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.

Court File and Parties

ONTARIO COURT OF JUSTICE DATE: May 14, 2024 COURT FILE No.: FO-21-00041591

BETWEEN:

Catholic Children’s Aid Society of Toronto Applicant,

— AND —

A.M. Respondent,

— AND —

K.W. Respondent

Before: Justice W. Kapurura

Heard on: May 7 & 8, 2024 Reasons for Judgment released on: May 14, 2024

Counsel: Marshall Matias, counsel for the applicant society Anthony Macri, counsel for the respondent, A.M. No appearance by or on behalf of K.W., even though served with notice.

JUSTICE W. KAPURURA:

Part One – Introduction

[1] The respondent, A.M. (the mother), has four children. This protection application is about her 11-month-old child, KL ("the child), born in May 2023.

[2] This trial was about whether the child should be found to be in need of protection, and if so, dispositional orders that would be in his best interests.

[3] The child’s father is K.W. (the father).

[4] The Catholic Children’s Aid Society of Toronto (the society) seeks an order finding the child in need of protection and placing him in the care and custody of a kith [^1], H.O., for a period of six months, subject to terms of supervision by the society. The child has remained in H.O.’s care since July 16, 2023, after the mother left him in her care. The society seeks to reduce the mother’s current access from a minimum of once every week, to a minimum of once every two weeks, with the mother being required to call and confirm at least 24 hours before her visit.

[5] The father was found in default on February 29, 2024. The mother is the only respondent who filed an Answer/Plan of Care. She was represented by counsel at this trial. Her position is that the child is not in need of protection. She seeks an order that the child be returned into her care. In the alternative, if the child is found in need of protection, and if the court orders him to remain in H.O.’s care, she seeks a shorter supervision order of three months, and for her access to occur three times per week, on an unsupervised basis.

[6] The society called three social workers and H.O. to testify on its behalf. They all provided affidavits for their examination-in-chief.

[7] The mother testified orally. She did not call additional witnesses.

[8] The parties agree to statutory findings pursuant to subsection 90(2) of the Child Youth and Family Services Act (the Act).

[9] The court must determine the following issues:

i. Whether the child is in need of protection? ii. If so, is intervention through a court order necessary to protect the child in the future? iii. What dispositional orders are in the child’s best interests? iv. What terms of access are in the child’s best interests?

Part Two – Brief background and uncontested facts

[10] The mother’s 10-year-old child, HLM, is in the primary care of her biological father. She is not part of any court application.

[11] The mother’s two other children, E (8 years old) and N (5 years old) [^2], are not in her care. They are in the care of their stepmother pursuant to a separate court application.

[12] The father in this case is not a biological parent to any of the other three children.

[13] On February 7, 2022, the mother signed a statement of agreed facts (in the protection application involving her children E and N), agreeing to the following facts:

a. On July 10, 2021, police and paramedics attended her home as she was experiencing suicidal ideations. She reported that she had taken a knife and locked herself in the bathroom. She had thoughts of cutting herself but did not do so. As she was searching for a cord to harm herself, her children E and N began to knock on the door. The presence of the children prompted her to call 911 for help. The mother and her children, E and N, were taken to Michael Garron Hospital. She was placed on a Form 1. b. While at the hospital, the mother reported that she did not have anyone who could assist her in caring for the children. The child E was 5 years old, and N was 2 years old at the time. c. The Emergency Department treating psychiatrist at Michael Garron Hospital reported that: i. The mother had a mental health history but never addressed her issues. ii. There were concerns about the mother’s parenting ability of her children. d. When a society worker attended Michael Garron Hospital, the mother disclosed the following: i. She was overwhelmed with managing and caring for the children. ii. She does not have support to assist her or give her a break. iii. She was estranged from her extended family, except for her father who would help her at times. iv. She acknowledged having left the children E and N home alone for up to two hours at a time as she was unable to cope. She reported that she locked the doors and would walk out and stay for a couple of hours to calm down and get a break as she has no one to rely on.

[14] The society commenced this protection application on July 6, 2023. It initially sought a 6-month order placing the child in its interim care. On January 4, 2024, it amended its protection application to seek a 6-month order placing the child with H.O.

