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: April 6, 2023

COURT FILE No.: Toronto C41089/21

BETWEEN:

Catholic Children’s Aid Society of Toronto

Applicant,

— AND —

R.E. /Respondent/Mother

S.B ./Respondent/Father

Before: Justice Debra Paulseth

Heard on: March 20, 21, 22, 23, 24, 27, and 28, 2023

Reasons for Judgment released on: April 6, 2023

Counsel: Karen Ksienski................................................................ counsel for the applicant society Paula McGirr................................................................... counsel for the respondent/father Respondent/mother .................................................................................. on her own behalf Jean Hyndman, Amicus Curiae for mother

Paulseth J.:

Overview

[1] On January 7, 2021, the child ES, born […], 2020, was taken from the mother’s home to a place of safety by the applicant/society. The parents, RE (the mother) and SB (the father) were living separately and relatives were unable to assist.

[2] The child has remained in the care of the applicant /society (or CCAS) since that time. Protection proceedings have been ongoing. The current proceeding is a Status Review Application that seeks extended society care of the child with ongoing access to both parents.

[3] Mother is opposed to the society application and seeks the return of the child under supervision by the society. She is currently without counsel so the court appointed an amicus curiae to ensure her position was presented to the court.

[4] Father supports the position of the society.

[5] Because ES is under the age of 6 years and has been in the care of the society for more than the 12 month statutory time limit, the Child Youth and Family Services Act, 2017 (the Act) only permits the court to make one of the following orders:

(1) a return to mother with or without supervision by the society, or (2) extended society care;

unless an extension order is granted pursuant to subsection 122(5)

[6] If the court makes a society care order, the question of what access order is in ES’s best interests must be answered.

[7] Amicus suggested in closing submissions that, in the alternative, the court should order a further period of interim society care under subsection 122(5) of the Act.

Evidence for the Society

Statements of Agreed Facts

[8] On May 7, 2021, the court made findings that the child was in need of protection based on risk of physical and emotional harm and made a disposition of six months interim society care. These orders were based on the following agreed facts:

(1) In October of 2020 and again in November of 2020, the child was hospitalized due to failure to gain weight. On both occasions, ES gained weight while in hospital. (2) On December 11, 2020, ES’s doctor advised the society that again the child was not gaining weight. The family agreed to have ES live with father at the home of the paternal grandparents. (3) Father returned to live with mother on December 28, 2020 but both parents acknowledged the conflict in their relationship. (4) In a home visit on January 4, 2021, the home was described as unsanitary, dark, and with a strong smell of cigarettes. (5) On January 6, 2021, the paternal grandparents advised they could no longer care for the child. On January 7, 2020, the child was brought to a place of safety by the society. (6) Mother was attending Humber College in a paralegal program. She sold her family home, after the death of her parents, and was living with a friend. (7) Mother continued to speak to her psychiatrist, Dr Gitev, weekly and was taking daily medication. (8) Mother consistently attended weekly visits at the society office and had a second visit every week virtually. During the visits, mother presented as gentle and loving with the child. She had some challenges in feeding and responding to ES’s cues but was appropriate in seeking help. Staff were often in the room to support mother. (9) Mother reported that she struggles with learning and appreciates hands on learning. Mother also reported that she no longer wanted to be in a relationship with the father. (10) ES was seen by her pediatrician bi-weekly and also by the Hospital for Sick Children (HSC) feeding and development clinic for infants. When admitted to care, she weighed only 5.4 kg, which was less than the 7th percentile. As of May 7, 2021 she was gaining weight and presented as a happy and active child. (11) Father was hospitalized until January 29, 2021 with schizo-affective disorder. He has been living with his parents. (12) At the mother’s suggestion, father took a DNA test and it was confirmed that he is not the child’s biological father. He continued to visit the child in the office weekly and a second visit virtually. Father is anxious but gentle and affectionate with ES.

[9] In its Status Review Application, returnable November 4, 2021, the society sought an extended society care order for ES. On July 12, 2022, the court made an order with the consent of the parties for continued interim society care for 4 months followed by an 8 month supervision order, with the child placed with mother under conditions. The order was made pursuant to subsection 122(5) of the Act because it would take the child beyond the statutory limit of 12 months temporary care.

[10] This order was based on the following agreed facts:

(1) In April, 2021, mother moved into an apartment with a friend in Mississauga. By the end of April, she had left that housing, because she said the friend was verbally abusive and always smoking marijuana. She said she was afraid of her friend. She had paid for a year’s rent in advance and left most of her furniture there. She was now living with a friend in Toronto. (2) In May, 2021, mother participated in an 8 week parenting group through Aisling Discoveries, a children’s mental health resource. The purpose of the program was to enhance attachment security between mother and child. (3) The society wanted mother to have a cognitive learning assessment. A referral was made to the Developmental Service of Ontario (DSO) in Toronto. Just as the referral was about to be made by the Toronto office, mother moved to Peel. Eventually mother participated in an intake telephone call, following which she was deemed ineligible. (4) Mother continued to see her psychiatrist on a weekly basis for support in managing her goals and anxiety. The doctor supported her disability application. (5) Mother contacted Catholic Family Services, planning to enrol in a couples counselling workshop with father. This did not happen. The couple decided to work with CAFCAN instead. Mother participated in 11 individual counselling sessions by telephone. (6) The Visiting Homemakers Association (VHA) was working with both parents and attended the home on two occasions. (7) Mother has had multiple places of employment. (8) In August of 2021, mother reported that she and the father were engaged and planned to marry in October. In December they moved into an apartment together. In May of 2022, mother left that home due to the level of conflict with the father and visits with ES had to be cancelled. (9) On June 9, 2022, father was arrested after a dispute with the mother and charged with uttering a death threat. His release conditions prohibit any communication with the mother and provide that he cannot be within 100 metres of their previous home. On June 23,2022, mother advised the worker that she would drop the charges if father obtained mental health support. (10) ES continued to be monitored by HSC. Her weight was progressing well. She has also been seen by an occupational therapist and a nutritionist. (11) Visits were going very well and mother appeared less anxious and more comfortable with ES. By February of 2022, the parents were having visits in their home and transitioning to a semi-supervised setting. On May 18, 2022, mother cancelled the visit due to conflict with father. They reunited but separated again on June 9, 2022. (12) Father suffers from schizophrenia affective disorder. He had been seen by a psychiatrist while hospitalized but was having difficulty connecting with the psychiatrist he had been referred to in the community. The family doctor credits the father’s current stability to his parents’ support. (13) Father was having trouble maintaining employment.

[11] The conditions attached to the anticipated supervision order included requirements that mother:

(1) establish a consistent source of income, (2) ensure stable housing, and (3) ensure ES is in full-time daycare.

[12] On August 17, 2022, the society filed an early Status Review Application seeking extended society care for ES.

