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: April 25, 2018

Court File No.: CFO-13-10924

Between:

Catholic Children's Aid Society of Toronto Applicant

— And —

D.V.R. and L.C.B. Respondents

Before: Justice Penny J. Jones

Heard on: May 2, 3, 4, 5, 6, 9, 10, 19, 2016, Feb. 20, 21, 22, 23, 2018 and March 26, 2018

Reasons released: April 25, 2018

Counsel:

• Chris Andrikakis — counsel for the applicant Society
• Lance C. Talbot — counsel for the respondent, D.V.R.
• Daniel Etoh — counsel for the respondent, L.C.B.

JONES, P. J.:

Introduction

[1] This is my decision on two separate protection applications, tried together, and brought by the Catholic Children's Aid Society of Toronto (Society) seeking orders of Crown wardship no access for the purposes of adoption. These protection applications relate to two of the respondents' children, namely, N.R. born […], 2013 and N.E.N.R. born […], 2015. D.V.R. is the natural mother of the children and L.C.B. is the natural father of the children.

[2] Both children were apprehended at birth and have spent their entire young lives in Society care.

[3] The only issue before the court is disposition. Both children were found in need of protection on consent under section 37(2)(l) of the Child and Family Services Act, R.S.O. 1990, Chapter C-11, as amended (Act). N.R. was found in need of protection on March 5, 2015 and N.E.N.R. was found in need of protection on May 6, 2016.

[4] The respondent parents are seeking the return of their children and are prepared to consent to a six month supervision order. There are no viable community or kinship plans before the court.

Background Findings of Fact

[5] L.C.B. (father) was born in Jamaica on […], 1974 (now 43 years old). He came to Canada to join his mother and her new family when he was eight years old. He is the father of six other children from five other former partners. He has remained in contact with most of his children, many of whom visit him on a fairly regular basis. He told the court that he would visit the children when they were younger and would contribute monies to them when he was able to do so, but was actually a custodial caregiver to only two of his children who were born during his marriage to their mother. He said that all of his children were born of love and that he acknowledged them all.

[6] The father suffers from a major mental illness, well controlled by medication. When the father was 23 years old he suffered a mental break-down which required hospitalization; he was diagnosed with schizophrenia and has been treated with medication since that time. For the most part, he has been compliant with his treatment regime. Recently, his compliance with his drug treatment has improved even more as the mother is very supportive of his treatment goals and reminds him to go for his monthly injection.

[7] The father's condition does appear to have affected his functioning overall. He has some difficulties staying focused and complains about feeling claustrophobic when confined in small spaces. The father has had difficulties maintaining stable employment and is currently supported on an Ontario Disability Pension. He has also admitted to using marijuana in the past as a form of self-medication—at certain points in the trial he said that he had not smoked the drug for two years, one year, a few months, or not frequently, because he could not afford it more often.

[8] D.V.R. (mother) is of Jamaican descent and was born in Canada on […], 1994 (now 24 years old). She is the mother of three children, all of whom are in the care of the Society. Her youngest son, N.R. (N.) was born just prior to the commencement of this trial in 2016. He was apprehended at birth, remains in Society care, and is before the court on a separate protection application.

[9] At the time N.R. was born, the parents were not residing together. In fact, the father was not aware of the birth of this child until she was already in Society care. The mother testified that she did not tell the father about her pregnancy because she was not certain of the state of her relationship with the father.

[10] When the mother gave birth to N.R., she was virtually homeless, moving from one house to the next. During this pregnancy, she acknowledged that she had not attended for regular prenatal care, and had seen an obstetrician only once shortly before the birth of her first child. In preparation for this birth, she said that she took prenatal vitamins and ate more vegetables.

[11] The mother explained that she was homeless because she had been arrested at her family home on a charge of uttering death threats to her mother and her sister in 2012. At first it was a term of her bail that she stay away from her mother and sister, and later it became a term of her 810 peace bond signed in September 2013.

[12] The mother denied that she had threatened her mother and sister and blamed them for blowing the whole situation out of proportion. According to the mother, her relationship with her own mother and that sister could be difficult and had been for a long time. D.V.R. said that her mother was jealous of her. She related that her mother did not accept her responsibility as a parent, and that she had required D.V.R. to assist with child care for her six younger siblings. The mother related to Dr. Mik, a psychiatrist at Humber River Hospital on June 1, 2015, that she felt that she did not have a "normal childhood and adolescence because of her responsibilities for child care." According to CAS records, D.V.R.'s mother had a history of contact with the child protection agencies and had been subject to successive supervision orders for several years with a supervision order still in place. To date, the mother's mother has provided little, if any, support to the mother or the children.

[13] N.R. was apprehended at the hospital. The mother acknowledged that she had made no preparations for the birth of the baby and that she was not in a position at that time to care for the baby. There was also the concern that the mother was using marijuana during her pregnancy—the baby's meconium tested positive for cannabinoids and the mother admitted to smoking two joints per day during her last trimester.

[14] Shortly after the child was apprehended, the mother told the Society the name of the father. She told the court that her older sister (not the one involved in the threatening charge) phoned the father and told him about the birth of N.R., and that L.C.B. was very excited and expressed a wish to see the baby as soon as possible. From that point forward, the father has been very involved in planning for the baby and in visiting the baby.

[15] The Society continued to work with the mother and the father and provided supervised access which included a teaching component on parenting issues; at first access visits were scheduled for three times per week but, within a relatively short time, were reduced to two times per week due to the fact that the parents were missing visits; they agreed that attending access three times per week was simply too disruptive to their schedule.