[15] On July 6, 2023, Justice C. Jones made a temporary order placing the child in the care of the mother, subject to the supervision of the society.

[16] On July 14, 2023, H.O. (the kith) reported to the society that the mother had brought the child to her home, requesting assistance in caring for the child. The mother did not move into the HO’s home but remained at her home.

[17] Justice S.B. Sherr made a temporary order on August 3, 2023, placing the child in the care and custody of H.O., subject to the supervision of the society.

[18] The child has remained in the H.O.’s care since coming into her care.

[19] The mother is currently having weekly semi-supervised visits with her three children at the society’s offices on Tuesdays from 3:30 p.m. until 5:00 p.m. The visit includes all three children.

Part Three – Parties’ positions and evidence at trial

3.1 – The society

[20] The society’s protection concerns about the mother relate to the following:

i. Her mental health. ii. Lack of follow-through with taking her prescribed medication. iii. Lack of follow-through with respect to therapy. iv. Lack of supports in caring for the child.

[21] Ms. Jennifer Brown was formerly employed by the society as a child protection worker. She worked with the family from around May 2022, until her retirement in August 2023. She testified that following the child’s birth in May 2023, the mother moved into her sister’s home with the baby, as part of the mother’s plan of care.

[22] Ms. Brown further testified that on June 3, 2023, she received a text message from the mother asking her to take the baby as she (the mother) would not care for the baby. The mother contacted Ms. Brown again on June 20, 2023, requesting her to attend her home to get the child and place him into care as she did not want to care for him anymore. When Ms. Brown attended the home with another worker, the mother stated that she would only place the child in care if the society committed in writing to return the child to her care in a few days. She stated that she had no support. The child was not taken into care as requested by the mother.

[23] The society provided a letter from the mother’s psychiatrist, Dr. Clark, dated August 3, 2023, providing the following information about the mother:

i. She has a diagnosis of Bipolar 1 Disorder. Her treatment plan includes pharmacotherapy and individual therapy, including dialectical behavioral therapy (DBT). ii. To the doctor’s knowledge, the mother had been adherent to taking her medication. iii. The doctor’s concern regarding her ability to parent relates to having adequate support to control her emotions when she is feeling agitated by others. She has the potential of becoming overwhelmed which might result in dysregulation of her emotions or mood. iv. She would require adherence to regular follow-up and pharmacotherapy treatment as well as financial support to pursue individual therapy and/or DBT which is needed to regulate her emotions. She would also benefit from childcare support for a few hours a day as well as overnight during the remainder of the first year postpartum. The doctor stated that with significant sleep deprivation, she is at significant risk for a worsening mood and potential bipolar manic, agitated, or depressive episodes.

[24] The society’s family service worker, Ms. Mirela Allajbeu, testified about her involvement with the mother. Her evidence was that the mother’s mental health challenges have impacted her visits with the children. According to Ms. Allajbeu, on September 12, 2023, the mother left the access centre about twenty minutes into her visit. Her reason for leaving early was that she had been triggered by individuals who owed her money. Her mood changed as the individuals were texting her. When she left, her 8-year-old daughter, E, was upset and started crying.

[25] Ms. Allajbeu stated that the mother’s visit on January 9, 2024, was canceled due to inclement weather and poor driving conditions. The mother was unhappy with the cancellation and threatened that she would kill herself if she did not see her children.

[26] According to Ms. Allajbeu, the mother has failed to follow through with the following recommendations for therapy and programs provided by the Women’s College Hospital, Rexdale Women’s Centre, and Jean Tweed. These organizations provide a range of programs, including mental health support, individual counseling, conflict resolution, and parenting programs.

[27] Ms. Allajbeu testified that when the mother ‘is in a good space’, her visits go well. She is affectionate towards her children, hugs them, asks questions about school and home, and does activities with them. She plays with them and tries to engage each child. However, if she is not in a good mood, or is triggered, she tends to leave her visits early, with the children crying after their visit is interrupted.

[28] Ms. Allajbeu stated that the mother had used inappropriate language at her. After she asked the mother to confirm if she was attending her visit on March 26, 2024, the mother sent her a text message with profanities.