[13] The current family service worker gave evidence. She has worked with the mother since before the child came into care until just recently when mother began to identify as a black woman and a new worker was assigned. A summary of her evidence includes:

(1) By late May of 2021, mother had been staying at an older male friend’s (JJ) apartment but was moving in with a female friend in Mississauga. She paid the lease for a year but then had to leave when the two roommates did not get along. She lost most of her rent money. (2) Mother and father were back together and staying in a hotel by August of 2021. There were concerns about the relationship and father’s mental health. In November of 2021, the access to mother was increased to twice a week and father would attend one of these visits. Punctuality for the visits and financial security were discussed in the family conference. (3) In December of 2021, mother and father moved into a Toronto apartment. The rent was high, $2,000.00 a month. Mother had no employment and no public assistance. She was trying to pass her insurance exams but failed them 3 times. Father was using his employment insurance money to help with the rent but they shared the cost. The parents were involved in couples’ counselling but quit as it made them argue more. Finances were very tight as JJ had been helping but then had a stroke. Mother said JJ’s family was very rich. (4) In early 2022, Dr Gitev was writing a support letter for mother to obtain ODSP. Mother was having telephone counselling with Dr Drummond from the Jamaican Canadian Association (later called CAFCAN). (5) The society made a referral to the Developmental Services of Ontario for mother to be assessed at Surrey place. There were concerns about mother’s cognitive functioning. Mother did the intake but maintained she had been accepted as a gifted student for an International Baccalaureate (IB) program in high school. (6) In the spring of 2022, staff from the Visiting Homemakers Association (VHA) came to mother’s home for emotional support and parenting skills’ assistance. They were to attend 8 weekly visits for 5 hours a visit. The service ended after two visits because the visits returned to the society office. (7) On May 18, 2022, the driver brought ES for the home visit and the parents asked that she be returned. Mother was crying and told the workers that father had been behaving strangely and yelling. By May 27, 2022, father indicated the parents were back together. (8) On May 31, 2022, mother was staying at JJ’s apartment again. The society worker had seen this apartment before. It apparently is connected to JJ or his family but does not have any kitchen appliances. It has two bedrooms without linen. (9) Mother said that father called the child “black” and mother found that offensive. (10) Mother cancelled a couple of visits but was back with father at the Toronto apartment by early June, 2022. (11) The reintegration plan with both parents deteriorated after June of 2022, when father was first removed from the home by police and then on July 7, 2022, Father was arrested for uttering death threats against the mother. Shortly thereafter, father was arrested for breach of his no contact release conditions. (12) In July of 2022, the society consented to reintegrate ES into the mother’s home. The plan unfolded as follows: (a) The society tried to move the visits into the mother’s home but it was in such disarray that it was unsafe for a toddler. (b) Mother said she had employment with a bitcoin currency company but was not being paid yet. She had all of her identification and credit cards stolen by a previous roommate and could not set up online banking. (c) On the next home visit, it appeared that there had been a fire in the microwave and more hazards than the previous visit. (d) Mother had plans for employment that changed frequently and then said that JJ would financially support her. At one point she was going to return to the massage parlour, but this worker reminded her that she had said she used crystal meth whenever she had that job. (e) Shortly thereafter, the society returned to court with a position of extended society care for ES. (13) Mother loves this child very much and the child loves the mother and greets her with affection. (14) Mother’s access has generally progressed and is now twice a week, semi supported, once in the office and once at home. Mother prepares for the visit with food and activities. She takes the child to the local ”early on years” program. (15) Mother is often late for the visits, despite her best efforts. Recently, she has cancelled two home visits and one office visit. (16) As a teenager, mother suffered brain injuries. She has seen a psychiatrist since 2004, albeit with a gap between 2009 and 2015, and is diagnosed with anxiety. (17) Mother has difficulty retaining information and must have certain procedures explained to her repeatedly; for example, how to put on the child’s coat. (18) Mother cannot correctly judge or retain information about the size of clothing for her child. (19) The society recommended that mother receive some supports from the Disability Services Ontario (DSO). The DSO contracts with Surrey Place in this jurisdiction. A referral was made but mother advised the intake person that, in fact, she had been in a gifted program at school and had no difficulties. The referral was declined. (20) Mother has been resourceful in connecting with several agencies to support her; such as Caribbean African Canadian (CAFCAN) services, Toronto Public Health, Visiting Homemakers Association (VHA), and most recently, Parents of Black Children (PBC). (21) Mother has continued to be in a precarious financial position. She inherited her parents’ home after their deaths but spent the equity of over $100,000. by gambling it away. From a young age she earned money in a massage parlour but spent her money on crystal meth drugs. She occasionally returns to this employment. (22) In the past year, mother has reported her employment at many different jobs; none of which lasted more than a month: (a) teaching, but without pay for three months, (b) cleaning homes for cash, (c) planning on a job with Amazon, working part time from home, (d) working at a paralegal firm but being let go in two weeks because of court commitments, (e) a call centre for a research company, (f) her old massage parlour job, (g) A call centre for customer service in technology, and (h) trading bitcoin, where she received a promotion . (23) Since the parents’ separation in early July, 2022, mother has been responsible for the entire rent payment of $2000 a month. She says that JJ helps her financially. (24) Mother is now on Ontario Works and has applied for Ontario Disability Support program (ODSP). (25) Mother prides herself on her education. She completed a paralegal program at Humber College; she was given an accommodation such that her course load was at about 40% and thus took about 6 years. She has yet to write the licencing exam. She would like to obtain a master’s degree in cyber security or go to law school. On November 23, 2022, mother said she wanted to complete her law degree in Syracuse. The next day, she said she wants to go to England for law school. (26) Mother’s plan has changed several times. When she and the father were together, intimate partner violence was an ongoing concern. When they separated finally, mother indicated that her friend JJ would be a support. JJ is a former client from her massage job and is much older than mother. He recently had a stroke but has continued to finance the mother. Since November of 2022, mother has looked for supports from the black community. (27) In early 2023, mother announced that she and JJ were planning together. Within two weeks she said that plan had changed, as JJ only wants to give financial support and doesn’t want to meet ES. (28) Many times this worker has suggested a trauma informed approach to counselling for mother but mother has refused. (29) Father is supported by his parents. He sees the child regularly and the visits are positive. He is not proposing a plan for the child but wants to continue his access. (30) Mother has identified as Scottish, Ukrainian, East Indian, West Indian, and recently Black. (31) Three meetings were held in late 2022 and early 2023 with the executive director of Parents of Black Children, the society, mother, and other black service agencies. A request for a black family service worker was made and the society provided this.

[14] The family service supervisor had direct contact with this family, particularly since November of 2022 when the mother raised concerns that she had been discriminated against due to being of African descent. The supervisor’s evidence can be summarized follows:

(1) She connected with the Violence Against Women (VAW) worker in December of 2022, to request support for mother around safety planning and housing. (2) She helped mother to locate in her emails the society support letter for her ODSP application and the communications with the VAW worker. She offered further support in these areas to the mother. (3) She reviewed the protection concerns with the mother in detail. (a) Gambling addiction - mother admitted that she had been gambling in October of 2022; mother then stated on February 28, 2023 in a meeting with this supervisor and the gambling addiction counsellor that she had gambled her whole Ontario Works cheque and had made $5,000. in the past week. In total, mother said she had lost $250,000 in gambling. (b) Substance abuse addiction - mother at first indicated that this was not much of a problem anymore; she later said that she had been using drugs on and off since the age of 13; most recently she used crystal meth when she was with the father and working at the spa. Mother thinks this drug use and her traumatic experiences at such a young age have caused her to have memory lapses. (c) Financial security - mother needed to have her taxes completed in order to qualify for several subsidies, including day care, housing, and legal aid. The society had offered many times over the years to help her; gave her links to free online assistance; and offered to pay for the H and R Block service. Many times mother said they were done and they were not. Mother did go to H and R Block just recently and has given a receipt to the society. She does not have her Notices of Assessment. (d) Emotional and cognitive support - this witness spoke to directly to Surrey Place. Another resource was recommended for mother as she said she had no academic difficulty. One example of possible support is an adult protection worker. Mother was concerned that this would prevent her from being licensed as a paralegal. She contacted the Law Society of Ontario who confirmed this fear. She has not obtained an Adult Protection Worker. (e) Post traumatic stress - Mother reported some significant trauma from an early age. She reported being sexually abused by a neighbour from age 6 to 12. She later said that the society had placed her in care and that the society had falsely alleged that her father abused her. Mother said that her father had spent about $100,000. to clear his name. This witness discussed trauma counselling with mother and also the need to take time to recover. (4) This witness and mother discussed the programs at CAMH and the referral to a group through St Michael’s hospital. (5) This witness clarified several misunderstandings that the mother had; for example: (a) Mother said this witness had not returned her phone call. This witness reminded mother that they had just spoken on the phone (b) Mother said she need more information about CAMH. This witness reminded mother that they had exchanged several emails about this and had spoken on the phone about it. (c) Mother said the society had not responded to the questions from PBC. This witness reminded mother that since the questions were posed, two meetings were held to answer those questions. Also the trial scheduled for January had been adjourned at the request of the mother. (d) Mother asked for information about what she needed to do and this witness reviewed the above details with her. (6) This witness responded to the concerns expressed by PBC. Three meetings were set up with the service team, the society equity team, mother, PBC executive director and, at the third meeting, a representative from One Vision One Voice ( the initiative and report on black families in child welfare commissioned by the Ontario Association of Children’s Aid Societies) The concerns and responses were: Concern: the society never tried to reunify this child with the mother. Response: the society worked with the mother before the child came into care and worked with extended family. Since then, two separate initiatives were made to reintegrate the child home. Concern: the society never gave the family a black centred approach. Response: the family never identified as black and the cultural/racial issue arose at every plan of care meeting; the child was seen as bi- racial and accorded a multi-ethnic cultural experience, including from the black perspective. Concern: mother was never told what she needed to do to get her child back. Response: many, many discussions with mother, and emails, and letters, and court orders. Concern: the society kept changing the goal posts on the mother. Response: the concerns and expectations never changed. (7) A new black family services worker was assigned from a different service team. (8) Mother is now going to the CFSRB with a complaint about racist treatment by the society and may also be filing a complaint with the Human Rights Tribunal.

