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.

DATE: January 12, 2023 COURT FILE NO.: C43066/22 ONTARIO COURT OF JUSTICE

B E T W E E N:

JEWISH FAMILY AND CHILD SERVICES OF GREATER TORONTO APPLICANT

ARTHIKA SRIVARAPATHY, for the APPLICANT

• and -

Z.Y. and S.B. RESPONDENTS

DAVID MILLER, for the RESPONDENT, Z.Y. The RESPONDENT, S.B., not attending LORNE GLASS, on behalf of the OFFICE OF THE CHILDREN’S LAWYER, for the child, D.S.

HEARD: JANUARY 10, 2023

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] The applicant, Jewish Family and Child Services of Greater Toronto (the society), has brought a motion, within its protection application, seeking to place the subject child, D.S., age 9, (the child), in its temporary care and custody, with access to the respondent Z.Y. (the mother), to be in its discretion with respect to location, frequency, duration and level of supervision.

[2] The mother seeks a temporary order that the child be placed in her care and custody without terms of society supervision, or in the alternative, with terms of supervision. If the child is placed in the temporary care and custody of the society, she seeks as much access with him as the court will permit.

[3] The Office of the Children’s Lawyer (the OCL), on behalf of the child, asks that there be no change to the existing access arrangement, which is supervised at the society office once a week.

[4] The respondent, S.B. (the father), did not attend at court and has had little involvement with the child for several years.

[5] The court read the affidavit of the mother and the affidavits of society workers, Tracy Doyle and Yasman Zia Saidi.

Part Two – Brief background

[6] The mother is 35 years old. The child is her only child and has been primarily raised by her.

[7] The mother was born in Ethiopia and was raised in Israel.

[8] The mother came to Canada in 2012. She advised the court that she has permanent resident status in Canada.

[9] The mother was in a relationship with the father from 2012 until January 15, 2015. The mother deposed that the father was physically and emotionally abusive to her.

[10] On June 12, 2019, in a proceeding under the Children’s Law Reform Act, Justice Brian Scully made a final order that the mother have custody of the child and that the father have no access to the child.

[11] In May 2022, the mother called the Toronto Police Service (TPS) and they attended at her home. She claimed that she was being targeted by the father and that her phone had been hacked. No further steps were taken.

[12] On September 4, 2022, the TPS made a referral to the society regarding concerns about the mother’s mental health. The mother had contacted the TPS to report that people were out to get her and were trying to kill her.

[13] On September 9, 2022, the society worker, Tracy Doyle, became concerned about the mother’s mental health when attending at the mother’s home. She called the police for assistance. The mother was apprehended that day under the Mental Health Act and hospitalized.

[14] No one else was available to care for the child. He was brought to a place of safety on September 9, 2022. He has remained in society care since then.

[15] The society issued this protection application on September 12, 2022, seeking orders to find the child in need of protection and for a disposition placing the child in interim society care for six months.

[16] On September 14, 2022, Justice Debra Paulseth made a temporary without prejudice order placing the child in the temporary care and custody of the society, with access to the mother in the society’s discretion.

[17] The mother remained in the hospital until September 19, 2022.

[18] On October 4, 2022, an order was made appointing the OCL to act on behalf of the child.

[19] On November 15, 2022, the mother did not attend court and the case was adjourned for a temporary care and custody hearing.

[20] On December 19, 2022, the temporary care and custody hearing was adjourned at the request of the mother to give her more time to file her responding materials.

Part Three – Legal considerations for placement on a temporary care and custody hearing

[21] The legal test for the court to apply on a temporary care and custody motion is set out in subsections 94 (2), (4), (5) and (11) of the Child, Youth and Family Services Act, 2017 (the Act) that read as follows:

94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

Criteria

(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

Placement with relative, etc.

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

Child’s views and wishes

(11) Before making an order under subsection (2), the court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.

[22] The onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the child is returned to the mother, it is more probable than not that he will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms or conditions of a temporary supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the society has to meet with respect to the mother.

[23] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) of the Act). See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.

[24] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.

[25] The Divisional Court has held that a children’s aid society seeking an order for temporary society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies society intervention. See: L.D. v. Durham Children’s Aid Society and R.L. and M.L., [2005] O.J. No. 5050 (Ont. Div. Ct.). The burden on the society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care. See: CCAS of Toronto v. M.L.R. 2011 ONCJ 652; The Children’s Aid Society of Ottawa v. S.G., 2021 ONSC 2260.