[16] The parents began cohabitation after the birth of their first child. On […], 2015 the mother gave birth to her second daughter. The mother did not tell the Society she was pregnant, and as recently as two weeks before the birth of the baby, the mother, when asked by the worker whether she was pregnant, denied it. She also denied to the father that she was pregnant. Without any prenatal care or any preparation for the birth of the baby, she gave birth to her second daughter at home; the child was delivered by the father with the help of the Emergency Services dispatcher. Fortunately, the delivery was uncomplicated, and the baby was born healthy. On this occasion, the mother denied smoking marijuana during her pregnancy and there was no evidence of cannabinoids in the child's meconium.

[17] In March 2016, the mother gave birth to her third child, N. During her pregnancy, she received no prenatal care and made no preparations for the birth of the baby. As was the case with her second child, the mother denied that she was pregnant to the Society and the father. When the child was born, he was exhibiting withdrawal symptoms, and the mother acknowledged that she had been smoking marijuana during the latter stages of this pregnancy. This child was apprehended at birth. As this child was born just prior to the commencement of phase 1 of this trial, it was not appropriate to join this fresh application with the one before this court.

[18] Currently, the respondents are living together in a subsidized apartment managed by the Canadian Mental Health Association (CMHA) which is suitable for the return of the children. They are putting forth a joint plan of care for the two young girls before the court.

Phase I of the Trial

[19] This matter first came on for trial in May, 2016. The first phase of the trial lasted eight days, and during that time, I heard evidence from the parties and their witnesses, including testimony from the father's psychiatrist whom I summoned to attend together with his records under section 49 of the Act.

[20] The Society called a number of witnesses and raised the following concerns in support of their request for a Crown wardship order, namely:

• Inconsistent attendance at access without acceptable explanation, especially on the part of the mother
• Father's use of marijuana
• Father's mental health status and medications and how his mental health and his medications might be affecting his caregiving role now and in the future. While exercising access to his children, the Society pointed to his tendency to nod off, wander off, speak too loudly to the child/children, be unable to follow the children's cues, and focus on scratch tickets while ignoring his children
• Father's inability to recognize safety issues and to take direction; father claimed to know all about parenting because he had already parented six other children
• The mother's use of marijuana, including when pregnant
• Mother's anger towards the father and to N.R. and Society workers
• Mother's tendency to speak harshly to the father and to the children
• Mother's inability to trust the father and the workers and how this might affect their ability to work with the mother if the children were sent home
• The effect mother's anger was having on the children, especially N.R.
• Mother's mental health status and her depressive tendencies and how such would affect her parenting if the children were returned home. Two psychiatric reports prepared in 2015 from the Humber River Hospital were filed relating to the mother and her mental health which suggested that the mother had experienced a depressive episode at that time
• Issues such as drug use as self-medication were raised
• Housing was an historic issue that appeared to be resolved
• The quality of the access visits was inconsistent and seemed to depend on the mother's moods—some visits were very good and some very problematic where the workers would have to intervene, and on occasion, actually terminate the visit

[21] The parents called evidence. They testified as did the father's social worker with CMHA, the mother's father, the father's mother and the father's sister. The parents requested the return of the children, and were prepared to consent to a supervision order. The evidence they called supported the following claims:

• They had a suitable place to live
• They were stable now and were being supported socially, emotionally and financially by CMHA
• CMHA worker testified that she was working with the family and that if and when the children were returned, the parents would be offered a larger housing unit
• Various family members testified that they would be available to the parents to provide support and babysitting
• The father's psychiatrist noted that the father had been substantially compliant with his treatment regime over the years and his compliance had seemed to be improving more recently. He testified that he was not sure that the diagnosis of schizophrenia still applied and he suggested that the father should be reassessed
• Mother denied being depressed at this time
• Mother testified that she was prepared to comply with the requests of the Society. She told the court that she told no one about her pregnancies as she was afraid that her second and third child would be apprehended as had been the case with her first child. She acknowledged this was a mistake and she would not do this in the future. She said that she was a young mother who was learning to parent and was prepared to attend any courses or programs suggested by the Society
• Both parents indicate that their relationship was permanent. The father denied that there was any violence or problems in the relationship. They agreed to go to couples counselling

[22] Given the fact that the father's mental health condition was a central factor in the case, and the father's lawyer did not intend to call the father's treating psychiatrist, the court issued a section 49 order under the Act to compel his attendance. The evidence of Dr. Slyfield raised a number of concerns. When Dr. Slyfield testified, he was able to attest to the father's fairly good compliance with medical treatment so far as his attendance for monthly injections to treat his schizophrenia was concerned. However, he noted that the father has not requested nor attended for therapy or counselling. He told the court that the father would just appear at his office without an appointment and bang on his door seeking a prescription for his anti-psychotic medication. The doctor testified that the father was impatient and restless and would not stay at the office longer than five minutes. He noted that the father had, on at least one occasion, gone to a hospital emergency room when the father was not able to see him immediately. He had one note from Humber River Hospital in his file that reported that the father had come to the emergency room where he was described by the treating physician as being, "hyper active, religiously pre-occupied, saying he had visions of god." Dr. Slyfield was uncertain whether there were other times, although he suspected there were, when the father had gone to other emergency rooms for his medication.

[23] Dr. Slyfield was asked about the father's use of marijuana. He said that he did not recall whether he was aware that the father used marijuana. He did say that he would have recommended against marijuana usage by a person diagnosed with schizophrenia as marijuana is a "psychotic emetic drug" and not an anti-psychotic drug. For the most part, he felt the father's condition was well controlled by medication, and to his knowledge, the father had not been hospitalized since 1999.