[15] The newest family service worker gave evidence:

(1) Her first meeting with mother was on March 2, 2023; (2) She has spent more than a day just summarizing all the emails from mother; (3) She has also attended meetings with the Collective of Child Welfare Survivors/Ujima House and Calvary Family Services. They are offering to supervise mother’s access. This worker will take these suggestions to her team. (4) She was scheduled to supervise a visit with mother and ES last week but mother cancelled saying she was sick with a fever caused by stress.

[16] The children’s service worker for most of the time that ES has been in the care of the society gave evidence, which can be summarized as follows:

(1) There have been numerous variations on the mother’s access schedule since January of 2021: (a) January of 2021- 2 hour fully supervised weekly visit at the office and a virtual call. (b) December of 2021- Wednesdays in the office with father and Thursdays a supervised 2 hour visit. (c) February of 2022- twice weekly for two hours each with one home visit and one office visit. (d) April and May of 2022- home visits were increased to 10 am to 3 pm with the support of the VHA. (e) A plan to increase to overnight home visits later in May of 2022, was cancelled when parents had an altercation. (f) The plan to increase time in mother’s home to include the early years program nearby delayed by a week as mother did not attend for the home visit on November 17, 2022. (g) Current access is twice a week- once in home with community time at an early on program and then with staff for 2 hours and once in the office semi-supported. (2) Mother is affectionate and loving with ES. She provides activities and age- appropriate toys. She provides snacks and lunches for ES that are home made and nutritious. (3) Mother is late for almost all of the office visits. She will not give ES any independent space but insists on carrying her from place to place or holding her hand. Mother has repeatedly raised concerns about rashes or skin irritations on the child’s buttocks. On one occasion she insisted there was bleeding and redness when no staff person could see this. (4) Mother buys clothing for ES that is either much too big or too small. On one home visit, mother had 18 pairs of shoes for ES. In December of 2022, mother sent a “scarf” to the foster home which turned out to be knitted adult mittens. (5) In the plan of care meetings, of which there have been 7, mother identified as Catholic and father as Anglican. Her friend asked that the child stay connected to her South Asian heritage but mother disagreed and said that she identified as British, East Indian, Ukrainian, and West Indian. Mother wanted the child baptized but never arranged for it. (6) ES presents as a bi-racial child. This worker described in great detail the cultural elements of the foster home that matched ES’s bi-racial background: foster mother adopting and raising two black children from Haiti, who are still very involved in the home, many black extended family members and friends, toys, books, movies, and games that reflect the black and brown heritage. (7) On admission to care, the child’s weight was a concern. ES had been hospitalized twice since birth for failure to thrive and the society and the foster mother monitored the weight regularly. The child was seen regularly by doctors and the feeding clinic at HSC. The child gained weight and the doctors were satisfied. (8) The society health specialist saw the child periodically. No concerns were noted and the file closed (9) At one point the foster mother was concerned about the child’s behaviours around feeding time. An occupational therapist and a nutritionist were consulted. Behaviours were addressed by the foster mother and the mother in her visits and their services terminated. (10) During visits, mother informed this worker of her numerous plans for ES: with and without the father, her friends L and P, and JJ. (11) Mother reported to this worker that during the Holly Jones missing child case, the police came to her home and accused her parents of abusing her. She was made a Crown Ward and her parents had to pay $116,000. to get her back. (12) On December 1, 2022, mother said that she did not know why she wasn’t getting ES back. This worker asked her to name 5 things that the society was concerned about and she said: drug use, state of the house, not being on time, and working at the spa. Mother said she had last used crystal meth about two to three months ago. (13) Mother said that she and JJ have a plan to get married when his mother dies. He will get his inheritance and they will buy a three bedroom condo. His sister is a lawyer and thinks that mother is a gold digger. His sister sees the documents and all the money that JJ has given to mother. (14) On several occasions mother said she had located a daycare- one was a daycare a long distance from where mother lived, another was unlicenced, and a third she didn’t know the cost or if there was a subsidy. (15) This worker disagreed with the concern brought forward by PBC on behalf of mother that the child often had rashes and was dressed in dirty clothes. In her observation, ES was always clean and well dressed. Mother complained that ES came to two visits in a row in the same clothing. This was an outfit that mother brought for ES and requested that she be dressed in this outfit. The foster mother washed it in between the visits. (16) This worker explained to mother that she had reviewed her early file and that an order of crown wardship had never been made. She came into care for three months. Her parents were concerned about her sexual activity and stealing. Her parents said that she would take off from the home at night. Mother said she became sexually active about age 13 and was approaching men for money and sex. She believed she had been sexually assaulted when in a group home. (17) Father is described as warm and engaging with the child. He is calm and gentle and allows her to play. Mother did not agree with father having access.

[17] The access support worker for the society gave evidence about the 46 visits she supervised with the mother:

(1) She gave examples of mother’s strengths as: very affectionate, celebrates special occasions like birthdays and Christmas, brings homemade meals, engages the child in activities, and seeks feedback. (2) Mother has only been on time once. (3) Mother struggles to read the child’s cues. For example, mother will have a plan for the visits and cannot deviate from that. If ES is really enjoying a particular activity, mother will not recognize that and will force her to move on to the next one. (4) Mother doesn’t recognize when the child is in a safe place, such as the society office, and can walk on her own without being carried or having her hand held. (5) On November 30, 2022, mother did not attend for the visit and when this worker contacted her, mother said she thought the visits had been all put on hold at court the previous day. Mother’s voice sounded slurred and drawn out. She said she hadn’t slept and had been up all night crying. At certain points her voice sped up and she was not understandable. There had been no agreement or court order to change access. (6) On one visit, mother was late returning home with the child from the library. She said she had taken the bus but got off at the wrong stop. She sounded overwhelmed. When she got back, ES had the mother’s scarf wrapped around her legs as mother had lost her blanket.

