in their best interests, the mother herself poses such a significant risk of harm to the children on her own, that a supervision order is not a possible outcome, having regard to the children's best interests.

[188] Regrettably, the only option then open to the court is to make an order for Crown wardship pursuant to paragraph 57(1)3 of the Act.

[189] The unchallenged evidence of the society's adoption worker is:

(a) Due to Mo.'s age, his current functional level and his ability to form healthy attachments, he is "highly adoptable". He does continue to have some lags in his communication skills and, accordingly, an adoptive family would need to advocate for speech therapy for Mo.

(b) Ca. is functioning well and he has a good capacity for healthy attachments. He too is "highly adoptable". He would benefit from supports to help him to manage angry feelings and to discuss his "historical maltreatment in his birth home". He would also benefit from some future speech therapy.

(c) Jo. is in good physical health and he has shown an ability to form secure attachments. However, he struggles with ongoing anxiety and behavioural issues which would benefit from ongoing counselling. Dr. Fitzgerald diagnosed him with Attention Deficit Hyperactive Disorder and an Intellectual Disability. He recommended a number of strategies that would involve both the school as well as his future caregivers.

[190] All three children would be best served if they could be placed together in a permanent adoption setting. All three – and most especially Jo. – would benefit from a consistent, nurturing and secure environment. Their permanent family would need to be able to advocate for services for the children. They would need to sensitive to the children's cultural background.

[191] The society is aware that the foster mother is unable to plan for adoption, so that the adoptive family would also need to be sensitive to a possible openness order with the foster mother.

Access Following the Making of a Crown Wardship Order

[192] The mother argues that if the children are made Crown wards, the court should make an access order in her favour.

[193] Section 59(2.1) of the Act states:

Access: Crown ward

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

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

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

[194] Once the court makes an order for Crown wardship, the presumption is against an access order. Section 59(2.1) sets out a two-prong test. It is well established that the onus is on the parent seeking access to rebut the presumption against access by satisfying both prongs of the test. See for example Children's Aid Society of Toronto v. A.F., 2015 ONCJ 678.

The First Prong - Beneficial and Meaningful

[195] In A.F., supra, Justice Stanley B. Sherr reviewed the case law and, at paragraphs 154 to 158, he stated:

154 The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (Ont. Sup. Ct. -- Family) where he said:

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

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

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

155 More is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being. Even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child. An access order cannot be merely a consolation prize for disappointed adults. See: The Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731.

156 The court must consider whether the relationship is beneficial and meaningful to the child at the time of the hearing. Considerations of openness should not be imported into this analysis. See: Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638.

157 In Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054, the court indicated that the court should also consider the potential detriment to the child of not making an access order.

158 Knowing one's roots can be an important part of a child's development. If a child can maintain a connection with these roots without jeopardizing the security of a permanent adoptive placement, that is an option that should be considered. See: Children's Aid Society of Toronto v. M.M. [2012] O.J. No. 3240 (OCJ).

Analysis of the First Prong - Beneficial and Meaningful

[196] Undoubtedly, there were many access visits where the children enjoyed their visits with the mother. As I detailed earlier in these reasons, the mother was sometimes able to effectively engage the children in play and other activities.

[197] As well, it appears that the mother has great affection for the children. Arguably, the children (although more likely Mo. than the older two children) also have affection, for the mother.

[198] However, according to the case law, it is not enough that some visits have gone well, or that there has been affection displayed on those visits. Instead, the evidence must demonstrate that the relationship is "significantly advantageous" to the children.

[199] Unfortunately, I cannot conclude on the evidence that this is the case. There were many instances where mother was unable protect Mo. from physical harm, or from a risk of physical harm. This would necessarily lead the court to conclude that not only would access to Mo. not be significantly advantageous but, rather, might well be detrimental to his wellbeing.

[200] As for Jo. and Ca., the evidence of potential emotional harm to these two children is revealing. The society attempted to establish a routine whereby Jo. and Ca. would have one-on-one visits with the mother. However, as discussed earlier in these reasons, those visits did not last very long before the children made it clear that they did not wish to participate in the individual visits. The society concluded – and the court agrees, on the evidence – that to force those access visits to continue, would have been emotionally harmful to Ca. and Jo.

[201] Jo. and Ca. were sufficiently content to participate in visits together, and in the presence of Mo. because they would not then be exposed to having to deal with their mother on an individual basis. They would have the security and comfort that comes from being surrounded by their siblings.

[202] If the court were to make an access order, the evidence suggests that such an order would not be significantly advantageous to Jo. and Ca. Indeed, such an order might have the exact opposite effect, namely, to inflict emotional harm on those two children.

[203] Accordingly, the mother is unable to satisfy the first prong of the test set out in section 59(2.1) of demonstrating to the court that an access order would be beneficial and meaningful to the children.

Analysis of the Second Prong – Impairment of the Children's Opportunity for Adoption

[204] Despite the court's conclusion that the mother's request for an access order fails on the first prong of the test, I nevertheless move to the second prong of that test out of an abundance of caution.

