WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.-- (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

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

87(8) Prohibition re 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.

87(9) Prohibition re identifying person charged.

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.

142.-- (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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

Court File No.: Toronto C 46396/08

Date: 2020-03-18

Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto Applicant

— And —

N.P.B. and E.A.L. Respondents

Before: Justice Curtis

Heard on: 16-20, 23, 24 September 2019

Reasons for Judgment released on: 18 March 2020

Counsel

Alec Duncan — for the applicant Catholic Children's Aid Society of Toronto

Mira Pilch — for the respondent mother N.P.B.

Loralee Messenger — Office of the Children's Lawyer, for the child N.

CURTIS, J.:

INDEX

1. Over-view
2. Background
3. Litigation History
4. Disposition
   • a. Disposition Legal Principles
   • b. Plans Proposed at Trial
   • c. Alternative Plans for the Care of the Child
   • d. Is Intervention Through a Court Order Necessary to Protect the Child in the Future?
   • e. The Mother's Strengths
   • f. The Child
   • g. The Child's Views and Wishes
   • h. Assessment of the Mother's Plan
   • i. Evidence Regarding Disposition
     • i. The Mother at Access
     • ii. The Mother's Mental Health, Emotional Issues and Lack of Insight
     • iii. The Mother is Combative, Disruptive, Argumentative and Aggressive
   • j. Analysis Regarding Disposition
   • k. Why Not a Supervision Order?
5. Access
   • a. Access Legal Principles
   • b. Access Analysis
6. Other Issues
7. Conclusion
8. Orders

1. Over-view

1. This is the decision in the seven day trial of a status review application regarding the child N. (11 years old).

2. The trial dealt only with the issue of what disposition is in the child's best interests. The Catholic Children's Aid Society of Toronto was asking for extended society care, with access to the mother at the agency's discretion. The mother wanted the child placed in her care, subject to a supervision order (if required). If the child is placed in the extended care of the agency, the mother wanted specified access to the child (not access at the C.C.A.S.' discretion).

3. The issues for determination are these:

   a) Is intervention through a court order necessary to protect the child in the future?

   b) If so, what disposition order is in the best interests of the child? and,

   c) If there is an order for extended society care made, should there be access to the mother and if so, what access to the mother is in the child's best interests?

2. Background

4. N.P.B. is the mother of the child. She was born on […] 1983 and is 36 years old. E.A.L. is the father. He was born on […] 1971 and is 48 years old.

5. The parents have two children. Only N. is part of this court case.

   • E.L., born […] 1999, 20 years old; and,
   • N.R., born […] 2008, 11 years old.

6. The parents are no longer in a relationship with each other. The father lives in Jamaica. The children last saw the father in July 2015. Service of the status review application on the father was dispensed with on 23 July 2019. The father offered no plan to care for the child, and did not participate in the trial.

7. The mother has lived in many places but came to Toronto to live when she was about 13 years old (in about 1996), and has lived in Toronto for the last four years.

3. Litigation History

8. The C.C.A.S. has had previous involvement with this family. There were five previous file openings before the current court case (in 2008, 2011, 2014, and 2015), and a previous court case regarding the mother. In December 2008 there was a supervision order regarding concerns around E.'s attendance and behaviour at school (when E. was nine years old). In October 2009 the mother and E. left Toronto for Jamaica, with no notice to C.C.A.S., and the supervision order was later terminated. The referrals in 2011, 2014, and 2015 were all regarding the mother's care of N., and all resulted in the file being closed at intake.

9. C.C.A.S.' current involvement began with a protection application started on 9 February 2016, asking for a six months supervision order placing N. with the mother. On 18 February 2016 Paulseth, J. made a temporary supervision order, on consent, placing the child in the mother's care. The concerns were:

   • N. was frequently absent from and late for school (for several years prior to the court case), and was struggling significantly in his academic progress;
   • the mother was unwilling to work with C.C.A.S. or the school; and,
   • there was concern about the mother's mental health, based on her behaviour and irrational statements.

10. From 18 February 2016 to 27 June 2016 repeated unsuccessful attempts were made by C.C.A.S. to conduct home visits with the mother and child. There were no face-to-face meetings in this period, and no home visits, but there was some telephone contact with the mother.

11. On 14 July 2016 Sager, J. placed the child in the agency's temporary care. C.C.A.S. could not locate the mother and the child after the order was made. They were in Montreal. The mother returned with the child to Toronto and brought the child to the care of C.C.A.S. on 19 July 2016.

