IN THE ONTARIO SUPERIOR COURT OF JUSTICE, FAMILY COURT

COURT FILE NO.: C-08/06

DATE: 2012-07-10

CITY OF HAMILTON

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, 1990 AS AMENDED

AND IN THE MATTER OF THE CHILD J.S. d.o.b: […], 2002

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF HAMILTON Applicant

• and -

S.S. (Mother) Respondent

COUNSEL: John Bland for the Applicant Kirsten Hughes for the Office of the Children’s Lawyer George Johnson for the Respondent

HEARD: June 18 to 22 and 25 to 28, 2012

REASONS FOR DECISION

Cavarzan J.

[1] This is an application by the Children’s Aid Society of Hamilton (the CAS) for a finding that J.S. is a child in need of protection, and for an order that he be made a ward of the Crown and placed in the care of the CAS with no access to S.S. (the mother).

[2] It is not disputed that the child’s name is J.S., that his date of birth is […], 2002 and that he is not Roman Catholic, not native, and not Indian.

[3] At issue in this trial were the questions of whether J.S. is a child in need of protection and, if so found, the nature of the appropriate disposition in the circumstances. With respect to the latter question, the parties agree that the effect of s. 70 of the Child and Family Services Act (the CFSA) is to limit the options essentially to two, namely, Crown wardship or return of the child to the care of the mother.

[4] Counsel for the mother submitted, however, that even if Crown wardship is ordered, access should be permitted because it will not impair permanency planning for the child. He submitted, as well, that there is a unique third option available, namely, ordering a full kinship assessment of the witness H.I., a matter addressed later in these reasons.

Background

[5] S.S. is a Somali national who is now 32 years of age. Her son J.S. is now 9 years of age. They entered Canada on October 24, 2005, and resided initially in New Brunswick. They came to Hamilton on December 23, 2005, and have resided here ever since. They have landed immigrant status.

[6] The route to Hamilton was circuitous: Somalia to Dubai, then to Yemen, then to Turkey for three years during which time J.S. was born, and, finally, to Canada. There is evidence, however, that the mother told CAS worker Stephanie Sheptenko in December, 2005, that she had fled the war in Somalia for Turkey when she was 23 years of age.

[7] The mother testified that J.S.’s father is in Dubai with her 12 year old daughter, that she met him in Dubai, that they were married and had two children, and that he has always lived there. At trial she stated that his name is K.M., although in 2010 she identified the father as K.M. to CAS worker Susan Smarz.

[8] In 2011, the mother told CAS worker Giovanni Perissinotti that J.S.’s father lives in London, England.

[9] During her brief sojourn in New Brunswick, the mother experienced her first encounter with a Children’s Aid authority. Fredericton Family and Child Services received a call regarding a woman, who had with her a three year old child, passed out in the street. The woman was S.S. and the child was J.S.

[10] The mother advised CAS worker Stephanie Sheptenko on January 13, 2006, that, on that occasion, she had not eaten but had consumed alcohol. She had begun to vomit and emergency services were contacted.

[11] Within seven days of her arrival in Hamilton in December, 2005, the CAS received a call with respect to concerns about the mother using drugs and alcohol while caring for the child. The caller stated as well that the child had been beaten.

[12] Upon the CAS workers attending at her residence to investigate, she resisted their entry until persuaded by a male in the residence, one Omar Yahye, to permit them to enter. Signs of intoxication observed by the CAS workers were that she was unsteady on her feet, had the smell of alcohol on her person, and slurred her words. She raised her voice several times and was encouraged by Mr. Yahye to remain calm. She admitted having consumed 6 beers prior to the arrival of the CAS workers. An on-site urine test confirmed the presence of cocaine in her system; a breathalyzer test confirmed the presence of alcohol.

[13] Bruising observed on the child’s face was attributed by the mother to the child having been hit and pushed by other children.

[14] On December 30, 2005, the child was taken into the care of the CAS. A temporary court order of January 4, 2006, placed the child in the care of the Society with access at the discretion of the Society. Minutes of Settlement led to a further court order on July 16, 2007, including a finding that the child be found in need of protection pursuant to subsections 37(2)(b) and (g) of the CFSA.

[15] By court order of October 1, 2007, the finding that the child is in need of protection was continued and the child was made a ward of the Society for a period of three months. Access remained in the discretion of the Society subject to a schedule of progressively more liberal access including access in the mother’s home. Provided no concerns arose, the child was to be placed in the care of the mother on December 21, 2007, for a period of six months subject to conditions.