[29] The society also provided text messages sent to its worker, Ms. Sally Romero, in which the mother was complaining about certain caregivers and parents who were attending their own visits at the society’s office, threatening to assault one of them. These other individuals had nothing to do with the mother and were not connected to her in any way. The text messages prompted Ms. Romero to text the mother more than once, asking her if everything was fine with her. When the messages became incessant, Mr. Romero asked the mother to stop texting.

[30] H.O. (the kith caregiver) testified on behalf of the society. She provided the following evidence:

i. She has three children of her own, aged 15, 12, and 10 years old. She resides in a three-bedroom apartment. ii. She has known the mother since she was sixteen years old through her (the mother’s) father. iii. On July 16, 2023, the mother brought the child to her home, asking her to care for the child. The child has remained in her care since then. iv. She has had no contact with the child’s father. v. She is the sole caregiver to the child. She has support from family members, including the child’s maternal grandfather. vi. If reunification with the mother fails, she is willing to care for the child in the long term.

3.2 – The mother

[31] The mother resides by herself. Her other children, E and N, have not been in her care for approximately three years now.

[32] The mother provided her examination-in-chief by way of an affidavit. In her affidavit, she disagreed that she was diagnosed with Bi-Polar and disagreed that she has any mental health challenges. She stated that she can still function, is able to live her daily life, and meet her responsibilities. When she testified orally, she admitted that she was diagnosed with Bi-Polar.

[33] During cross-examination, the mother stated that she had not been taking her medications for a couple of weeks. She did not consult with her doctor before stopping the medications.

[34] The mother’s evidence was that she stopped taking her medications as they made her feel uncomfortable. She had contacted her doctor to change her medications but did not receive a response.

[35] According to the mother, she contacted Jean Tweed Centre for a counseling program (which required the child to attend with her) but the society did not consent to bringing the child to the counseling program. She is on a waiting list for therapy at Women’s College.

[36] The mother’s plan is to have the child returned to her care. She stated that she recently secured subsidized daycare for the child. She plans to enroll in a parenting program.

[37] The mother is concerned about the child remaining in H.O.’s care. She stated that the child is staying in a solarium, and not a bedroom. She is also concerned that the child is not attending daycare or getting appropriate stimulation.

[38] The mother recently worked for a manufacturing company for about a month but decided to go to school. She recently enrolled in a personal support program (PSW). She did not want to disclose the name of the school. She stated that she has classes on Mondays through Fridays, from 8:30 a.m. until 3:00 p.m. Upon successful completion, she will receive a PSW certificate. She stated that she has been taking care of herself and her mental health, and her attendance at school was helping her cope.

[39] In her evidence, the mother stated that she does not have family support. She does not think the society should be involved with her family. If the child is returned to her care, she will place him in daycare when is in school and pick him up after school.

[40] With respect to counseling and therapy, the mother stated that she is not enrolled in any DBT therapy as recommended by her psychiatrist. She stated that she has a phone number that she calls to speak to a wellness counselor but has not called them in about a month or two.

Part Four – Findings of contested facts and credibility findings.

[41] The mother was not credible with respect to her diagnosis and mental health challenges. In her affidavit filed for trial, she denied that she was diagnosed with Bipolar and that she has any mental health challenges. However, during cross-examination, she admitted that she was diagnosed with Bipolar 1.

[42] The evidence supports the society’s position that the mother has mental health challenges for the following reasons:

i. In a letter dated August 3, 2023, her psychiatrist, Dr. Clark, wrote that she has a diagnosis of Bipolar 1. ii. The psychiatrist was concerned about her having adequate support to control her emotions when she is feeling agitated by others, stating that she has the potential of becoming overwhelmed which might result in dysregulation of her emotions or mood. iii. In her own evidence, she testified that she had experienced suicidal ideation a couple of weeks before the trial date. She stated that she had gone into depression after the society declined her request to attend the Jean Tweed program with the child. She stated that she wanted to hurt herself and called the 9-8-8 suicide crisis helpline and they were able to calm her down. iv. She testified that she also had experienced suicidal ideation just a few days before the trial date. She stated that she was feeling lonely without the children in her care.

