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.

(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.

(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.

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of Toronto v. A.L., 2021 ONCJ 258

DATE: 2021-04-30

COURT FILE No.: CFO-18-16082

BETWEEN:

THE CHILDREN’S AID SOCIETY OF TORONTO

Applicant,

— AND —

A.L. and M.S.

Respondent parents

Before Justice Sheilagh O’Connell

Heard October 5, 6, 7, 8, 9, 29, November 12, 30, December 1, 2, and 7, 2020

Judgment released on April 30, 2021

Kenneth Atkinson......................................... counsel for the applicant society

Alix Nenniger................................... counsel for the respondent mother, A. L.

Respondent M.S. .............................................. not appearing or participating

O’CONNELL J.:

1: Introduction:

[1] This is an amended child protection application brought by the Children’s Aid Society of Toronto (“the society”) regarding the child S.L. (“S.”). S. is two years old.

[2] S. has been in the care of the society since he was approximately two months old, for more than two years. The society believes that his mother is unable to parent S. because of a severe non-verbal learning or intellectual disability.

[3] The main issues in this case is whether S. is a child in need of protection, and if so, must he be placed in the permanent care of the society for the purpose of adoption or can he be returned to his mother’s care, with or without supervision.

[4] The society brought this amended protection application seeking protection findings under subsections 74 (2) (b) and (h) of the Child, Youth and Family Services Act, 2017, (“the Act”) and for a final order that S. be placed in extended society care (formerly known as a Crown wardship order) for adoption with access to his mother once each year in the form of cards, letters and pictures.

[5] The respondent A.L. is the child’s mother. She seeks an order that the society’s protection application be dismissed, and that S. be immediately returned to her care without a supervision order, or alternatively with a supervision order.

[6] The respondent M.S. is believed to be the child’s father. He did not participate in these proceedings. Several efforts were made by the society to serve M.S. with notice of this proceeding. He refused to submit to a paternity test and evaded service. A kinship search was also completed. No paternal family members came forward to present a plan of care for the child.

[7] On September 15, 2020, on consent, an order was made dispensing with service of this application on the father.

2: The Issues:

[8] The legal issues for me to decide are the following:

a. Is S. a child in need of protection?

b. If so, what disposition order is in S.’s best interests?

c. If S. is placed in extended society care, what order for access, if any, should be made for the mother?

3: The Statutory Findings:

[9] Subsection 90(2) of the Child, Youth and Family Service Act, 2017, c.14 (“the Act”) requires the court to make statutory findings before determining whether the child is in need of protection. On consent, I make the following statutory findings as required by the Act:

1. The child’s name, S. L., and age, born [ … ] 2018.

2. The child is not being raised in any religious faith.

3. The child is not First Nations, Inuk, or Metis.

4. The child was brought to a place of safety within the City of Toronto.

4: The Society’s Position:

[10] The society submits that S. is in need of protection because he is at risk of physical and emotional harm in the mother’s care due to her very limited parenting capacity and skills.

[11] According to the society, the mother has difficulty understanding the child’s level of development, reading the child’s cues and putting into practice the instructions she receives about strategies to improve her parenting skills.

[12] S. is also a child with special needs. He has been diagnosed with global developmental delay and has difficulty walking and talking. The society submits that he is therefore at greater risk of harm due to the mother’s inadequate parenting skills.

[13] The society relies on a parenting capacity assessment performed by Dr. Kathy McDermott, who found that the mother has a “severe non-verbal learning disability that impacts her ability to read the child’s cues and form a healthy attachment to him” which precludes the possibility of a return of the child to her care.

[14] The society submits even with constant in-home support, placement of the child in the mother’s home would likely be unsuccessful. The mother has no supports or family members to assist her with parenting the child.

[15] It is the society’s position that it is in S.’s best interests to be placed in extended society care and to remain with his current foster parents, who wish to adopt him. This will provide permanency for S., and will best meet his special needs, as well as preserve his heritage and identity.

[16] Finally, the society submits that it is S.’s best interests to have access or contact with his mother once each year in the form of pictures, letters and cards. The society argues that any more access between the mother and S. will not be beneficial or meaningful to him.

5: The Mother’s Position:

[17] The mother submits that S. is not a child in need of protection. He was never harmed in her care, nor was he ever at risk of harm in her care. According to the mother, the society removed S. from her care when he was only two months old under a false pretext because they believed that his developmental delays were somehow caused by her neglect or inadequate parenting.

[18] It is the mother’s position that the society has failed to articulate a coherent and consistent position with respect to her parenting capabilities because the society does not know what her parenting capabilities are, and what risks, if any they pose to the child. She asserts that the society has heavily relied upon a parenting capacity assessment that is fundamentally and dangerously flawed.

[19] The mother asserts that since S. was removed from her care, she has never been given an opportunity to parent by the society, even though she has consistently demonstrated an improvement in her parenting skills, consistency in access, and a demonstrated ability to work cooperatively with society workers and the foster family.

[20] The mother is also committed to working voluntarily and cooperatively with the society in order to ensure that S.’s developmental needs continued to be addressed upon his return to her care.

[21] Finally, the mother submits that in the event that the court makes an order placing the child in extended society care, ongoing regular in-person access between S. and his mother is in his best interests. The mother very much loves S. and has been gentle, affectionate and loving with him during access visits. Continued in-person access will let S. know that he is loved by his birth mother and that she did not abandon him. The mother has also demonstrated the ability to support S.’s relationship with his foster family.

[22] Ongoing access will also ensure that the mother is available as a resource to S. and his foster parents as they continue to explore his significant developmental delays. S. will require additional testing and assessment over the long term in order to understand his medical needs. The mother will be an important piece of the puzzle as S. grows older, given the mother’s own learning exceptionalities.

6: The Trial:

[23] This trial was heard over eleven days. The Society called fourteen witnesses in this trial: ten child protection workers, one infant nurse specialist, one pediatrician, the foster mother, and the parenting capacity assessor, Dr. Kathleen McDermott.

[24] The society filed 12 affidavits as part of its case, in addition to two reports by Dr. McDermott. The affidavits formed, for the most part, the society witnesses’ evidence in chief, subject to cross-examination. I reviewed all of the affidavits carefully and did not consider any inadmissible hearsay contained therein.

[25] The mother testified on her own behalf and called Dr. Peter Marshall, also a parenting capacity assessor, who critiqued Dr. McDermott’s assessment of the mother.

[26] Three voir dires were held in this trial. The first involved the admissibility of Dr. McDermott’s expert opinion evidence as a parenting capacity assessor. The second was held regarding the admissibility of hearsay statements made by the maternal grandmother, who died prior to the trial. The third voir dire involved the admissibility of the opinion evidence of the society’s pediatrician as a participant expert.

[27] The trial was conducted as a blended proceeding. I did not consider evidence that went solely to the issue of disposition in first determining if S. is a child in need of protection, in accordance with subsection 93(2) of the CYFSA.

[28] At the request of the parties, the trial proceeded in-person at the courthouse, which was retrofitted with full plastic shields for counsel and the witnesses. Masks were worn by everyone[^1], and Covid-screening was conducted each day.

[29] The trial was unfortunately delayed on two separate occasions when two participants had been potentially exposed to Covid-19 in the community.

7: Is the Child in Need of Protection?

7.1: Background Facts:

[30] The mother is 39 years old and the father’s age is unknown. The mother was born in Kirkland Lake, Ontario and moved to Toronto when she was approximately 19 years old. The father was born in St. Lucia and immigrated to Toronto a number of years ago. The parties were in a dating relationship for a period of time.

[31] S. is the mother’s only child. This is the mother’s first involvement with the society. There is no known child protection history during the mother’s childhood.

[32] The society became involved with the mother in September of 2018, following S.’s birth at Mount Sinai’s Hospital. A hospital social worker with the Neo-Natal Intensive Care Unit (NICU) reported that the mother had given birth and that the infant was currently in the NICU due to hypoglycemia and hypothermia.

[33] The social worker reported that the mother had received limited prenatal care and that the mother was worried about the safety and accessibility of her building. The mother had not purchased a car seat or stroller for S. and was not prepared to take S. home from the hospital.

[34] The mother and S. were discharged from the hospital on September 29, 2018. S. was healthy at discharge. The hospital social worker provided the mother with money to purchase a car seat and a stroller.

[35] Leslie Fraser, an intake worker, met with and observed the mother on four occasions at the beginning of the society’s investigation, between October 1, 2018 until October 29, 2018, until the case was assigned to a family service worker.

[36] The mother expressed concern to Ms Fraser about the safety of the building. She reported that there was no elevator on the third floor, the front door of the building was often forced open, there were strangers in the stairwells and hallways openly using drugs and that there were needles outside her door.

[37] Ms Fraser also observed the building to be in a dangerous condition, including several hypodermic needles and syringes scattered on the stairs, broken glass on the floor, blood on the walls, a man sleeping in the hallway, and used condoms left outside the mother’s apartment door.

[38] She was also aware that the mother did not have many practical supports to care for the infant, such as a car seat or a stroller, nor did she have family members close by, or much support.

[39] Ms Fraser testified that the mother was working on a transfer to safer housing with her housing officer. Ms Fraser helped the mother to advocate for a transfer and wrote a letter of support on her behalf.

[40] Ms Fraser testified that she did not have any concerns about neglect but she had some worries about the mother’s ability to care for S. However, she acknowledged in cross-examination these could be issues that a new mother is learning.

[41] Ms Fraser clarified that she was worried, but not to the degree that S. was being neglected. She testified that when the mother’s case was transferred to the family service worker, they met with the mother and explained that the child protection concerns were: 1. safety risks in her environment; 2. the mother’s lack of practical supports.

[42] Following Ms Fraser’s involvement, Ms Tami Ralston, the society’s infant nurse specialist, was assigned along with Benjamin Childs, the family service worker. Ms Ralston was involved with the mother from October 17, 2018 to November 21, 2018. She observed the mother and child on a total of six occasions.

[43] Ms Ralston also observed the serious safety concerns in the mother’s building and described same. On her first visit on October 17, 2018 (when S. was four weeks old), she observed that S. appeared healthy, but she was concerned about his weight and that he had a dry scalp. In subsequent visits, Ms Ralston was concerned about S.’s diaper rash, “cradle cap” and baby acne. The diaper rash improved but the cradle cap was more persistent, although sometimes improved. S.’s weight continually improved.

[44] Ms Ralston expressed a number of concerns about the mother’s parenting. In addition, to the “cradle cap”, which, in cross-examination, she attributes to a sign of “poor parenting” and “poor hygiene”, she observed that the mother would place S. on a futon on the floor in her apartment and sometime turn her back on him, or leave him there.

[45] She observed that the mother appeared not to engage with S. or establish eye contact with him. The mother was not able to get S. to track her with his eyes. She observed that the mother did not follow a feeding schedule and instead was feeding him “when he was hungry.” She observed that the mother had difficulty following the baby’s cues.

[46] She observed that the mother had significant difficulty understanding instructions and that she had to repeat her explanations of bottle feeding, bottle sterilization, preparation, and hygiene on a number of occasions.

[47] She observed that the mother was not able to make S. “coo and laugh” and that she appeared not able to respond to S.’s cues. She observed that the mother did not engage in “tummy time” with S., and that she did not establish a sleep schedule.

[48] In addition to the above, Ms Ralston had serious concerns about S.’s overall developmental delay. In her evidence in chief, and in particular in cross-examination, it was clear that Ms Ralston believed that S.’s developmental delay was directly connected to the mother’s poor parenting and what she perceived as a lack of attachment.

[49] Ms Ralston’s last visit with the mother and child was on November 21, 2018. Although not in her Affidavit, Ms Ralston acknowledged in cross-examination that she met with her supervisor on November 24, 2018 and shared a “high level of concern” about the child’s developmental delay. She suggested a referral to SCAN (the Suspected Child Abuse Neglect Team at the Hospital for Sick Children) to determine if this was a result of symptoms of neglect or abuse by the mother.

[50] The SCAN team subsequently found no evidence of abuse or neglect. Ms Ralston has not had any involvement with the mother and child since November of 2018.

The First Family Service Worker, Benjamin Childs:

[51] Mr. Childs was assigned from October 29, 2018 to May 27, 2019. He had no involvement with the mother or child after this time period.

[52] At the outset of Mr. Child’s evidence, a voir dire was held regarding the admissibility of the hearsay statements made by the maternal grandmother to Mr. Childs during the course of his involvement. The maternal grandmother had also sworn an Affidavit in support of the mother in this proceeding. The maternal grandmother died suddenly and tragically on March 23, 2019.

[53] For detailed oral reasons during the trial, I ruled that the maternal grandmother’s hearsay statements to Mr. Childs and in her affidavit in support of the mother’s plan of care were inadmissible hearsay. My reasons are briefly summarized as follows:

1. The statements that the society sought to rely upon were vague and unclear, including the source of the information.

2. On cross-examination, some of the alleged statements or comments by the grandmother to Mr. Childs appeared to be taken out of context.

3. The statements were unnecessary because there was already direct evidence of some of the grandmother’s observations.

4. Some of the statements were not relevant.

5. Some of the statements were unreliable and improperly recorded in writing, and directly contradicted statements in the grandmother’s sworn affidavit. It was also unclear when the statements were recorded.

6. Given the dangers of hearsay, the statements were more prejudicial than probative and therefore inadmissible.

[54] During his first meeting with the mother, Mr. Childs also described in detail the unsafe conditions of the mother’s housing. He understood from the intake worker that the protection concerns were the physical hardship of the mother’s current apartment and the mother’s isolation with few supports while she was learning to care for the child.

[55] During his investigation, Mr. Childs observed a number of concerns with the mother’s interaction with S. and her ability to learn new parenting skills. He observed that the mother appeared to be disconnected from the child and he was concerned about her lack of interaction. He described the mother as having a “blunted” or flat affect and that she had difficulty making eye contact with him or other workers during meetings. He observed her to not have any reaction or express any emotion with “words or body language” to what was being discussed.

