Warning

The court hearing this matter directs that the following notice should 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

Date: 2021 12 06 Court File No.: Toronto CFO 20 15416

Between:

CHILDREN’S AID SOCIETY OF TORONTO Applicant,

— AND —

M. M. and M. O. Respondents

Before: Justice P. J. JONES

Heard on: November 29, 30 and December 1, 2021 Reasons for Judgment released on: December 6, 2021

Counsel: Lily Ng, counsel for the applicant society Alexei Goudimenko, counsel for the respondent M. M. No appearance by or on behalf of M.O. - Service on him dispensed with

JONES, P. J. J.:

[1] This is my decision after trial relating to the Protection Application brought by the Children’s Aid Society of Toronto (the Society) relating to the child J.M. born […], 2020.

[2] The statutory findings of fact and the finding in need of protection under section 74(2)(b)(i) of the Child, Youth and Family Services Act (S.O. 2017, Chapter 14) (the Act), were made on consent of M.M. (the mother) and the Society by Justice O’Connell on November 24, 2021 pursuant to an Agreed Statement of Facts, filed. The father, M.O. has never played any role in the life of the child nor in this proceeding, and after numerous attempts to locate him, service on him was dispensed with. On the first day of trial, the counsel for the mother advised the court that the mother was no longer seeking the return of the child and was consenting to an order placing J.M. in the extended care of the Society.

[3] Accordingly, the only outstanding issue at trial was the issue of access to the mother after an extended care order.

[4] The mother asked the court for an order granting her access to J.M. two times per week for one and one-half hours on each occasion with a view to his eventual return to her care once he was old enough to attend school. The mother sought an order that she be an access holder within the meaning of section 105(7) of the Act.

[5] The Society was opposed to such an order. They advised that J.M. is a healthy 17-month old toddler who has been in care his entire life. It is the Society’s intention to place J.M. for adoption at the earliest opportunity. The Society indicated that their position with respect to access changed very recently and that, rather than seeking an order that was silent as to access, they would be consenting to an order for face to face contact to the mother with the child three times per year, at dates, locations and times in the discretion of the Society. They asked that the mother be made an access recipient and that J.M. be the access holder within the meaning of Section 105(7) of the Act. The Society sought an order for no access to the father, M.O.

Background

[6] M.M. is a 43 years widow who was born in Belarus but lived for a number of years in Russia before immigrating to Canada in 2006 as a refugee.

[7] J.M. is the fourth child born to this mother. Her three oldest children, namely, R.a. born […], 2001, R.l. born […], 2002 and R.n., born […], 2008 were made Crown Wards by Justice Zisman on June 21, 2016 after a seven-day trial. (Justice Zisman’s lengthy and detailed reasons for judgment were filed at trial.) Her reasons for making such an order included concerns about the mother’s inadequate supervision of her children, her neglect of the children’s basic needs, and her refusal to obtain help for her untreated mental health condition. In paragraph 133 of her decision, Court File C71139/14 she wrote,

“However, the main impediment to the children returning to the care of the mother is her refusal to acknowledge that she has any mental health issues and her refusal to obtain an assessment so that she can obtain the help she obviously needs. The society did everything it could to explain, encourage and assist the mother in obtaining such an assessment. The mother at various times either directly refused saying that she did not need a doctor or said that she would go and not follow up. She said that she went to a clinic at “Finch” and they were not able to help her and looked at her negatively and she is not going back. It was explained to the mother many times that unless she received help for her mental health issues that the children could not be returned to her.”

[8] Although M.M. was granted access to her three oldest children after they were made Crown Wards, she did not exercise any access to them for two years prior to the birth of J.M. I accept that the reason for her failure to exercise access was rooted in her untreated mental illness and not in indifference. M.M.’s health continued to deteriorate after the children were removed from her as did her ability to function in society. At the time of J.M.’s birth, she was unemployed and living in a shelter.

Mother’s Mental Health

[9] On May 16, 2020 M.M. arrived at Toronto Western Hospital by ambulance complaining of abdominal pain. Upon examination, it was determined that she was in her third trimester of pregnancy. When told of the diagnosis, M.M. denied that she could be pregnant and claimed that her “big stomach” must be caused by “an infection” which was potentially “satanic” in nature. She also told the staff that she had a chip implanted in her tooth by the police authorities in Russia and that she is being actively surveilled.