[16] The result was that J.S. was in CAS care for 24 months until returned to his mother on December 21, 2007.

[17] J.S. was apprehended by the CAS again on August 16, 2011, and has remained there to date, a total of almost 35 months. This application was commenced on August 18, 2011. A temporary order of August 19, 2011, provides that the child shall remain in the care of the Society, that the mother is to have supervised access once per week for one hour, and appoints the Office of the Children’s Lawyer (the OCL) to represent the child. Because of concerns about threats made by the mother to the CAS and its workers, that order contemplates police presence at access visits and restrains the mother from attending the Society’s offices except for access visits.

[18] In the interval between return of the child to the mother’s care in December, 2007 and the second apprehension on August 16, 2011, the CAS had been called upon to investigate complaints about the mother’s care of the child on five separate occasions. Also, between January 2007 and August 16, 2011, the police were involved with the mother on 15 separate occasions, generally as a result of assaultive behavior and confrontations between the mother and various other individuals.

[19] Illustrative of the mother’s belligerent behavior were the events surrounding her arrest by Walmart store security on July 6, 2010. She was stopped outside the store and arrested while in possession of items of clothing from which she had been seen removing store tags and for which she had not paid the purchase price.

[20] Keith Varig, the Walmart store’s loss prevention officer testified that once arrested, S.S. offered to pay for the items. When she was told that that was no longer an option, she became physically violent towards Varig, striking him in the face and neck with her wallet and her purse. Varig required the assistance of another Walmart employee to subdue and handcuff her.

[21] When two Hamilton police officers arrived on scene, Varig stated that he was not injured and was not interested in pursuing an assault charge against her. Varig was not cross-examined.

[22] P.C. Allchin testified that S.S. was very combative when handcuffed and escorted to the police cruiser. P.C. Allchin was not cross-examined on his testimony as to S.S.’s behavior.

[23] The testimony of Varig, Allchin, and of many CAS workers who testified was based on notes made contemporaneously with the events about which they testified. Neither the accuracy nor the veracity of the notes and of the testimony of the various witnesses called by the CAS was challenged on cross-examination.

[24] In her testimony at trial, S.S. denied every assertion made by Varig and Allchin about her behavior and demeanor on that occasion. This pattern was repeated with respect to the testimony of several other CAS witnesses.

[25] I am acutely aware of the importance for the mother of the outcome of these proceedings. She places her credibility in issue, however, by mounting a defence of blanket denial amounting to an implication on her part of a conspiracy among the various CAS witnesses who were drawn into these events.

[26] On January 9, 2011, CAS worker Silvia Verissimo was dispatched to attend at the mother’s residence because of a report of possible prescription fraud by the mother. Because of the late hour, Verissimo arranged for police assistance.

[27] At the residence, Verissimo explained that there were concerns about prescription fraud and about the care of the child. The Society had information that the mother had attended at the General Hospital and had been given a prescription for eight pills. At the pharmacy it was noted that the “8” had been altered to “80”. The pharmacist contacted the prescribing doctor who confirmed that only 8 pills had been prescribed.

[28] The CAS had learned that while at the hospital the mother had fallen asleep. The mother explained that she had accidentally left a vial of pills in some clothing placed in the wash. She then sought to replace them by getting a prescription at the hospital.

[29] The mother told Verissimo that she had sent her friend to the pharmacy and that her friend had added the zero. She could not provide any contact information for this friend. She stated that she had gone to the pharmacy to apologize but said that the event had occurred two weeks earlier.

[30] Verissimo testified that the prescription was dated January 7, 2011, and that “80” had been written in in pen. Verissimo’s suspicion was aroused by the mother’s demeanor. Her eyes were glazed and she was observed to walk to another room with an uneven gait. Verissimo wondered whether the mother was under the influence.

[31] When Verissimo went to another room and closed the door to call her supervisor, the mother barged in and confronted her, pointing her finger at her and saying that she should go to the kitchen to talk. The supervisor suggested that drug testing should await the next day.

[32] Arrangements were then made to have someone stay with the child until CAS day staff could attend. The mother became agitated and told Verissimo that she (the mother) is Muslim, is going to die, and is going to kill 100 people. The police intervened.