[26] Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227 at paragraph 18; CAS of the Regional Municipality of Waterloo v. S.S.H., 2019 ONSC 5365.

[27] In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, this court wrote that it does not automatically follow that a child will be in need of protection just because a parent has mental health challenges. Many parents with mental health issues parent their children well – others can’t. There is a wide range of mental illnesses that affect parents differently and, by extension, affect their children differently. The court wrote at paragraph 114:

[114] The court needs to assess several factors to determine if a parent’s mental illness places a child at risk of harm and if so, whether a child can still be placed in the parent’s care. These factors include:

a) The type of mental illness the parent has. b) The severity of the mental illness. c) The frequency of the parent’s mental illness symptoms – whether they are situational or chronic. d) The impact of the mental illness on the parent’s functioning. e) The impact of the mental illness on the parent’s parenting. f) Other risk factors impacting on the mental illness, including substance abuse, difficulties with interpersonal relationships, domestic violence and other stressors such as unstable housing and financial problems. g) The impact of the mental illness on the children. h) The insight of the parent into their mental illness. i) The ability of the parent to meaningfully engage with supports to address the mental health issues. j) Whether the parent is compliant with treatment recommendations. k) The strength of the parent’s support system, the insight of those support persons into the parent’s mental health issues and the ability of those persons to prioritize a child’s needs to those of the parent’s and to protect the child. l) Whether the children have any needs that make them more vulnerable to compromised parenting.

Part Four – The mother’s position

[28] The mother’s position is that:

a) There are no protection concerns. b) She does not have mental health issues. c) She has appropriately cared for the child and will continue to do so. She deposed that she has always met the child’s academic and medical needs. d) The society, the police and medical professionals have misconstrued her concerns about threats to her and the child as mental health issues. e) The father and members of his community are targeting her and have control over institutions, such as the police, the school and the society. f) It is in the child’s best interests to be returned to her care without terms of supervision.

Part Five – Placement analysis

[29] The society met its onus on both parts of the two-part test for placing a child in temporary society care. There are reasonable grounds to believe that if the child was returned to the mother’s care that it is more probable than not that the child will suffer harm. And, supervision terms would be inadequate to protect the child from these risks.

[30] The evidence provides reasonable grounds to believe that the mother’s mental health has seriously deteriorated. This evidence includes the following:

a) The mother was apprehended under the Mental Health Act and kept in the hospital from September 9 to 19, 2022. b) The mother provided hospital records indicating that: i) She has shown a lack of competence to care for herself. ii) The treating physician advised her that she has been experiencing a psychotic illness and would benefit from antipsychotic medication. iii) She refused treatment in the hospital and did not receive any medication. c) The mother’s own evidence was indicative of a person suffering from serious mental health issues. She believes that people are out to harm her and the child. She is hypervigilant. She trusts no one. She appears to have a tenuous tether to reality. Some of the mother’s beliefs are as follows: [1] i) She is being targeted by many people and institutions at the behest of the father and members of his community. She believes that people are trying to kill her. ii) She believes that the father had her driver’s licence renewed without her knowledge and has made her an organ donor against her will. iii) She believes that people are breaking into her apartment, hacking into her devices and trying to steal her identity and are stealing other items in her home. iv) She believes that these people are also poisoning her cooking oil and her food. v) She believes that part of the hacking and threatening against her is that ambulances and fire engines keep driving by her home with sirens on. She attached many photos of these vehicles to her affidavit. vi) She believes that the child’s school has targeted her and the child. She submitted that the child not being included in school photos for several years is indicative of this. vii) She stopped the child’s online schooling because he was receiving images and messages that he shouldn’t be seeing on the computer provided to him from the Toronto District School Board. She believes that people hacked into this device to put these messages on it. The mother also felt that the school was not responsive to this concern and was paying inadequate attention to the child. viii) She believes that the police, the hospital and the society are targeting her. ix) She attributes her higher debt payments to the father influencing her creditors. x) She has missed several visits after either refusing to take taxis provided by the society, or getting into altercations with taxi drivers, because she feels they are associated with the father. d) The society workers provided multiple examples in their affidavits that are indicative of the mother having serious mental health issues. They also described several instances where the mother struggled to manage her emotions. [2]

[31] The mother totally denies having mental health issues. She disagrees with her mental health diagnosis. She is adamant that she will not take any prescribed medication.