[24] As well, he testified that it was somewhat unusual for a schizophrenic to avoid hospitalizations for such long periods of time and to continue to comply with a drug treatment regime. During his testimony, he questioned the father's diagnosis of schizophrenia given the medical history. He felt that an updated assessment would be helpful to confirm the diagnosis.

[25] After hearing the evidence adduced, I felt that I required further information in the form of a Parenting Capacity Assessment in order to fairly decide the matter, as the evidence raised unanswered questions about mental health issues and parenting capacity. In this case, both parents apparently suffer from mental health conditions, the father with schizophrenia and the mother with depression. I recognize that a diagnosis of a mental illness is not determinative of the ability to parent, and that many other factors must be considered in assessing parenting capacity. How an individual's mental health diagnosis affects that parent's ability to parent is a difficult question. In this case, I was concerned about the accuracy of the father's diagnosis and whether he was receiving the appropriate treatment. As well, I was concerned about the mother's mental health and possible untreated depression which might be manifesting itself in missed visits, uncontrolled outbursts of anger towards the father, children, and the workers, and an extreme lack of trust in the workers and even the father, as exhibited by her refusal to tell anyone, including the father, about her pregnancies.

[26] The court's authority to order a Parenting Capacity Assessment at any time in the proceeding with or without the consent of the parties is contained in section 54 of the Act which reads as follows:

[27] 54. Order for Assessment - (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsection (1.1) and (1.2):

1. The child
2. A parent of the child
3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child

[28] I indicated that I was reluctant to make a Crown wardship order, the most serious and permanent order available under the Act, on the evidence adduced to date. Conversely, the evidence clearly raised issues about the respondents' ability to parent, and I was not prepared to order the children home at that time under a supervision order. I needed more information.

[29] I indicated that, in my opinion, the Parenting Capacity Assessment I ordered should be prepared by a psychiatrist given the mental health issues of the parties. As well, I indicated that the father should get a second opinion on his diagnosis of schizophrenia, and that opinion should be made available to the assessor.

[30] I suggested that while the assessment report was being prepared, the Society might consider experimenting, if safe and appropriate, with different access arrangements, as to place, level of supervision and number of children present at access, as this would provide the court with actual evidence in this regard when the matter came back to court. I indicated that time was of the essence and urged the parties to arrange for an assessment as soon as possible.

[31] The parties began to work on implementing my order. Initially, the parents' counsel requested that a parenting capacity assessor of Caribbean descent be selected. Unfortunately, no psychiatrist of Caribbean descent was available. The parties then began to search for a mutually agreeable psychiatrist who was prepared to conduct a parenting capacity assessment. Dr. Wittenberg was identified in the fall of 2016. He indicated that he would be prepared to commence the assessment in March, 2017—a full ten months after I made my order and adjourned the case. No other mutually agreeable psychiatrist prepared to do this work was identified. Although I recognize that this case presents some unique challenges, including my request that a psychiatrist undertake the assessment, a delay of this magnitude is not acceptable and is certainly not in keeping with the terms of the legislation. As to proposed time for the preparation of the report, Section 54(2) of the Act reads as follows:

54(2) Report — The person performing an assessment under subsection (1) shall make a written report of the assessment to the court within the time specified in the order, which shall not be more than thirty days unless the court is of the opinion that a longer assessment period is necessary.

[32] Although I agree that thirty days from the date of the order to the date of receipt of the assessment in this case would be over ambitious, fifteen months is unconscionable. I do not blame the lawyers or the assessor; Dr. Wittenberg suggested that another assessor be selected given his limited availability—no one else was available. This issue of scarcity of assessors is a problem that needs to be addressed.

[33] The first return date for the trial was in October, 2017. The mother was ill and the matter was adjourned to February, 2018 when the court received the Parenting Capacity Assessment and heard updating evidence from the parties—a full twenty one months after the order for the assessment was made.

Phase II of the Trial

[34] In phase II of the trial, I heard evidence from the parents, the foster father, three society workers who had worked with the family and had observed access visits and Dr. Wittenberg, the parenting capacity assessor.

Society Evidence Update

[35] Since the matter was last in court, hundreds of access visits have been scheduled. Apparently, one third of those scheduled access visits were cancelled for various reasons, including: sickness, weather, but most often due to unexplained absences by the parents, or because the parents had failed to confirm their attendance at the scheduled visit when confirmation was a precondition to access due to past failures by the parents to attend access.

[36] Many visits were positive visits where the parents and the children enjoyed their time together. However, according to Kathy Springstead, children's service worker, who supervised many of the visits, the quality of the visits was inconsistent—a significant number of visits were not positive, and in fact were negative or very negative. On many occasions, she testified that it was necessary for her to intervene in the visit when she observed the mother's anger escalating, or a safety issue was identified (usually because the father would misjudge a situation or the level of development of the child, e.g. attempt to feed an infant chicken or fries when the baby was still on formula). Other access visits became so negative, that she terminated the visit. She indicated that she had been involved in terminating at least six visits, mainly due to the mother's inability to regulate her anger—towards the father, the children or the workers. It was her opinion that the effect of the negative visits on the children far outweighed the effect of the positive visits.