[10] On May 17, 2020, M.M. was placed on a Form 1 under the Mental Health Act because she was denying her pregnancy, claiming that she was infected by a “parasite” and was concerned that, “criminals were out to get her.” On May 19, 2020 she was placed on a Form 3 and was involuntarily admitted to the hospital. At this point she was placed under the care of Dr. Golts, a psychiatrist with a perinatal specialty.

[11] M.M. continued to exhibit paranoid delusions and claimed that she was hearing voices; she spoke of Satanists stealing children, killing people and how she was being surveilled from Russia through the chip implanted in her tooth. On June 1, 2020 the mother was placed on a Form 4 prolonging her involuntary stay at the hospital. Requiring treatment and showing no insight into her illness, M.M. was referred to the Office of the Public Guardian and Trustee (P.G.& T.) who consented on her behalf to treatment with long lasting anti- psychotic medications, first by tablets and later, after the birth of J.M., by injection.

[12] Dr. Golts diagnosed M.M. as suffering from schizophrenia and speculated that M.M. had suffered from this condition for many years. It was her opinion, given M.M.’s presentation, that this condition had gone untreated for a number of years. She noted that schizophrenia is a chronic condition and to be successfully treated it requires the patient be compliant with a medication regime.

[13] It was Dr. Golts’s testimony that the injectable medication, Paliperidone (the medication she prescribed for the mother) is helpful dealing with positive symptoms of the disease i.e. delusions and hallucinations, but patients do not benefit as much on the medication in the treatment of cognitive symptoms and negative symptoms. Dr. Golts gave examples of negative symptoms. For example, a patient might show a lack of interest in the world around them, not want to be around people, might have difficulties with linear thinking or have a problem remaining organized.

[14] She also noted that M.M. showed limited insight into her mental illness, and that patients who have limited insight into their condition, are more likely to refuse treatment and, without treatment, revert to their untreated condition. She said that M.M. had a fair prognosis (meaning she would be able to live in the community and hold down a job) so long as she received treatment, but that without treatment, her prognosis was poor.

[15] Dr. Golts testified that she last saw M.M. on May 13, 2021 when she gave mother an injection of Paliperidone. She stated that M.M. missed her August 2021 appointment and that she had not seen M.M. since May. Dr. Golts testified that she knew that the mother wanted to find a family doctor closer to her residence, but that she would be prepared to see the mother once again if the mother wished to contact her. As recently as April 8, 2021, at an office visit with Dr. Golts, during a period the mother was regularly receiving her injections, M.M. continued to speak about the microchip, Satanists, and expressed concern that “the Satanists could hurt her kids.”

[16] M.M. became a patient of Dr. El Bardissi in the summer of 2021; from Dr. El Bardissi she received three injections, the last injection being in August 2021. The mother testified that she missed her next three injections because she had been, “too busy at work”, but she told the court that she was willing to go for her injection in December, 2021, “because that is what I am supposed to do.” Dr. Golts testified that there was a good chance of relapse after three months if no treatment is administered.

[17] M.M. showed no insight into why treatment was necessary to control her symptoms. It was the mother’s evidence that she felt fine and she saw no difference in how she was feeling when she received the injection and when she did not.

Birth of J.M.

[18] The Mother gave birth to J.M. on […], 2020 while she was an involuntary patient at the hospital. At birth, J.M. was removed to a place of safety because of the mother’s unstable mental condition. At the time, Dr. Golts reported to the Society that the mother would be unable to care for the baby in her current state. As well, the mother was unable to propose any other suitable alternate plan of care for her baby other than Society care.

[19] Until April 1, 2021, the mother told the Society that she was not opposed to J.M. being placed in extended care. However, on April 1, 2021, she advised the Society that she wished to plan for J.M.

Mother’s Current Situation

[20] M.M. left the hospital on July 3, 2020. She is currently working the night shift in a factory as well as receiving an Ontario Disability Pension. Initially, she returned to the shelter and then rented a room, but as of November 1, 2021 she is sharing an apartment with her two oldest children who are now 19 and 20 years old and who are no longer in the care of the Society. Neither of these children were called as witnesses.

J.M.’s Current Situation and Access Concerns

[21] J.M. is now 17 months old and has been in the care of the Society since birth. His mother has only ever exercised supervised access to him. M.M.’s presence in J.M.’s life has been inconsistent and sporadic. According to the Society records, M.M. missed over half her visits in the first 10 months of J.M.’s life. From July 2020 to March 31, 2021, M.M. missed 22 of 37 visits offered to her (or 59% of her visits). For the next 7 months of his life (from April 1, 2021 to November 12, 2021), M.M. missed one third of her scheduled visits.