[56] Mr. Child’s described the mother’s failure to sterilize bottles despite repeated reminders and instructions, the lack of safe sleeping practices, leaving S. on a futon, and leaving S. with neighbours who could pose a safety risk to him if doing an errand. He observed that the mother only tended to S.’s needs when he cried loudly or when the mother received prompts from people supporting her. According to Mr. Childs, the more he interacted with the mother, the more he worried about her ability to care for S. on her own.

[57] On November 13, 2018, Mr. Child’s learned from the mother that the maternal grandmother was visiting from Kirkland Lake. She was staying at a hotel near the mother’s building and the mother and S. stayed with her during her visit.

[58] Mr. Childs met with the mother and maternal grandmother at the hotel. Mr. Childs was reassured upon meeting the grandmother. He and his supervisor decided that the grandmother was providing the mother and the baby with the support and safe housing (the hotel) that they needed to be healthy and safe.

[59] The grandmother was visiting for approximately one week. The society offered to cover the cost of the grandmother’s hotel room for an additional three days so that the grandmother could attend some of the medical assessments for the baby. The grandmother agreed to stay.

[60] On November 15, 2018, S. was seen by Dr. Bell at a community health clinic. Dr. Bell expressed concern about the child’s head circumference. There was a concern that S. may have hydrocephalus given the disproportionate size of his head.

[61] Upon the grandmother’s return to Kirkland Lake, the society determined that given the serious safety concerns with the mother’s building and the mother’s lack of necessary support, it was decided that S. could no longer stay at the mother’s apartment building. The mother was provided four options: a) the mother and baby move into a family shelter; b) the mother and baby stay with the grandmother in Kirkland Lake; c) the baby stay in Kirkland Lake with the grandmother; or d) S. comes into society care pursuant to a Temporary Care Agreement.

[62] Mr. Childs met with the mother on November 21, 2018 to discuss these options. The mother advised him that her preferred option was to go to a shelter so that S. could remain with her.

[63] On November 22, 2018, Mr. Childs, his supervisor, and Ms Ralston (the infant nurse specialist) met with society physician Dr. Leo Levin to discuss their concerns that S. may have a potential underlying medical condition and their serious concerns about neglect.

[64] Mr. Childs arranged for a medical appointment with Dr. Levin on the same day and attended the mother’s home unannounced that day to bring S. to the appointment. The mother agreed and attended with them.

[65] Following the appointment, Mr. Childs explained to the mother that Dr. Levin had serious concerns regarding S.’s development and that there may be a potential underlying medical condition that is affecting his brain, development and vision.

[66] Mr. Childs discussed a Temporary Care Agreement with the mother. He advised her that he had made inquiries and that there were no shelters available. The mother told him that this was not her preferred choice, but if the shelter was not an option, she would not go to Kirkland Lake with S. until his medical needs were addressed in Toronto.

[67] S. went into society care that evening. The Temporary Care Agreement (“TCA”), dated November 23, 2018 was entered into evidence. It states that the mother is “temporarily unable to care adequately for the Child for the following reasons:

a. “[The mother] and the society agree that the serious nature of safety concerns at her address put her child at serious risk of harm and she has no alternative housing or place of safety.

b. [The child] has potentially underlying medical concerns that need to be assessed to ensure that [the mother] is able to meet his needs.”

[68] The agreement provided that S. would be in society care from November 22, 2018 to December 20, 2018 to address the above concerns. It is the mother’s evidence that she signed the Temporary Care Agreement due to the unsafe conditions of her building. She believed that S. would be returned to her care once she was in safer housing. She believed that S. would only be in foster care for a few weeks.

[69] On November 29, 2018, the child was examined at the Suspected Child Abuse and Neglect clinic (SCAN) at the Hospital for SICK Children. Following the examination, the medical doctor advised that S.’s head circumference appeared normal, however, of concern was that the child was not “tracking” with his eyes at all and he had a heart murmur.

[70] On December 3, 2018, the mother was approved for a priority transfer to a two- bedroom apartment in Toronto. She advised the society of same. The mother moved into the apartment on December 4, 2018 and she has continued to live in this apartment since that time. There are no concerns about the mother’s apartment, building or neighborhood.

[71] On December 7, 2018, the society terminated the Temporary Care Agreement and started this child protection application on December 14, 2018. At that time, the society sought an order that the child be placed in interim society care for a period of six months.

[72] Mr. Childs acknowledged that the mother was very upset when S. was not returned to her care after she secured safe housing. He further acknowledged that he did not visit the mother at her new apartment for at least one month or two months after she moved in.

[73] The mother also testified about how upset she was when S. was not returned to her care once she obtained safe housing and how she felt like she had been “tricked” by the society.

[74] Mr. Childs did not agree that the mother may have been misled or may have misunderstood when signing the TCA that S. would be returned to her once she gained safe housing. He believed that the mother was capable of signing the TCA even though he acknowledged that he had wondered if the mother had a learning disability.

[75] In the original protection application, the society states that they developed concerns about the mother’s parenting capacity and her ability to enter into a further Temporary Care Agreement.

[76] On December 14, 2018, Justice Brian Weagant made a temporary without prejudice order placing the child in the care and custody of the society, with access to the mother at the society’s discretion.

[77] The mother continued to have supervised access at the society’s offices. Her access has been supervised since November 23, 2018. During the month of January, the society had arranged for 4 supervised visits at the mother’s home at the mother’s request. However, those visits were discontinued.

[78] On March 23, 2019, the maternal grandmother was tragically killed in Kirkland Lake by the mother’s brother at the Kirkland Lake family home. The maternal grandmother was an important support for the mother and her sudden death was shocking and very difficult for the mother.

[79] In July of 2019, with the benefit of counsel, the mother consented to participate in a parenting capacity assessment with Dr. Kathleen McDermott.

[80] Dr. McDermott completed her assessment on September 8, 2019. Dr. McDermott concluded that the mother was incapable of parenting independently because of a “severe non-verbal learning disability”. She recommended permanency planning for S., without access to the mother.

[81] The mother retained Dr. Peter Marshall to conduct a critique of the assessment, which was completed on November 11, 2019. Dr. McDermott prepared a written response to the critique which was completed on January 9, 2020.

[82] In January of 2020, following the receipt of the parenting capacity assessment and response, the society held an internal meeting and determined that it would amend its application to extended society care.

[83] Following the recommendation to amend its position to extended society care, the mother’s access was reduced from three time per week to twice per week at the society’s offices and the mother’s home visits were suspended. The visits resumed at the society’s office.

[84] In March of 2020, following the government’s declaration of a state of emergency as a result of the global pandemic, the mother’s in person access was suspended for a period of approximately four months. The in person access resumed in June of 2020, but the mother was required to wear full PPE equipment, including a mask, plastic visor and gown and maintain physical distancing with the child throughout the visit. At the time of the trial, this was the access that was occurring.

[85] On July 31, 2020, the society amended its protection application to seek the final order for extended society care.

[86] It is now not disputed that S. is a child with special needs. He has global developmental delay, the cause of which is still unknown, but possibly hereditary in nature. S. is significantly delayed in meeting his developmental milestones such as walking and talking. He requires physiotherapy, speech language therapy and occupational therapy.

7.2: The Parenting Capacity Assessment:

[87] Dr. Kathleen McDermott was retained by the society, pursuant to a joint retainer letter prepared by both counsel. The letter included a number of questions to be considered by Dr. McDermott during her assessment. The assessment was not court ordered under section 98 of the CYSFA.

[88] The society sought to have the parenting capacity assessment admitted as evidence in this trial and to have Dr. McDermott qualified as an expert to give opinion evidence in three areas: 1) clinical psychology; 2) parenting capacity assessments; and 3) child-parent attachment.

[89] Counsel for the society submitted that the proposed evidence meets threshold reliability and should be admitted on that basis alone, with the issue of ultimate reliability to be determined once the court has heard all of the evidence in this trial. Any concerns with the parenting capacity assessment report should go to weight and the court should ultimately decide that issue at the trial’s conclusion.

[90] Counsel for the mother submitted that the proposed evidence should not be admitted as it did not achieve the threshold criteria for reliability in three areas: relevance, necessity, and the need for a properly qualified expert. The absence of an exclusionary rule was not contested.

[91] A voir dire was conducted to determine the admissibility of the proposed expert evidence. Two witnesses were called on the voir dire: Dr. McDermott and Dr. Peter Marshall, a parenting capacity assessor retained by the mother to critique Dr. McDermott’s assessment.

[92] The parties agreed that the evidence taken on the voir dire would be blended with the trial proper if the evidence was admitted. [^2]

[93] The voir dire proceeded over three days. The court reserved its ruling on the issues of both threshold reliability and ultimate reliability. This was somewhat unusual, but the nature of the evidence that unfolded unfortunately made it very difficult for the court to determine even threshold reliability at that time.

Legal Considerations on the Voir Dire:

[94] Both counsel agreed that the legal test for the admissibility of expert opinion evidence is set out by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 and further clarified in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.

[95] Opinion evidence is presumptively inadmissible. The party seeking to introduce it bears the onus of establishing its admissibility on a balance of probabilities. See R. v. Millard, 2018 ONSC 4410 at paragraph 36.

[96] Expert opinion evidence is admissible when it meets the test set out in the following two stage process:

1. First, the evidence must meet the threshold requirements of admissibility:

a. The evidence must be logically relevant,

b. The evidence must be necessary to assist the trier of fact,

c. The evidence must not be subject to any other exclusionary rule,

d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfill the expert’s duty to the court to provide evidence that is:

i. Impartial,

ii. Independent, and

iii. Unbiased.

e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose.

2. Second, the trial judge, in a gatekeeper role, must determine that the benefits of admitting the evidence outweighs its potential risks, considering factors such as:

a. Legal relevance,

b. Necessity,

c. Reliability,

d. Absence of bias.

[97] As Justice Penny Jones stated in The Children’s Aid Society, Region of Halton v. J.B. and D.T., 2018 ONCJ 884, at paragraphs 12 and 13 of her decision:

“Given the real risk that a miscarriage of justice will arise from the too ready admission of unreliable expert opinion evidence into the trial record for consideration by the trier of fact (examples which are documented in the Goudge and Motherisk reports), trial judges, as gatekeepers, have been directed to actively scrutinize the credentials of the experts and the nature of the opinion evidence sought to be introduced at the front end by way of a voir dire. The purpose of doing so is clear—it is to weed out unreliable opinion evidence that would offer little benefit to the trial process given its unreliability, and might distort and prejudice the fact-finding process. See R. v. Abbey, 2017 ONCA 640.

The danger of admitting unreliable expert opinion evidence has not been restricted only to situations where a jury is involved. Judges sitting alone on criminal cases and in civil matters have recognized the importance of keeping out unreliable opinion evidence rather than allowing it in and letting all of the frailties of the evidence go to weight and not to admissibility. See Brandiferri v. Wawanesa Mutual Insurance, et al, 2011 ONSC 3200 paragraph 31 where Lauwers, J wrote,

[31] Trial judges are expected to play a fortified gatekeeper role, and not just in criminal cases or just in cases with a jury. Judges are increasingly aware that for them too, the bell cannot be easily unrung. It is better that inadmissible evidence is simply not heard. As the Ontario Court of Appeal stated in R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330, [2009] O.R. No. 3534 at para. 76, leave to appeal dismissed [2010] S.C.C.A. No. 125: “The ‘gatekeeper’ component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence.”

The Evidence on the Voir Dire:

[98] Dr. McDermott is a psychologist, registered with the College of Psychologists of Ontario. She is registered and authorized to practice in the area of clinical psychology. She has been a member in good standing with the College since 1988. As a clinical psychologist, she has the authority to practice in the areas of counselling, psychotherapy, and assessment (diagnosis) in the child, adolescent and adult populations.

[99] Dr. McDermott obtained her Ph.D. in clinical psychology in 1988 from York University, and her M.A. in clinical psychology from York in 1979. According to her curriculum vitae, she has undertaken over 600 parenting capacity assessments in the area of child protection since 1993 and she has testified in over 95 cases. She has always been qualified as an expert and has presented her recommendations to child protection agencies and courts in approximately 17 jurisdictions in Ontario.

[100] Dr. McDermott testified that the area of parenting capacity assessment is not a registered practice area by the College of Psychologists for Ontario, however, there are guidelines that were created by the Association of Family and Conciliation Courts (the AFCC) that she follows when conducting her assessments. The guidelines set out the process and methodology that must be followed.

[101] When asked what else she has done to ensure that she has the requisite knowledge and skill to conduct parenting capacity assessments, Dr. McDermott testified that she has been a member of the AFCC for many years and this has been a major source of information. She also draws from her own past experience working with adults at the London Psychiatric Hospital for twelve years, as a school psychologist for a number of different schools in the Thames Valley District School Board for five years, and her own clinical private practice which she started in 2004.

[102] Dr. McDermott testified that her referral sources are children aid societies. She testified that she has never been retained by a parent to conduct a parenting capacity assessment in a child protection proceeding. She testified that she has conducted between 650 to 700 parenting capacity assessments since 1993.

Dr. McDermott’s Assessment Process:

[103] Dr. McDermott testified that when conducting her assessments, she reviews all of the legal documents, the continuing record, the child’s record, the family service record, and all of the access notes. She meets the parent and takes a history from birth to present. She lets the parent take as much time as possible to tell their story and what has happened to them so that they can become more comfortable with her, share more information and develop trust. Only then will she observe the parent with the child or children, so she is not meeting them for the first time during the observations of the parent-child visits. She will also interview collaterals.

[104] Dr. McDermott also conducts psychological testing, such as personality, intelligence, and parenting tests, to help provide some possible hypotheses, if there are issues that she is not seeing during her clinical observations. She testified that these assessment tools may make suggestions that she has not considered or confirm her own findings and impressions. However, she cautioned that there are limitations to psychological assessment tools and that they are not a “magic bullet” that determine parenting. She stated that she did not find them particularly helpful, but the tests can make sense of some issues, particularly intellectual.