12. The child was found in need of protection, on consent (pursuant to s. 37(2)(h) of the Child and Family Services Act), on 30 November 2017.

13. N.'s godmother, T.C., was approved by C.C.A.S. as a caregiver and by order made 26 March 2018, he was placed in her care with a supervision order, the placement to begin on 28 June 2018 (when school ended), with access at C.C.A.S.' discretion. Access was scheduled to be Thursday afternoons from 2.00 to 5.00 p.m. in the kin home or community, fully supervised by the C.C.A.S. for assessment purposes, and Sundays from 2.00 to 7.00 p.m. supervised by Ms. C. However, Ms. C. and the mother did not comply with the terms of the access order, and the mother saw the child unsupervised. Eventually Ms. C. asked C.C.A.S. to remove the child from her care, and he returned to foster care in November 2018. Ms. C. did not give evidence at the trial.

14. On 28 November 2018 C.C.A.S. filed an amended status review application asking for an order for extended society care, with access to the mother at C.C.A.S.' discretion. On 28 November 2018 Paulseth, J. made an order for interim society care with access to the mother at C.C.A.S.' discretion, a minimum of two times per week.

15. On 14 February 2019 the mother suffered a stroke and was hospitalized. The child spoke to his mother and the maternal aunt and was told by the mother to pack his bags, and that he would be coming home at the end of February 2019. While the mother was in hospital, on 1 March 2019, the child threatened to kill himself, while at school. He wrapped a cord around his neck in an effort to harm himself. C.C.A.S. suspended the mother's telephone contact with the child.

16. In March 2019 the mother was moved to a rehabilitation hospital, until 26 April 2019. From March to mid-April 2019 N. was brought there to see her weekly. On 30 April 2019 she resumed access at the C.C.A.S. offices, twice per week.

17. On 23 August 2019, the mother's twice weekly access to N. was increased to 1½ hours each visit, and then was subsequently increased to 2 hours each visit. This is the current access.

18. At trial, the child had been in care for a total of 33 months.

4. Disposition

Disposition Legal Principles

19. Section 101(1) C.Y.F.S.A. sets out the orders available to the court once protection order has been made, and the court is satisfied that a court order is necessary to protect the child in the future. The court must then determine what order for his care is in his best interests.

Order where child in need of protection

101(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 102, 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.

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody 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 a total of 12 months.

5. The decision process on a disposition hearing, following a protection finding, has been set out by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376, para. 25, as follows:

6. Determine whether the disposition that is in the child's best interests is a return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship (Section 57 C.F.S.A.);

7. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

8. Section 101(1) is limited by s. 122 of the C.Y.F.S.A., which provides that the court shall not make an order for interim society care that results in a child being in care for a period exceeding 24 months, if the child is six years old or older on the day the order is made, unless the time is extended as provided in s. 122(5) of the C.Y.F.S.A.

9. Section 70 C.F.S.A., which sets the time limits for interim society care orders, should not be interpreted as a maximum time for parents to improve their parenting skills. Rather, it should be interpreted as a ceiling for the length of time which a child may remain in foster care.

10. A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and have developed some new ability as a parent.

11. The Child and Family Services Act is a child welfare statute and not a parent's rights statute. Children who have been in care should not be kept in limbo. Such children would benefit most from permanency planning so that they can attain the stability and develop roots necessary to their healthy physical and emotional development.

12. N. is 11 years old and had been in care about 33 months at trial. This is a significant period of time in his life, and is well beyond the statutory timelines permitted in the C.Y.F.S.A. s. 122. An order for interim society care is not available for N., unless the court makes an order extending the time period allowable under s. 122(5) C.Y.F.S.A. The court can only make such an order if it is in the best interests of a child to do so. N. needs certainty, finality and permanence. It is not in the best interests of this child for his status to continue to be temporary or unresolved.

13. Section 101(3) of the C.Y.F.S.A. requires the court to consider less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For the reasons set out below, returning the child to the mother, even with a supervision order, would not be adequate to protect the child in this case and would not be safe.

14. Section 101(2) C.Y.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. C.C.A.S. was first involved with the mother in 2008 regarding her care of her oldest son E. There has been continuous involvement regarding N. since 2016, when he was seven years old. C.C.A.S. has been working continuously with the mother for more than three years now, including recommending programs and services (i.e., parenting programs, mental health referrals).