[43] The court finds that the mother is not compliant with her treatment plan for the following reasons:

i. On May 30, 2023, she told her society worker at the time, Ms. Brown, that she had not taken any medication while at the hospital and had also not taken any medications since being discharged from the hospital with the newborn baby. ii. On October 11, 2023, she informed her family service worker, Ms. Allajbeu, that she does not take her medication for her mental health consistently as it makes her feel sleepy. iii. On April 10, 2024, she told Ms. Allajbeu that she takes her medications ‘sometimes’. iv. In her affidavit dated April 29, 2024, filed for this trial, she stated that she does not take her medication since it makes her feel uncomfortable. v. At trial, she testified that she does not take her medication at all.

[44] The court finds that the mother, through no fault of her own, has faced challenges in accessing dialectical behavioural therapy (DBT). Her psychiatrist wrote that she had been unable to find a therapist or DBT due to long wait lists for options covered by OHIP, and inability to afford psychotherapy options that require additional payment. The mother is in receipt of ODSP benefits.

[45] The evidence supports the society’s position that the mother cannot independently meet the child’s needs without support. Her visits with the child continue to be supervised. Her psychiatrist also expressed concerns with respect to her ability to provide care to a child without adequate support.

[46] The mother does not have family or community support to help her in caring for the child.

[47] The mother’s mental health challenges have had an impact on her relationship with the child, and that of her other children. She has left her visits early after being upset. On September 12, 2023, she left about 20 minutes into her visit after being triggered by some people who owed her money. After terminating the visit early, her daughter, E, was upset and started crying.

[48] The mother has poor insight into how her actions, decisions, and emotional dysregulation during her access visits negatively impact her children.

[49] The mother’s mental health challenges have had a negative impact on her relationship with others, including her supports. H.O. testified that the last time she had communicated with the mother was in August 2023. Their relationship is not positive. H.O. also testified that she would want the mother’s visits to continue going through the society, and not to be arranged directly between her and the mother. The mother’s other children, E and N, are currently placed with another kith caregiver, ST. The mother testified that she does not have any communication with ST. Their relationship is also not positive. The mother described her current family services worker, Ms. Allajbeu, in very negative terms.

[50] The mother has, at various times, sent inappropriate and threatening messages to Ms. Allajbeu, including the following messages:

..Ur what is mixed in with my shit. …Go self reflect on your personal life and fuck off… …U should be fired cause you suck at being a social worker….fucking bitch….stay out of my space or I beat u up when I see u at my visit.

[51] The mother was not credible with respect to her concerns around the current care being provided to the child by H.O. She complained about the child’s sleeping arrangements. She also stated that the child is not getting appropriate stimulation by not being enrolled in a daycare. H.O.’s evidence was that the child is meeting his developmental milestones while in her care. She stated that he is up to date with his immunizations and is in good health. He interacts well with the adults and children in her home, and is a well-adjusted baby. The society has no concerns with respect to the care being provided by H.O. The court prefers the evidence of H.O. to that of the mother.

[52] The court finds that the society erred in judgment when it refused to have the child brought to Jean Tweed for the mother’s counseling. On March 4, 2024, Ms. Allajbeu provided the mother with information for Jean Tweed program. The mother contacted Jean Tweed. On March 20, 2024, the mother and Ms. Allajbeu attended a conference with Jean Tweed counselor, Ms. Eilish Medland. The mother stated that she was interested in the Mom and Kids Too (MK2) program. The program would require the mother to attend three times per week from 9:00 a.m. to 1:00 p.m. with the child. After Ms. Allajbeu consulted with her supervisor, the society told the mother that it would not have the child brought to the program as the mother had missed access visits, and there were concerns about her consistency with visits. This was the first and only program that the mother had expressed an interest in. Instead of refusing to allow her, the society should have worked with Jean Tweed to come up with a safety plan for the child to address the society’s concerns. Further, as per the society’s evidence, Jean Tweed has trained Early Childhood Educators (ECEs) who would be on-site to assist with childcare when parents are attending the program. The society’s position was so devastating to the mother that she experienced suicidal ideation following the society’s decision.

Part Five – Risk of physical harm

5.1 – General legal considerations

[53] The Society has the onus to prove on a balance of probabilities that the child is in need of protection. See Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, para. 19.

[54] If the court finds that the child is not in need of protection, then that is the end of the society’s protection application. See Catholic Children's Aid Society of Toronto v. N.N., 2019 ONCJ 8, para. 116.