[33] Verissimo testified that she had observed burn marks on a comforter, on a couch, and on the bed. She spoke to the mother about the risk of fire to herself and to her son.

[34] Verissimo was not cross-examined. In her testimony, S.S. denied every detail of Verissimo’s account except for the burn marks on the couch.

The Incident of August 16, 2011

[35] On the evening of August 16, 2011, officer Andrew Leng of the Hamilton Police Service responded to a call about a disturbance at V[…] Blvd. Paramedics were already at the scene. He saw J.S. at the front of the residence with blood on his face and on his clothing but with no signs of injury. Upon entering the house he saw an elderly man on the floor covered in a great deal of blood. He then encountered a female in the middle bedroom of three bedrooms. She was semi-naked and attempting to put a top on.

[36] The female identified herself as Soad Fifi Ahmed with a date of birth of […], 1978. She told him that the elderly man had assaulted her and threatened to kill her.

[37] J.S. told officer Leng that the elderly male had hit his mother and had pulled her hair when she returned from a visit with the doctor. Leng became concerned about the well-being of the child and contacted the CAS.

[38] Leng described what he termed squalid living conditions in the residence, including a pronounced acrid smell of garbage at the threshold and before entering, his boots sticking to the floor as he walked through the house, and the kitchen being extremely dirty and untidy. There was garbage everywhere, rotting food on the table, the counter and on the floor. He saw dirty utensils and broken items on the kitchen table and kitchen floor. There was rotting food in the refrigerator.

[39] A similar scene was observed in the basement, including an untidy second kitchen and a fruit cellar with hanging cured meats covered in mould and open containers of food with an acrid smell of rotting food.

[40] The back yard was cluttered and extremely dirty. There was a sickly sweet smell of fermenting garbage outside.

[41] Having observed the woman’s bedroom, he described it as appearing lived in but by no means similar to the state of the rest of the house – cluttered, but not outrageous. It contained a single narrow bed.

[42] As for Fifi, he described her as showing signs of mental or drug impairment with slurred speech, glassy eyes and with mood swings from cooperative to non-cooperative. She became upset when told that the child was being apprehended.

[43] She placed her hand on Leng’s chest and arm and applied force to try to push past him. She was arrested for assaulting police and for obstructing police in assisting the CAS. Once the child was removed from the residence, she was released with no charges.

[44] Having observed J.S. interacting with his mother, Leng described him as concerned for her well-being as well as about what was unfolding.

[45] Later in the CAS investigation it was learned that J.S. had witnessed the altercation between his mother and the owner of the residence, one S.C..

[46] In attempting to defend his mother he had physically hit Mr. S.C. in the “privates”.

[47] S.C. was injured, apparently, when he and the mother struggled for possession of a lamp. The mother let go and S.C. was struck in the head. He was taken to the hospital for treatment.

[48] Jenny Athanasiou, the CAS worker called to the scene by officer Leng, told the mother that she had met her in the past. Her name was S.S., the name on a bottle of Tylenol 3 medication found by the police in the residence.

[49] S.S. declined to submit to drug testing at that time. When asked whether she had any family members who could care for J.S., she became upset stating that she did not have any family. Later, she asked Athanasiou to contact a maternal aunt named “Mohamed” as a potential kin.

[50] Leng advised Athanasiou that the Hamilton Police Service had previously been involved with S.C. and the mother due to family troubles.

The Position of the Parties

[51] The CAS takes the position that J.S. is a child in need of protection and that the only disposition in the circumstances is Crown wardship without access for the purpose of adoption. It relies on the events of August 16, 2011 as sufficient in themselves. In addition, however, it relies upon J.S.’s clear and emphatically-expressed wishes not to have any further access visits with his mother and to be left in foster care with his current foster family, preferably as an adopted son.

[52] The OCL supports the position of the CAS.

[53] As noted above in paragraph 4, the mother continues to seek access even if Crown wardship is ordered. She proposes the third option of ordering a full kinship assessment of the witness H.I.

The Law

[54] The following are the applicable provisions of the CFSA:

40(1) A society may apply to the court to determine whether a child is in need of protection.

47(1) Where an application is made under subsection 40(1)…the court shall hold a hearing to determine the issue and make an order under section 57.

[55] As noted earlier, the determinations about the child’s name, age, religious affiliation and Indian or native status required by s. 47(2) have been made.