[37] The access supervisors expressed concerns about times that the mother and father would be arguing and fighting and name calling and the children were present and being exposed to their inability to control their emotions. For example, at an access visit on January 4, 2017, the mother is reported by Ms Springstead to have yelled at father, when frustrated by him, in front of the children, calling him a "freak of nature" and an "idiot" and "don't you have a brain," with the father responding, "don't screw up, do not do this in front of the kids—you are immature." The parents continued to argue and at one point N.R. pulled her jacket over her head. When the arguing did not stop, N.R. ran out of the room and went to an adjoining room where another visit was taking place, and closed the door with her palms pressed against the door. Mother opened the door and pulled N.R. out of the room and back to their access room. At that point, Ms. Springstead said that she went into the room and asked the mother if she was okay, and reminded her to lower her voice and tone. The visit was eventually terminated early when the mother failed to regain control of her emotions and the arguing and angry behaviour continued. The visit ended when N.E.N.R. grabbed a toy from N.R. and the mother bent down and grabbed N.R. by the face and told her to listen, and backed her into the wall. She told N.R. not to touch people and not to hit N.E.N.R., went to the other side of the room, and grabbing a chair, slammed it into the floor and told N.R. that she had a time out "Now" (affidavit of Kathy Springstead, November 7, 2017 paragraph 30.) Many other incidents of angry out of control behaviour were referred to in the trial. The court heard about times the mother would handle N.R. roughly, yell at her, give her time outs for no reason while ignoring the misbehaviour of her little sister. Mother also has yelled at the workers and on two occasions has thrown items in the access room while the children were present, and on one of those occasions, hit the viewing window with such force as to chip the glass in three places.

[38] This behaviour by the mother seemed to have the most damaging effect on N.R. The court heard that N.R. would tell the mother not to "speak to her daddy like that" when mother yelled or swore at the father. When the mother would attempt to kiss N.R. after a particularly tense access visit, the child would say "no", pull back, refuse to look at the mother, and wipe her face with her hand where her mother had kissed her. N.R. has on occasion told her mother to 'shut up", motioned for her mother to leave the access room, would tell her mother to "stop", has tried to hit the mother and push her away.

[39] The other children were present most of the time when these events occurred. Given their young age, and the fact that the mother seemed to focus on N.R., the effect of her anger was not so evident as far as they were concerned. However, I was advised that there were times the children appeared afraid of the mother when she was angry and yelling.

[40] The father, although most often supportive of the mother, has on occasion expressed concerns to the Society workers about the mother's angry behaviour towards him. For example, Ms. Springstead testified that the father has talked about the difficulty he had living with the mother. He said that the mother "has hit him; she yells. They've almost been evicted, because of her anger issues" (transcript February 21, page 16). On October 21, 2016, Ms. Springstead testified that the father made the following comments to her after a particularly difficult access visit. In para 25 (L) of her affidavit dated November 7, 2017, she indicated that the father said, "Everything she jumps on me….I am not saying anything now"…."She frustrates me….what I want is for her to be calm so I can go to work"…"She hits me and throws things when she is upset." On December 9, 2016 the father had a conversation with the family services worker, Jolanta Wisniowska. In that conversation he told the worker that the mother yells at him and he may lose his housing. He said that he just leaves the access room when the mother yells at him, as he has been advised to do so by him CMHA worker. He told Ms. Wisniowska that the mother "beat him up when they lived on O[…] Street. She punched him in the face, ripped off the shower curtain and hit him. He did not touch Ms R. and left the apartment. It happened only once." (para 79, 80 of her affidavit sworn November 3, 2017.) At various other times, the father has complained to the workers about the behaviour of the mother towards him. On occasion he has talked about separating from the mother, and at other times has professed his undying love for the mother.

[41] The mother and father have continued to work with the Society around parenting issues. According to the Society workers, the parents would appear to make gains in their parenting but would have difficulty maintaining those gains. For example, the parents would be told how damaging it is to argue and fight in front of the children and how such behaviour will interfere with healthy child development, and that if one or the other becomes angry they should withdraw until they feel in sufficient control to continue the visit without conflict, but sooner or later arguments would break out once again in front of the children. The relationship between the mother and the workers was also inconsistent. On occasion, the relationship would be quite cordial. At other times, the mother would yell at the workers, and on two occasions threw objects in the direction of a worker who had just left the access room. The mother did not trust the workers and would hold back information from the workers making it very difficult to work with the mother. For example, in October, 2016 the father told the Society that he had taken the mother to the emergency room because he was concerned about the mother's mental health. He said the mother was "self-talking" and was complaining about her racing thoughts. When the mother heard that he had told the Society this, she was very angry and told him this information would be used against them. At another time, the father held back information, saying that his CMHA worker had told him that the Society workers were not his friends.

[42] The society continued to have concerns about:

• the parents inability to internalize new parenting strategies
• the mother's anger
• her inability to control that anger in the presence of her children
• the effect of her uncontrolled anger on the children
• the mother's relationship with the father
• the father's inability to support mother at access
• and the inability of the parents to work with the Society given their distrust of the society and their withholding or misstatement of facts

Evidence of the Foster Father

[43] Mr. Steven Par testified that he and his wife are the foster parents of both girls. He indicated that he had been N.E.N.R.'s foster father since she was two days old and the foster father for N.R. since she was 15 months old. Both girls are in good health and are doing well developmentally. N.R. is now in junior kindergarten and N.E.N.R. is attending a day care on a part time basis.

[44] He indicated that the children's behaviour could be challenging, especially after an access visit. However, he testified that they would settle down in about one half to one hour after they came home. Generally, he indicated that the girls had no reaction to access, they neither "jumped for joy" when they were told they would be seeing their parents nor did they react negatively when told they were about to go on an access visit. He said that if access were cancelled, they would just carry on and play with their toys. However, if the access were cancelled mid transportation, the children would come back confused. After access, he noted that the children can be very demanding, might swear, were very rambunctious and they would forget their manners.