[22] I heard evidence from four society workers who at various times have supervised access, namely, Kofi-Antwi-Boasiako, Tharsi Selveratnam, Stephanie Briskin and John Desmon (‘Des’) Masterson. All the Society workers took detailed notes of each visit they supervised, and they testified as to the aspects of the visits they viewed as positive and those aspects of the visits they viewed as negative. From the evidence, there emerged a number of common themes:

(1) The mother was not reliable in her attendance at visits. On many occasions, the worker would have to remind the mother more than once of the date of the upcoming visit. Even with multiple reminders, the mother frequently missed the visit, often without prior notifications. On seven occasions the mother confirmed her attendance, only to miss the visit, with the result that the child was brought to the office for a visit to no purpose.

(2) Each worker expressed concerns that the mother was not always emotionally available to the child during access. When she was emotionally present, she was gentle and loving with the child, would play with the child, caress the child and feed and change the child. Unfortunately, on many visits, the mother would emotionally withdraw from the child, sit on the couch and stare blankly at the child and would have to be reminded by the supervising worker to speak to the child and to interact with him. On more than one visit J.M. was observed wandering about the silent access room and making attempts to get his mother’s attention by tapping her leg, hitting her leg and making noises, to no avail.

(3) As recently as October 15, 2021, J.M., during an access visit, bumped into the highchair, and later fell forward into the toy bin. The mother did not respond; the supervising worker had to rush into the room to get J.M. out of the toy bin and to remind mother to watch J.M. Even then, the mother continued to sit silently for several minutes without any interaction with J.M. raising concerns about the mother’s ability to properly supervise her son.

(4) The mother was not consistent in her interactions with J.M. Notwithstanding the urgings of the workers, she did not consistently play with J.M., sing to J.M. or talk to J.M. However, there were times the mother sang to the child in Russian, caressed the child’s hair, gently massaged the child’s hands and acted in a very affectionate and very loving way.

(5) No one questioned the mother’s love for her son. However, no particular evidence of attachment between J.M. and his mother was noted.

Legal Test for Access to a Child in Extended Society Care

[23] Section 105(5) of the Act sets out the test to be applied by the court in determining whether an access order should be made to a child in extended care of the Society. This section provides that a court shall not make an access order under section 104 unless the court is satisfied that the order or variation would be in the child’s best interests.

[24] Since 2017 and the passage of the Act, there is no longer any presumption against access to a child in extended care. Conversely, there is no presumption in favour of access either. The only test to be applied is best interests . This new test is less strict and represents a shift in approach to access in extended care. The test makes the child’s best interests predominant in determining access. See Kawartha-Haliburton Children’s Aid Society v. M.W., [2019] O.J. No. 2020 (Ont. C.A.) and Children’s Aid Society of Toronto v J.G., 2020 ONCA 415 at paras 37-38.

[25] Section 74(3) provides a non-exhaustive list of factors to be considered in determining the best interests of a child. Section 105(6) adds two other factors the court shall consider in determining whether access to a child in extended care is in a child’s best interests. These factors are:

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

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

[26] The best interests factors outlined in s. 74(3) of the Act are set out as follows:

Best interests of child

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

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

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

(c) Consider any other circumstances of the case that the person considers relevant, including,

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

(ii) The child’s physical, mental and emotional level of development,

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

(iv) The child’s cultural and linguistic heritage,

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

(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.

[27] Section 105(7) provides that when a court makes an access order to a child in extended care, it should also specify who is the access holder and who is the access recipient as only an access holder has the right to apply for an openness order if a child is placed for adoption.(see section 196 of the Act.)

[28] The purpose of access after an extended care order is made is different than an order for access before such an order is made. There is a qualitative difference, and for good reason. The making of an extended care order represents a seismic shift in focus. Generally, it represents the end of any effort to return the child to the care of the person who had care of the child prior to intervention. It signals to the Society that it is now time for them to refocus their efforts in achieving permanency planning for the child in a direction other than towards the parent or prior care giver.

[29] Justice Clay, in Children’s Aid Society of the Region of Peel v. A.R., [2013] O.J. No 2969, wrote,

The Court finds that an access order should be made in all of the circumstances of this matter . However, the access that will be granted will be significantly less than the current access . The granting of a Crown Ward order means the end of any effort to return the child to the mother’s care. Part of the reason for access prior to a Crown Ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child.