[55] Clause 74(2)(b) of the Act provides as follows:

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

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

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

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[56] The risk of harm under clause 74 (2) (b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., 2000 ONSC 21157, [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[57] Harm caused by neglect or error in judgment comes within the finding. See: Children’s Aid Society of the Niagara Region v. T.P., 2003 ONSC 2397, [2003] O.J. No. 412 (Ont. Fam. Ct.).

[58] A child may be at risk even if the conduct is not directed specifically towards that child. See: Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), 1995 ONCJ 6216; Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251.

[59] Subsection 93(1) of the Act provides as follows:

93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

5.2 – Mental health (legal considerations)

[60] People with mental illness are entitled to become irritated, upset, impatient and angry without their conduct being pathologized as symptomatic. See: Re: Sim, 2020 ONCA 563.

[61] In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, the court stated as follows:

[113] 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.

[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.

5.3 – Analysis

[62] The court finds the society has, on a balance of probabilities, established the risk of physical harm to the child if he were to be placed in the care and custody of the mother, for the following reasons:

a) Her mental health challenges are severe. She has had suicidal ideation as recently as a few days before this trial. b) Her mental health challenges continue to impact her ability to parent her children. She has four children. None of the four children are in her care. c) Her functioning has been impacted by her mental health. She has stopped attending visits and it is not clear when she will resume her visits. d) Her visits remain supervised. e) She has no insight into her mental health challenges. f) She has failed to engage meaningfully with her psychiatrist and with supports to address her mental health challenges. g) She does not have a support system. h) The child is only 11 months old. He requires parental supervision on a full-time basis. i) The child’s young age makes him more vulnerable to compromised parenting.

Part Six – Disposition

6.1 – Legal considerations

[63] Subsection 101(1) of the Act provides that where a court finds that a child is in need of protection it must first satisfy itself that intervention through a court order is necessary to protect the child in the future.

[64] Subsection 101 (8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act.

[65] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[66] In determining if a protection order is necessary to protect the child in the future, the ties between a child and the child’s caregiver are an important consideration. In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, the Supreme Court expressed, at para. 37, that the Child and Family Services Act “seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the time recognizing that the best interests of the child must always prevail”. Because of this goal, the best interests of the child is “an important and, in the final analysis, a determining element of the decision as to the need of protection”. 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. See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[67] If a court order is determined to be necessary to protect a child in the future, the court shall make one of the orders set out in subsection 101 (1) or section 102 of the Act in the child’s best interests. These read as follows:

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

Supervision order

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

Interim society care

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

Extended society care

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

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

Court to inquire

(2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

First Nations, Inuk or Métis child

(5) Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible or, if it is not possible,

(a) in the case of a First Nations child, another First Nations family;

(b) in the case of an Inuk child, another Inuit family; or

(c) in the case of a Métis child, another Métis family.

[68] In determining the appropriate disposition, the court must decide what is in the child’s best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. 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.

[69] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a mother, provided that the standard used is not contrary to the child’s best interests. See: Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

[70] In Children’s Aid Society of Toronto v. S.B., 2014 ONCJ 518, the court discussed the importance of a parent providing a child with a safe, stable and secure home as follows:

[112] The major protection issue is the mother’s ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.

6.2 – The continuing need for a protection order

[71] The court finds that a protection order is necessary to protect the child in the future for the following reasons:

a. The mother has not addressed the concerns that led to the involvement of the society. b. The degree of risk to the child is still high. c. The mother continues to struggle with mental health challenges. d. The mother’s mental health may be deteriorating due to choices she has made. She has unilaterally stopped taking her medications. e. The mother does not have a viable plan for the child. f. The mother is not able to meet the child’s physical, mental, and emotional development. g. The mother does not have family or community supports. h. Even if the court was to contemplate placing the child in her care, the court would not be confident that she would cooperate with a supervision order. She is hostile towards her family services worker. i. The child’s father has chosen to not be involved with the child. He is not having access. He was noted in default in this proceeding.

6.3 – Family and community plans

[72] The child remains in the care of H.O. The society’s plan is for the placement to continue.

6.4 – Services to the family

[73] The society has encouraged the mother to follow up with the Women’s College Hospital for therapy. Even though she was on a waitlist, she did not provide any updates about following up with the service.