[45] Although he and his wife are very attached to the children, he indicated that they were not prepared to adopt the children. He testified that he and his wife would assist if the children were placed for adoption.

Evidence of the Parents

[46] The mother and father both testified that they were seeking to have the children returned to them and that their plan of care was the only plan before the court. Both parents indicated that they loved their children and were prepared to do whatever was necessary to keep their children with them.

• They indicated that they were prepared to work with the Society
• The mother denied having an anger problem, but would take an anger management course if the court wanted her to do so
• The mother and father denied that they were experiencing any relationship problems, but agreed that they would go for couples counselling if the court wanted them to do so, but they didn't think it was necessary. The father indicated that he and the mother were in a very good place
• Both parents told the court that they had attended a parenting course in the past and would attend further courses if required by the court
• The mother denied that she had yelled at the workers, the children or the father. She said that when she was excited, her tone of her voice might become elevated and must have been misinterpreted by the workers
• The father did not see the mother as being rude to him. He testified that he had a tendency to spoil his children while they were young, and the mother was the disciplinarian, and he recognized that he should follow her lead. On the whole, he said, the workers were blowing the matter out of proportion
• The mother denied throwing objects at access
• She could not recall ever hitting the father
• The father denied that the mother had ever hit him and he indicated that he had not told the Society workers that she had done so
• Both parents thought the access visits were going well and that the children loved them and enjoyed their visits
• The mother did not think it was necessary to go for counselling as she did not believe she had a personality disorder but would be prepared to attend counselling if the court felt it was necessary
• The father indicated that he was taking his medications, he was being supported by CMHA workers, had stable housing, and would seek re-employment as soon as the case was over. He indicated that his family would assist him with the care of the children if the children were returned home
• The mother indicated that she intended to be the primary caregiver and the father indicated that he and the mother would be co-parents and would work together to raise the children

[47] The father denied the mother had anger problems; he felt that she was just very stressed over the situation; he acknowledged that there were times that he and D.V.R had disagreements but so did every other couple. The mother testified that sometimes she was depressed, and sometimes she was annoyed that the father was not helping her more during access, but she denied having anger problems.

Parenting Capacity Assessment

[48] Dr. Jean Wittenberg was qualified, on consent, as an expert witness in assessing parenting capacity and in making recommendations arising from such assessments. He told the court that he had performed between 100-150 parenting capacity assessments and has testified in court on at least 20-30 occasions as an assessor, and on each occasion, he has been qualified as an expert in assessing parenting capacity, and in making recommendations arising from such assessments.

[49] Dr. Wittenberg testified as to the process he undertakes in the preparation of such reports. He indicated that he usually spends one day gathering information. He begins with interviewing the workers for about an hour and a half, and he then interviews the foster parents, and children (if old enough) for about one hour. Next, he observes one access visit for about an hour and a half and then he interviews the parents for three hours. He refers to this process as a "very extended clinical assessment". It is only after these interviews that he reviews the written material sent to him by the lawyers.

[50] Dr. Wittenberg indicated that it is not his usual practice to requests any psychological testing of the people he is assessing. It was his opinion that such tests were never designed for the child welfare population and that there is no evidence that such tests are better predictors of the quality of parenting overall than a good clinical assessment. As well, it was his opinion that multiple observed access visits would put him in no better position to understand what is going on between the children and the parents than the single access visit he traditionally observes. He said he has done thousands of assessments of children and families in his work, and he has found that he can pick up a lot of information by seeing parents with children and much of that information comes from non-verbal interactions. He acknowledged that there is a difference between the approach taken by a psychiatrist in conducting a parenting capacity assessment and a psychologist, but he expected that the findings made in an assessment of the same family by a qualified assessor in either discipline would come to substantially the same conclusions.

[51] In the Parenting Capacity Assessment report, Dr. Wittenberg reviewed his interview notes and his observations, as well as the material filed, and made findings as to respondents' parenting capacity. He was cross-examined at some length on his findings. He indicated that he was very confident in the opinion he was offering on the respondents' parenting capacity.

[52] It was Dr. Wittenberg's opinion that the parents have been unable to successfully parent their children, notwithstanding the substantial support and intervention offered to them. As well, it was his opinion that the parents as co-parents, or as single parents, would be unable to parent one, two, or three of their children and provide that child or those children with a home that would foster healthy development.

[53] He noted that the father has schizophrenia and the mother has a significant personality disorder, as well as a predisposition to depression. According to the doctor, both parents' mental health conditions would seriously affect their ability to successfully parent their children. He wrote, (p.46 p.c.a.):

"I am concerned about the lack of sensitivity, the sense of self and of relationships, the conflict between parents, the psychiatric diagnoses in parents, and how all of these are likely to manifest over time and to seriously impair and compromise the healthy development in any one of the children put in parent's care. Both parents have histories of many years of dysfunction. I expect little change in this pattern as they move into the future. Their dysfunctional approaches would be harmful to an individual child. Having more than one child in their care adds to their stress and aggravates their dysfunction. Their stress and dysfunction however, do not disappear if there is only one child or even in the absence of children as demonstrated by their behavior when they are not with their children".