[105] Dr. McDermott testified that she administers the tests herself, but she does not interpret or score her own tests, she sends then out for interpretation by the company that owns the license for the particular test that she decides to use.

The Parenting Capacity Assessment of the Mother:

[106] In this case, Dr. McDermott’s assessment consisted of the following:

1. Review of the Continuing Record,

2. Review of all society access notes,

3. Two interviews of the mother at the society’s offices,

4. Two observation visits of the mother and her son at the society’s offices,

5. Interview with the foster mother and foster grandmother at their home,

6. Psychological testing of the mother,

7. Phone interview with Family Service Worker Jordyn Letofsky.

[107] The amount of time spent on each aspect of this assessment was not set out in the report, nor did Dr. McDermott recall during her testimony,

[108] According to her report, Dr. McDermott conducted the following psychological testing of the mother:

1. Wide Range Achievement Test -4 (“WRAT-4”)

2. Wechsler Adult Intelligence Scale - Fourth edition (“WAIS-IV”)

3. The Wechsler Memory Scale-III (“WMS-III”)

4. Personality Assessment Inventory 2 Ed. (“PAI-II”)

5. The Adult Adolescent Parenting Inventory (“AAPI-II”)

[109] The order of the testing, the time involved, and when and where each test was conducted was not set out in the report, nor did Dr. McDermott recall during her testimony. It was also unclear whether a reading comprehension test was conducted.

[110] Based on her assessment, Dr. McDermott’s findings regarding the mother’s capacity can be summarized as follows:

1. The mother is incapable of parenting independently because of a “severe non-verbal learning disability.” The mother “does not hear or see her child’s signals accurately” due to this “immutable” and “severe disability”. [page 17.]

2. Although the mother loves her son to the best of her abilities and is seeking his return to her care, “there are substantial militating factors that preclude this possibility” [page 16]. The mother’s interactions and interpretation of her son’s needs are seriously compromised and she repeatedly misses seemingly simple cues, “cues that often appear painfully obvious to those who work with her.” [page 16.]

3. “It would be difficult to envision the nature and intensity of support that would help [the mother] overcome her particular parenting deficits. They are rooted in her cognitive/neurological profile.” [page 18.]

4. While the mother would not intentionally harm her son, the cumulative effects of her inability to accurately interpret his needs will seriously impact his social, emotional, and developmental trajectory. [page 19.]

5. Dr. McDermott recommended permanency planning for the child without access to the mother. She opined that given the child’s developmental delays, “he needs to invest fully with individuals who are able to meet his current and future needs, as they need to invest in him. I think that the benefits of access to his mother are outweighed by his need for permanency plans that reside outside of her care.” [page 19-20]

[111] Dr. McDermott also recommended that the mother’s “severe learning disability be brought to the attention of community services so that she is provided with the necessary financial and residential supports she truly needs” and that she would also benefit from a neurological investigation, “due to her frequent lapses in focus”. She further recommended that those investigating the child’s current and future developmental delays be apprised of the mother’s cognitive and social-emotional deficits to clarify any hereditary issues.

The Critique:

[112] Dr. Marshall was retained by counsel for the mother to provide a critique of Dr. McDermott’s parenting capacity assessment. His written critique was entered as an exhibit in the voir dire, along with his curriculum vitae.

[113] The court is mindful of the Ontario Court of Appeal’s decision of M. v. F., 2015 ONCA 277 in which the court expressed questions about the utility and even the admissibility of critique evidence in family law cases.

[114] However, that case involved two private litigants in a family law dispute. The use of critique evidence by vulnerable parents in child protection cases is fundamentally different, particularly when it involves the issue of psychological or psychometric testing to determine parenting capacity.

[115] Here, the state is seeking the permanent removal of the child from the parent’s care, with a plan for adoption by the foster family. There is no room for variation in the future, and the society is seeking an order that the mother have no in-person access with her child. The mother’s Charter rights are engaged.

[116] As Justice Benotto stated, when describing the reality of the child protection litigant in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316:

“The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. As Justice L’Heureux-Dubé noted in her concurring reasons in G. (J.), at para. 113, “women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings”…

Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms. The miscarriages of justice outlined in the Report of the Motherisk Commission (2018: Ontario Ministry of the Attorney General) speak, by way of example, to the significant imbalance between parents and Children’s Aid Societies, noting that parents, even when represented by counsel, were “simply overpowered” (at p. 121). Fairness in the child protection context demands recognition of these dynamics.” [paragraphs 68 and 69 of the decision]

[117] Other courts have admitted expert critique evidence of parenting capacity assessments in child protection proceedings similar to the case before me, generally regarding methodology, process and testing. See C.A.S of Simcoe v. D. (B.), 2014 ONSC 2140 (Div. Court), affirming 2013 ONSC 1610; C.A.S. of Toronto. v. K.O. (2004), 2004 CanLII 55246 (ON CJ), 50 R.F.L. (5th) 298; C.A.S. of the Regional Municipality of Waterloo v. L., 2004 ONCJ 116 (Ont. C.J.), as well as this court’s decision in Halton Children’s Aid Society v. A.W., 2015 ONCJ 82.

Dr. Marshall’s Qualifications:

[118] Dr. Marshall is a registered psychologist in Ontario specializing in the assessment and treatment of children, adolescents and families. He obtained his B.A. in Psychology at Reading University in England and his Ph.D. in Psychology at Queen’s University in 1976. He has been a registered clinical psychologist with the College of Psychologists of Ontario since 1978. He has had an independent practice since 1981 and he is a consultant psychologist with the Durham Family Court Clinic since 2004.

[119] Dr. Marshall has worked with a number of children’s aid societies over his career in three main areas: to conduct child therapy, to conduct individual assessments of parents where there are mental health concerns, and to conduct parenting capacity assessments for use in child protection proceedings.

[120] Dr. Marshall estimated he has been conducting parenting capacity assessments in child protection proceedings for the past 20 to 25 years. He has completed parenting capacity assessments for child protection agencies and parents in Belleville, Durham, Barrie and the surrounding area, among other areas.

[121] Over the course of his practice, he has undertaken approximately 50 parenting capacity assessments. He has given evidence and been qualified as an expert witness for parenting capacity assessments in child protection cases on approximately 15 occasions.

[122] He has also been asked to conduct critiques of parenting capacity assessments prepared by other clinicians. He has conducted approximately ten critiques.

[123] Dr. Marshall’s contact with mother’s counsel was solely for the purpose of accepting the referral and obtaining further information from Dr. McDermott (i.e. the length of her observations; statistical data, such as score sheets and the client interpretative results from the testing). There was no discussion with mother’s counsel of her views of Dr. McDermott’s assessment. He did not speak to the mother or her counsel before or during his critique. The contents of his critique were not shared or discussed with counsel prior to its submission. Payment was authorized by Legal Aid Ontario. Dr. Marshall never met with or had any contact with the mother or anyone else involved in this case.

[124] Dr. Marshall has conducted approximately ten critiques of parenting capacity assessments in the past, and on a number of occasions, he found nothing wrong with the assessments and reported that to counsel. His critique is based on the report itself, the research and science, and his knowledge and experience in the field of parenting capacity assessments regarding methodology and testing.

[125] On consent of counsel, following questioning, Dr. Marshall was qualified as an expert to give expert opinion evidence regarding parenting capacity assessments.

Dr. Marshall’s Findings

[126] In his Critique, Dr. Marshall raised the following concerns with Dr. McDermott’s assessment:

1. Dr. McDermott’s Interpretation of the Mother’s Cognitive/ Intellectual Profile and the Correlation to Parenting Capacity was Incorrect:

[127] According to Dr. Marshall, it was incorrect for Dr. McDermott to conclude that the mother had significant and immutable parenting defects based on her assessment of the mother’s intellectual and cognitive profile.

[128] Although Dr. McDermott administered the Weschler Wechsler Adult Intelligence Scales-1V, she did not report the mother’s full scale IQ because she did not think the mother’s overall intellectual functioning could be estimated due to significant discrepancies in various areas[^3]. Dr. Marshall did not agree, based on his own review of the composite scores. Dr. Marshall requested this statistic from Dr. McDermott and the Full-Scale IQ for the mother was reported to be 60.

[129] According to Dr. Marshall, an IQ at this level would be consistent with an “intellectual disability” as it is referred to in the DSM diagnostic system or a “developmental disability” as it is referred to in the educational system.

[130] Dr. Marshall explained that after administering the Wechsler Adult Intelligence Scales-1V, Dr. McDermott incorrectly concluded that the mother had fundamental and immutable parenting defects based on her intellectual and cognitive profile, which she described as a “severe non-verbal learning disability.”

[131] Although this could mean the same thing as an intellectual disability, there is no research establishing any correlation between poor parenting and a severe “nonverbal learning disability”. Dr. Marshall

[132] However, there is a significant body of research on the relationship between overall intellectual ability and parenting skill (the research was cited in his report).

[133] The research has demonstrated that intellectual disability by itself is a poor indicator of parental capacity. There is no reliable correlation between IQ score and parenting skill until the IQ score is below 50, not an IQ of 60, such as the mother’s in this case, if the scoring is accurate.

[134] Dr. Marshall described the Wechsler Adult Intelligence Scales-1V as a good and solid psychological test, a “very powerful test”. However, it is not designed as a test for parenting capacity. It is well established in the research that this test has more predictive validity for academic success than any other measure in the medical science.

[135] An intellectual disability can certainly be a risk factor when assessing parenting capacity, just as mental health and addiction can be risk factors, but none of those things automatically preclude a person from being a parent and Dr. Marshall was very concerned about Dr. McDermott’s incorrect interpretation of the mother’s intellectual disability as being determinative of her parenting capacity.

2. No Assessment of Reading Comprehension:

[136] Dr. McDermott did not assess the mother’s reading comprehension prior to administering the testing. Dr. McDermott reported at page 9 of her Report that “the formal psychological assessment of the mother indicated a post-secondary reading level based on the Wide Range Achievement (WRAT) Test-3.[^4]

[137] According to Dr. Marshall, this is not correct. The Word Reading subtest used by Dr. McDermott does not actually assess reading comprehension. Although quick and easy to administer, this test only requires that the person pronounce a series on unrelated words. An understanding of what the words mean is neither measured nor required.

[138] In Dr. Marshall’s experience, a person may have well-developed phonics, but prove to be functionally illiterate when reading comprehension is assessed. According to Dr. Marshall, Dr. McDermott should have administered the Sentence Comprehension subtest, also included in the WRAT.

[139] Given the above, Dr. Marshall found that it was incorrect of Dr. McDermott to administer self-report inventories such as the Personality Assessment Inventory (PAI) and the Adult-Adolescent Parenting Inventory (AAP1-2) without first determining the mother’s ability to comprehend the items.

[140] This may explain, as Dr. McDermott indicated in her assessment, why the mother’s “Personality Assessment Inventory” could not be interpreted and the results were considered invalid by the scorers. Further, the discussion in the Interpretative Manual for the PAI is more explicit in noting the likelihood of “reading difficulties.”

3. Administration of the Adult-Adolescent Parenting Inventory (AAP1-2)

[141] The failure to determine reading comprehension did not have implications for using the Personality Assessment Inventory (PAI) in the assessment because, according to Dr. McDermott, no results from the PAI were interpreted or relied upon to determine parenting capacity, given their invalid scores.

[142] However, in contrast, the results from the Adult-Adolescent Parenting Inventory (AAPI-2) were interpreted in the absence of both a measure of reading comprehension and the type of validity check contained in the PAI.

[143] This raised significant concerns for Dr. Marshall given Dr. McDermott’s statement that on the basis of the results, the mother is at “medium” risk and “high” risk for a wide range of serious parenting deficits. The AAPI-2 is a self-report that requires responding to forty written questions.

[144] Furthermore, according to Dr. Marshall, the validity of the AAPI-2 has been seriously questioned by a number of independent researchers who conclude that the AAP1-2 lacks the sufficient standardization, validity and peer-reviewed research to support their use in a forensic assessment.

[145] According to the research: “While the AAPI-2 has been marketed as a tool that can help social workers and other child welfare practitioners identify parents who are most at-risk for abusing and neglecting their children, our research suggests that it should not be used for such a purpose.”

4. Observation of Parenting:

[146] The fourth major area of concern raised by Dr. Marshall related to Dr. McDermott’s observations of the mother’s parenting. As it was not indicated in her Report, Dr. Marshall requested information regarding the amount of time for each of Dr. McDermott’s observation visits of the mother and child. Dr. McDermott responded that there were two periods of observation: one period was for 2.25 hours and the other period was for 1.75 hours, both at the society offices.

[147] Dr. Marshall raised concerns that this period of observation at society offices was inadequate, and also should have occurred in a more “naturalistic setting”, such as the mother’s home. According to the independent peer reviewed research earlier cited by him, longer periods of observations have greater validity in evaluating those behaviours related to the quality of parenting. In a review of observational studies, the average period of observation should be at a minimum, four consecutive hours.

[148] Dr. Marshall has found that extended periods of observation provide very valuable information and at times, “such information has led to reaching far more positive conclusions regarding parenting abilities than might be expected on the basis of history; conversely, there have been occasions on which the observations added considerable weight to the concerns that led to the referral and highlighted the degree to which the parents had limited capacity to care for the children.”

[149] Overall, it is Dr. Marshall’s opinion that Dr. McDermott’s assessment did not provide an adequate evaluation of parenting capacity.

Dr. McDermott’s Written Response to the Critique:

[150] Dr. McDermott provided a written response on January 9, 2020, which was submitted during the voir dire. She did not agree with Dr. Marshall’s critique, however, she acknowledged that Dr. Marshall was correct in interpreting the results of the mother’s overall intellectual assessment as indicating an IQ of 60 (0.4 percentile) and that diagnostically this would be termed an “Intellectual” or a “Developmental Disability”.