[32] The mother has not sought any treatment for her mental health issues since she left the hospital.

[33] The mother said that she would obtain her own mental health assessment in her Answer/Plan of Care but has not done so.

[34] The mother’s lack of insight into her mental health challenges makes it less likely that she will take the necessary steps to address them and reduce the risk concerns.

[35] The society tried to arrange a mental health assessment for the mother with the Centre for Addiction and Mental Health. The mother refused to go because the institution has Addiction in its title and she has no addiction issues. The society was unable to convince her that the mental health assessment has nothing to do with addictions.

[36] The society has also tried to help the mother with financial management. However, she has rejected this help because she believes that the society is trying to change her funding from social assistance to the Ontario Disability Support Plan and she does not want that to happen. There is no basis for this belief.

[37] The mother’s mental health challenges are not situational. They have been consistent and persistent since at least September 2022.

[38] The mother’s mental health issues are not benign. They have had a serious impact on the child. The child had adopted the mother’s view that he was not safe and was in peril. He believed that his food had been poisoned, that telephones in his home were hacked and that people were entering his home and stealing items.

[39] The child reported to Tracy Doyle when he was brought to a place of safety that he had not left the apartment for three years and had not gone to any medical appointments. This may or may not be true, but it is concerning that this was the child’s perception of events and that he made these statements.

[40] The child is not asking to return to his mother’s care. He wants visits to stay as they are – fully supervised, once each week. He has expressed that he wants his mother to take medicine to get better and that he is worried about her.

[41] The evidence supports a reasonable belief that the child does not feel safe and secure living with the mother.

[42] The mother provided the child’s school records. His attendance was very poor for the last school term that he lived with the mother. There were many absences and late attendances. The school noted that the child was struggling in school because of this.

[43] The child was not in school when he was taken to a place of safety on September 9, 2022. The mother did not trust the school and had stopped the child’s on-line learning. She said that she was in the process of filling out an application to homeschool the child.

[44] The evidence provided reasonable grounds to believe that the child’s academic needs were not being met. It also provided reasonable grounds to believe that the child’s need for socialization was not being met while living with the mother.

[45] The evidence also provided reasonable grounds to believe that the child’s medical needs were not being met by the mother. The society has obtained glasses for the child. The child’s school (now that the child is attending school in person) also identified that he has a speech delay. The society has made a referral for speech therapy for the child. The mother denies that these are issues.

[46] The mother has no family or community supports to assist her with her mental health challenges. She said that she is estranged from her family. She is isolated. This makes a recovery from her mental health issues even more challenging.

[47] Supervision terms are inadequate to protect the child. The mother’s mental health challenges are far too severe at this time. She is unable to provide the child with a safe, secure and stable home. She is unable to meet his academic, medical and social needs.

[48] The child’s emotional, social and academic development would be at serious risk of harm if he was placed back in the mother’s care.

[49] The mother is also unlikely to comply with supervision terms she disagrees with. She does not trust the society and believes they are intent on sabotaging her.

[50] The child will remain in the temporary care and custody of the society pending further order.

Part Six – Access

[51] Subsection 94 (8) of the Act provides that where an order is made under clause (c) or (d) of subsection 94 (2), the court may order access on any terms that it considers appropriate. In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the Act. See: JFCS v. H.B.S. [2012], O.J. No. 5055 (OCJ).

[52] The party seeking to impose restrictions on a parent’s contact or access to a child must demonstrate that it is necessary and the limit is proportionate to the risk. Any such terms should be child and harm specific and be supported on the evidence. See: Children’s Aid Society of Brant v. A.C., 2020 ONCJ 505.

[53] In considering the child’s best interests, the court has considered the relevant best interest factors set out in subsection 74 (3) of the Act. [3]

[54] The mother would like as much access with the child as the court will permit.

[55] The child expressed through counsel that:

a) His visits with his mother are very important to him. b) He loves his mother very much. c) He worries about his mother. d) He wants the visits to continue to be supervised once each week at the society office. e) He wants his mother to attend each visit. He is disappointed when she misses visits and worries about why she misses them.