15. Once a protection finding is made, and the court determines that a protection order is necessary to protect the child in the future, the court must determine what order for his care is in his best interests. The criteria to determine the child's best interests are set out in s. 74(3) C.Y.F.S.A.:

Best interests of child

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

29. An extended society care order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies.

30. In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective.

31. The pattern of behaviour must be considered: the lack of improvement in the pattern; the lack of insight; the lack of progress in addressing well-founded concerns, despite repeated opportunities to do so; the lack of candour; the lack of good faith; and the lack of any reason to have confidence that the parent has the ability and/or the commitment to make necessary improvements within timelines sensitive to the child's needs.

32. The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance. There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety.

Plans Proposed at Trial

33. There were two plans proposed at the trial:

a) C.C.A.S.'s plan is that the child be placed in extended society care with access to the mother, at the agency's discretion. There is no plan for adoption for N. The C.C.A.S. plan is for permanent foster care for him; and,

b) the mother's plan is to have the child placed in her care, subject to a supervision order (if required).

34. The agency admitted their plan for the child is very limited. C.C.A.S. does not have a plan for adoption for N., for these reasons:

• there is a strong bond between the child and the mother;
• at his age the child would have to consent to the adoption;
• the child has difficulty making friends; and,
• it would be difficult for the child to be adopted.

Alternative Plans for the Care of the Child

35. Section 101(4) of the Child, Youth and Family Services Act requires the court to look at community placements, including family members, before deciding to place a child in care. Other than the mother's plan, there were no separate alternative plans, from family or community, presented for the care of the child.

Is Intervention Through a Court Order Necessary to Protect the Child in the Future?

36. A protection order is needed to protect the child in the future. These are some of the reasons (the details will be set out below):

(a) The original protection concerns have not been addressed by the mother;

(b) The risk to the child is still as high as it was when the original protection order was made;

(c) The mother has mental health issues which are not acknowledged and have not been addressed; and,

(d) The mother's mental health issues adversely affect her judgment and her parenting of the child;

The Mother's Strengths

37. N. has been in care for 33 months. There have been a great many access visits in that period. Since November 2018 when the child returned to care, there have been no unsupervised visits. As a result, there was extensive and detailed evidence available about the mother's access to N. At least four workers, who had supervised over 100 visits, gave evidence about their observations of access.

38. The C.C.A.S. workers who supervised access and other workers described the mother's strengths that they observed:

(a) The mother loves N. and this is evident during access;

(b) She continuously tells the child that she loves him;

(c) She shows care and concern for the child by consistently asking how he is being treated in the foster home;

(d) She raised N. to be a well-mannered, polite and respectful boy, and he is;

(e) She hugs and kisses the child at each visit and tells him that she loves him. The child is receptive to this and hugs and kisses her back;

(f) She enjoys interacting with the child and always asks him how his day was;

(g) The mother and the child have a strong attachment;

(h) She makes it a point to ensure that the child remains connected with his family and the larger community he grew up in. The mother and the child have many friends and extended family members who appear to care a great deal about N. She is part of a larger community that includes extended family, friends and long-term neighbours. She has a strong bond with several members of her community. She views her community as an important support. The extended community also sees the importance of maintaining a connection with the child and often attended access visits with the mother at the C.C.A.S. offices and in Ms. C.'s home. The child was happy to see these people at access visits, relished the attention he received and engaged with them. On a walk in the community during a visit in 2018, many of the people in the community hugged N. or shook his hand, and each person asked how N. was doing;

(i) She is encouraging of N.;

(j) The child's physical and emotional well-being is a priority for her. She consistently checks with the child to ensure he is feeling well, is not being bullied at school, has appropriate currently popular clothing, is doing his homework and that his physical needs are being met in care (i.e., eating enough, showering every day, etc.);

(k) She has brought items of clothing for the child to access visits;

(l) She ensures that the child has a meal at each access visit and that he is part of the planning for the meal. She brings him food or orders food at each visit. At times she sends groceries or meals to the foster home with N. to ensure that he is eating;

(m) She is concerned about his education. At visits she has checked his homework and helped him complete it;

(n) She ensures that a portion of the visit is dedicated to meaningful activities (such as playing a board game, cards, or discussing the child's topics of interest (e.g., snakes)). She believes that it is important that the child engage in activities other than video games;

(o) She continues to update the child on the progress she has made since her stroke. She encourages the child to ask questions, which appears to put him at ease; and,

(p) since her stroke and hospitalization, her visits with the child have improved. She has improved in some of the areas where she was not strong previously. Despite her physical challenges since the stroke, she makes a concerted effort to attend all visits and she has made an effort to attend on time. Lateness has no longer been an issue. She has become more open to taking redirection and feedback regarding her view of the child as a whole. Her interactions with the child in visits are more positive than they used to be.