37(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;

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

(f) the child has suffered emotional harm, demonstrated by serious, (i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

[56] Following his apprehension on August 16, 2011, J.S. was to attend once per week supervised access visits with his mother beginning on August 25, 2001. The first visit went well, but beginning with the second visit J.S. began to show signs of disinterest.

[57] On the fourth visit (September 15, 2011), he told his mother that he wanted to stay with his foster parents at least until his birthday. On the fifth visit (September 22, 2011), he told his mother that he was not sure he wanted to come home, that it would be okay for her to work at the Game Stop, and that he would not be sad if she missed visits. The last visit was on October 5, 2011, at which he was lying down on the couch with his hat and his hood over his head. He told his mother that he was old enough to choose where he wants to live. His choice was to stay in foster care and not return to his mother. He ended the visit early without saying goodbye to his mother.

[58] Thereafter, despite the urgings of Kim Loiselle, his Children’s Service Worker, and of his foster mother that he attend visits, he adamantly refused to do so. The CAS had arranged a car and a driver to take him to the visits, but he refused to accompany the driver.

[59] On October 5, 2011, he mentioned to Kim Loiselle and to his foster mother that he remembered something bad about his mother but didn’t want to talk about it. On October 17, 2011, the foster mother called Kim Loiselle and reported that J.S. had told his lawyer (Kirsten Hughes) his “secret” and then proceeded to tell her about his mother regularly hitting him with a broom.

[60] When Kim Loiselle attended at the foster home that day to speak to J.S., he told her about the beatings with the broomstick. He stated that she had also hit his friend Mikey. He told Ms. Loiselle that he had wanted to call the police but was too scared to do so. He told her that S.C. (S.C.) had naked dolls in his room, that his mother would sometimes go into the shower with S.C., and that his mother had asked S.C. to marry her.

[61] J.S. told Kim Loiselle that sometimes there were rotten hot dogs and not a lot of good food in the house. He told her as well that he would sleep in the bed sometimes and sometimes on the floor.

[62] By coincidence, Dave Hopkins, of the Ministry of Children and Youth Services, which is responsible for licensing of Children’s Aid Societies, was conducting a review of the Hamilton CAS. On October 17, 2011, he attended J.S.’s foster home as one of several foster homes selected randomly for a visit.

[63] In answering a question about consequences at the foster home if he got into trouble, J.S. told Hopkins that he would be given a “time out” or have toys taken away. J.S. then added, spontaneously, that at home his mother would hit him with her hands and with a broomstick, and that there was lots of blood at home.

[64] Asked if he likes being at the foster home, J.S. answered “great.” Asked why that was so, he responded “I don’t get to play violent games.”

[65] Dave Hopkins testified as an independent witness having had no prior involvement in this matter. His testimony about J.S.’s unprompted account of being struck by his mother lends credence to the Society’s concerns about the option of returning J.S. to the care of his mother.

[66] J.S.’s foster mother testified that he is fearful of running into his mother on the street. He told her about being uncomfortable with men visiting the apartment and hearing strange sounds. His mother went into the bathroom with them. He opened the door on one occasion and saw her on the bathroom floor with somebody. He recalled having been put in a bedroom by his mother in someone else’s apartment and being told to stay there.

[67] In her testimony the mother denied every suggestion of impropriety on her part in the testimony led by the CAS. In particular, she denied having threatened the CAS on the day after the apprehension of August 16, 2011. CAS worker Jeanette Chehowski received a telephone call from the mother on August 17, 2011 in which she said: “I will blow you up”; “if I kill 20 of you I will do it”; “this time there will be life taking”; “if anything happens I will take his life” (interpreted by Chehowski as referring to J.S.) and “I will take my life”; “I will come down there”; “I don’t care if I take twenty CAS with me”; “I’m serious”; “I am Muslim”; “I will do it”; “I will come down there with (undecipherable) strapped to me and I will blow you all up”.

[68] CAS worker Ashley Scott received a call from S.S. at 1:35 p.m. on August 17, 2011 in which she told Scott that she will make the children of Society workers orphans. She stated her intention to attend the Society building with a bomb and kill women and orphans and then she would go to heaven for that because the Society took her child. She stated that she was in al-Qaeda and knows people who make bombs.