[54] Dr. Wittenberg expressed concerns about the father's ability to stay engaged and to relate fully with the mother, the children, and others, and his tendency to withdraw either emotionally or physically from the children (he would sit in the room and play with his scratch tickets or absent himself from the access room for lengthy periods of time to find food or buy tickets). He recounted incidents gleaned from the Society workers report where the father was insensitive to the children's cues and safety issues. It was his opinion that the father's serious mental illness and the medications that he took to control the symptoms of that illness may well have contributed to the behaviour exhibited by the father. Over time, the doctor felt that the father's issues would result in an accumulation of neglect. He noted that he does not blame the father as the father is doing his best to deal with his issues, but he would worry about the effect of the father's behaviours on the child/children.

[55] Central to the opinion that the mother cannot parent successfully is Dr. Wittenberg's opinion that the mother has a significant personality disorder. He writes, at P. 45 PCA the following:

"I think the primary difficulty for mother is what could be called her personality disorder. It is her tendency to feel under attack or threatened by those around her. It is marked by her lack of trust for those around her. It is marked by the extreme dysregulation in her affect that leads to intense anger which is of primary concern in this case insofar as parenting is concerned. It is mirrored in her cognitive style, which allows major ambivalence and discrepancies in thoughts, permitting opposing thoughts to follow each other within a moment or two. I think it very unlikely that mother would be able to engage in the kind of treatment that would lead her to develop a different sense of herself and of the world. I think it very unlikely that mother would change significantly."

[56] Notwithstanding the psychiatric consultation reports that were prepared at the Humber River Hospital emergency department that diagnosed the mother as suffering from a situational depression, Dr. Wittenberg stood by his diagnosis of a significant personality disorder because he felt that his extended clinical assessment had resulted in a more accurate diagnosis. He noted that the mother's psychiatric difficulties extend at least back into her adolescence and well before her children were apprehended. When asked in cross-examination to explain what is a personality disorder and how it would affect parenting a child, he responded, (Transcript February 22, 2018 p.77,78):

"A personality disorder is…..a way of living, a way of relating and a way of having a sense of yourself which is fairly fixed……….We develop patterns. We develop expectations of how others see us and we develop conclusions and representations of ourselves partly based on that and partly based on our, our other things that are happening within us. ...the personality disorder is that set of patterns which we take into relationships and our engagement in the world in a general way. And so, it may be more anxious or more dependent or more combative or more dishonest, more detail oriented, more flamboyant, more self-centered. ……in the end what we see are rather than one specific personality disorder will be kind of a general personality disorder in which there's a maladaptive approach to relationships, a distorted kind of view of the self, …. She (D.V.R.) has trouble trusting people. She tends to resort to anger, quite quickly. She tends to conceal things from people. These are the kinds of traits…I believe to use quite a bit of cannabis for periods of time. She was quite mistrustful. ….She had difficulty settling down and, and pursuing things such as, education or, or occupation, work. These things will also affect how you parent. So, if you are suspicious of people you might be less open to understanding what's going on in their minds, you might jump to conclusions about their intentions and what they do. That's very apparent in her interactions with her oldest child, in particular. If you tend to deal angrily with people, you might apply that also in that relationship. Again, that's what we've seen her do there, as well as, as with her partner…….."

[57] It was Dr. Wittenberg's conclusion that it would not be safe to return the children to the parents' care. He pointed to the following issues that he viewed as most significant:

1. Mother's anger, both with the children and the father

He noted that mother has been described as angry at access visits, with that anger often directed to N.R. He wrote that the mother interprets the child's behaviour in some negative way and responds angrily and coercively. He noted that sometimes the response is both verbal and physical (e.g. rough handling). He referred to the fact that N.R. has begun to respond in a provocative way to the mother and this only escalates the mother's anger. The doctor noted that for a child to learn to respond in this manner at this age "bodes badly for the future". He also observed that N.R. does not act this way in the foster home. Incidents in which the mother expressed her anger at the father in the presence of the children were referred to in the report and although she has been counseled that exposing the children to incoherence and anger is confusing and disruptive to the children, the mother has been unable to maintain a curb on her anger in the presence of the children.

2. Father's parenting, lack of full engagement and lack of attention to issues of safety for the children

Although the father has responded well to medications and social supports, the doctor outlined certain concerning characteristics, including his lack of engagement with the children. Coming late to visits. Leaving the access room for extended periods of time. Being preoccupied with lottery tickets. His inability to pick up on the children's cues. His lack of attention to safety concerns. The doctor noted that although the father could be angry at times, he directed it towards the mother and not towards the children.

3. Parental openness to interventions and collaboration

The parents were only intermittently open to collaboration with the Society. There was no lasting evidence of improvement due to interventions, either with parenting or in relation to their relationship. The mother had a tendency to become very angry with workers who try to intervene. This has escalated to overt violence where the mother has thrown objects across the room in the presence of the children. Dr. Wittenberg noted that the mother had denied she even raised her voice to the workers which concerned him because this lack of awareness indicated to him that this behaviour by the mother was inaccessible to change. The parents seem to have no understanding of the problem or what they would need to change.

[58] It was Dr. Wittenberg's opinion that he would be very concerned if one, two or, three of the children were returned to these parents. He thought a return would be traumatizing to these children. He noted that the children had done well in foster care, and that they require a "normally protective environment …to grow up healthy." (page 44 P.C.A.)

Discussion and Order of Disposition

[59] Given the ages of the children, and the time the children have been in care, under section 70 of the Act, I must either return the children or make the children wards of the Crown. (There was no request for an extension of the time for making a society wardship order under section 70(4)). In deciding this issue, I have made the following findings of fact.