The Child

39. N. is 11 years old and had been in care for about 33 months at trial. He was repeatedly and consistently described as well-mannered, polite, courteous to others, humble, well-behaved, and respectful to those around him, particularly to adults. The child has been like this since he first came into care. It is to the mother's credit that she raised him this way.

40. The child loves his mother and enjoys his time with her. He knows his mother loves him. He is affectionate towards her and enjoys the affection she shows him. He does not present any behavioural difficulties in the foster home.

41. The child has serious educational deficits. He is in an Individual Education Program. Although he is 11 years old, he reads at a Grade 1 level (he should be reading at a Grade 6 level). His reading and writing fall below the average range. He has poor executive functioning, attention difficulties and very poor motor skills.

42. The child is on a wait list for speech and language services. He is also on the waitlist for occupational therapy to help him with his handwriting. Individual therapy would be helpful for the child, but at trial he was not receiving it, although he has been referred and had an appointment for evaluation.

The Child's Views and Wishes

43. Sections 74(3)(a) requires the court to take a child's views and wishes into account:

Best Interests

s. 74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

44. The child wants to return to live with his mother. He has consistently stated this. His views were not disputed at trial. However, a child's views and wishes cannot prevail if it is not in his interests to be placed where he wishes, and there is a risk of harm to him if he is placed there.

Assessment of the Mother's Plan

45. In her Answer filed 15 July 2019 the mother describes her plan. She proposed that the child live with her and his older brother E. in an apartment she has lived in since released from the rehabilitation hospital in April 2019. She offered that the C.C.A.S. worker can visit her home. However, this did not happen.

46. There was very little evidence given at trial about the mother's plan. She was then living with her aunt and uncle. Her son E. was living with the mother's sister, and although he attended some days of the trial, he was not called as a witness. It was not clear how long she had been living there. It was not clear if the aunt and uncle were part of her plan for the care of N., or if E. was still part of her plan for the care of the child.

47. It has been difficult, nearly impossible for the C.C.A.S. workers to evaluate the mother's plan for N. She has repeatedly and consistently, over many years, refused to allow C.C.A.S. workers to come to her home. Often she would not even provide them with an address. Sometimes she provided an address which either did not exist or at which she did not live. She admitted at trial that she did not agree that C.C.A.S. workers could see her home. She repeatedly said C.C.A.S. should not be evaluating her home unless the child was actually living there. For much of the period of this court case (2016 to now), C.C.A.S. workers have not even been sure where the mother was living.

48. Only one worker, Katharine Gilliam saw the mother's home. She saw it three times (twice in 2017, and once in 2018). However, no other worker was able to visit the mother at her home, despite efforts by all those involved. The mother would not co-operate and allow the several social workers she dealt with to visit her home.

49. Without seeing the mother's home, it was not possible for C.C.A.S. to evaluate her plan for care of the child.

50. It was unclear who would support the mother in caring for N. The maternal grandmother gave evidence but her evidence was very sparse on details about what she would be doing to support the mother.

51. It was not clear whether the maternal grandmother had formally offered a plan. The C.C.A.S. worker said that she had limited contact with the maternal grandmother, who did not talk to the worker about what support she could offer the mother. The maternal grandmother was investigated and as there had been previous C.C.A.S. involvement it was determined she would not be approved as a caregiver.

52. The mother's plan also did not address her very serious health concerns that have arisen in 2019. The mother had a stroke in February 2019 and then had heart surgery in May 2019. She is 36 years old. These are unusual and very serious health issues for a young woman. Very little evidence was presented regarding her current health, and none of it was medical evidence (i.e. from a doctor). If she is to be caring for a child, she needs to have a safety plan regarding her precarious health.

53. There was insufficient information presented about the mother's plan. She appeared to have no plan. Her plan was unrealistic and unsupportable.