[69] As noted earlier, S.S.’s blanket denials are simply not credible. Wherever her testimony conflicts with or contradicts that of the Society’s witnesses, I prefer that of the latter.

[70] In his submissions, Mr. Bland characterized S.S. as unpredictable, violent and not trustworthy. The totality of the evidence in this case supports that characterization.

[71] I am reinforced in this by the testimony of the mother’s family doctor, Dr. Israel. She has been his patient since November 2008. He testified that he had prescribed Tylenol 3 for her because of a diagnosis of low back pain. Later he prescribed Celexa for depression and Xanax for her insomnia.

[72] Dr. Israel regarded her as untrustworthy because of several attempts by her to obtain prescriptions for medications on the pretext of departing for a two months visit to Yemen. On August 15, 2011, she told Dr. Israel she was going to Yemen for two months. He prescribed a two months supply of Xanax. On August 16, 2011, she returned wanting a one year supply because she was going to Yemen to visit her mother.

[73] In his letter of June 6, 2012, to the CAS (Exhibit 1) Dr. Israel states, in part, that:

I have known Mrs. S.S. as a patient for three and a half years. She is very demanding, insisting, not honest, not trustworthy person. Most of the time she is not herself when she visits the clinic, screams at the front desk, she also poly pharmacing. As a mother I know nothing about her.

[74] In his testimony at trial, he testified that the effects of the medication made her not herself. He specified that she exhibited slurred speech and was insistent on getting medications.

[75] Asked in examination in chief what would be the effect on her if she smoked marijuana, he stated that any combination of drugs is cumulative in effect. On December 30, 2005, CAS worker Stephanie Sheptenko had observed a “bong” apparatus on a counter in S.S.’s home. S.S. acknowledged having smoked something at a friend’s home the previous night. She had been told it was “Lebanese Tobacco” and it had been smoked out of a bottle. In 2012 she told CAS worker Limaye that she had smoked “weed” during and around New Year’s Day. On February 6, 2012, she told him she smokes marijuana to sleep.

[76] Dr. Israel’s observations of S.S. tend to corroborate the views of the various witnesses who described the mother’s presentation as impaired because of slurred speech or glassy eyes and those who described her as aggressive towards them.

Child in Need of Protection

[77] I have no difficulty concluding that J.S. is a child in need of protection on the basis of the criteria in s. 37(2)(b)(i) and (ii) and s. 37(2)(g) and (f)(i), and I so find.

The Appropriate Disposition

[78] Where a child is found to be in need of protection, s. 57 of the CFSA authorizes the making of certain orders:

57(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 57.1, in the child’s best interests:

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

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

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship 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.

[79] Mr. Johnson, counsel for the mother, proposed a third option, namely, an order that there be a full kinship assessment of the witness H.I.

[80] H.I. testified at trial. She is a 52 year old woman born in Somalia who immigrated to Canada from Kenya in 2000. She testified that she is a first cousin of S.S.’s mother. She described S.S. as her neice. She resides in a seven bedroom house. She is the mother of five children, two of whom still reside with her and attend Sir Allan McNab High School and Gordon Price Elementary School respectively.

[81] H.I.’s kinship application was rejected by the Society.

[82] At trial she stated that if J.S. were placed in her care, he would attend Gordon Price Elementary School. H.I. speaks Somali at home and is a practicing Muslim who attends mosque regularly. She declared that she would comply with whatever conditions or directions were imposed by the court order.

[83] In its letter of March 19, 2012 to H.I. advising that her kinship service application had not been approved, the CAS cited two principal reasons: the living conditions in the house (extra beds in the hallway and in the basement) and people visiting and staying overnight or longer at the house.

[84] H.I. denied these allegations when she testified at trial. As with the conflict between the testimony of the CAS witnesses and that of S.S., wherever there is a conflict between the testimony of H.I. and that of the CAS witnesses, I believe that of the latter.

[85] H.I. adopted the approach of blanket denial of any element of the testimony of the CAS witnesses which undercut her claim of suitability for a kinship placement for J.S.

[86] Laxmikamt Limaye is the family service worker who had management responsibility for this family. He spoke to H.I. on December 19, 2011. She told him that she knows the mother well, but the mother does not know where H.I. lives and wants that information kept confidential. She told him, as well, that she last saw the child when he was five years old.

[87] H.I. denied having said those things to Mr. Limaye.