[151] Dr. McDermott also stated she did not rely on the results of the AAPI-2 because after conducting the intellectual and memory assessments (WAIS-IV and WMS-III), “it became apparent that [the mother] had serious learning and comprehension issues which explained her uninterpretable PAI-II profile and alarming responses to the parenting attitudes inventory (AAPI-2).” [page 1]

[152] Rather than rely upon the faulty information that the testing provided, Dr. McDermott stated that she only relied on her two observations of the mother and the child, along with “a thorough review of the [society’s access] notes related to hundreds of hours of observations, and enumeration of their concerns, made by Society staff.”

Ruling and Analysis on the Voir Dire:

[153] For the reasons set out below, Dr. McDermott’s parenting capacity assessment is not admissible in this trial because it does not meet the threshold requirements of admissibility for expert evidence, specifically, the requirements of relevance, necessity, and a properly qualified expert.

[154] Courts should always treat parenting capacity assessments with caution, particularly in child protection proceedings where the stakes are so high for parents. These reports, by their very nature, are predictive of future parenting capacity and a children’s aid society will often, if not always, revise or amend its protection application and the child protection orders it is seeking based on the results of the assessment.

[155] This was the case here. After receiving the parenting capacity assessment and the Dr. McDermott’s supplementary written response in January of 2020, the society made the decision to seek extended society wardship for the purpose of adoption. Jordan Letofsky, the society’s family service worker at the time, testified that the society had an internal meeting in mid-January of 2020 and the decision was made to amend its protection application and recommend extended society care.

[156] Ms Letofsky met with the mother on January 27, 2020 to inform her of this decision. Shortly afterwards, the society reduced the mother’s visits to two times each week and moved the visits back to society offices from being supervised at the mother’s home.

[157] Accordingly, the trial judge, in her gatekeeper role, must ensure that the process and methodology used in parenting capacity assessments meet appropriate forensic standards in child protection proceedings.

[158] In addressing threshold reliability, the role of the court is to ensure that evidence proffered as expert opinion meets a minimum threshold of reliability to warrant consideration by the trier of fact.

[159] Reliability as a fundamental organizing principle in the law of evidence is embedded in all parts of the Mohan Test. [See The Goudge Inquiry, The Role of the Court, pages 477 and 478.]

[160] As Justice Louise Charron explained in R. v. K. (A.)[^5], reliability is central to at least two of the Mohan factors: relevance and necessity. Unreliable evidence is never necessary or relevant. Unreliable evidence cannot support a fact in issue, so it cannot be relevant. Justice Charron (as she then was) states the following at paragraph 84 of that decision:

“The evidence must meet a certain threshold reliability in order to have sufficient probative value to meet the criteria of relevance. The reliability of the evidence must be considered with respect to the second criteria of necessity. After all, it could hardly be said that the admission of unreliable evidence is necessary for a proper adjudication to be made by the trier of fact.”

[161] Although Dr. McDermott may be a qualified clinical psychologist, her report did not meet the forensic standards that should be expected for parenting capacity assessments in child protection proceedings in which a parent’s Charter rights are engaged.

[162] I am not prepared to parse out any general clinical opinion from her report and to admit her evidence in those areas.

[163] In fairness to Dr. McDermott, a significant number of parenting capacity assessors do not see the work they do as forensic in nature, and therein lies the problem. Although the College of Psychologist should be aware of the area of parenting capacity assessments in child protection law, for reasons unknown, the College has never required psychologists who conduct these assessments to be forensically trained, nor have they required the area of parenting capacity assessments to be a regulated area of practice.

[164] It is concerning that parenting capacity assessments are not strictly regulated by the College given the significant legal implications of these assessments for parents and children in child protection proceedings.

[165] It is surprising that the College does not require parenting capacity assessors to be authorized to practice in the area of forensic psychology, or at a minimum, that the College has not developed clear forensic standards for psychologists when conducting parenting capacity assessments in child protection proceedings, particularly in light of the Goudge and Motherisk inquiries.

[166] What follows are the Court’s findings in determining that the report does not meet the threshold criteria for admissibility.

1. Dr. McDermott is not a properly qualified expert.

[167] Expert witnesses have a special duty to the court to provide fair, objective, and non-partisan assistance. A proposed expert who is unwilling or unable to comply with this duty is not qualified to give expert opinion evidence. Underlying the various formulations of the expert’s duty are three related concepts: impartiality, independence, and an absence of bias. See White Burgess Langille Inman v. Abbott and Haliburton, [2015] 2 S.C.R. (S.C.C.) at paragraphs 2 and 32 of that decision[^6].

[168] In White Burgess Langille Inman v. Abbott and Haliburton, Justice Thomas Cromwell, speaking for the Court, stated the following about whether the elements of the expert’s duty go to the issue of threshold admissibility or to weight:

“ ..a proposed expert’s independence and impartiality go to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once the threshold is met, remaining concerns about the expert’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.” [paragraph 34]

[169] Dr. McDermott was not independent and impartial. She testified that she has never been retained by a parent in a child protection case to do a parenting capacity assessment, nor would she accept a retainer from a parent or parent’s counsel. She has always been retained and paid by the society.

[170] She later testified that she has never been asked by a parent, but even if she had been asked, she would be concerned that it would be “one-sided”. She testified that even if there was a court order, she would be “very concerned whether I could conduct the assessment appropriately with the right amount of information, or enough information to justify any conclusions.” She was not able to explain why it would be “one-sided” if a parent retained her, but not when a society retained her. During her re-examination by society counsel, Dr. McDermott maintained this position.

[171] Further, Dr. McDermott did not recall signing the Acknowledgement of Expert’s Duty[^7] nor did she know what it was, even though she had signed it approximately three weeks before her testimony in this trial. She testified that “not having signed the document”, she thought her duty was to be “as diligent in offering evidence and opinion as [she] could be”. She did not mention her duty to be objective, fair and non-partisan.

[172] Dr. McDermott exhibited confirmation bias. Dr. McDermott testified that she reviewed the access observation notes from society workers both before and after her own observation of the mother and child at the society’s offices. She estimated that she reviewed hundreds of pages of society access notes prior to her own observations.

[173] When asked, Dr. McDermott did not see this as an issue leading to confirmation bias, specifically, the issue of biased memory recall. Dr. McDermott explained that she reads the access notes before because she has to compare what she is seeing to what other people are seeing.

[174] However, during Dr. McDermott’s testimony, it became very unclear whether she was testifying about her own clinical observations, or what she had read in the society’s access notes. For example, Dr. McDermott opined that the mother had what Dr. McDermott described as possible “absence seizures”, neurological in nature, in which the mother would look away from the child and be absent for “minutes at a time”.

[175] Dr. McDermott testified extensively about this until it was later clarified that Dr. McDermott did not actually see any of these “absences” herself. This is what she had read in the access notes. She testified that during the two visits that she observed, “there were times that she [the mother] would twirl her hair, but I wouldn’t say she was gone.”

[176] Dr. McDermott did not interview any collaterals for the mother. Dr. McDermott only interviewed the foster mother, the foster grandmother, and the family service worker employed by the society. It is not disputed that the foster family wishes to adopt the child. The society is a litigant and opposing party to the mother in this proceeding and paid Dr. McDermott’s fees.

[177] Dr. McDermott did not contact anyone with any knowledge of the mother unconnected to this litigation. When asked why Dr. McDermott did not interview any collaterals on behalf of the mother, she testified because “[the mother] did not offer any”. She appeared to rely on the mother to tell her what, if any collaterals she should interview.

[178] Dr. McDermott did not interview the mother’s primary health care provider because it was her opinion that it was not required. Although Dr. McDermott raised the possibility that the mother may be having “absence seizures”, and that the mother likely needs a neurological assessment, she did not think it was necessary to interview the mother’s health care provider or to review those medical records.

[179] Dr. McDermott did not speak to any of the facilitators from the mother’s parenting group. She did not speak to any members of the mother’s family, although she would have liked to speak to the maternal grandmother, who had passed away before the assessment. She did not speak to any of the mother’s friends or neighbours nor did she interview any of the parents of the older children that the mother regularly babysat, who may have had some observations about her parenting skills.

[180] The fact that Dr. McDermott chose not to interview any of the mother’s collaterals and only relied upon the society’s child protection workers and the foster family undermines the strength and independence of her assessment.

[181] Information from multiple collateral sources is very critical in a parenting capacity assessment. As a parenting capacity assessment should be forensic in nature, the assessor must cover everything in a far more comprehensive process, given its purpose in a child protection proceeding.

[182] Even if Dr. McDermott believed that the mother’s sources of information would not be objective or reliable, an assessor should still actually collect the data from multiple sources and interpret the data.

[183] In fairness to Dr. McDermott, this court has seen the lack of multiple collateral sources of information in several parenting capacity assessments in child protection proceedings.

[184] Given the invalidity of two of the important psychological tests that Dr. McDermott relied upon, as will be addressed later in these reasons, and her two short observations of the mother at the society’s offices with society workers present, it is essential for Dr. McDermott to also gather and rely upon information from collateral sources independent of the society in order to gain a full and objective understanding of the mother’s cognitive functioning.

Lack of Forensic Standards:

[185] Dr. McDermott would not agree that the work that she does in parenting capacity assessments is forensic, even though the definition of forensic psychology by the College (which was put to her in cross-examination) is “the application of knowledge about human behaviour to the understanding, assessment, diagnosis and/or treatment of individuals within the context of criminal and/or legal matters”.

[186] Dr. McDermott acknowledged that her primary source of information and professional training regarding parenting capacity assessments came from the Association of Family and Conciliation Courts (“AFCC”). She agreed that the AFCC generally focused more on family court processes and that their guidelines were developed for custody and access assessments (as they were formerly known) under the Children’s Law Reform Act (“CLRA”).

[187] Dr. McDermott did not seem to understand the difference between family court proceedings and child protection proceedings (when the state removes children from a parent’s care) and that the legal tests in both proceedings are therefore significantly different. She regularly conflated her evidence about conducting parenting capacity assessments under the CYFSA with the custody and access assessments (as they were once called) under the CLRA.

[188] Dr. McDermott seemed unaware of the current legal test for access in child protection law. In her report, it was her opinion that there should be no access so as to ensure that permanent planning for the child is not disrupted.

[189] Although I appreciate that Dr. McDermott is not trained as a lawyer, the court was concerned that Dr. McDermott appeared to believe that the current legal test was a presumption against access in extended society care cases (formerly Crown wardship) and that adoption could not proceed unless all access orders were terminated. It was very unclear if that misunderstanding factored into her opinion that the mother should have no access to her child.

[190] Dr. McDermott was asked how she had conducted approximately 700 parenting capacity assessments since 1993, as stated in her curriculum vitae (approximately 27 years), even when she was working part-time four days a week at London Psychiatric Hospital until 2004. Dr. McDermott clarified that although it sounds like a lot, sometimes she assessed a group of people in one parenting capacity assessment and that she was actually counting the number of people that she assessed, not the number of cases. The court did not understand this response.

[191] When asked about this during his examination, Dr. Marshall testified that he found it extraordinary that Dr. McDermott had done 700 parenting capacity assessments, or approximately 25 to 30 each year. He finds parenting capacity assessments to be very demanding and personally tries never to have more than one to do at a time. He did not understand how it was possible to have enough time “to really put an assessment together” if you are doing approximately 25 each year.

[192] When asked how many hours it took to complete the assessment in this case, Dr. McDermott did not know, nor did she record the hours or days to complete each task, such as the clinical interview or the testing. She testified that this assessment was “very straightforward”. It typically takes her eight to twelve weeks to complete a parenting capacity assessment.

[193] Dr. McDermott may have completed the psychological testing and clinical interview for the mother in one day. It was very unclear. The testing and interview process can be very tiring; parents can get tired but will not tell the assessor this because they want to portray themselves in a good light. It would have been very helpful for the court to know when the mother’s clinical interview and testing took place and the timing for each process.

2. The Parenting Capacity Assessment is Neither Relevant nor Necessary because it is Unreliable.

[194] As stated earlier, reliability is central to at least two of the Mohan factors: relevance and necessity. Unreliable evidence is never necessary or relevant. Unreliable evidence cannot support a fact in issue, so it cannot be relevant. See R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 137 CCC (3d) 225 (Ontario Court of Appeal) at paragraph 84.

[195] It was very difficult to understand what, if any, psychological tests Dr. McDermott relied upon when she formed her opinion about the mother’s parenting capacity.

[196] After carefully reviewing all of the evidence, however, the court finds that Dr. McDermott relied upon invalid testing to formulate her opinion. She also incorrectly interpreted the mother’s intellectual profile and its correlation to her parenting capacity.

[197] When asked how she decided which psychological tests to administer in her parenting capacity assessments, Dr. McDermott testified that she did not have a standard set of tests, it depends on what the clinician sees as an area of concern and whether there is a specific issue raised in the referral process. She testified that in this case, after doing some tests, she realized that she should do an intellectual assessment because there was something in the mother’s behaviour that she did not understand.

[198] In fairness, the court has read many parenting capacity assessments over the years in which there seems to be no clear and standardized approach: that is, what tests should be consistently administered, how should these tests be conducted, over what time period, and whether a reading and sentence comprehension test should first be administered, particularly when the tests rely upon written questions. One would hope that a more standardized approach would be taken for a forensic report of this nature.

Incorrect Interpretation of the Mother’s Intellectual Profile:

[199] One of the most fundamental concerns with the report was Dr. McDermott’s incorrect interpretation of the mother’s intellectual profile and its correlation to parenting capacity.

[200] Dr. McDermott testified that she made a mistake in finding that the mother had a “non-verbal learning disability” in the context of a parenting capacity assessment and report. She testified that if she had to re-write the report, she would use the term “developmental delay” or “intellectual disability” as set out in the DSM-5.

[201] In examination, Dr. McDermott was reluctant to agree that the mother’s IQ was 60 because there are parts of her “that are functioning to a degree and parts of her that are not functioning very well”, but later acknowledged that the mother’s overall IQ score was 60 which met the definition of an intellectual disability.

[202] Dr. McDermott would not agree that she determined that the mother was unable to parent because she had an intellectual disability, or what she called “ a severe non-verbal learning disability.”