Evidence Regarding Disposition

The Mother at Access

54. There was extensive and detailed evidence available about the mother's access to N., as follows:

(a) The mother often came late for access and was often significantly late. This had a direct impact on the child. He would appear anxious on each access day, constantly watching the clock in the reception area and the entrance doorway to see if the mother would arrive on time, or at all, for visits. He would also frequently call the mother from the reception phone inquiring of her whereabouts. Whenever visits were cancelled he would appear visibly disappointed (crying, frowning, hang his head low, etc.). On some occasions, he would admit that he was disappointed by the cancellation. Often he would state that he was understanding of whatever reasons the mother provided for her absence or lateness;

(b) The mother yelled and swore at C.C.A.S. workers during visits. She engaged in conflict during visits, which at times had a visible effect on the child;

(c) Between November 2018 and March 2019 access cancellations were common. In December 2018 she got a letter from C.C.A.S. about access expectations and was cautioned that access would be cancelled if she failed to come on time. After that, several visits were cancelled when she was late;

(d) The mother often used access time to call other service agencies (including the police) on her cell phone to complain about C.C.A.S., rather than spending time focusing on the child;

(e) The mother spoke to the child, directly and indirectly, about matters that are not appropriate for a child. Here are some examples:

  - during access the mother expressed concerns to the child about his safety and well-being;
  - she spoke to the child at access about how he was being abused in foster care and how he was not being fed in care, and she examined his body during access and asked him who had been abusing him in the foster home;
  - she discussed the court case in the child's presence and with him directly;
  - she has repeatedly told the child that he will be coming home, when that decision is not in her power to make (and is an outcome that is not in her control);
  - she has repeatedly told the child that she is suing C.C.A.S.;
  - she has told the child she will sue C.C.A.S. whom she blames for causing her stroke;
  - she has repeatedly told the child that people at C.C.A.S. (the workers) will lose their jobs;
  - she told the child she is appealing to various bodies, such as the Human Rights Tribunal and the Law Society;
  - in 2016 her telephone discussions with the child were so upsetting to him that her telephone access was suspended;
  - at a visit on 25 August 2016, the mother called the police and an ambulance to the C.C.A.S. branch office to do an investigation about abuse of N. The child had told his mother that he was not being abused at the foster home. He was taken to North York General Hospital, and was seen by a doctor, who found no evidence of physical or sexual abuse. The police investigation did not verify allegations of physical or sexual abuse. The mother's access was suspended (for about one month) until a meeting could be held about the C.C.A.S.' expectations of the mother for access. Her access was suspended again for about a month from November to December 2016;
  - in February 2019 (the same month she had a stroke) she told the child he would be coming home later that month;
  - in April 2019 she told the child that C.C.A.S. had caused her to have a heart attack;
  - in June 2019, she told the child that he would be spending the summer with his maternal grandfather, an outcome she could not make happen, and an outcome that even the child expressed doubt about;
  - she told the child that C.C.A.S. is actively trying to harm her or kill her; and,
  - she has consistently encouraged the child to fire his Children's Lawyer and has repeatedly given the child instructions on how to do so. The child has told her he likes his lawyer and does not want to fire her.

(f) The mother has a difficult time focusing on N. when she is agitated. It is common for her to engage him in conversations about her conflicts with others, as well as engaging strangers and other persons;

(g) One access supervisor noted that during visits, the supervisor rarely intervened when the mother provided false information or unreasonable promises to the child as, in her experience, any intervention would immediately escalate the situation, and as a result, the mother would be unlikely to be able to focus on N. for the remainder of her visit with him; and,

(h) While there was some improvement regarding the mother's behaviour at access after her stroke in 2019, there was no real change up to the time of the trial.

The Mother's Mental Health, Emotional Issues and Lack of Insight

55. The mother has had a long recent history with C.C.A.S. and has dealt with a significant number of workers (including family services workers, children's services workers, their supervisors, and access supervisors). Over the years, and in the evidence of many of the workers, the mother's behaviour and statements have caused the workers to have concerns about the mother's mental health. These are examples of the behaviour and statements that have caused the C.C.A.S. to be concerned:

(a) The mother frequently talks about suing C.C.A.S. and the police. She says she is suing C.C.A.S. for $60 million (no law suit has been started);

(b) She says she has contacted the Premier's office and the office of the Prime Minister about her son being in care. The Premier's office did contact C.C.A.S. about the child. She says that she spoke to Justin Trudeau (then the Prime Minister of Canada) and to Kathleen Wynne (then the Premier of Ontario) and that they were part of the law suit. She says that Justin Trudeau's office was already involved in her case;