[205] Once again, the onus is on the party who is seeking access to establish that if the children were placed for adoption, an access order would not impair the children's opportunity to be adopted.

[206] How can this impairment typically occur? I begin this discussion by referring to Justice Sherr's decision in A.F., supra, at paragraphs 165-170:

165 The case law has recognized that persons who hold certain attributes may be more likely to impair a child's opportunities for adoption, as these attributes might dissuade adoptive applicants from coming forward to adopt the child. This might result in an undue delay in the child's adoption. Many people will hold more than one of these attributes.

166 The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

167 The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

168 The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

169 The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

170 The potential chilling effect to adoptive applicants of having to deal with litigious parties in openness litigation is discussed by Justice Jones in paragraph 71 of Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530 as follows:

1. Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

a. They would be facing further litigation

b. They would not know the result of such litigation

c. They would not know what form an openness order might take

d. If an openness application is brought, the adoption will be delayed

e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved

[207] I conclude from the evidence that the mother likely has all four of the attributes which could impair the children's future opportunities for adoption.

[208] I turn to the first attribute. The mother has demonstrated her anger, aggression and lack of impulse control in a number of ways. First, at the December 17, 2015 visit, she behaved in a highly aggressive and angry manner. She entirely failed to take into account how her abusive actions would impact on her children. She reacted in the moment, without thought, without understanding and without the ability to regulate her own behaviour.

[209] Even at trial, while acknowledging her behaviour, she sought to justify it, thereby demonstrating to the court that she had learned nothing, despite the passage of about 1-1/2 years since that incident occurred.

[210] During the time her children were in care, she repeatedly expressed her anger toward various society workers, and especially the principal worker.

[211] In the course of her testimony at trial, she expressed her anger over and over again. She is angry at everyone – the superintendent of her apartment building, the neighbours who called the police to report her behaviour, the society for apprehending her children, the principal worker with whom she had interacted for most of the time the children have been in care, and others who she believes have acted in a way to conspire to bring the system down on her.

[212] Would she be supportive of an alternate caregiver for her children? The evidence suggests otherwise. At that very first access visit on December 17, 2015, she accused the foster parents of sexually abusing her children. She was adamant in her belief. In the 18 months which followed, did she evolve beyond that belief? Clearly not, as she continued to repeat her belief at trial. The court has no confidence that she would be any more supportive of an adoptive parent, than she previously demonstrated toward the foster mother.

[213] Furthermore, she has rejected the validity of a number of assessments, including the diagnosis of herself and her own mother. She has also rejected Dr. Fitzgerald's assessment of Jo. If she cannot demonstrate confidence in the opinions and recommendations of professionals who are directly involved with her family, how likely is it that she would respect the opinions and be supportive of the children's caregivers?

[214] As to the third attribute, dishonesty and secrecy, mother demonstrated in her testimony that she is not prepared to be open with the society, or the court. Despite society counsel giving her a number of opportunities to answer questions about her visits to Montreal, she chose to tell the society to effectively mind its own business.

[215] If the mother believes she should hide things from the society, if she believes that there is a line in the sand that the society cannot cross about what goes on in her personal life, it doesn't matter whether that line in the sand may, on occasion be reasonable, she will arbitrarily make those kinds of decisions based solely on her own perceptions. It matters not whether those perceptions have any basis in reality. And in fact, given her lack of insight and her poor judgment, those decisions are more likely than not to be unreasonable. By holding her personal life close to her chest she cuts out the society from potentially important information which would impact on the best interests of the children.

[216] Finally, the risk of ongoing litigation is very real. Given her resolute insistence that no one else is capable of caring for her children as well as herself, it is highly unlikely she will accept a reduced role in the lives of her children. If an opportunity arises to challenge that reduced role, the evidence suggests that she would proceed with that challenge, rather than avoiding the conflict that inevitably arises from such litigation.

[217] On the basis of this analysis, the court concludes that the mother also fails on the second prong of the test set out in section 59(2.1) of the Act.

[218] Accordingly, the court is precluded from making the access order which the mother has requested.

Conclusion

[219] The children have been languishing in care far too long. The Act is remedial in nature and, as such, is structured to ensure that children are entitled to permanency in their lives as soon as possible. The focus of the legislation is on the needs of the children, not on the needs or wants of the parents.

[220] Accordingly, the court makes the following order:

(a) The children Mo., Ca. and Jo. are made Crown wards.

(b) This order shall be silent as to access, other than the society may choose, in its sole discretion, to afford some limited access to the mother pending an adoption placement.

[221] This was a particularly challenging case for both counsel given the elevated degree of emotion that was shown throughout the trial by the mother and the grandmother. Both counsel demonstrated civility, restraint and patience while, at the same time fulfilling their responsibilities in the representation of their respective clients. For that, the court is most grateful.

June 19, 2017

___________________________

Signed: Justice Robert J. Spence