[30] In determining whether to make an access order going forward, the court should consider whether the existing access has been “meaningful and beneficial” as one of the factors to be weighed in a whether access is in a child’s best interests. However, a Court is not limited to past and present considerations when assessing whether the relationship is meaningful and beneficial but can look to future considerations. (See Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, [2020] O.J. No. 2822. OCA

[31] Section 105(6)(b) provides that “if a court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.” is a factor a court shall consider in a determination of whether access should be granted after an extended care order is made. Children’s Aid Society of Toronto v J.G. supra notes that this factor, previously a deciding factor in denying access in many cases, is now only one factor and must be “ viewed through a global best interests lens. A (para 47). “ Access now may be ordered for a child in extended care if it truly is in the overall best interests of the child. Para 47 in its entirety reads as follows:

“By adopting a best interests test to determine access, the legislature changed the previous highly restrictive test that tended towards termination of access between children and those important to them. Access can be now ordered for a child in extended care if it truly is in the overall best interests of the child. The overall best interests involve a consideration of the 15 articulated factors plus “any other circumstance of the case that the person [deciding the case] considers relevant”. S.74(3)(c). Under s. 105(6), whether the relationship is “beneficial and meaningful to the child” and only if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption remain relevant, but only as viewed through a global best interests lens.”

[32] In para 64 of the case, the court noted that access may come in many forms. Para 64 reads as follows:

“The CYFSA requires a new approach to determining access. I note that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes."

Weighing of the Factors

[33] In deciding whether to grant access, and if so, what form that access should take, I have considered the following facts to be relevant:

1. J.M. is a highly adoptable toddler and it is the Society’s plan to place him for adoption as soon as possible. M.M. has conceded that she is not in a position to care for J.M. J.M. requires a permanent home where he can settle and develop secure and loving relationships as soon as possible.

2. M.M. is not in favour of her son being placed for adoption. She seeks to have him remain in foster care and for her to have access to him two times per week with a view to having him returned to her care once he is in school.

3. M.M. suffers from schizophrenia and has limited insight into her condition. She is currently not complying with her treatment, and as such, according to Dr. Golts, is likely to revert back to her untreated condition. Prior to obtaining treatment, she was suffering from paranoid delusions and hallucinations and was hearing voices and feared that the Russians were tracking her through an implant in her tooth.

4. M.M. has missed many of her visits and has to be reminded often to attend. Although there are times when she sings to J.M. and plays with him, there are also times when she withdraws emotionally from the child and sits on the couch and stares blankly at him. At such times, she leaves the J.M.to wander aimlessly about the silent access room. She is not supervising him as she is required to do nor does she interact with him as she has been encouraged to do. This behaviour puts him at risk of emotional and physical harm.

5. If I were to order in person access as requested by the mother, I heard evidence that it would be difficult to find an adoptive home for J.M. given that M.M. suffers from a major mental illness, may not be abiding by her treatment regime, is not in favour of the adoption, and the Society would not be involved in supervising access once any adoption was finalized.

6. If I were to order access by letter, email, photographs and productions of school reports (minus identifying information) the Society would assist the adoptive parents and the mother in setting up such an arrangement.

7. The Society indicated that they would attempt to match any adoptive candidate to the child’s cultural background. As well, communication between the mother and the adoptive family by letter and email would help inform the child of his cultural and familial background.

Decision

[34] Weighing all of the factors set out above, I am prepared to grant to the mother access to J.M. by cards or letter or by email three times per year with the adoptive parents providing updating photographs of the child at that time. When the child begins junior kindergarten, the adoptive parents shall email a copy of the child’s report card to the mother three times per year with identifying information removed from the report card. The mother is responsible for providing an updated email address if communication occurs in this fashion. If communications occur by post, the mother and the adoptive parents shall keep the other informed of their postal box or mailing address. M.M. shall be the access recipient and J.M. shall be the access holder.

[35] This form of access, although not face to face, will allow J.M. to “know his story” and will provide an avenue for him to access the medical history of his biological relatives. Although I did not order face to face access between M.M. and J.M. at this time for the reasons set out in this judgment, I recognize that M M. loves her son and without access by email and letters she would always wonder what happened to her baby. Hopefully this order will give her some answers and some peace.

[36] There shall be no access to the father, M.O

[37] I find this access order to be in J.M.’s best interests.

Released: December 6, 2021 Signed: Justice P. J. Jones