(c) She presents herself in a grand/grandiose way. She tells workers she is a woman of accomplishments and talents, and that she graduated high school at 15 years of age. She says that she speaks nine languages (although at trial she could not recount which nine languages). She says she is highly favoured by the Lord. She says her case is under review by the Canadian Intelligence Services. She says the R.C.M.P. is investigating C.C.A.S.. She says that Chief Saunders, Toronto Police Services, is investigating abuse allegations she made about the child's treatment in foster care. She says she is contacting the Canadian Embassy about her case. She says she is going to return to school to study law;

(d) she says she sent the assessment report by Dr. Amitay to Kathleen Wynne, Justin Trudeau, the Ontario Human Rights Tribunal and Canada Court Watch;

(e) When C.C.A.S. workers said something she disagreed with or disputed, she described them as lying;

(f) she says that C.C.A.S. caused her to have an adjustment disorder and that C.C.A.S. caused her stroke;

(g) she called one of the family services workers a kidnapper (Katharine Gilliam, the family services worker she really liked);

(h) she alleged that two C.C.A.S. family services workers were in sexual relationships with men close to her. She said that Anne Marie Ferguson was in a sexual relationship with the child's father in Jamaica, and that Katharine Gilliam was in a sexual relationship with her cousin. There was no evidence of this;

(i) she said that one of the workers (Anne Marie Ferguson) wanted both of her children, for herself or for someone else; and,

(j) she is suspicious, almost to the point of being paranoid.

56. The mother arranged, on her own, for a consultation with a psychiatrist at Etobicoke General Hospital, Dr. Nadia Stroganova, who wrote two reports dated 26 September 2016 and 23 January 2018. The reports were filed at the trial, on consent. Dr. Stroganova did not give evidence at the trial. The following is a summary of the findings in these reports:

26 September 2016 report

Her report was clear:

• it is not a parenting capacity assessment;
• it does not serve a forensic purpose;
• it is a clinical assessment based on information provided by the patient.

The findings:

• her clinical impression of the mother was adjustment disorder;
• she recommended several management options for the mother:
  • the mother was referred to a stress management group therapy, which the mother agreed to, but did not attend;
  • the mother declined the recommendation of psychotropic medication; and,
  • the mother was not interested in regular psychiatric follow-up care.

23 January 2018 report:

The report was clear:

• it is not a parenting capacity assessment;
• it does not serve legal purposes.

Dr. Stroganova reviewed the Parenting Capacity Assessment by Dr. Amitay dated 16 and 21 June 2017;

The mother believes that:

• the child is not well-treated in foster care;
• he is being beaten in care; and,
• people are trying to manipulate the child in order to gain control over her.

The findings:

• There is evidence of over-invested ideas versus delusions of persecution and reference;
• Clinical impressions of the mother:
  • adjustment disorder, cannabis use disorder; and,
  • Psychotic disorder probable.

The management plan discussed with the mother at length:

• refer her to pain clinic in order to find different alternatives for pain management other than cannabis, which seems to induce paranoid and over-invested ideas versus delusions;
• offered a referral to addiction counselling, which the mother declined;
• she accepted a referral to the outpatient mental health group therapy (stress management group therapy);
• she is discouraged from regular cannabis use;
• she is advised to get started on psychotropic medication;
• anti-depressant medication can help her to level her moods and decrease her anxiety;
• antipsychotic medication can help her to decrease the intensity of paranoid thinking;
• she is not interested in going on any type of psychotropic medication;
• she refused a prescription from the psychiatrist; and,
• she was provided with mental health crisis resources in the community.

57. The fact that Dr. Stroganova did not respond to the summons and did not give evidence at the trial lessens the impact of her involvement with the mother, her reports, and her findings about the mother, and reduces the weight to be given to this information. It affects both the agency's case and the mother's case.

58. A parenting capacity assessment report was completed by Dr. Amitay on 16 June 2017, and an addendum report was produced dated 21 June 2017. Despite the clear recommendation of Dr. Amitay that the mother would need extensive therapy before she could be considered suitable to return the child to her care, and despite her two contacts with the psychiatrist Dr. Stroganova, at both of which on-going therapy was discussed and recommended, the mother has not engaged in any therapy or counselling. The family services worker made several recommendations and referrals.