• I accept that both mother and father have significant mental health diagnoses and that their mental health diagnoses affect their ability to successfully parent. Mother and father have both been identified with serious mental health issues by Dr. Wittenberg in the Parenting Capacity Assessment prepared for this case—father with schizophrenia, and mother with a significant personality disorder with a predisposition to depression—both of which he has identified as significant risk factors for child abuse and neglect. It was his opinion that it would be unsafe to return the children to these parents' care, and went so far as to say, that a return to these parents would be traumatizing to these children.

• I accept the evidence of the Society workers that, although there have been positive visits between the parents and their children, the effect of negative visits far out-weighed the benefits of the positive visits on the development of the children. The evidence contained many reports of visits between the parents and the children. Some visits were positive visits, while others were not, and I was advised that the tone of any one visit could change very quickly, from positive to negative, requiring the worker to intervene in an attempt to salvage the visit and protect the children. I heard evidence about the mother losing control of her emotions and yelling and swearing at the father and the social workers in the presence of the children, or at the children themselves. Sometimes mother's anger was expressed physically—including throwing items in the presence of the children or handling N.R. roughly.

• During the trial, I had the opportunity of hearing the mother testify and observing her from the bench while she testified or while others testified or the lawyers were making submissions. It was clear to me that the mother was very angry and frustrated at counsel when she was testifying about why her children were not being returned to her. She indicated that she does everything that the workers tell her to do and if required by the court she will attend any therapy to deal with a personality disorder she felt she did not have. As well, when counsel were making submissions and making reference to the times the father had told the workers about details of their private lives, she shifted in her seat to face the father so that she could glare at him; she continued to do so for at least ten minutes. The father kept his gaze averted and ignored the mother.

• I accept the evidence of the workers, and the opinion of Dr. Wittenberg based on that evidence, that the mother's relationship with N.R. posed a grave risk to the healthy development of N.R. Of great concern to me, were the observations relating to how the mother treated her oldest child N.R.—she tended to misjudge the child's intentions and react angrily to her as a result. This behaviour by the mother may be caused by her inability to accurately read the child's cues, or understand the child's stage of development. The mother may hold unrealistic expectations regarding the child's behaviour. Regardless of the reason, I was advised that the child is confused and hurt and scared by the actions of the mother, who can, in quick succession, be loving and angry with her. I was told that N.R. is dealing with this situation by becoming very provocative with her mother. N.R. says what she thinks, and is being punished by the mother for her opinions; N.R. is seen by the mother as being rude when she stands up for herself. When angry or scared, the child is rejecting of her mother's affectionate overtures, e.g. refusing kisses from her mother or wiping her face where she has been kissed by the mother. The access supervisors have intervened and discussed with the mother child development, other disciplining techniques and the need to control her anger in the presence of the children, without any lasting changes occurring. According to Dr. Wittenberg, N.R.'s reaction to her mother bodes poorly for the future healthy development of this child, or any other child in her care.

• I find that the mother would not be a suitable primary caregiver to her children given her significant personality disorder and how her view of the world, and her parenting style would negatively affect the well-being of the children. The father, given his major mental illness and how that condition affects his functioning and level of involvement, is not a protective factor in the plan of care presented by the parents. I would not be able to rely upon the father to provide information to the Society if the mother became depressed or out of control given his record of recantation and his habit of withdrawing from the scene of conflict.

• I do not believe that the mother would be able to form a therapeutic alliance with the child welfare workers given her secretiveness, her suspiciousness and lack of trust in others.

• I do not believe that the mother would be prepared to engage in the intensive treatment that would be required to address this personality issue. It is very evident from the mother's testimony, that she has no understanding of the problems her behaviour causes to her children's health and well-being. Although she testified that she would go for therapy if I ordered her to do so, she indicated that she did not think she needed treatment. According to Dr. Wittenberg, a serious personality disorder is very difficult to treat, as psychotherapy is the only treatment for such a condition, and it may take years. According to Dr. Wittenberg, a person with this disorder would have to be invested in the treatment. In his opinion, since the mother did not see that there was a problem, it was very unlikely that that the mother would be able to engage in treatment. Without treatment, she would be unable to make the necessary changes in order to develop a different sense of herself and of the world, so that she would be able to successfully parent her children.

ORDER

[60] Accordingly, the court finds that the least intrusive order consistent with the best interests of the children is an order for Crown wardship.

[61] The only issue left to be determined is whether this order should be made with or without access. Now that I have made a Crown wardship order, under the Act, all prior access orders terminate and that there is a presumption against the making of any further access orders. The test to be applied at this time for an access order post Crown wardship is set out in subsection 59(2.1) of the Act that reads as follows:

59(2.1) ACCESS: CROWN WARD — 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.

[62] The onus to rebut the presumption against access is on the person asserting the right to access. In order to be granted access, the claimant must satisfy both prongs of the test. See Children's Aid society of Toronto v. D.P., [2005] O.J. No. 4075 (C.A.).

Prong No. 1

[63] Is the relationship between the mother or the father and the children beneficial and meaningful?

[64] Justice Quinn, in Children's Aid Society of Niagara Region v. M.J., K.S. and S.S., [2004] O.J. No. 872 is frequently quoted as to the meaning of "meaningful and beneficial" in the context of this section. In paras 45, 46, 47, he wrote:

45. What is a "beneficial and meaningful" relationship in clause 59(2)(a)? Using standard dictionary sources, a "beneficial" relationship 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.