[203] However, it is clear from her evidence and her report that she did in fact do so. It was her opinion that the mother could not parent independently because of her cognitive profile. Throughout her report and her evidence, there are references to what Dr. McDermott describes as the mother’s “immutable” cognitive profile, making it impossible for her to parent independently. For example, at page 17 of the report, Dr. McDermott opines that the mother is unable to understand the child’s cues because she “simply does not hear or see these signals accurately due to an immutable and severe Nonverbal learning disability.”

[204] During her testimony, when asked if someone with the above diagnosis could parent, Dr. McDermott responded “no” and explained that this is something that “you can’t re-program. That’s the hard-wiring”. She later elaborated that “for this kind of deficit, there is no program I know.”

[205] The court accepts the evidence of Dr. Marshall that there is no empirical evidence of the relationship between a non-verbal learning disability and the quality of parenting. The court also accepts the evidence that although an IQ of 60 is a risk factor when determining parenting capacity, the peer-reviewed research has established that that there is no reliable correlation between IQ score and parenting skill until the IQ score is below 50, not 60.

Reliance on Invalid Psychological Testing:

[206] Dr. McDermott did not test the mother’s reading comprehension before administering both the Personality Assessment Inventory (PAI-II) and the Adult Adolescent Parenting Inventory (AAPI-2). The court accepts Dr. Marshall’s evidence on this issue. It is not disputed that reading comprehension is required for both tests.

[207] In cross-examination, Dr. McDermott eventually acknowledged that the sub-test that she administered did not test reading comprehension. However, she continued to maintain that the mother did not have problems with reading and comprehension.

[208] Dr. McDermott did not clearly state that the results of the AAPI-II were invalid in her parenting capacity assessment report, as she did with the PAI-II results. She wrote that “The mother’s possible concrete interpretation of the items may have led to these results.” Nowhere in her report does she clearly state that the AAPI-II results are not valid.

[209] It is only in her subsequent written response to Dr. Marshall’s critique that Dr. McDermott states that the AAPI-II results were invalid. She goes on to write that in formulating her opinion, “rather than rely on the faulty information that the two inventories [PAI-II and AAPI] provided I relied on two observations that I personally made of the mother’s interaction with her son and a thorough review of notes related to hundreds of hours of observations and enumeration of their concerns made by Society staff.” [page 1 of Dr. McDermott’s Written Response.]

[210] Dr. McDermott did not explain why she then set out the complete AAPI-II results of the mother’s parenting attitudes in her original parenting capacity report if Dr. McDermott thought that the results did not mean anything because they were invalid. The results are highly prejudicial to the mother and describe her to be at “medium” and “high” risk for a number of very concerning parenting deficits.

[211] The reader of the parenting capacity assessment is left with the strong impression that Dr. McDermott did rely upon the results when formulating her opinion of the mother’s parenting capacity.

[212] Further, in cross-examination, Dr. McDermott’s evidence regarding her reliance on the psychological testing contradicted her written response on numerous occasions.

[213] Throughout her cross-examination, Dr. McDermott was asked if she relied on the results of PAI-II and the AAPI-II when forming her opinion regarding parenting capacity. Her answers were evasive, defensive and vague, and included such responses as “not much”, or “in part” or “very minimal”. However, she eventually conceded that she relied upon the results, and she did not agree that the results were invalidated because of a failure to test the mother’s reading comprehension, but rather because the mother “looks at the world differently”, so she might interpret what she is being asked differently.

[214] Later in her evidence, Dr. McDermott testified that “of course I relied on them. ..Look at the PAI…It was invalid. And it was invalid for a reason.” She testified that, “I still contend the comprehension was there; it’s the interpretation.”

[215] Further, Dr. McDermott was either not aware or did not agree that the validity of the AAPI-2 has been seriously questioned by a number of independent researchers who conclude that the AAP1-2 lacks the sufficient standardization, validity and peer-reviewed research to support their use in a forensic assessment and in particular, in child welfare risk assessments of parents. The court accepts the evidence of Dr. Marshall that the AAPI-2 should not be used for this purpose.

[216] Finally, Dr. McDermott relied on outdated psychological testing. She incorrectly determined a post-secondary reading level based on the Wide Range Achievement (WRAT) Test-3. (Earlier in her Report Dr. McDermott indicated that Version 4 rather than Version 3 was used.) The WRAT Version 5 (WRAT-V) was released in 2017 with updated norms. When asked, Dr. McDermott did not the know difference between the old and updated tests.

[217] Again, unfortunately, this is not unusual. The court has seen the reliance on outdated tests in other parenting capacity assessments. We do not live in a static and unchanging world. New scientific research goes on every day and the findings from this research are incorporated into new and updated psychological tests. New tests may contain different theoretical underpinnings, new norms, new ways to score, and new ways to interpret. It is unclear how using the old versions will give the psychologist any meaningful results.

[218] Given the incorrect interpretation of the mother’s intellectual or cognitive profile and the unreliable and invalid psychological testing, the only remaining aspect of the parenting capacity assessment that may assist the trier of fact is Dr. McDermott’s observations of the mother’s parenting.

Quality of the Two Observation Visits:

[219] Dr. McDermott had only two observation visits with the mother. Both visits occurred at the society’s office, with child protection workers present. The two separate visits totaled 4 hours. (The first visit was 2.25 hours, the second 1.75).

[220] Dr. McDermott confirmed that the mother told her that she was uncomfortable with the visits occurring at the society’s offices, but she did not agree that the observation visits should have occurred elsewhere, or that her observations should have been longer, and in a more natural setting, as Dr. Marshall noted in his critique. She testified that she did not ask the society to arrange visits elsewhere such as the community or the mother’s home and she not think that the mother had the stamina for longer visits.

[221] Dr. McDermott was also aware that the mother’s mother (the maternal grandmother) had been suddenly and violently murdered approximately four months before the assessment. She acknowledged that trauma could have a far-reaching impact on a person’s overall level of functioning, but she did not assess the impact of trauma on the mother’s presentation during the assessment.

[222] The length and quality of the visits falls far short of the average period of observation recommended by the independent peer-reviewed research. The court accepts Dr. Marshall’s opinion and that of the established research that longer periods of observations have greater validity in evaluating those behaviours related to the quality of parenting.

[223] In his process, Dr. Marshall explained that when conducting parenting capacity assessments, he retains an independent social worker to assist him and they do not read any of the society’s observation reports before conducting their own observations of parent and child, without society workers present, so as to avoid confirmation bias. More on the quality of Dr. McDermott’s observations will be addressed later.

[224] Dr. Marshall also explained that he personally will arrange for observation visits to occur outside of the society’s office, preferably in a parent’s home, and that the ideal length of observation is preferably a full day with only he and/or his social worker present.

3. The Second Step of Mohan: The Court’s Discretionary Gatekeeping Function:

[225] As I have concluded that the expert evidence does not meet even the basic threshold requirements under Mohan, it is not necessary for me to engage in the second gatekeeping stage set out Mohan, and as explained in White Burgess Langille Inman v. Abott and Haliburton Co., supra.

[226] However, if I am wrong in my analysis and the expert evidence (or some of it) does meet the minimum threshold preconditions to admissibility, I find that, in my role as gatekeeper and in employing the cost-benefit analysis required in the second step of the Mohan process, that the admission of Dr. McDermott’s parenting capacity assessment would not be beneficial to the fact finding process but in fact dangerous to the fact finding process.

[227] As the Ontario Court of Appeal stated in R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330, [2009] O.R. No. 3534 at para. 76, leave to appeal dismissed [2010] S.C.C.A. No. 125: “The ‘gatekeeper’ component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence.

[228] In this case, the parenting capacity report is inherently unreliable in its assessment of parenting capacity. Any probative value in admitting Dr. McDermott’s clinical observations of the mother’s parenting during her two brief observation visits is far outweighed by the prejudicial impact of the reliance on invalid psychological testing to assess parenting, the incorrect interpretation of the mother’s intellectual or cognitive profile and its relation to parenting, and the inadequate forensic nature of the report for a child protection proceeding in which the society is seeking the permanent removal of a child from a parent’s care.

7.3: The Admissible Evidence at Trial regarding the Protection Finding:

[229] Given my ruling that the parenting capacity assessment is not admissible evidence in this trial, the majority of the evidence relied upon by the society to support a protection finding came from the society’s child protection workers. Ten child protection workers gave evidence in this trial. They all directly observed the mother’s parenting.

[230] The evidence of some of the workers, in particular, Benjamin Childs, Alex Totino, Tami Ralston and Halah El-Nadi was not fair and balanced when describing the mother’s parenting. It was rather overwhelmingly negative. These witnesses barely acknowledged the mother’s strengths but went to great lengths to detail her weaknesses.

[231] Some of the criticism was unfair, for example, to state that the child’s cradle cap was caused by neglect and poor hygiene, as Ms Ralston testified, (and directly contradicted by Dr. Levin) or that the mother should have pointed out or wiped the drool from the child’s mouth during an access visit, when she was directed to be in full PPE gear and remain six feet away from the child, as Ms El-Nadi testified.

[232] Further, it was Mr. Childs’ evidence that the mother “failed to attend” the child’s four month medical appointment, even though he acknowledged in cross-examination that the mother told him before the appointment that she was unable to get to Downsview from her apartment, nor did she know how to get there. He further acknowledged that by this time, he already wondered if the mother had a learning disability.

[233] Ms Ralston gave evidence that the mother failed to return the VHA’s worker call for in-home support, although acknowledged in cross-examination that the mother called the worker back the day after receiving the message. Ms Briskin testified that the mother failed to stimulate the child although acknowledged that the child was going down for a nap at the time. The mother was criticized for failing to follow through on supports when the VHA worker did not return to her home even though it was known that the worker did not feel safe in the mother’s apartment building at the time.

[234] Several workers testified about the mother’s inability to do “tummy time” with the child, an important exercise in strengthening an infant’s neck muscles, as well as helping to strengthen the parent-child attachment or bonding.

[235] However, it became readily apparent during cross-examination that the mother received inconsistent and contradictory advice from the numerous workers who were supervising her visits and teaching her this exercise. For example, Ms Jacqueline Santos was critical of the mother for not wanting to do tummy time with S. when he started to cry. She explained to the mother that most babies do not like tummy time, but it is still important to do. Mr. Lou Samonas disagreed with this advice and testified during cross-examination that if the baby is crying and does not like it, then the parent should stop doing it.

[236] Notwithstanding these concerns, a common theme that ran through all of the evidence was the mother’s struggle, on occasion, in understanding the child’s needs. Even the workers who had the most balanced evidence, such as Mr. Lou Samonas and Ms Jordan Letofsky, observed that the mother sometimes had difficulty in reading the child’s cues, and would often need prompting, or would respond when the child reacted. They also testified that the mother had difficulty engaging S.

[237] A number of workers observed that there were moments during the access visits when the mother appeared to be “zoning out”. The mother would start to stare at the wall and seemed to be unaware of S.’s needs in that moment. It was unclear why this was happening. However, these lapses did not last for more that 5 to 10 seconds at a time.

[238] Regardless of the cause, the workers who observed this phenomenon testified that it generally lasted for seconds at a time, not minutes as Dr. McDermott incorrectly stated in her testimony. The mother would come back quickly upon being prompted by the worker or by S., if he cried. The workers who testified about this struggled to make sense of what was happening to the mother in those moments.

[239] The mother herself acknowledged that this sometimes happens during her testimony. She did not understand why but attributed it to her being “sleepy” or “falling asleep.” The mother acknowledged that S. is now a very active two year old and requires a high level of supervision.

[240] There was also evidence that the mother may have some learning exceptionalities, the cause of which are not known. This made it more difficult for her to learn basic skills, such as diaper changing, and sterilizing and using bottles properly. Early instructions had to be repeated on a number of occasions.

[241] However, this was more evident in the early part of the society’s investigation. The workers who supervised the mother’s visits more recently observed that the was able to change S.’s diapers and feed him. Although the “zoning out” is still observed, it is also observed that the mother engages with S. on a regular basis and can respond to his cues.

[242] When asked, all of the workers testified that the mother clearly loves S. very much, consistently exercises access and often arrives early for the visits so that she could set up.

[243] The mother also cooperated to the best of her ability in receiving instruction and feedback.

The Mother’s Emails to the First Family Service Worker:

[244] There was one very difficult incident early on in this case in which the mother sent Mr. Childs a series of threatening emails over the weekend of May 24 to May 26, 2019. This led to the breakdown of their relationship. Mr. Childs reported the mother to the police after receiving the emails. The police investigated but did not charge the mother. Mr. Childs was replaced shortly thereafter with Ms Letofsky.

[245] The mother sent the emails to Mr. Childs after she received an affidavit signed by him containing what she believed to be private and personal information regarding the recent death of her mother. Mr. Childs included the information in his affidavit.

[246] The society submits that the breakdown in the relationship between the mother and Mr. Childs was a function of the mother’s disability and her inability to understand Mr. Childs and what he was trying to communicate to her.

[247] It submits that her reaction, by sending him angry and threatening emails, was extremely concerning and reflects a maladaptive way of dealing with service providers, which does not bode well for the mother’s ability to interact with the child’s service providers in the future.

[248] Although the angry, abusive and threatening emails from the mother were extremely concerning to this court, I respectfully do not agree that these were characteristic of the mother’s relationship with all service providers, based on the totality of the evidence in this trial. Nor did they appear to be based on her failure to understand Mr. Childs.

[249] Although there is no justification for these emails, I find that there were three significant events that led to the breakdown in the relationship between the mother and Mr. Childs:

1. The misleading nature of the temporary care agreement (“TCA”) which the mother signed. The court did not find Mr. Childs’ evidence credible on this issue. A reasonable person reading the TCA would believe that the child was coming into care primarily because of the mother’s unsafe housing. This is what the mother believed. The children’s service worker, Ms Totino, appeared surprised during this trial when the TCA was presented to her. She testified that there was a real concern regarding the mother’s caregiving abilities at the time and she did not know why this was not mentioned in the TCA.