[74] The society provided the mother with information for Rexdale Women’s Centre. The program provides services such as individual and group counseling, mental health, parenting programs, and conflict resolution. She has not followed up with the service.

[75] To her credit, the mother followed up with Jean Tweed as was recommended by the society. However, the society told her that it would not bring the child to the program. As stated above, the society is being encouraged to reconsider its position and to speak with the service providers on how best to mitigate some of the society’s concerns if the mother were to attend with the child.

[76] The mother’s decision to unilaterally stop taking her medications without consulting with her psychiatrist might be complicating her ability to engage in services.

[77] The court is satisfied that the society has made reasonable efforts to connect the mother with appropriate services to address her mental health and parenting challenges.

6.6 – Disposition

[78] The court finds that the least disruptive alternative, consistent with the best interests of the child, is to place him in the care and custody of H.O., for a period of six months, subject to terms of supervision by the society.

[79] The court does not agree with the mother’s alternative request for a three-month supervision order. As provided in detail below, there are several steps to be taken by the mother that would require a longer duration before status review.

[80] The terms of supervision sought by the society under subparagraph 9(e) of the Affidavit of Ms. Allajbeu, are reasonable and will be ordered.

Part Seven – Access

[81] Subsection 104(1) of the Act states that the court may, in the child’s best interests, when making an order under Part V, make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[82] Section 105 of the Act deals with access when a child has been removed from a person who had charge of the child.

[83] The society seeks to reduce the mother’s current access from the current minimum of once every week, to a minimum of once every two weeks, with the mother being required to call and confirm at least 24 hours before her visit.

[84] The mother’s position is that if the child cannot be returned to her care, she should have access with the child three times per week, on an unsupervised basis.

[85] Ms. Sally Romero is the society’s access and support worker. She provided the following evidence with respect to the mother’s visits:

a) On December 12, 2023, she was 45 minutes late for her visit. During the visit, the child was crying on and off. She commented that she did not think she was supposed to be a mother. b) On January 9, 2024, her visit was canceled due to a snowstorm. She was not happy with the cancelation and threatened that ‘if this was a suicidal issue’, the society would have to let her see her children. c) On March 5, 2024, she arrived late and left the visit for about 30 minutes to buy food. d) On March 12, 2024, she arrived 42 minutes late. e) On March 19, 2024, she canceled her visit as she did not want to be ‘reminded of the children’s father’. f) She has threatened to cancel a visit if all children were not coming to a visit.

[86] Ms. Allajbeu, the society’s family service worker, provided the following evidence regarding the mother’s visits;

a) There were 35 visits scheduled in total from August 2023 to April 2024. She attended 28 visits. She was punctual on 17 visits and was late for 11 visits. b) On November 21, 2023, she sent Ms. Allajbeu a text message canceling her visit because ‘the thought of her children was not making her happy’. c) If the mother is triggered during her visit, she tends to leave early, saying things like, “I don’t want to be here”. d) Sometimes, she has struggled to soothe and comfort the child during visits. e) On February 28, 2024, she sent a text message to Ms. Allajbeu stating that she would be sober for her next visit. When she was asked to clarify, she did not explain what she meant. f) On March 26, 2024, she told the three children during her visit that “the monster is going to look after you”. She was referring to Ms. Allajbeu. g) On April 2, 2024, she canceled her visit because she did not want the child at the access centre.

[87] The evidence showed the following strengths of the mother:

a) She has a routine that the children follow during her visits. b) Her visits are generally positive although there have been a few instances when the visits were not positive. c) Her visits are semi-supervised. She plays with the children inside and outside the access centre. d) She is the only parent exercising access. e) She has followed some of the guidance from access supervisors. f) The three children enjoy the visits. g) She expresses a commitment to be part of her child’s life.

[88] The evidence showed the following challenges with the mother’s visits;

a) She has been late and has canceled visits. b) She has left visits early. c) She has said inappropriate things during her visits, in the presence of the children. d) Sometimes, she has difficulty reading the children’s cues. e) If she is not feeling well during her visit, the visit does not generally go well.