[65] Justice Corbett on appeal, in the Children's Aid Society of Toronto and J.L., 2017 ONSC 2380 quoted with approval the comments of Justice Quinn on the meaning of "meaningful and beneficial". It was Justice Corbett's position that it was an error in law for a trial judge not to undertake a two part analysis. The court was to first consider whether the relationship between the child and the person seeking access is meaningful to the child, and in this regard should assess the subjective importance of the relationship between the child and the person seeking access (the parent). The second question the court must consider is whether the relationship between the child and the parent is beneficial, and in this regard, the court should assess the objective importance of the relationship to the child (whether the continuation of the access relationship would be good for the child.)

[66] In this case the girls are very young. The older child is four years five months and the younger child is three years three months. They are still too young to provide instructions as to whether they would wish to continue the relationship with their parents. From all accounts, the girls know their parents and appear happy to see them. According to the foster father, the girls are content to go to access but show no disappointment if access does not occur. He noted that the girls, especially N.R., would take one half to one hour to settle after access and would be more boisterous, and would forget their manners and might be more aggressive with one another after access. I did hear some evidence that the girls would generally express affection to their parents, although after a difficult visit, N.R. in particular, would refuse expressions of affection from her mother. Both girls enjoyed their time with their father when he was fully engaged with them, and not resting on the couch or playing with his scratch tickets. Looking at whether the relationship from the perspective of the girls was meaningful on a subjective level, I would have to say that the girls know their parents, and generally enjoy their time with them and I would say that the relationship is a meaningful one for the girls. However, from an objective perspective, I do not agree that the relationship is beneficial. In fact, there is substantial evidence that I accept, that the relationship between the mother and to a lesser extent the father, is actually harmful to the children as the visits are often chaotic, with the parents fighting and arguing in the presence of the children. As well, the mother is, on occasion, verbally and physically abusive, especially to N.R. According to Dr. Wittenberg, returning these children to these parents would be traumatizing to them and would not foster healthy development. If a continuation of the relationship would be harmful to the healthy development of the children, that relationship could not be viewed as beneficial to the children.

[67] Therefore, with respect to Prong 1 of the test, I am not satisfied that the parents have rebutted the presumption against access.

Prong No. 2

[68] Would ordered access impair the child's future opportunities for adoption?

[69] All parties agree that these children are suitable for adoption. Since the 2011 amendments to the Act, an access order post Crown wardship no longer disqualifies a child from being placed for adoption. Now, children can be placed for adoption with an access order, and once placed for adoption, that access order will terminate, however, the holder of the access order is entitled to notice of his or her right to apply for an openness order under the terms of the Act.

[70] Justice Benotto in Children's Aid Society of the Regional Municipality of Waterloo and C.T. and J.B. and Brigitte Gratl, 2017 ONCA 931 in paragraph 44 of her decision, wrote:

44. "….Second, the access must not impair the child's opportunities for adoption. Courts have interpreted the words "will not impair" to require that access not diminish, reduce, jeopardize or interfere with the child's opportunities for adoption. See e.g. Catholic Children's Aid Society of Toronto v. M.M. and J.P., 2012 ONCJ 369, [2012] O.J. NO. 2717, at para 180 and CAS of Haldiman and Norfolk v. RD and SCM, 2011 ONSC 4857, [2011] O.J. No. 4082 The test for access clearly emphasizes the success of the adoption once the necessity of adoption has been established."

[71] In this case, it is the intention of the Society to place these two young sisters for adoption in the same adoptive home as soon as possible. Given my findings of fact that it is unfortunately the case that the girls cannot be safely returned to their parents, and as such, reunification is not in their best interests, the necessity of adoption has been established. For the following reasons, I find that an access order to either of the parents would "diminish, reduce, jeopardize or interfere" with the child's future opportunities for adoption.

• A prospective adoptive parent would have to be told about the mental health issues of the parents
• A prospective adoptive parent would be advised that the parents are not in favour of adoption
• A prospective adoptive parent would be given some of the history and would be told that access to date has been supervised by two trained social workers, and even then, access visits have had to be terminated because of angry words between the parents, and interactions between the mother and the children that were considered to be upsetting and harmful to the healthy development of the children, especially, N.R.
• The parents are still together, and even if only one parent had the benefit of an access order, it would be difficult to exclude the other
• The potential adoptive parents would have to be told that they would be consulted about the form of an openness order, but their consent to such an order would not be required
• Once made, they would be bound to abide by the terms of the order
• The Society, unless they agreed to do so, would not be available to supervise access or to intercede between them and the biological parents should difficulties arise

[72] See Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530, for a list of reasons why some courts have refused to make access orders post crown wardship.

[73] Accordingly, on the facts of this case, I am satisfied that an access order would "diminish, reduce, jeopardize, or interfere with the children's future opportunities for adoption." Accordingly, the parents have not rebutted, to my satisfaction, the presumption against access set out in prong 2.

[74] For the reasons set out herein, I am dismissing the respondent parents' claim for access post crown wardship.

[75] I am prepared, however, to make an order for access between the two girls as I am satisfied that the relationship between the girls is both meaningful and beneficial and will not impair their future opportunities for adoption. It is my hope that the Society places the girls in the same adoptive home.

[76] Accordingly, I make the following access order:

a. N.R. born […], 2013 shall have reasonable access to N.E.N.R. born […], 2015

b. N.E.N.R. born […], 2015 shall have reasonable access to N.R. born […], 2013

[77] I do understand how disappointed the parents will be with my decision. This is a difficult case, and I am aware of how deeply these parents love these children. However, I have carefully reviewed the evidence, and have made this order, as I am required to do by statute, in accordance with the children's best interests. My sympathies to the parents.

[78] I would like to thank counsel for their assistance in this very challenging case.

Released: April 25, 2018

Signed: "Justice Penny J. Jones, Ontario Court of Justice"