The mother was understandably upset when the society terminated the TCA and commenced these proceedings 11 days after the mother found safe and appropriate housing. Mr. Childs evidence that the serious concerns regarding the mother’s parenting arose only after the TCA was signed was not credible.

2. Mr. Childs’ agreement that the mother and grandmother could have an extended week-long access visit with S. when the grandmother was visiting from Kirkland Lake, only to renege on that agreement shortly after the grandmother arrived.

3. The personal information that Mr. Childs included in a court affidavit following the tragic death of the maternal grandmother, who was killed by the mother’s brother.

[250] During this trial, the mother expressed great remorse for sending these emails. She further testified that her threats were not real and that she never intended to harm Mr. Childs. She described feeling “tricked” by Mr. Childs ever since signing the TCA. She described feeling pressured by Mr. Childs to sign the TCA. She testified that Mr. Childs told her she could terminate the agreement at any time, but when she got her housing transfer, S. was not returned to her care.

[251] She also described being very upset and angry when she read Mr. Childs’ affidavit containing what she believed to be private and personal details about her mother’s death and her family’s circumstances. This appeared to be the breaking point in their relationship.

[252] The court found that the mother’s evidence was credible and sincere when describing these events.

[253] It is not disputed that Mr. Childs reported the mother to the police after receiving the emails. The mother’s access to S. was suspended during the police investigation.

[254] The police investigated but did not pursue any criminal charge. Mr. Childs was replaced by Ms Letofsky shortly after this incident.

[255] Despite these challenges, and notwithstanding the police investigation, even Mr. Childs acknowledged in cross-examination that the mother continued to be very cooperative until the file was re-assigned to a new family service worker in the spring of 2019.

[256] All of the remaining workers testified that mother has been pleasant and cooperative to work with and that she is also pleasant and cooperative with the foster family.

7.4: The Child:

[257] Dr. Leo Levin, the society’s pediatrician, was called to give evidence regarding S.’s development. The society sought to have Dr. Levin qualified as an expert to give opinion evidence in the general area of pediatrics. A voir dire was held.

[258] Dr. Levin has been a pediatrician since 1986. He received his certification as having a specialty in pediatrics in 1986. He has been working solely as a pediatrician since that time.

[259] Since 2004, Dr. Levin has been the Director of Health Services at the society and continues to have a clinical practice as a pediatrician. He is also an assistant professor at the University of Toronto in the area of pediatrics and is on staff at the Hospital for Sick Children in the area of pediatric nephrology. He estimated that since 1986, he has assessed thousands of children.

[260] Dr. Levin first met S. in November of 2018 when S. came into society care at the age of two months. He has been his pediatrician since that time and has met and assessed S. on a number of occasions up until this trial. He has been S.’s primary treatment provider for over two years and he is part of the team that assesses S.’s progress and development.

[261] Dr. Levin testified that he is aware of the society’s position in this case but he presents his clinical impressions quite independently of the society’s position.

[262] On consent, Dr. Levin was qualified to give opinion evidence as S.’s pediatrician and primary treatment provider, as a participant expert, following the Court of Appeal’s guidance in Westerhof v. Gee, 2015 ONCA 206 (see paragraphs 60 to 64 of that decision).

[263] Dr. Levin testified that when he first met S. he had concerns about S.’s development in a number of areas. S. was not able to follow his eyes, or “track” him; he was not opening his hands; and he could not get S. to “coo” or “smile”. His body appeared asymmetric and he had poor neck strength. He appeared to be delayed in all areas.

[264] Dr. Levin observed a very mild rash and cradle cap, but he was not concerned about these issues. Contrary to the infant nurse specialist’s evidence, he did not agree that cradle cap is caused by parental neglect.

[265] Dr. Levin testified that S. has been diagnosed as a child with “global developmental delay”, which means a child who displays delays in all areas of development. Dr. Levin explained that over a two year period, at each assessment, he observed that S. continues to significantly lag in development in all areas. At his most recent assessment before the trial, Dr. Levin observed that S. (now two years old) was functioning at the age of a nine or ten month old child.

[266] Dr. Levin testified that as an experienced pediatrician he has a higher than average level of ability to engage children and babies, but even he has a difficult time to engage S. He agreed in cross-examination that any parent would need special supports to care for S. given his very special needs.

[267] Dr. Levin was aware that the mother was not provided with that support in her home, but it was his understanding that the infant nurse specialist had offered but assessed the mother’s ability as “suboptimal.”

[268] Dr. Levin testified that although S. is making progress, it was his opinion that S.’s trajectory is not as robust as he would like. He expressed concerns about S.’s long term development. Dr. Levin testified that S. will need a high level of intervention with regular and weekly appointments with a speech therapist, physiotherapist, and occupational therapist. He will also need repetitive and consistent management by his caregiver who should be doing daily exercises at home with him.

[269] At this time, Dr. Levin does not know the cause of S.’s delay. S. has undergone a number of tests, including an MRI, eye examinations, blood tests, a neurological assessment and a referral to a geneticist for possible chromosomal abnormality. Dr. Levin has been advised that the mother may have some “autistic features” which was shared with the neurologist. He did not know the source of that information. Other than his first medical appointment with S. and the mother, all other appointments have been with the current foster mother, who has also been involved with all of the specialist referrals. The mother has not been involved.

[270] Dr. Levin was aware that S. was seen at SCAN for neglect on November 29, 2018. He testified that he did not make that referral nor was he involved in any discussions for that referral. He does not know who made the referral and he was not asked to review any of the records of the SCAN team, nor is he aware of any conclusions that SCAN may have made. At no time during his evidence did Dr. Levin suggest that neglect was a factor in S.’s development.

8: The Law and Governing Legal Principles:

[271] The governing legislation is the Child, Youth and Family Service Act, (“CYFSA” or the “Act”). The paramount purpose of the CYFSA is “to promote the best interests, protection and well-being of children”. See: Section 1(1) of the Act.

[272] The act is remedial legislation and as such should be interpreted broadly with a view to achieving the paramount purposes. See: Children's Aid Society of Toronto v. J.G., 2020 ONCA 415.

[273] While parents need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent. See: Subsection 1 (2).1 of the Act. (“Other Purposes”.)

[274] The least disruptive course of action that it available and appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered. See: Subsection 1 (2). 2 of the Act. (“Other Purposes.”)

8.1 Legal Considerations regarding the Protection Finding:

[275] The protection finding is the essential first stage of a child protection proceeding. If a protection finding is not made, then there will be no other court orders made and the protection application is dismissed. The child is returned to the parent(s) having care of the child, in this case the mother.[^8]

[276] The society seeks a finding that the child is in need of protection under clauses 74 (2) (b) and (h) of the Act. These clauses are as follows:

74 (2) A child is in need of protection where

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

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

ii. pattern of neglect in caring for, providing for, supervising or protecting the child;…

(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i) (ii) (iii) (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or person having charge of the child;

[277] Subclause 74 (2) (f) provides that a child has suffered emotional harm when demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act, or pattern of neglect on the part of the child’s parent of person having charge of the child.

[278] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to a protection finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See: Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754, (Ont. Fam. Ct.); Children's Aid Society of Toronto v. R.M., 2019 ONSC 2251; Catholic Children's Aid Society of Toronto v. A.T., 2019 ONSC 3191.

[279] In Children's Aid Society of Toronto v. R.M., supra, Justice Carolyn Horkins wrote the following at paragraph 94 of that decision:

“In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.”

[280] The onus is on the society to prove on a balance of probabilities that S. is at risk of harm. The risk must be real and not speculative. See Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[281] It is not necessary for the society to prove an intention to cause harm before finding that a child is in need of protection. See Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903, 2009 ONCA 903 (Ont. C.A.).

[282] Harm caused by neglect or errors in judgment comes within the protection finding. However, the harm must be more than trifling physical harm. A child may be at risk even if the conduct is not directed specifically towards that child. See: Children's Aid Society of the Niagara Region v. T.P., 2003 CanLII 2397 (ON SC), [2003] O.J. No. 412, (Ont. Fam. Ct.); Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458.

Risk of Physical Harm:

[283] Although some of the risks identified may no longer be present, in applying the flexible approach cited above and in reviewing all of the evidence related to the protection finding, I find that S. is in need of protection under clause 74 (2) (b) (i) of the Act for the following reasons:

1. At the time of S.’s birth, the dangerous conditions of the mother’s apartment building were undisputed. The mother and three child protection workers described a building in which the elevators were not working, several hypodermic needles and syringes scattered on the building’s stairs, people sleeping in the hallways and stairwells, the stairs were narrow and not well lit, blood spattered on the walls and used condoms left in the hallway outside the mother’s apartment. The mother was living on the third floor and had to navigate these obstacles and three flights of stairs with an infant.

2. As a result of those dangerous conditions and the increasing concern about the child’s medical needs, including delayed development and hydrocephalus, the mother signed a Temporary Care Agreement in which she agreed that she was unable to care for the child at that particular time until she was able to secure safe housing and the child’s medical needs were addressed.

3. Since that time, S. has been diagnosed as a child with global developmental delay. He is a vulnerable child with special needs. He is significantly delayed in all areas and functions at the age of a nine or ten month old, even though he is two years old. He requires a high level of intervention with regular and weekly appointments with a speech therapist, physiotherapist, and occupational therapist.

4. Although the mother’s parenting capacity is unknown, there is evidence that the mother has some learning exceptionalities which affects her ability to parent. The extent of those limitations is unclear, but there is some evidence that S. is at risk of physical harm if not adequately addressed.

5. There is evidence that during the early stage of the society’s investigation, the mother had difficulty following safe sleep techniques and instructions regarding proper bottle sterilization, causing the formula to be unsafe for S. to drink.

6. There is evidence from a number of workers that during access visits, the mother may sometimes “zone out” and stare at the wall or be seemingly unaware of S.’s needs in that moment. This may only last for a few seconds, and for no more than ten seconds. S. is now a more active child who requires assistance and intervention, and consistent stimulation.

7. The mother testified that she has some physical health issues, such as high blood pressure and thyroid issues that sometimes causes her to be tired and dizzy.

8. Following the tragic death of the maternal grandmother during this proceeding, who was an important support, the mother has little or no family or extended support to assist her in caring for S. She is relatively isolated.

Risk of Emotional Harm:

[284] I find that the society has not met its onus in proving that the child is in need of protection under section 74 (2) (h) of the Act.

[285] Although S. is a child who has delayed development, there is absolutely no evidence that his delayed development results or resulted from the mother’s actions, failure to act, or pattern of neglect by the mother, as stipulated by the legislation.

[286] S. was removed from the mother’s care when he was two months old. Although the society workers involved at the time appeared to believe that S.’s delayed development resulted from the mother’s actions or neglect, it is now not disputed that S. has been diagnosed with global developmental delay and the cause of that is unknown.

[287] During his evidence, Dr. Levin described the different assessments that the society undertook to ascertain whether S.’s developmental delay was caused by a genetic disorder, a congenital disorder, learning disabilities or neurological disabilities. The society continues to assess S.’s global developmental delay to ascertain its cause and prognosis. There is no evidence in this trial that it was caused by the mother’s neglect.

[288] Further, there is no evidence that S. is at risk of further delayed development resulting from the mother’s actions, failure to act or a patter of neglect, because the mother has never been given a meaningful opportunity to parent S. in her home and to practice the therapies necessary (speech, occupational, and physiotherapy) with appropriate support to enhance S.’s development. The risk is speculative at best.

9: Legal Considerations regarding the Disposition:

[289] The Act provides a statutory pathway that is to be followed in a child protection application. See: Children’s Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376.

[290] As I have found that S. is a child in need of protection, I must first determine whether a court order is necessary to protect the child in the future. See: Section 101(1) of the Act.

[291] I find that S. remains a child in need of protection and that a court order is necessary to protect him in the future.

[292] The next step is to consider which one of the orders under sections 101 (1), (2), (3) or (4) or section 102(1) of the Act should be made in the best interests of the child, which are as follows:

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

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

3. That the child be placed in extended society care,

4. That the child be placed in interim society care for a specified period and then returned to a parent or another person for a period or periods not exceeding 12 months,

5. That the court may grant an order for custody of the child to one or more persons, other than a foster parent of a child, with the consent of the person or persons. Section 102(1).

[293] In determining what disposition order is in the child’s best interests, it is necessary to consider all of the best interests factors set out under section 74 (3) of the Act. I have carefully reviewed each consideration. The relevant considerations in this case are the following:

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. 2017, c. 14, Sched. 1, s. 74 (3).

[294] I must assess the degree to which the risk concerns at the time of the removal of the child from the parent’s care still exist today. See: Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. No. 165 (S.C.C.) and Section 74(3) (xi) of the Act.

[295] I also must ask and consider what efforts the Society has made to assist the child before intervention under this part of the Act. See: Subsection 101(2) of the Act.

[296] I must consider the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child. See: Subsections 1 (2). 2 and 101(3) of the Act.

[297] I must consider, if available, a family or community plan before more restrictive or interventionist plans such as society or extended care. See: Subsection 101(4) of the Act.

[298] In this case, there are only two plans of care for S. before the court: the mother’s plan for the return of S. to her care, with our without supervision, and the society’s plan for extended society care for the purpose of adoption. There is no extended family or community plan available.

[299] An extended society care order (formerly Crown wardship) 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. Catholic Children's Aid Society of Hamilton-Wentworth v. G.(J) (2000) 23 R.F.L. (4th) 79.

[300] When determining whether an order of extended society care or crown wardship is an appropriate disposition, the issue is not whether the children will be better off with parents other than the natural parents, such as foster parents. The issue is whether the child will receive “good enough parenting” or whether the child will receive a level of parenting care that is below the minimum standard tolerated by our community. See: Saskatchewan Minister of Social Services v. E.(S.) 1992 CanLII 8071 (SK QB), [1992] 5 WWR 289 (Sask. QB); Family & Children’s Services of St. Thomas and Elgin v. A.C., 2013 ONCJ 453.