[18] The society health specialist nurse gave evidence. She worked with mother and father from November 3, 2020 until the child came into care in January of 2021. She coached the parents on feeding and gave them recommendations. She observed mother to hold the baby well and have good eye contact. The child was being seen at the Humber River Hospital feeding clinic due to the failure to gain weight. This witness helped the mother to change formulas and showed her how to hold the bottle more upright. A referral was made to the VHA and the public health nurse was also attending the home. Mother was finding it challenging to increase the volume of formula that the child would take.

[19] By December 11, 2020 the child had not gained weight. On December 14, 2020, at a family centred conference, it was agreed that the baby would go to the paternal grandparents home. While there, the child gained weight.

[20] From January until April, 2021, this witness worked with the foster mother, family doctor, and HSC feeding clinic. In June of 2021, in response to concerns from the foster mother, this witness made a referral to an occupational therapist who brought in a dietitian. The concern continued to be weight gain and some negative behaviours of the child around feeding. By November of 2021, the child was meeting all of her milestones and the doctors were happy with her weight.

[21] Both the occupational therapist and nutritionist gave evidence at the request of mother. Their evidence is consistent with the description by the health specialist.

Evidence for the Father

[22] Father and the society entered into an Agreed Statement of Facts, in which he supports the position of the society. These facts include:

(1) On June 9, 2022, he was charged with uttering death threats against the mother. On July 22, 2022, he was charged with failure to comply with his release conditions which prohibited his contact with the mother. (2) Father is now in a mental health diversion program, which includes counselling. (3) Father has a longstanding diagnosis of depression and more recently anxiety. He is now compliant with his medication, engaged in several types of therapeutic support, and resides with his parents in Durham region. (4) Father continues to have weekly access with ES. His access is very positive and has progressed from supervised to community access to access in the home of his parents. (5) ES loves her father and looks forward to the visits with father and the grandparents.

[23] Both paternal grandparents gave evidence in court. They supported the father throughout his tumultuous relationship with the mother and made efforts to assist the couple. They are both very attached to the child and enjoy the access time.

Evidence for the Mother

[24] Mother’s psychiatrist, Dr Gitev, wrote a report, dated March 5, 2023 (Exhibit #17) and gave evidence. She was qualified as an expert in child and adolescent psychiatry and is mother’s treating doctor. Her evidence was that:

(1) She had been seeing mother since mother was 14 years old. Her parents reported that she had mood swings, was easily angered, and was not attending school. She had run away from home and then was placed with the CCAS for 90 days. (2) At 14 years of age, mother reported that she had been drugged and raped when she ran away from home. She had difficulties in school until she went to an alternative program. (3) The doctor prescribed medication to stabilize her mood. She was seeing mother irregularly from weekly to once a month. By June of 2004, mother developed some psychotic symptoms and a further medication was added. (4) There were conflicts in mother’s home and inconsistent parenting by mother’s parents.. The family was given referrals for therapeutic help but never went. (5) At age 16, mother started to disappear for days, looking for drugs and keeping bad company. The police were involved a number of times. Mother had some psychotic episodes. (6) From October of 2006 until June of 2007, the doctor didn’t see her. During that time, the doctor later learned from mother that she had been involved with a very violent drug dealer. (7) From May of 2009 until January of 2015, the doctor did not see mother. When mother returned, she reported using drugs and alcohol. Mother was attending a group at CAMH but reported night terrors. Further medications were prescribed. Mother reported being sexually abused by a neighbour between the ages of 6 and 12 years. The doctor tried unsuccessfully to convince mother to go to Homewood or detox. (8) In the fall of 2015, the maternal grandfather was very ill as a result of several mini strokes. The maternal grandmother could not manage the finances so mother took them over. There was a large mortgage on the family home and many credit cards that were maxed. “Despite all the turmoil, she was doing fairly well in school for awhile”. (9) As the stress built, mother returned to street drugs and gambling. She was drinking more. Her father died in June 2016. (10) Mother reported doing well in the paralegal program. She met father and started falling behind. She became more anxious and developed symptoms of obsessive compulsive disorder. She could not finish her college placement and was overcome by bills at home. Her mother was not doing well and she was experiencing serious memory problems. (11) During the pandemic, this doctor spoke to mother regularly by phone. The doctor knew about the unhealthy relationship between mother and father. Financially the couple needed money so mother went to work in the spa. (12) Mother was diagnosed with spinal stenosis and couldn’t lift anything heavy. (13) Mother didn’t realize she was pregnant until about 6 months into the pregnancy. The baby was born on […], 2020. (14) The doctor knew about the end of the relationship between the parents. While together they gambled online, mother used crystal meth especially when working at the spa. (15) As of October of 2022, mother reported that she was off drugs and alcohol and enrolled in a trauma therapy group and a gambling group at CAMH. This doctor went to the mother’s apartment and told her it was not suitable for a baby, as it was dark and very disorganized. (16) The mother’s diagnosis is PTSD complex, generalized anxiety disorder, history of substance abuse (which no longer applies). The doctor did not know about mother’s recent gambling or drug use. The doctor reminded the court that her relationship with mother depends on self reporting and building up trust. (17) The mother’s use of street drugs has impaired her cognitive functioning and her memory. Testing of her cognitive functioning would be helpful, in her opinion. (18) The doctor prescribes medications for mother’s anxiety but mother does not take it regularly. (19) On January 23, 2023, this doctor wrote a supporting letter for mother’s ODSP application. (20) The doctor has never met ES or seen the mother and child together. The doctor acknowledged that mother would need constant supervision with the child and could only manage the child on her own for a few hours. (court’s emphasis)

[25] The executive director of the Parents of Black Children non-profit advocacy organization gave evidence for mother. She described the organization as advocating in education and other systems for black children and their families, because they have been the victims of disproportionate outcomes over the years. Her involvement can be summarized as follows:

(1) Mother contacted one of their students in October of 2022. This witness then participated in three meetings with the society and referred mother to several resources for support. (2) In her view, the society should have provided mother with the support of the equity team and a cultural response consistent with the mother’s identification as black. (3) Her assessment was based on the mother’s information and she read the report of mother’s psychiatrist. That report was dated March 5, 2023. (4) Further, the society had not been clear with mother about their expectations. This witness observed the family service worker at these meetings and gave her opinion that the worker was “just going through the motions”. (5) In her view it is common for the society to move the goal posts on parents so she assumed it was true in this case. (6) She asked for a black worker for the mother.

[26] Mother gave evidence. A summary includes:

(1) Her father’s grandparents were from Ukraine and England. Her mother’s grandparents are from Trinidad and Tobago. Mother has no contact with any of the extended family. Her father’s family cut him off because he borrowed money from them. She has had no response from any of her mother’s family. (2) Her high school academic years were difficult as she was bullied in grade 9 and dropped out. She did go to an alternative school and then returned to a different high school where she did quite well. Her father kicked her out of the house after high school and then “it is a blur”. (3) Mother reported that she has carried her trauma since the age of 12. She lived on the streets when she left school early in grade 9. She was drugged and raped and sold as a prostitute out of a condo near Yonge and Finch. (4) She has obtained her paralegal degree with honours from Humber College although it took her 6 years to complete due to her accommodations for anxiety. She hopes to write her licencing exam this summer. (5) She provided a number of beautiful pictures of herself and ES, as well as the apartment she has ready for her. (6) She is dependent on Ontario Works and JJ for income. Her rent is $2,050 a month. She has not paid her utilities in over 6 months. She pays about $80 a month for makeup; $400 a month for food, $250 a month for uber; and about $1,000 a month gambling. She says she is really good at counting the cards necessary for playing the black jack card game. (7) She has just started two groups through CAMH, one for gambling and one for trauma. Jean Tweed has referred her to a City of Toronto pilot group for trauma, gambling and substance abuse. (8) She would be happy to use the CCAS pediatrician until she can find one and is on a wait list for a family doctor at the Albany Clinic. (9) She is in communication with a daycare coordinator but needs a date when ES will be home. (10) When the baby was having trouble gaining weight she was doing everything she was told to do. She was also going to school online because Humber wouldn’t give her any more time to complete her degree. (11) She now says that she is predominantly of black heritage and questions why the baby has not been exposed to her black heritage. (12) When asked how the society had treated her in a racist manner, the mother said that the society had not changed the access visits for father, even after he had called her and the child the “n” word. She could not explain when this was. (13) She needed more counselling sessions than the $1,000. given to her by Victim Witness. She has done counselling through Interval House, Barbara Schlifer Clinic, Women’s Centre, and the society. (14) She has been in counselling with Dr Drummond from CAFCAN for the 11 sessions originally provided plus 12 more. (15) She is a member of an online “Night- time Mothers’ Support” group, which has 15,000 members. She gives tips to other mothers. (16) She admitted in cross-examination that she did not want to disappoint Dr Gitev by telling her that she had been using drugs. She thinks of Dr Gitev as a grandmother figure. (17) She was repulsed when JJ said that their sex was consensual when she was only 18 and he was 58 years of age. She never told father that JJ had financed her since the age of 18. (18) She has recently asked for a Parenting Capacity Assessment, a section 30 assessment (under the Children’s Law Reform Act), and a referral to the Office of the Children’s Lawyer. (19) If ES comes home, she will cooperate fully with the society, PHN, VHA or any resource. (20) She really needs a worker of colour to appreciate her family situation and wants a black agency to supervise her visits. (21) She has cancelled a few visits because this trial has been so stressful and she does not want her visit this weekend because she needs to get more sleep and focus on self care. (22) She is pursuing several litigation/ complaint avenues: the CFSRB, the Law Society of Ontario for complaints against her previous lawyer, and she may launch a Human Rights Commission complaint. At the end of the trial she asked how she could get the transcripts of this proceeding. (23) Mother was late for court 6 out of 7 days, and often very late, even when the society sent one or more taxis to pick her up. She would usually text and/or email the society to let the court know. Often there would be several texts about her progress. Her explanations included: slept in, couldn’t find her phone charger, the toilet was plugged, she took the subway the wrong direction, panic, and anxiety.

[27] Mother called Dr Crooks-Drummond to give evidence. Dr Crooks-Drummond is a woman of colour who provided counselling to mother during COVID by telephone and mother continued speaking to her for about 12 further discussions. They only met in person on March 27, 2023.

[28] Dr Crooks-Drummond has a Masters degree in Theology and a PhD in International Missions and Counselling. She has a great deal of experience in counselling through the Jamaican Canadian Association which became part of CAFCAN. Mother requested service in October of 2021 for parenting, financial management, and her own health issues. Her focus with mother was very practical parenting guidance for the infant to 24 month age group and support for stress management. She recommended that mother have a “village” of supports to help her, either with family and/or friends.

[29] Mother called her best friend from grade school, SX, to give evidence. This witness lost touch with mother after grade school but they have recently reconnected virtually. She last saw mother in person at the funeral of the maternal grandmother. She offered the following information to the court:

(1) She has never met ES but attended three virtual plan of care meetings. The focus in those meetings was the needs of the child. (2) She saw her role as ensuring that the child’s cultural and heritage needs were being met. Mother wanted her to be the child’s godmother. (3) She saw herself as an “inspirational” role model for the child. She planned to advocate for the child’s South Asian culture because the maternal grandparents were British and Trinidadian. In particular, she spoke about South Asian food and music for Divali celebrations (Divali is one of the most important festivals in Indian religions) (4) When asked about black heritage, the witness assumed the question related to the child and said “I don’t know who the biological father is “. (5) This witness knew about the mother and her parents being involved with the society when mother was young but knew very little about her years since grade school.

Legal Framework

Disposition - continuing need for protection

[30] The case of Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482 confirmed that the court, when determining disposition, must first determine if a protection order is necessary to protect the child in the future (subsection 101 (1) of the Act). The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time.

[31] Determining that a protection order is necessary to protect a child in the future is not the same thing as finding the child in need of protection under clause 74 (2) of the Act.

[32] All parties agree that the child continues to be in need of protection. Mother is seeking a Supervision Order, which requires a finding that the child continues to be in need of protection.

[33] It is very clear that there is a continuing need for protection because:

(1) mother still struggles with challenges which impact her daily life; (2) mother cannot consistently attend her visits or attend on time; (3) mother cannot maintain employment; (4) mother cannot manage her finances; and (5) mother continues to need supervision for parts of her visits with ES

The Paramount Objective

[34] The CYFSA requires a careful balancing of the paramount objective to promote the best interests, protection and wellbeing of children, with the value of maintaining the family unit. The legislation does not emphasize parental rights but rather recognizes the importance of maintaining the family unit as a means of fostering the best interests of children. The values and purposes outlined under section 1(2) must always be evaluated in contemplation of what is best for the child. A child-centred focus must not be lost at any stage of a protection hearing, see Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165.

[35] There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. Children’s Aid Society of Brockville, Leeds and Grenville v. C..

[36] An order for extended society care is probably the most profound order that a court can make. The judge must exercise this option only with the highest degree of caution, based on compelling evidence and after a careful examination of possible alternative remedies. CAS Hamilton v. M..

Best Interests

[37] Once it has been determined that ES is in continuing need of protection, the court must make an order that is in her best interests. Best interests is defined in the Act in subsection 74(3) with a non-exhaustive list of considerations.

[38] The court must consider the least restrictive alternative consistent with the child’s best interests. CAS Peel v. W., 1995 14 RFL (4th) 196 (OCJ).

[39] In determining what order is required to meet the child’s best interests, the court must consider the degree to which the risk concerns that prompted the original order still exist. This must be examined from the child's perspective. Catholic Children's Aid Society of Toronto v. M. (C.), (1994), 2 S.C.R. 165 (S.C.C.).

[40] Subsection 122(1) of the Act sets out certain time limitations for children in the care of the society. Children under the age of 6 cannot be in the temporary custody of the society for more than 12 months. Children aged 6 and over cannot be in temporary care for more than 24 months. This is consistent with the paramount purposes of the Act to promote the best interests, protection and well-being of children and to make plans that secure permanency and enduring relationships for them. M. (C.) v. CAS of Waterloo, 2015 ONCA 612; CAS of Ottawa v. B.H., 2017 ONSC 4799.

[41] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child.

[42] Subsection 101(4) of the Act requires the court to consider alternative placement with a relative, neighbor, or other member of the child’s community or extended family, with their consent, before considering society care and custody.

[43] The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child’s life with the result that in giving the parents another chance, the child would have one less chance: Children’s Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man.C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. Children’s Aid Society of Brockville, Leeds and Grenville v. C..

The Child

[44] The child is described by the mother, children service workers and the paternal grandparents as very social, affectionate, smart, and curious. She likes swimming, toys, puzzles, and drawing/colouring.

[45] She is a petite child but meeting all of her developmental milestones.

[46] ES has been given consistent nurturing, care and structure in the same foster home since her placement in January of 2021.

[47] ES greets mother with smiles and open arms.

[48] Mother’s relationship with ES is difficult, however, because

(1) ES is becoming aware of her mother’s chronic lateness for visits (2) ES will push mother away if mother tries to be too inflexible with mother’s activity/toy plans (3) Mother cannot distinguish between safe places for ES to roam around and unsafe places, where she needs to hold ES’s hand.

[49] Father has a warm and caring relationship with ES, as have his parents. Father’s mental stability has depended on his parents and they ensure a safe and supportive home for him. He has generally been early for his visits and always prepared. The child runs to him and enjoys their time together.