[56] The evidence indicated that the mother has several parenting strengths. They include:

a) It was apparent to the court how much she loves the child and wants the best for him. b) When she attends access visits, they are generally positive. c) The child was described as thoughtful and polite. The mother deserves credit for raising the child in this manner. d) The mother is very attuned to teaching the child about his Ethiopian Jewish heritage.

[57] The mother has not been consistent in attending access once each week. She has given excuses that she has other commitments. At times, she has turned down taxi rides provided by the society and has been in conflict with the taxi drivers arranged by the society, resulting in missed visits.

[58] The society has offered changing the day of access visits so that the mother can attend more regularly but she has not changed it.

[59] The society needs the flexibility to be able to change access without having to constantly return to court for permission. These changes need to be responsive to the fluctuations in the mother’s mental health and functioning. These changes could include increasing the frequency of access if the mother’s mental health improves or suspending access if the mother’s mental health further declines. The society always needs to assess how the child is responding to the visits.

[60] At this time, the mother’s visits need to remain fully supervised. The main concern with unsupervised visits is that the mother would tell the child that they are being targeted and are in danger. This would undermine the child’s sense of security, safety and well-being.

[61] It is in the child’s best interest that the mother’s temporary access with him be in the society’s discretion.

Part Seven – Next steps

[62] One of the functions of a case management judge is to provide clear expectations to a party of what needs to be done to have their child returned to them.

[63] The court is aware that this decision will be upsetting to the mother and that she will disagree with it. The court has no doubt that she sincerely holds the belief that she is being targeted and is at risk. This case is not about credibility.

[64] However, the court is not helping the mother if it does not give her the hard truth.

[65] The hard truth is that the child will not return to her care anytime soon. There is much that she will have to do before this happens. She will need to do the following:

a) Attend for a mental health assessment. [4] The assessor should be able to meet with the society worker to obtain the necessary context for the assessment. b) Follow the treatment recommendations of the assessor. c) Demonstrate sustained improvement in her mental health. d) Demonstrate insight into her mental health challenges and the impact that those challenges have had on the child. e) Come to all visits on time.

[66] The court hopes that the mother will take these steps, even if she does not believe that they are necessary. It is her best chance of reuniting with her child.

[67] The mother has been able to adequately parent the child in the past when her mental health was stable. This gives the court some optimism that she will be able to adequately parent the child in the future. However, this will only happen if she takes the necessary steps to address her mental health issues.

[68] The parties should be settling the protection application with a 6-month interim society care order while the mother works on meeting these expectations. However, absent the mother developing any insight into her mental health challenges, a resolution appears unlikely.

[69] The society has actively sought services for the child. They have assigned a MSW student for informal counseling. The child has also been connected with a Child and Youth Worker who is of a similar racial identity to help him maintain his cultural connections. The society has made the referral for speech therapy.

[70] The society should also consider looking into a program for the child to assist him in coping with the mother’s mental health challenges, such as the FAME program. [5]

[71] The next appearance will be for a trial management conference on April 4, 2023 at 10:30 a.m. Trial Management Conference briefs and a joint Trial Management Plan will be required.

Part Eight – Conclusion

[72] A temporary order shall go as follows:

a) The child shall remain in the temporary care and custody of the society pending further court order. b) Access between the child and the mother shall be in the society’s discretion with respect to location, frequency, duration, level of supervision and whether access is to take place at all, having regard to the needs and preferences of the child and the state of the mother’s mental health.

[73] The court thanks counsel for their professional presentation of this motion.

Released: January 12, 2023

Justice Stanley B. Sherr

[1] This is a partial list. Paragraphs 72, 73, 76, 82, 83, 97 and 109 of the mother’s affidavit and the hundreds of pages of attachments to her affidavit which she claims prove her beliefs, raise serious mental health concerns about her. [2] See: Paragraphs 9, 12, 15 and 17-21 of the affidavit of Yasmin Zia Saidi. [3] This subsection reads 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 Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection. [4] The mother set out in detail how the father perpetrated violence against her. It might be advisable to obtain a trauma-informed assessment. [5] FAME is the acronym for Family Association for Mental Health Everywhere.