[301] Courts must recognize that families living in poverty may face challenges. It is important not to judge the parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child-care upon a poor parent of limited potential, provided that the standard used is not contrary to the child's best interests. Catholic Children's Aid Society of Hamilton v. J.I., 2006 CanLII 19432 (ON SC), [2006] O.J. No. 2299.

[302] Consideration should be given as to whether the Society has given the parent an opportunity to parent. Where the society frustrates contact with the parent and offers no services, this consideration must come into the equation. Children and Family Services for York Region v. A.W. and M.M,. [2003] O.J. No. 996 (Sup. Ct.); CCAS v. P.A.M, 1998 CanLII 14476 (ON CJ), [1998] O.J. No. 3766 (OCJ), Children’s Aid Society of the United Counties of Stormount, Dundas and Glengarry v. C.K., [2001] O.J. No. 128 (Sup. Ct.).

Statutory Timelines:

[303] Section 122 of the Act is the statutory recognition of the importance of permanency planning for children. Subsection 122(1) limits the period of time that a child of S.’s age can be in temporary or interim society care to twelve months.

[304] Subsection 122 (1) of the Act provides that the court shall not make an order for interim society care under paragraph 2 of subsection 101(1) that results in a child being in the care and custody of a society for a period exceeding twelve months if the child is younger than six years old on the day that the court makes the order or for a period exceeding twenty-four months if the child is older than six years old on the day the court makes the order.

[305] Subsection 122(5) below permits the court to extend time limits by a period of up to six months if it is in the child’s best interests.

[306] The caselaw is divided as to whether there may be multiple extensions of the time limit which may total more than six months, as long as each extension is no more than six months. That division is discussed further below.

[307] The Society supports the view that the six month extension permitted under subsection 122(5) is a “hard cap”, a view expressed in Children’s Aid Society of Middlesex v. M.O., 2014 ONSC 2435 (S.C.J.) at paragraphs 28 to 35. That view relies upon what is seen as the “plain wording” of the Act and the Act’s emphasis on the importance of timely permanency planning.

[308] The more liberal interpretation of section 122(5) would permit multiple extensions of time, for no more than six months at a time, in appropriate cases. The court in Catholic Children’s Aid Society of Toronto v. S.S and C.A.P., 2011 ONCJ 803 endorsed this approach, holding that while the importance of permanency planning must be kept in mind, an inflexible approach to the extension of time limits should not be permitted to block a resolution that is a child’s best interests.

[309] This is in keeping with the remedial nature of the legislation and the broad interpretation of the Act that has been endorsed by the Court of Appeal in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415.

[310] In Catholic Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, Justice Ellen Murray endorsed the more liberal interpretation and states the following at paragraph 162 of her decision:

“I prefer the more liberal approach to interpretation of the subsection. The paramount purpose of the Act is promotion of the best interests, protection and well-being of children. I do not accept that if, for example, an extension of two months was required to facilitate a return home which everyone agreed was in a child’s best interests that the inflexible interpretation of 122(4) should prevent that result. If the Legislature had meant to so severely restrict the court’s discretion in this manner, it could have used more explicit language, such as that used in s. 35(21) of the Family Responsibility and Support Arrears Enforcement Act, which limits the extension of a refraining order to one period of 3 or 6 months.”

[311] I find that this is the correct approach. In my view, the remedial nature of the legislation permits multiple extensions of the time limits for a child to remain in care, but for no more than six months at a time under section 122(5) of the Act.

[312] In determining whether an extension order should be made, the court in Children’s Aid Society of Carleton v. K.F., 2003 CanLII 67559 (ON SC), [2003] O.J. No. 2326 (Sup.Ct.) set out the factors that a court must consider as follows:

1. The decision to extend must be made in accordance with the children's best interests.

2. The decision must be viewed from the children's perspective.

3. The factors in subsection 37(3) [now 74(3) best interest factors] of the Act must be considered.

4. The court must be satisfied, balancing the factors in subsection 37 (3), that there are unusual or equitable principles in the circumstances that would justify granting an exception to the general rule, for the "child's sake."

[313] In Catholic Children’s Aid Society v. S.S., 2011 ONCJ 803, Justice Stanley Sherr gave examples of some of the cases where an extension could be granted at paragraph 135 of his decision:

“There will be cases where, for a variety of reasons, it is in the best interests of a child to return to a parent, but a delay is appropriate. In these limited cases, the court should make the extension order set out in subsection 70(4). See Kawartha-Haliburton Children's Aid Society v. K.M., (2001), 110 A.C.W.S. (3d) 491, [2001] O.J. No. 5047, 2001 Cars­well­Ont. 4507 (Ont. Fam. Ct.). These would include cases with the following facts: where a parent needs a little more time to complete a program where participation was delayed due to waiting lists; where a parent or child is waiting for an important support service or imminent housing to become available or where a child needs additional time to make a positive and gradual transition from a foster placement to a home placement. It would be detrimental to a child in such cases to rush this process for the sake of strict compliance with a time limit.”

10: The Plans of Care:

10.1 The Society:

[314] It is the society’s plan that S. be placed in extended society care for the purpose of adoption. He will remain in the same foster home, where he has remained since he was approximately three months old. The foster family wish to adopt him.

[315] The foster mother testified during this trial. The foster mother lives with her parents and her brother, who are all involved with S.’s care. She has one other foster child who lives with the family.

[316] The foster mother clearly loves S. very much and has a very good understanding of his special needs, the services and the parenting that he needs. She is a highly skilled parent. The foster family is also a cultural match with S.

[317] The foster family and the society will continue to ensure that ongoing services are provided to S. to meet his special needs, such as occupational, physio, speech and language therapy.

[318] The foster mother testified that she has always had a good and cordial relationship with the mother and that the family was initially open to continuing in-person contact between S. and his mother following adoption. However, after the emails sent by the mother to the first family service worker resulted in a police investigation, she was led to believe by the society that threats were directed towards her and her family. Her position changed after this incident and she is no longer comfortable with in-person contact following adoption.

10.2 The Mother:

[319] The mother’s plan is to have S. returned to her care in the apartment where she is currently living. This is a two bedroom apartment in Toronto. The mother lives there alone. It is a subsidized apartment. The mother has lived in this apartment since December of 2018, when she received priority approval for a transfer by Toronto Community Housing following S.’s birth. The apartment is safe and appropriate.

[320] S. will have his own room. The mother has furnished his room. She has a toddler bed and a crib. She has a stroller and car seat. She has all of his clothing, including winter clothing, hats, mitts, and boots. She has toys for him. She has books, sippy cups, diaper bags, body wash and shampoo.

[321] The mother testified that she will take S. to regular medical appointments in her community. She will also take him to his occupational, speech and language therapy. Currently, these services are being provided through Erin Oaks, in Mississauga, which will not be available to the mother because she lives outside of their catchment area and it would be difficult for her to get here. However, the services are currently being offered virtually, so she may be able to continue until she obtains services closer to her home.

[322] The mother has looked into services at a community medical clinic close to her home. She has found a place that offers occupational therapy, which is covered by ‘OHIP’ and she is looking for speech therapy services.

[323] The mother is willing to place S. in daycare if necessary. There is a daycare across the street from her in the public school. The mother testified that she has a checklist that she received from the parenting class that she completed about what to look for when looking for daycare for your child.

[324] The mother would like to continue to work with the society either through a supervision order or voluntarily for support and assistance in receiving services for S.

[325] The mother would also like to remain connected with the foster family, if they would still like to have a relationship with S. She testified that they could come to her home and help her with S. and with his development if they would like. She testified that S. is very close to them and she thinks that he should still continue to see them. It was clear from her evidence that the mother would welcome the foster parents to remain connected with S.

11: Services Offered:

[326] In determining what disposition order to make under subsection 101(1) or section 102(1) of the Act, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under Part V of the Act. See: Section 101(2) of the Act.

[327] I find that the Society offered very little service to the mother prior to its intervention under Part V of the Act.

[328] Section 75(4) of Part V of the Act provides that the society shall make a temporary care agreement unless the society,

a) has determined that an appropriate residential placement that is likely to benefit the child is available; and

b) is satisfied that no course of action less disruptive to the child, such as the care in the child’s home is able to adequately protect the child.

[329] Although it is true that the mother did not have safe housing when the society asked her to enter into the temporary care agreement on November 23, 2018, the mother through her own initiative, obtained safe and adequate housing on December 4, 2018, eleven days later.

[330] Mr. Childs, the first family service worker, testified that at the time the mother signed the temporary care agreement, “the imminent risk to the child’s safety was the housing.” He acknowledged that the mother had obtained and moved into safe housing eleven days after signing. Rather than return the child to the mother’s care, the society immediately terminated the temporary care agreement without even visiting the mother’s new apartment. It then commenced this proceeding seeking a court order for interim society care.

[331] When asked why the mother was not given an opportunity to parent the child in her new and safe apartment, with a family support worker, or an in-home support through the VHA or another community service agency, or the maternal grandmother, who was still alive at the time, Mr. Childs testified that the society “verified concerns of neglect eleven days after the mother signed the TCA”, even though he conceded in cross-examination that the care observed during access visits was not materially different than the care observed at the mother’s previous and unsafe apartment.

[332] After the commencement of this proceeding, the society offered the following services:

1. Although, for reasons unknown, the society did not refer the mother to the Therapeutic Access Program (“TAP”), the society arranged for family support workers and other workers to supervise the mother’s visits at the society’s offices and to assist the mother with parenting skills. The visits were originally three times each week for two hours each visit but reduced to twice weekly for two hours each in January of 2020 following the society’s decision to seek extended society care.

2. The society arranged and paid for a parenting capacity assessment, which I have now found to be deeply flawed, unreliable and inadmissible in this proceeding (through no fault of the society).

3. The society arranged for a ‘home trial’ of only four supervised access visits in the mother’s home of a period of two hours for each visit, approximately fourteen months after S. was brought into care.

4. In 2020, the Society referred the mother to the Canadian Mental Health Association and the Yonge Street Mission for support. When asked how this was done, the evidence is that the worker provided the mother with a pamphlet.

5. The mother testified that the CMHA program that she was referred to a “peer to peer” parenting course in which the mother would attend a family’s home and watch them parent to learn parenting skills. The mother testified that she did not feel comfortable going into a stranger’s home.

6. The mother did meet with the worker from the Yonge Street Mission on a few occasions whom she described as very nice. According to the mother, this referral finished after a few sessions and did not have anything to do with parenting.

7. The society also referred the mother to “Mothers in Mind” very early on in the investigation, prior to the death of the grandmother. The Mothers in Mind program is a mother and child program specifically designed to meet the parenting needs of mothers who have experienced family violence, childhood abuse, neglect or sexual assault, and have children under the age of four. It is unclear why the society referred the mother this program when they were concerned that she had cognitive issues.

[333] The society did not refer the mother to any other services for parenting support, such as Surrey Place, for example, which provides parenting skills training and support to parents with developmental disabilities who have been referred from child welfare agencies, or a family support person in her home, or the TAP therapeutic access program.

12: The Child:

[334] By all accounts, S. is a lovely child, although very significantly delayed, as previously set out in this judgment. He is described as having a loving and easy going manner. He does not exhibit any behavioral problems. He is physically a large and heavy child for his age. He continues to have difficulty with speech and mobility.

[335] S. has made some gains in foster care. He has also developed an attachment to his foster mother and his foster family.

[336] Although S. continues to be very delayed, there has been active intervention to try to mitigate those delays by a number of services, which include physiotherapy, occupational therapy, speech and language therapy. He requires daily exercises in each of those areas so that he may reach his full potential. He also requires weekly appointments with a number of specialists.

13: Best Interests Considerations and Assessments of Plans of Care:

[337] The court considered the following factors in assessing the mother’s plan of care:

1. S. has never been harmed in the mother’s care. The mother cared for S. in her home for approximately eight weeks prior to signing the temporary care agreement. She was home alone for the majority of that time. Ms Fraser, the intake worker, did not observe any concerns of neglect when she first met the mother and child.

2. The mother received some support from her mother, who visited her twice following S.’s birth. The grandmother visited during the second week following the mother and baby’s discharge from the hospital for approximately four days. The grandmother’s second visit was in November for approximately one week when S. was being medically assessed.

3. The mother had prenatal care with her nurse practitioner, Ms Danielle Kenyon, and her obstetrician Dr. Betty Chen, although not until 23 weeks pregnant. She continues to see Ms Kenyon and Dr. Chen.

4. The mother attended regular medical appointment with her nurse practitioner and Dr. Chen while S. was in her care. The mother missed one appointment because she and S. were up for most of the night after a fire alarm went off in her building.

5. The mother advised both the hospital social worker and the society intake worker Leslie Frasier about her concerns regarding the safety of her apartment building. She expressed the same concerns as the society.

6. Prior to the mother entering into the temporary care agreement with the society, the first family service worker and the infant nurse specialist visited the mother and the child once each week. There were no concerns that S. was harmed by the mother, although Ms Ralston expressed concerns about his “cradle cap”, which she believed was due to parental neglect.

7. The mother was proactively trying to get a housing transfer after S.’s birth. The evidence demonstrates that the mother was calling her housing worker regularly and that she emailed and advised them that S. was in care immediately after she signed the temporary care agreement because of her unsafe housing. The mother obtained her new housing shortly thereafter, as the letter to her from Toronto Community Housing, entered into evidence confirms.

8. On her own, the mother proactively attended and successfully completed two parenting programs: “Make the Connection, Birth to One” and the Nobody’s Perfect Program, both of which she completed in the summer of 2019. Neither of these programs were referred or arranged by the society.

9. On her own, the mother also found a program for parents who have children with disabilities through the Regent Park Community Centre which she sent to Ms Letofsky, the family service worker because a referral from the child’s doctor was needed.

10. The mother does not smoke or drink alcohol and does not use illegal drugs.

11. For the home ‘trial’ visits, the mother set up her home in a child-focused and friendly manner. She placed quilts and blankets on the floor for S. to sit on and had food prepared and a lot of toys. Her home was clean and safe. She was well-prepared for the in-home visits.