[50] While in foster care, the child has benefited from these services:

(1) children service workers, (2) foster home and a resource worker, (3) occupational therapist, (4) nutritionist, (5) health specialist, (6) feeding clinics at HSC and Humber River, and (7) pediatric medical care.

Race and Heritage

[51] Cultural considerations are very important when analysing the child’s best interests. The court notes the comments made in this regard in Children’s Aid Society of Brant v. S.M., 2021 ONCJ 566:

[18] I must also consider the fact that S.J.M. and L.J. have Black heritage. Although the jurisprudence regarding the impact of systemic racism against Black people in Canada is arguably more fulsome in the criminal context[3], such considerations are also relevant to my analysis in these child protection proceedings. A research report entitled “One Vision One Voice: Changing the Ontario Child Welfare System to Better Serve African Canadians” sets out the overrepresentation of African Canadians in the child welfare system. The Executive Summary for this report notes that “the United Nation Committee on the Rights of the Child raised concerns about the significant overrepresentation of Indigenous and African Canadian children and youth in Canada’s child welfare system” in both the 2012 and 2016 reports.[4]

[19] The best interests test set out at s. 74(3) of the CYSFA specifically directs courts to consider a child’s race, colour, and ethnic origin. Any decision regarding disposition must account for S.J.M. and L.J. having an equal opportunity to learn about and be exposed to their Black culture and heritage as well as their Indigenous culture and traditions.

[52] ES has been identified from very early in the service plans as bi-racial. Her cultural needs are addressed in every plan of care meeting, which mother attends. Mother always identified that her mother was from Trinidad and Tobago and her father from British/ Ukrainian parents.

[53] Mother’s best friend from grade school believed that mother was from a mixed Caribbean British European culture. She specified Divali celebrations and recognition of Indian, Pakistan, and West Indies cultures. She has never heard of mother having black heritage.

[54] Mother has asked that ES be raised Catholic but has also wanted to celebrate Ukrainian Christmas with her.

[55] Amicus has joined mother and her advocate in alleging that the society, until very recently, has not provided culturally appropriate services.

[56] The allegations made recently by mother, amicus, and her advocate about black racism in her treatment by the society are without merit, because:

(1) Mother never identified as black, despite numerous invitations to identify all racial and cultural connections, until November of 2022. (2) The society immediately brought in their equity team and transferred the family service file to a black worker. Several meetings were held with the equity team, Parents of Black Children (PBC) and, most recently, Survivors of Child Welfare. (3) Several of the society staff involved with this family have been women of colour. (4) The new family service worker is black and she is aware that mother would like Ujima House or Calvary Family Services to supervise the visits with mother. This will be taken to the service team for decision. Mother knows that she must be on time if Ujima House becomes involved. (5) The child has been raised in a multi-cultural foster home with significant black influences and supports. (6) Foster mother has adopted and raised two girls from Haiti who are women of colour. Their extended family include several black members and other multi-cultural backgrounds. The foster home is full of multi-racial toys, books, movies, and games. (7) The allegations are based solely on the mother’s recent reporting. (8) Mother’s reports of this racism are recent and only made to advocacy groups. She did not make this claim to her “best friend” who also gave evidence in this proceeding. This friend, in fact, had never heard about this. Nor has she made this claim to her psychiatrist, with whom she has had a relationship since 2004. (9) Mother indicates that she is preparing for other proceedings.

Credibility and Reliability of Mother

[57] Mother made several key admissions in cross- examination:

(1) She was not always honest with her psychiatrist. (2) She was not always honest with the father. (3) She was not honest with the police. (4) She was not always honest with the society; for example mother told 4 different stories about how she met Mr Jung.

[58] Mother repeatedly asked the society staff what was expected of her; sometimes as often as three times in a week. Every worker and the supervisor were patient and responded in detail and in summary and in writing

[59] Mother admits to and clearly has memory lapses.

[60] In the witness stand, for the first time, mother alleged that father called her and the child the “n” word. She had previously alleged to a worker that father had referred to the child as “black” and she was offended by that.

[61] Mother’s mental health diagnoses of post traumatic stress, anxiety disorder, and addictions negatively impact the reality of her recollections.

Observations of Mother

[62] Every morning of the trial, mother would have numerous contacts with the trial office, various counsel, and/or her previous worker to alert us that she was running late, had slept in, or refused the taxi sent by the society for her. Once she refused the taxi and then took the subway in the wrong direction and so was delayed.

[63] Mother occasionally had difficulty framing her questions and, on at least one occasion, forgot who the witness was.

[64] The last witnesses in the trial were mother’s best friend and her advocate from PBC. Mother was energized by the allegations of failure to serve her, even when the cross-examination made it very clear that the allegations were completely unfounded.

[65] Mother continued to bring a bin of loose paper to court every day and to be late even returning from recesses and lunch. She said she had several more bins of paper at home.

[66] Even with the support of the society and the amicus, mother struggled to participate in the hearing. Often her affect was very flat and she appeared overwhelmed.

[67] Mother is having significant challenges just looking after herself.

[68] Mother is cancelling visits so she can focus on “self-care”.

Strengths of the Mother

[69] There is complete agreement that the mother has several strengths:

(1) Mother loves ES deeply and is very attentive to her during visits. She brings toys and food for the visits. She tries to ensure that ES has sufficient portions of the meal. Mother brings clothing and shoes. (2) The visits have progressed somewhat during the years. After much repetition, with staff demonstrating and supporting mother, mother requires only slightly less intervention now. Mother welcomed support and asked many questions. (3) Mother has been resourceful in reaching out to services to support her; for example, Caribbean African Canadian Social Services (CAFCAN), Toronto public health, Visiting Homemakers Association, and Parents of Black Children

Mother’s Plan

[70] Within the last two months mother’s plan for ES has changed several times: with and without Mr Jung, with a friend, moving to a new apartment, not moving, writing licensing exams, writing the law school entrance exams, returning to school for a different program, a return to gambling, addiction group counselling through CAMH or St Michaels’ Hospital.

[71] Mother receives many notices from bill collectors. She admits she hasn’t paid her utilities bill for more than 6 months.

[72] Mother has repeatedly struggled to obtain and hang onto her important identifying documents. She just received a replacement health card and immediately lost it.

[73] Mother’s plans for ES have now become overshadowed by her litigation plans.

The Society’s Plan

[74] Alternative family placements were explored and exhausted. The society plans to seek a permanent adoptive home for this child.

[75] The society must take into account her racial and cultural heritage.

[76] The child is described as smart and sociable. She is developing normally and meeting her milestones.

[77] The society plans to maintain each parent’s relationship with the child.

Father’s Plan

[78] Father supports the plan of the society.

[79] Father enjoys his time with his daughter but is willing to decrease that contact in order to further a permanent home for ES.

Duties of Society

[80] Pursuant to section 35 of the Act, children’s aid societies are tasked with a number of functions, including the investigation of allegations that children may be in need of protection, and the protection of children. Part of their mandate is to provide guidance, counselling and other services to families for protecting children or to prevent circumstances requiring the protection of children. Children’s aid societies are also required to adequately supervise, when required to do so. See: Catholic Children’s Aid Society of Toronto v. T.T.L., 2019 ONCJ 530.

[81] In accordance with section 1(2) of the CYFSA, the Society has a duty to consider and provide services, including early intervention services and community support services. The services are to build on the family’s strengths. The Society is also to provide clear expectations to the family to assist them to address the issues before the Court. See: Catholic Children’s Aid Society of Toronto v. K.R., 2018 ONCJ 288.