[88] CAS worker Rosina Harvey-Keeping testified about a meeting with H.I. on December 20, 2011, in the course of which she was told the following:

• S.S.’s mother had contacted her and told her that J.S. had been taken.
• S.S. had not asked for help.
• She did not know where S.S. resides.
• She had not seen S.S. in a long period of time and wondered if she had been isolating herself from her community.
• She saw J.S. once at the age of five when she gave S.S. and J.S. a ride home when she saw them walking in the rain.
• She did not know where S.S. lives and had only met her at Jackson Square.
• She expected that J.S. may not have a positive response at first because J.S. does not know her or her family.

[89] At trial, H.I. denied having said any of the above.

[90] Similarly, in the case of the testimony of Rani Purandare, the CAS kinship intake worker, Ms. H.I. denied having told Rani that the last time she had seen J.S. was when he was five years old, that she had no relationship with him, and that she wanted her address and phone number kept confidential.

[91] She denied, as well, the truth of Rani’s observations concerning a cluttered basement kitchen and having seen a person whom she believed lives in H.I.’s basement. She denied having told Rani that it was none of her business, but he would be gone soon. She denied the truth of Rani’s observations of extra beds in the upstairs hallway, an extra bed in the living room and an extra bed in the basement.

[92] H.I. denied that at her initial meeting with Rani she had told her that she didn’t know where S.S. was and wanted nothing to do with her.

[93] Finally, she denied having told Rani about frequent visitors to the house including many friends of her daughters and others who may need a place to stay.

[94] H.I. is not a credible witness. The CAS conducted an adequate assessment of her suitability as a kinship placement for J.S. There was ample cause for the Society to reject her application.

[95] In the circumstances, there is no reason to give effect to the third option proposed by the mother, and I so find.

Crown Wardship with Access

[96] Section 59 of the CFSA addresses this matter and provides in its relevant parts that:

59(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

(b) the ordered access will not impair the child’s future opportunities for adoption.

[97] I would rule out this option in the circumstances here. I am satisfied that neither of the conditions in s. 59(2.1)(a) and (b) can be met.

[98] Despite the long history of involvement with the CAS including programs to improve S.S.’s ability to be a mother to J.S., she brought him to reside in appalling living conditions in which he slept on the floor, was poorly fed, and witnessed and was involved in an incident of serious personal violence. The mother has a history of abuse of alcohol and of both prescription and non-prescription drugs. As manifested in the extraordinary number of police incident reports in which she is one of the named principals, she has a penchant for confrontation and physical violence.

[99] The relationship between the mother and J.S. would not be beneficial and meaningful to J.S. In my view, ordered access would impair the child’s future opportunities for adoption.

The Child’s Father

[100] The child’s father has never been named as a party to these proceedings. Given the nature of the mother’s conflicting and contradictory statements to the CAS about the father’s name, place of residence, and involvement in the life of the family, I agree with the CAS position that he is not a proper party. The CAS is not obliged to conduct a search of the father’s whereabouts in England, Turkey and Dubai.

Cultural Considerations

[101] There is evidence that J.S. speaks the Somali language. He is fluent in English and it appears that English was spoken at home.

[102] The only evidence of any church attendance was about attendance at a Spanish or an Italian church. The mother does not practice the Muslim faith except for ensuring that J.S. does not eat pork. H.I. advised the CAS on one occasion that she believed that the mother had alienated herself from the community.

[103] Although encouraged by his foster mother to maintain contact with his ethnic roots, J.S. is not interested. He was not interested in attending a Turkish weekend school located by the foster mother.

[104] Exhibit 22 is a letter of March 27, 2007 by the foster mother to the CAS expressing an interest in providing permanency for J.S. In it she writes that:

J.S. also attends Arabic school on the weekend and we have researched and provided J.S. with an understanding of the Muslim faith, for example he knows simple Arabic prayers in keeping with other children his age and we recognize the month of Ramadan as a family. We also have purchased children’s books on Muslim values and the history of Islam.

[105] As a nine year old, J.S. has expressed no interest in pursuing Turkish or Somali culture.

Conclusion

[106] There will be an order making J.S. a ward of the Crown without access, for purposes of adoption.

[107] Any existing order for access is hereby terminated.

[108] There will be an order restraining S.S., until further order of this court, from contact with J.S., the foster mother and any member of the foster mother’s family.

CAVARZAN J.

Released: July 10, 2012