12. The mother described S.’s development and activities in detail during her testimony.

13. The mother clearly loves S. very much. She describes him as “sweet-natured” and “funny”. She also understands that he is very delayed and that he is going to need a significant amount of specialized support and help as he grows.

14. The mother has a good and cordial relationship with the foster parents. She is able to talk to them about S. and issues that arise, which the foster grandmother will explain to her during access exchanges.

15. The mother gave heartfelt and sincere testimony about S.’s relationship with his foster parents. She acknowledged that S. loves his foster parents and is very comfortable with them. She expressed wanting S. to remain connected to the foster parents and to maintain a relationship with them if he is returned to her care. She has been cooperative and respectful of them from the very early stages of the litigation. She testified about reaching out to them for assistance if S. is returned to her care.

16. There was a period of time when the foster family expressed that they wanted to have no contact with the mother following her conflict and emails sent to the former family service worker in the wake of her mother’s death in early 2019. However, it is clear that the foster family was told only vague information about what transpired, which left them with the mistaken impression that the mother had somehow threatened them. As time progressed, a number of workers, have observed that the communication between them has resumed in a civil and cooperative manner.

17. The mother has a good relationship with all of the society workers and is consistently described as very cooperative. Other than the incident regarding the threatening emails to Mr. Childs in 2019, all of the workers described the mother as polite, pleasant, cooperative, likeable and receptive to feedback. She tries to do her best. She has only expressed frustration on one or two occasions. Although she is open to feedback, she sometimes has difficulty implementing it.

18. All of the workers expressed that the mother consistently attends access visits and rarely misses a visit. She is consistently early to set up for the visit. The mother comes prepared. Given that the mother was attending three access visits each week, and then two visits each week for a period of two years, this is approximately 250 visits at the time of trial.

19. During this trial, the court observed that the mother attended every day of trial, often early and prepared.

20. The mother expressed sadness regarding how her relationship with S. has changed since Covid. For several months she was only able to have virtual access with him, and she sang to him or talked to him over Skype. She believed that S. recognized her face and voice, although he did not really know what to make of the experience. Since in-person access has resumed, the mother is required to wear a face mask, plastic shield and full PPE equipment, and initially, to be socially distanced from her child. She described how confusing it was for S. when they could not have physical contact. They are now are permitted to have physical contact but at the time of trial, the mother is still required to wear a face mask, plastic face shield and full PPE.

21. The mother has fully complied with this request even though it is sad and difficult for her and confusing for S. He has tried to pull off her face mask or shield on more than one occasion. Ms Briskin and other workers testified that the mother was entirely cooperative with all of the safety measures put in place by the society and requested by the foster parents.

22. The mother has prioritized S.’s interests above her own. She has ended her relationship with S.’s father when it became clear that he was not interested in being S.’s parent or help her work toward her goal of parenting S. She has also not returned home to Kirkland Lake to visit her father and family members because she does not want to miss an access visit with S.

23. She testified that one of her primary worries about not having S. in her care is how he may feel about this as he grows up and she is afraid that he will think that she does not want to be his mother.

24. The mother’s evidence was credible, sincere and heartfelt.

[338] The court also considered carefully the admissible evidence in this trial about the mother’s parenting abilities. Although the child protection workers observed deficits in the mother’s parenting skills, in particular her ability to engage the child and to learn new skills, there is evidence that the mother’s ability to parent did improve during her access visits, particularly in doing ‘hands-on’ parenting.

[339] The court found that the family support worker, Mr. Lou Samonas, and the second family service worker Ms Jordan Letofsky, gave balanced evidence regarding the mother’s strengths and weaknesses. Mr. Samonas has been involved in supervising and teaching the mother during access visits since December 2018 to the time of trial, a period of approximately two years. Among the many workers involved, he has been the “constant” as he described it. Mr. Samonas has observed the following about the mother’s parenting skills:

1. The mother is able to engage the child by looking directly at him, talking to him ‘face to face’ and smiling at him. The child would respond and smile and “flail” his hand and shake with excitement”.

2. The mother is able to stimulate the child by talking and singing to him.

3. The mother is loving and affectionate with the child. She tells him that she loves him, she talks with him, she kisses him, she loves to hold him and to cuddle him.

4. The child responds positively when the mother seeks eye contact and is more stimulating. He will babble and smile and try to imitate her.

5. The mother is able to stimulate the child by lifting his head during ‘tummy time’ and she has practiced physiotherapy with him for short periods.

6. The mother will play with him and read to him.

7. The mother is able to comfort him to sleep. The child has solicited affection from her.

8. Mr. Samonas has never observed the mother to be aggressive, angry, or rough with the child. She is patient with him.

9. She is able to change his diaper, clean his face and change his clothing, and she has demonstrated an awareness of his sleeping schedule.

10. Mr. Samonas has observed the mother read the child’s cues on various occasions and engage in interactive play with the child. She can remain engaged.

11. The mother is able to feed the child, although she sometimes feeds him slowly.

12. The mother is always well-prepared for the visits. She always brings her own diaper bags. She brings toys and books. She manages and plans the visits.

13. Mr. Samonas observed four visits in the mother’s home in January of 2020. Her apartment was clean and she was well prepared and set up for the visits.

14. She is always polite and cooperative and receptive to feedback and she tries hard to implement feedback. She is likeable and communicates well.

[340] Mr. Samonas expressed concerns that the mother was not always able to maintain and implement these parenting skills, despite being open to feedback. He has also observed that the mother sometimes has difficulty with instrumental care, such as bottle preparation. He also expressed concern that she may disengage and “zone out” but for brief periods of time and needs prompting to re-engage. He has observed her to sometimes have a “flat affect”. He is concerned about her physical stamina.

[341] Ms Letofsky also acknowledged many of the mother’s strengths during her testimony. She observed many of the parenting skills that Mr. Samonas observed, including the mother’s ability to engage the child, establish eye contact with the child, feed the child, soothe and comfort the child, be loving and affectionate towards him, speak to him in a loving manner, read to him, count to him and sing to him.

[342] She observed the mother to change the child’s diapers, practice tummy time, practice the child’s physiotherapy exercises with him and soothe him to sleep.

[343] She also observed that the mother was receptive and open to feedback and that the mother’s ability to engage the child while feeding improved over time as well as her ability to respond to his cues.

14: Conclusion

[344] I find that it is in S.’s best interests to be returned to his mother’s care by a graduated reintegration, subject to society supervision.

[345] Extended society care (formerly crown wardship) is the court’s last resort. I find that the society did not make adequate efforts to assist the mother in parenting the child before and after this litigation was commenced, initially because they believed that the child’s delayed development was caused by the mother’s neglect or poor parenting, and then subsequently because they believed that the mother was incapable of parenting without a proper foundation for this belief.

[346] This is not a case where the inevitable remedy is to permanently remove S. from his mother’s care without access.

[347] I find that the society did not give the mother an adequate opportunity to parent. I find that the society concluded that the mother was incapable of parenting without accurately assessing the the mother’s parenting capabilities or providing the mother with the services necessary, including community services, to support her parenting of S.

[348] I find that once the society received the results of the dangerously flawed parenting capacity assessment in the early fall 2019, they concluded that the mother was unable to parent the child. The society made it decision to amend its child protection application shortly thereafter. Ms Letofsky testified that the society made its decision to seek extended society care in January of 2020.

[349] Following the receipt of the parenting capacity assessment and the shift in the society’s position to the permanent removal of S. from the mother’s care, I find that the society’s efforts to provide services to the mother decreased further, including the reduction of her access visits to twice weekly for a total period of four hours.

[350] I am very mindful of the length of time that S. has been in society care and that he has been in care well past the statutory time limits. A significant part of this delay was caused by the global pandemic, an exceptional circumstance not anticipated by anyone. This trial was scheduled to proceed in the spring of 2020 but was adjourned to the fall sittings as a result of the suspension of regular court operations following the Ontario government’s declaration of a state of emergency. Regular access visits and the ability to asses the mother’s parenting of the child was also disrupted for several months. Further, the trial was delayed on two separate occasions because two witnesses had been potentially exposed to the Covid virus.

[351] I have carefully considered the need for permanency planning for this child. However, I find that this is one of those exceptional cases where, if necessary, it is in the child’s best interests that there should be an extension of time under section 122(5) of the Act to permit the child to be reintegrated into his mother’s care, and for the society to accurately assess the supports that the mother may need, and, if necessary, with the assistance of a properly qualified parenting capacity assessor.

[352] If I am wrong in the above analysis, I find that I can return S. to the mother’s care without the need to invoke section 122(5) of the Act. In Catholic Children’s Aid Society of Toronto v. N.J., 2017 ONSC 4884, the court upheld a trial decision where the court made a two month transition order returning the child to the mother, followed by a 12 month supervision order (reduced to 10 months on appeal, so as not to offend paragraph 4 of subsection 57 (1) of the CFSA (now 101 (1) of the CYFSA). The child had been in care for 26 months. The appeal court essentially endorsed an extension of the wardship order.

[353] Further, in N.V.C. v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796, on appeal, the court found the child not to be in need of protection. Ordinarily, this should result in the immediate return home of the child. However, the court recognized that the best interests of the child required this to be done in a transitioned manner. This is similar to one of the considerations that a court considers in making an extension order under section 122(5) of the Act. The court wrote at paragraph 142:

“In light of the Child's special needs, a plan must be in place, prior to the permanent return of the Child, to ensure that he is accepted in a school, has appropriate before and after school care, that he has a pediatrician, and that arrangements have been made for appropriate supports for his special needs such as speech and occupational therapy”.

15: Final Order

[354] For all of the above reasons, the court makes the following final order:

1. The child, S. L. shall be returned to the mother’s care, subject to the supervision of the society, following a period of transition as follows:

a. Commencing immediately, the mother shall have access to the child each Monday, Wednesday and Friday from 10:00 a.m. to 4:00 p.m. The child shall be delivered to and picked up from the mother’s home each visit.

b. After the completion of six weeks of the access set out in (a.) above, the child shall begin spending every Monday overnight, commencing at 10:00 AM on Monday morning, to Tuesday at 6:00 PM, and every Thursday overnight, commencing at 10:00 AM on Thursday morning, to Friday at 6:00 PM.

c. The society shall ensure that the mother be provided with all of the services provided to the foster parents regarding the services for the child’s special needs, including speech, occupational and physiotherapy services and that the mother is permitted to participate in these services and receive instruction in these services from the service providers.

d. The society shall ensure that the mother be provided with the services of an in- home family support worker or parenting support worker through another agency such as Surrey Place, if necessary for both phases of the above reintegration plan.

2. After the completion of six weeks of the access schedule set out in (1.b.) above, the child shall be retuned to the mother’s care, subject to the following terms and conditions of supervision by the society for a period of nine months:

a. The mother shall make efforts to find appropriate day care for the child that will also accommodate the child’s needs to attend his regular appointments for speech, language, occupational and physiotherapy. The society will assist the mother in finding and arranging this daycare.

b. The mother shall not leave S. in any other person’s care without the prior permission of the society.

c. The mother shall ensure that S. attends all medical appointments and ensure that S. has a family doctor and pediatrician in her community. The society will assist with this referral if necessary.

d. The mother shall ensure that she finds the appropriate services for S. in her community. The society shall assist the mother in locating these services. In the meantime, S. will continue his virtual therapy at Erin Oaks if he is able to do so, until services are located in the mother’s community.

e. The mother will ensure that S. attends his speech, occupational, and physiotherapy appointments. The society will assist the mother in ensuring that the mother has all of the necessary information for these appointments.

f. The mother shall permit the society to make announced and unannounced visits to her home at any time.

g. The mother shall cooperate in any further assessment of her parenting capabilities and learning abilities by a qualified assessor, if necessary, except not the same assessor who conducted the previous assessment.

h. The society shall consider providing the mother with in-home support through Surrey Place or other community services and the mother shall cooperate fully with any support arranged by the society.

i. The mother shall sign any consents necessary to permit the society to speak with the child’s service providers.

j. The mother shall ensure that the society always has her current telephone number, email address and home address. She shall notify the society immediately if she is planning to move.

k. The parties can agree to any modification to the re-unification schedule above, including an extension of the schedule if necessary so that the mother can be fully prepared for the return of S. to her care.

[355] Finally, the court wishes to thank counsel for their excellent advocacy and professionalism throughout this trial, which was conducted under very difficult circumstances, and for their thorough presentation of the evidence by the parties.

Date: April 30, 2021 _____________________

Justice Sheilagh O’Connell

[^1]: The mother has a quiet voice so at one point during her testimony, the court asked the mother to remove her mask as it was very difficult to hear her. The mother remained enclosed in a plastic shield surrounding the witness box and was more than six feet away from all other persons in the courtroom.

[^2]: See R. v. Erven, 1978 CanLII 19 (S.C.C.); Family and Children’s Services of St. Thomas and Elgin v. A.C., [2013] O.J. No. 3837 (O.C.J.)

[^3]: 3 of 4 of the mother’s composite scores are at the 0.4 percentiles while the remaining composite score is higher but only at the 13th percentile.)

[^4]: Earlier in her Report Dr. McDermott indicated that Version 4 rather than Version 3 was used. It would be expected practice to use Version 5 which was released in 2017 with updated norms.

[^5]: (1999), 1999 CanLII 3793 (ON CA), 137 CCC (3d) 225 (Ontario Court of Appeal).

[^6]: See also Duty of Experts, Rule 20.1 (2) of the Family Law Rules, O. Reg. 250/19, s. 8.

[^7]: See Rule 20.2 (2).7, Acknowledgement of Expert’s Duty (Form 20.2), Family Law Rules.

[^8]: In N.V.C. v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796, on appeal, the court found that the child was not in need of protection. Ordinarily, this should result in the immediate return home of the child. However, the court recognized that the best interests of the child required this to be done in a transitioned manner, and ordered a graduated return.