[82] Mother has had the benefit of a large number of resources, some she has found on her own and some have been referrals from the society. These include:

(1) Visiting Homemakers Association, (2) Public health nurse, (3) Health specialist from the society, (4) Access support worker, (5) CAFCAN for parenting counselling; Dr Paulette Crooks-Drummond, (6) Ms Madamidola for Domestic Violence or Intimate Partner Violence (IPV) counselling – 5 sessions, (7) Virtual couples counselling through Catholic family Services; terminated by mother as she felt the counsellor just stirred things up and did not provide solutions, (8) Circle of Security parenting program, through Stride, (9) Dr Gitev, her psychiatrist since 2004, (10) Interval House for safety planning, (11) CAMH; group for gambling, (12) Jean Tweed waiting list and now referred to a City of Toronto crisis support resource, (13) Victim Witness: gave her $1,000 towards counselling but she wanted more sessions and they denied her request, (14) society addiction specialist, (15) society violence against women worker, (16) children service workers, and (17) family service workers and supervisor and branch manager.

[83] There have been numerous facilitated conferences about this child: family centred conferences, plans of care meetings, access conferences, and more recently three conferences at mother’s advocate’s request to deal with claims of racism and failure to provide culturally consistent services.

[84] The expectations of the society have been put into writing on several occasions, both outside of court and in the court pleadings, Statements of Agreed Facts, and court orders.

[85] It is very telling that the beneficial impact of so many resources has been minimal.

Best Interests of ES

Her physical mental and emotional level of development and needs

[86] ES is very smart and sociable. She is meeting her developmental milestones Because mother has acknowledged drug and alcohol abuse until her sixth month of pregnancy, there may be some future impact on the child.

ES’s race and heritage

[87] ES is clearly bi-racial. The current foster home placement, which has been the same since her admission to care in January of 2021, is attentive to her cultural mix. Future permanency planning must also take that into account.

Importance of a positive relationship with a parent and a secure place as a member of the family

[88] ES has had the security of a consistent, positive placement while in the care of the society. ES also clearly enjoys her time with mother, father and the paternal family. The court must be concerned however about the mother’s chronic inability to be timely in her visits and her recent prioritizing of her own “self-care” over these visits.

[89] The description of ES looking to the door whenever another parent arrives and it is not her parent is heartbreaking. Her mother is chronically late.

[90] Mother’s anxiety, memory loss, cognitive functioning and compulsive behaviour will adversely impact on the child’s sense of security.

Relationships with other family members

[91] ES has a secure place in the father’s family. Mother has no extended family support.

Delay

[92] Delay is a very serious issue in this case. The Act stipulates that children under the age of 6 should not be in temporary care for longer than a year. ES has been in care for over 26 months.

[93] One extension under subsection 122(5) of the Act has already been granted by the court.

[94] Mother has caused further delay in this matter by being unable to keep her lawyer. After the first trial dates were scheduled, mother’s lawyer went off the record. The court, on its own motion, and based on section 7 of the Charter of Rights and Freedoms (the Charter), appointed counsel for mother. Again, trial dates were set but had to be adjourned when that counsel also went off the record. The court then appointed amicus curiae for mother.

[95] A permanent plan is absolutely essential for ES.

The importance of continuity

[96] ES has had only one placement and she is thriving there.

[97] Father and his family have developed a consistent and growing relationship with ES.

Risk of harm

[98] To return ES to the home that was not able to meet her needs in the past would be to repeat the risks of the past.

[99] The evidence about mother, her plans, and her lack of stability, informs the court that the risk of harm remains just as high today- too high to place with her mother.

[100] Mother’s limitations in processing information have impaired her ability not only to make parenting gains but to adequately manage her own life.

[101] Mother now prefers to see her situation as a victim of racism and failures by others.

[102] Mother has not been able to develop any insight into the impact of her own actions on ES; for example, carrying ES around in a place that is very safe for ES to navigate independently.

[103] Mother’s anxiety and impulsivity overshadow her ability to focus on the child’s best interests.

[104] Every day is a struggle for mother to manage her own life. She is not able to safely manage a child on her own.

Request for Extension of Interim Society Care

[105] In closing submissions, Amicus Curiae argued for the first time that an extension to the statutory limit, as permitted by subsection 122(5) of the Act, should be ordered.

[106] It was suggested that a further 6 months of interim society care would give the mother time to complete her current programs, find day care, and work with the new family service worker.

[107] The test for such an extension has been discussed in CAS of Ottawa Carleton v. K.F., [2003] O.J. No. 2326 (Sup.Ct.) :

(1) The decision to extend must be made in accordance with the child’s best interests. (2) The decision to extend must be viewed from the child’s perspective. (3) The factors in s. 37 (3) must be considered. (now 74 (3) of the CYFSA).

[108] The court must be satisfied, balancing the factors set out in the Act, 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”.

[109] There is conflicting case law as to whether the court has jurisdiction to extend an order for the child to remain in the interim care of the society (formerly society ward) more than 6 months in excess of the statutory limits. The principles are provided in CCAS v. N.B., 2010 ONSC 615 as follows:

8 Section 70(4) seems to me to permit a total period of society wardship of only 18 months for a child of this age. See R.L. v. CAS of Niagara, [2002] O.J. No. 4793 (C.A.), at para. 5; CCAS of Hamilton v. M.A.M., [2003] O.J. No. 1274 (S.C.J. Fam. Ct.), at para. 157; J.C.J.-R. v. CAS of Oxford, [2003] O.J. No. 2208 (S.C.J.), at pars. 18-19. Other cases take the view that there is not a fixed maximum: CAS of Toronto v. K.B., 2007 ONCJ 740, [2007] O.J. No. 5090 (O.C.J.), at para. 38; CAS of Toronto v. L.U., 2007 ONCJ 741, [2007] O.J. No. 5549 (O.C.J.), at para. 12, affirmed without reference to this legal issue , [2008] O.J. No. 2170 (S.C.J.); CAS of Sudbury v. P.M., [2002] O.J. No. 1217 (O.C.J.).

9 However, even if a further period of society wardship were available in this case, the decision whether to extend the time under section 70 is a discretionary one to be made in the child's best interests: CAS of Toronto v. L.U., [2008] O.J. No. 2170 (S.C.J.), at para. 8. Where the ordinary time has already been significantly exceeded, the discretion would be exercised only in an exceptional case: CAS of Toronto v. D.S., [2009] O.J. No. 4605 (S.C.J.), at paras. 70-72.

[110] The Court of Appeal for Ontario, however, has stressed the importance of time limitations and speedy resolutions for children. See Windsor-Essex Children’s Aid Society v. E.W., 2020 ONCA 682.

[111] The principles to be applied in this case are:

(1) the child’s best interests and (2) the need for permanency

[112] Courts have been reluctant, however, to take an inflexible approach when a child’s best interest may require some extra time prior to being placed with family. Some of the examples have included:

(1) An agreement to extend for a further two months as described in Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, at par. 162 (2) A transitional approach was best for the child as in Children’s Aid Society of Toronto v. A.L., 2021 ONCJ 258, (3) A parent needs a little more time to complete a program, for which there is waiting list (4) Time is needed to have an important service or housing in place

See Catholic Children’s Aid Society v. S.S., 2011 ONCJ 803.

[113] The farther the child is from the statutory limit, the more compelling the reason for the extension must be.

[114] This court accepted the parties’ agreement in this case that an extension was appropriate in July of 2022 when the “piggy back order” of interim society care for 4 months followed by a six month supervision order with mother was made. This plan quickly deteriorated because mother’s home was a dangerous disaster.

[115] Mother herself does not believe she needs anything else in order to have the child home. She has completed parenting programs in the past and it is unclear how many she is actually attending now.

[116] There is no suggestion that the child needs this additional time.

[117] The child has already been in care some 14 months beyond the statutory limit, which far exceeds any example of an extension given in the caselaw.