59. Different medical sources at trial provided different diagnoses for the mother. The mother's actual diagnosis is not as important as her behaviour, its impact on her parenting of the child and her ability to meet his needs.

60. Despite these diagnoses, and despite recommendations relating these diagnoses and treatment recommendations which might help the mother to regain custody of her son, the mother is consistent, and firm in her belief that she does not have a mental illness. She adamantly refused to take any medication. She said she does not know why the child came into care.

61. The mother has no insight into her mental illness, neither the existence of her illness, nor into how her illness affects her behaviour when she is ill. As she denies that she has a mental health condition, she is unable to recognize when her mental health is deteriorating. She has little or no understanding of the impact of her behaviour, when she is ill, on those around her, including the impact on her child. She does not have insight into the concerns about her mental health, the seriousness of her mental health condition, the importance that her mental health be appropriately managed and treated, the impact that failure to do this could have on her ability to function, or the impact that failure to do this could have on her care for her child. She is unable to grasp that if her mental health were to deteriorate, that it would put her child at risk.

62. The mother openly rejected the findings and recommendations of the Dr. Amitay assessment report. As a result of her belief that she does not have a mental illness, she is not a good candidate for therapy, which requires insight.

The Mother is Combative, Disruptive, Argumentative and Aggressive

63. The mother was described as strong-willed and assertive and she admits this description of her is accurate. She has made many allegations and claims that supported her general theory that C.C.A.S. has conspired to harm her and her family in various ways.

64. The mother was often verbally aggressive and abusive with C.C.A.S. staff, even with Katharine Gilliam, the family services worker she really liked. She was also aggressive and rude to school staff.

65. In Plan of Care meetings, the mother was disruptive and non-productive. She was unable to stay focused on planning for the child. She saturated the conference with her history of complaints against C.C.A.S., with threats against the foster parents, and with threats about suing or having damning information on workers.

66. These descriptions of the mother were consistent with her behaviour as a witness at trial. She was confrontational, combative and argumentative. She was openly hostile, and critical of the agency throughout her evidence. She often refused to answer questions or challenged the questioner's right to ask them. She repeatedly answered questions with another question, in a confrontational way, even when cautioned not to do so. She had to be told repeatedly that she needed to respond with an answer, not with another question.

67. The mother was repeatedly late for court, even after she was cautioned by the court about this and told to come on time. She was late on the first day of the trial and was late every day of the trial. She was even late on the day she was on the witness stand, continuing under cross-examination.

68. Even during this very important event regarding her child she could not control herself and participate in ways that would help her case.

Analysis Regarding Disposition

69. The mother's mental health and her behaviour have had a direct impact on her parenting and on the child. The court has to assess whether the mother has made adequate changes to her behaviour to address the child's needs. The child was seriously behind academically due to the mother's neglect of his educational needs. He is still suffering from the consequences of this. The evidence about the mother's hostility shows a lack of insight on her part to her own mental health issues and an inability to obtain needed services for her mental health due to this lack of insight.

70. The risk of the child being placed with the mother are not any less now than when the child was removed from her care. The mother's behaviour and her neglect have had a significant impact on the child. The mother has not shown that she would be able to meet the child's needs today. Nothing has changed.

71. The mother states that she loves the child. This is a significant factor. Her relationship with the child is extremely important and must, of course, be considered. The child loves her deeply, and knows that she loves him. However, in deciding what is in the best interests of the child, the mother's biological relationship to the child is not the only factor to be considered. The mother's love needs to be weighed against the practical reality of her ability to care for the child, and to ensure that the child is neither harmed in her care, nor is exposed to harm in her care (that is, what is the degree of risk?). Only then could the court consider a placement of any child in her care. Bald statements of her love for the child are insufficient guards against any of the real risks to the child, should he be placed in her care. The court must look to her actions to determine if she has demonstrated an ability and willingness to first address those risks. Her actions, over a period of years, have failed to demonstrate this.

72. The mother's plan for the child is poorly conceived, and the court was given very little details about this plan. She is not now living in a stable home and has not been for some time. She did not set out who in her family would be supporting her plan and in what way. There was no evidence about her very real and recent serious health issues, and how they would be managed if she had the child in her care. Her plan is not well thought through. And it is unrealistic.

Why Not a Supervision Order?

73. One option is to place the child with the mother, subject to a supervision order. Any plan for the placement of the child with the mother would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order.