[89] Recently, on April 18, 2024, the mother called the society’s office and spoke to Mr. Jonathan Kells, one of the society’s workers. She asked Mr. Kells to put a note on her file that she did not want to see the children. When questioned about her decision, she responded that she did not want to see them. She then stated that she wanted to be able to have visits with them in her own space.

[90] The mother has not had visits after April 18, 2024. She testified that she canceled the visits for herself as there were things she was dealing with.

[91] The mother’s decision to cancel her visits on April 18, 2024, was not child focused. Her three children have enjoyed their visits with her.

[92] The court must make an access order that is consistent with the paramount purposes of the Act, that is, to promote the best interests, protection, and well-being of children.

[93] The mother’s current visits are posing challenges to her children due to a lack of consistency, cancelations, and lateness. The visits are also being impacted by her continued struggles with mental health.

[94] The court finds that the society’s request for a minimum of one visit every two weeks is reasonable. The court will grant the society’s access request and dismiss the mother’s request for unsupervised visits at a minimum of three times per week. The court will order the supervision to continue.

[95] The court will grant the society’s request to require the mother to call not less than 24 hours to confirm her visit. This will prevent the child from being brought to the access centre when the mother cancels at the last minute.

[96] A provision for minimum visits will allow the society to reassess the visits depending on the mother’s progress in addressing the protection concerns.

Part Eight – Next steps

[97] The court needs to provide clear expectations to the mother of what needs to be done to have her child returned to her care.

[98] The court understands that the mother wants the child back in her care.

[99] It is also important for the mother to understand the long-term consequences if she does not address the protection concerns.

[100] The court will follow the guidance provided by Justice S.B. Sherr in Jewish Family and Child Services of Greater Toronto v. Z.Y., 2023 ONCJ 13, when he provides a roadmap to a parent on the steps to be taken to have their child returned to their care (see paragraphs 64 to 71 of the decision).

[101] There are several steps that the mother will have to take to have her child returned to her care. She will need to do the following:

i. Meet with her psychiatrist, Dr. Clark, and discuss her treatment regime. ii. Discuss the issues and concerns raised in this decision with her psychiatrist. iii. Follow the treatment recommendations of her psychiatrist. iv. Discuss with her psychiatrist any side effects of her current medications. v. Discuss options for her CBT therapy with her psychiatrist. vi. Demonstrate sustained improvement in her mental health. vii. Demonstrate insight into her mental health challenges and the impact that those challenges have had on her children. viii. Attend all scheduled visits on time and stay for the full visit. ix. Keep her cell phone away during her visits (to avoid external triggers) and focus on the children. x. Attend individual counseling to address any anger management issues and emotional regulation. xi. Work on her relationship with the two kith caregivers, and her family service worker. xii. Demonstrate an ability to be civil and communicate respectfully with others.

[102] It is hoped that the mother will consider taking the above steps, even if she does not believe they are necessary. Given her recent experiences of suicidal ideation, she must address her mental and physical well-being first before the child can be returned to her care.

Part Nine – Orders

[103] A final order shall go as follows:

[104] Pursuant to subsection 90(2) of the Act, statutory findings are made as set out on the top page of the society’s amended protection application dated November 15, 2023.

[105] The child, KL [d.o.b…] is in need of protection pursuant to subparagraphs 74(2)(b)(i) and 74(2)(b)(ii) of the Act.

[106] The child, KL [d.o.b..] is placed in the care and custody of his kith caregiver, H.O., subject to the supervision of the society, for a period of six (6) months, on terms and conditions as set out under clauses 9(e)(i) to 9(e)(x) [page 4] of the Affidavit of Mirella Allajbeu, dated April 16, 2024.

[107] The mother shall have supervised access with the child at a minimum of once every two weeks. The society shall have discretion with respect to the location, duration, and level of supervision of the visits.

[108] The mother shall call and confirm at least 24 hours before each visit.

[109] Any access between the child and the father shall be at the discretion of the society.

[110] The court thanks counsel for their professional presentation of this trial.

Released: May 14, 2024 Signed: Justice Wiri Kapurura

[^1]: ‘kith’ refers to a community member such as a family friend or neighbour who agrees to provide care to a child until the child can safely return home. [^2]: The term ‘children’ in this decision is used to jointly refer to the child who is subject to this trial, and his siblings E and N. The term does not include the older child, HLM.