[118] Based on the above and in particular this child’s best interests, the court cannot grant any further extensions of the interim society care order

Evidence about Mother’s Recent Access Visits

[119] The evidence of the family service worker and the children service worker about mother’s visits in the past two months indicate:

(1) Mother is consistently late for the office visits; this entails numerous emails and texts from mother; she can be up to an hour late. (2) Mother has cancelled both home and office visits, in order to focus on “self care”. (3) Mother wanted the schedule changed to accommodate JJ. This was done. JJ did not attend. Mother now says JJ is simply a financial support. He argues with her about everything and she does not think that is a good environment for ES. (4) Based on information from the internet, mother believed the child has ADHD (attention deficit hyperactivity disorder); neither society workers nor foster mother agreed. (5) On one visit, mother believed child has a fever and insisted on taking a rectal temperature; child was very uncomfortable and no fever was detected by others; mother immediately ordered herbal medicine for children age 0-9 years on line and was having it delivered. (6) Mother insisted on carrying the child in and out of the society visiting room, kitchen, and bathroom despite the child’s struggles to walk on her own. (7) Mother refuses to appreciate child’s level of development; she cannot read the child’s cues. (8) In a home visit, mother asked the worker to take something out of toilet that the child dropped. (9) Mother reported difficulty with her smoke alarm and carbon monoxide detectors beeping falsely. She had called 911 and had the fire department there as well as a gas inspector and her landlord in the middle of the night. (10) Mother’s dishwasher is clogged with food not scraped or rinsed from plates. (11) Mother planned an outing and did not know that the temperature outside was -30 C with the wind chill and thus not safe for the child. (12) Mother said the child’s shoes were too small; the worker inspected the shoe and found her foot was not tight and there was still wiggle room. (13) Mother had to prop the apartment door open with a bag of salt as she did know her pin code. She also lost the key and her landlord wanted her to pay $500. to replace it.

[120] Mother does not support the child’s access to father.

[121] There is no real dispute about the above facts.

Conclusion on Disposition

[122] Based on the whole of the evidence, it is clear that it is in ES’s best interests that she be placed in the extended care of the society. In particular, the court notes that:

(1) Mother has not been able to integrate any learnings from the services she has been involved with to date; and there have been many. She cannot follow through with suggestions and assistance. Her own psychiatrist has recommended cognitive behavioural therapy which mother rejects. (2) Mother has not gained any insight into her limitations; at times she has said she doesn’t want to be labelled because it would negatively impact her career. (3) Mother has a great deal of difficulty taking care of herself, let alone a young child; such that she falls back on old vices like gambling and drug abuse and JJ. (4) Mother has now turned to advocacy and blaming others. This is neither constructive nor reality based. (5) Mother’s case has primarily been about her and not the child. She cannot see the impact of the issues from the child’s perspective. (6) Mother still struggles in her visits with the child; the evidence does not indicate she can care for a child unsupervised for more than two hours, let alone full time. (7) Mother’s plans have changed frequently and she is still vulnerable in the areas of housing, finance, and self-care. (8) Two concerted efforts have been made to reintegrate the child with mother- unsuccessfully. (9) Mother is still late consistently for visits and was late for 6 of 7 days of trial, once for almost two hours, even with repeated assistance from the society.

[123] The court notes that every society worker was unfailingly polite, courteous, and patient in dealing with the mother.

[124] It is gratifying to know that our most vulnerable parents are treated with the utmost dignity and respect by our public institutions, even in the face of some aggressive and baseless attacks.

Post Extended Society Care Access- Best Interests

[125] Subsections 105 (5) and (6) of the CYFSA set out a new legal test for children who have been placed in the extended care of the society. It is now a best interests’ test and the court has to consider whether the relationship between the child and the person seeking access is beneficial and meaningful for the child and whether access would impair the child’s opportunities to be adopted. It is no longer a presumption against access test.

[126] The mother, father, amicus, and the society agree that some form of access to each parent is in the best interests of ES. The court agrees.

[127] The society and father agree that access should be fixed at a minimum of once a month for each parent. Mother disagrees.

[128] The issue is what terms of access are in ES’s best interests, as set out in subsection 74(3) of the Act

[129] To meet the needs and best interests of the child, the access must include a consideration of:

(1) the child’s physical and emotional needs, (2) a reasonable flow of information about the child’s needs and interests, (3) maximizing the comfort level of all, (4) eliminating conflict occurring in front of the child, (5) a mechanism to resolve issues or disagreements that arise, and (6) concrete efforts by the parent to gain insight into the needs of the child and the needs of the parent, including individual counselling.

[130] Currently, the child sees father weekly and mother twice weekly.

[131] Evidence about access in paragraph 118 above is particularly relevant. The quality of the access to mother does not support the current frequency. The objective is no longer a return to mother.

[132] Based on the child’s best interests and mother’s inability to meet her needs, the mother’s access must be reduced to a minimum of once monthly and supervised at the discretion of the society.

[133] Father agrees that, if the court makes an extended access order, his access should also be reduced to a minimum of once monthly. He sees this issue through his child’s eyes and recognizes the importance of permanency planning and giving ES time to settle.

[134] Father’s position continues to be child focused and very impressive.

Access Holder

[135] Pursuant to subsection 105 (7) of the CYFSA, the court must specify who is an access holder and who is an access recipient in its decision.

[136] This is an important distinction, because only a holder of access may apply under subsection 196(1) of the Act to the court for an openness order, following notice that a child is being placed for adoption.

[137] In Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, the court set out the following attributes of persons who may impair a child’s future opportunities for adoption:

[166] The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

[167] The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child’s sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child’s life.

[168] The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

[169] The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child’s life and are likely to engage in openness litigation.

[138] A fifth attribute was added in Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631, being: a person with a mental health condition, substance abuse issues, transience or chaotic lifestyle. Persons with this background may be difficult to deal with and their personal issues may result in there being difficulty in making arrangements with them for contact and as a result dissuade adoptive parents.

[139] These attributes were approved as appropriate considerations in an appeal decision in JFCS v. E.K.B., 2019 ONSC 661 and in Catholic Children’s Aid Society of Hamilton v. I.B., 2020 ONSC 5498.

[140] It is essential in this case that Mother not be an access holder, because:

(1) mother does not have sufficient insight to assess her own limitations and their impact on ES; (2) mother does not consistently support ES’s relationship with father; (3) mother has poor impulse control and serious mental health challenges; (4) mother is not an honest reporter of information; and (5) mother is litigious and cannot accept that there is no merit in her claims of anti-racism and lack of services and support for her.

[141] Mother’s conduct is a concern because:

(1) It could dissuade prospective adoptive parents; (2) It would delay permanency planning for the child; and (3) It would enmesh the child in litigation,

[142] Father should be an access holder because:

(1) He has worked hard to become stable; (2) He has stable supports and will listen to them; (3) He is consistent in his access; and (4) He has prioritized the child’s best interests over his own disappointment that he was not biological father. This is quite special.

Statutory Findings

[143] Following DNA testing, father learned that he was not the biological father. He has remained a father in these proceedings due to his clearly settled intention to treat the child as his daughter. The child benefits from this relationship and will continue to do so.

[144] Mother does not know who the biological father was.

Final Order

1. The biological father is not known.
2. The child, ES, born […], 2020, be placed in the extended society care of the Catholic Children’s Aid society
3. RE shall have access a minimum of once per month, with the location, duration, and level of supervision at the discretion of the society. The child is the access holder and recipient of this access. Mother is the recipient of this access.
4. SB shall have access a minimum of once per month, with the location and duration at the discretion of the society. Both the child and father are access holders and recipients.

April 6, 2023

Signed: Justice Debra Paulseth