74. The court must then ask: has the mother taken the necessary steps to establish that her behaviour has sufficiently changed so that a supervision order could adequately protect the child from any risk of harm?

75. For a supervision order to be a meaningful and effective instrument of risk management, the parent subject to the supervision order must meet a minimum threshold of co-operation, and reliability. The effectiveness of a supervision order is dependent on the supervised parent's compliance with the terms of the order, as well as on the supervising agency's ability to monitor that parent's compliance. If the parent fails to meet this minimum threshold of compliance, a supervision order cannot be an effective option to protect the child from possible harm.

76. The mother has not made progress in even acknowledging, let alone addressing the protection concerns, to allow the court to believe that a supervision order would be effective in addressing risk to the child, should he be placed in her care. A serious concern about the mother, her mental health, is the issue which she openly denies exists, and therefore denies that this is a protection concern. Under these circumstances, a supervision order cannot serve as an effective instrument in managing any risk of harm to the child, were he to be placed in her care.

77. Any supervision order involving the child and the mother would be an ineffective instrument for the protection and safety of the child, should there be terms or conditions regarding her mental health. She is not a suitable candidate for a supervision order which includes terms regarding her mental health.

78. The child is entitled to certainty, finality and to grow up in a safe and stable family, where he is valued and protected from harm. He will not have this if he is returned to the mother. The least disruptive alternative consistent with the best interests of the child is to be placed in the extended care of the society.

5. Access

Access Legal Principles

79. The test for access to a child in extended society care and the legal framework is set out in s. 105 C.Y.F.S.A.:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) unless the court is satisfied that the order or variation would be in the child's best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5),

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

(b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.

Court to specify access holders and access recipients

(7) Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c), the court shall specify,

(a) every person who has been granted a right of access; and

(b) every person with respect to whom access has been granted.

Access Analysis

80. The child loves the mother and wants to see her. She loves him and shows him this at the visits. She is generally loving and supportive with him at access.

81. There is no need for an analysis about whether there should be access, as there was no dispute that there should be an order for access, and the agency is asking for an order for access to the mother. The order sought by the agency is access at the agency's discretion. The mother asks for specified access. The issue for determination is what access should be ordered.

82. Access is currently two times per week for two hours each visit. Although there were positive descriptions of the mother at access, there were also behaviour that was difficult, confrontational and not in the child's interests. Some of her behaviour was even harmful to the child. Her behaviour at access has been better in 2019, and that is a positive change. But there are still too many risks associated with her access and her behaviour in front of the child to consider a less structured access arrangement than the current one. In all the circumstances of this case, access at the agency's discretion is a suitable access order and an order that is in the child's best interests. Access at the agency's discretion will allow the agency to change the access as the mother's mental health improves (if it does), as her behaviour changes (if it does) and as the child gets older. It also gives the agency authority to suspend access, as it has done from time to time, when necessary, consistent with the child's best interests.

6. Other Issues

83. There was a lawyer appointed for the child in this case under s. 38 C.F.S.A. by Sager, J. on 4 July 2016. At trial, the lawyer told the court that the child wanted to return to live with his mother. No-one disputed that this was the child's view. In the seven-day trial, child's counsel called no evidence, and with 15 witnesses called, cross-examined only one witness, asking a total of four questions. In this era of declining public resources being made available for the justice system, and at a time when the Office of the Children's Lawyer has been open about cuts to their budget and to the services they can now offer parents, this is not an efficient use of scarce public resources. This lawyer should have put her client's position on the record at the start of the trial, and then asked for an order setting aside the s. 38 order under the C.F.S.A. appointing a lawyer for the child. Her participation in the trial added nothing, other than time and expense, and was unnecessary.

7. Conclusion

84. There is no dispute that the mother loves the child very much. However, the focus of this whole process is the protection, well-being and best interests of the child. The mother continues to have limited insight into her parenting challenges. She remains unable to acknowledge her mental health condition or accept the need for this assistance. Her lack of insight into her own behaviour and mental health still poses a significant risk to the child, should he be left in her care for any period.

85. The child is entitled to have this matter determined and completed. He is entitled to the opportunity to grow up in a safe and stable family, free from any risk to his safety and well-being.

8. Orders

86. There shall be an order for N. to be placed in the extended care of the C.C.A.S., with access to the mother at the agency's discretion. N. is the access holder.

Released: 18 March 2020

Justice Carole Curtis