COURT FILE NO.: C1953/07-03

DATE: April 2, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

BETWEEN:

CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX

Joseph F. Belecky for the Society

Applicant

• and -

A.L.N. and D.G.

Edward J. Mann for the respondents

Respondents

HEARD: October 6, 8, 11, 12, 13 and December 5, 6, 7, 8, 9, 14, 15, 16, 20, 21, 2011

VOGELSANG J.

[1] A.N. is the mother of J.G. D.G. is J.G.’s father. The child has just turned two years of age, being born [...], 2010. She was apprehended by the Children’s Aid Society at the hospital immediately after her birth. The agency was very pessimistic about the ability of Ms. N. to be a proper parent to J.G. and had similar reservations about Mr. G. A.N.’s first child, T., was apprehended by the Society at about six weeks of age. She was made a ward of the Crown in mid-November, 2009, with Ms. N.’s stated consent.

J.G.

[2] After J.G. was apprehended, the parents, assisted by duty counsel, consented to a temporary order maintaining the child in Society care until the final disposition of this proceeding. She was placed in a foster home for a short while, then united with her half-sister T. in the home of M.G.-H. and D.H. Mr. and Mrs. H. had completed a lengthy training course for potential view-to-adopt foster parents and had undergone a “very involved” home study process. It was their intention to adopt T., which they did in mid-February, 2011.

[3] Examinations of J.G. by the Society medical staff soon revealed that the baby suffered from some significant medical problems. Clinical observations indicated she was macrocephalic, her head size being in the 97th percentile. An MRI was performed at four months of age. It led Dr. Michelle Ponti, the Society paediatrician, to the opinion that the enlarged head circumference was the result of a benign hydrocephaly (extra fluid on the brain) or a similarly benign enlargement of the subarachnid spaces wrapping around the brain tissue. Dr. Ponti described the macrocephaly she observed as “not entirely uncommon” and a condition she “sees once or twice a year.” She described it as probably a “life long problem” which had to be followed closely to rule out any future pathology. As a result, she must continue to be examined regularly by Dr. Sandrine de Ribaupierre, a neurosurgeon at the London Health Sciences Centre, in order to rule out any sudden onset of neuropathology.

[4] Unfortunately, the baby’s other medical issues were much more severe. When seen by Dr. Mok-Dok Li, a paediatric cardiologist, at the age of five months, J.G. was in borderline congestive heart failure and had significant congenital heart disease surrounding four cardiac lesions. Her care was transferred to Dr. Herschel Rosenberg at the London Health Sciences Centre for later admission to hospital and arrangements for transfer and surgery at the Hospital for Sick Children in Toronto, there being no paediatric cardiac surgery performed anymore in London.

[5] In general terms, there were four defects seen in J.G.’s heart. She displayed a coarctation or narrowing of her aorta with a subaortic stenosis just below the aortic valve, a ventricular septal defect allowing oxygenated blood to commingle with unoxygenated blood, an open ductus arteriosus (a blood vessel involved in foetal circulation that had failed to close and disappear) and a malformed mitral valve. The combination of her problems, particularly the mitral valve defect, was causing fluid to “back up” in the lungs because of the cardiac inefficiency and other symptoms like lethargy, fatigue, difficulty feeding, sweating while feeding (because of the increased work to take in food), cyanotic (bluish) extremities and a failure to thrive and gain weight.

[6] Following this diagnosis, Dr. Ponti described the maintenance therapy and medication recommended during the wait for J.G.’s surgery and the importance of insulating the baby from stress and the absolute necessity of an astute vigilant caregiver keeping a very close eye on the baby’s progress at home as her condition could potentially “go critical very quickly.” J.G. faced necessarily severe restrictions in her normal routine to avoid heat and humidity and the possibility of exposure to somebody with a respiratory illness. Exposure to any kind of cigarette smoke, including “second hand” or even “third hand” – or residual – smoke was forbidden.

[7] J.G. was transported to the Hospital for Sick Children in Toronto and was operated on by Dr. Glen VanArsdell on September 15, 2010. A coarctectomy was performed by cutting away the area of narrowing in her aorta, replacing it with a patch of synthetic material. The open ductus arteriosus was tied off and the inter-ventricular hole patched with other synthetic material. Her mitral valve was incised and split to allow better and easier blood flow between her two left chambers, and muscle was cut away in a resection below the aortic valve. In all, during the surgery, there were over two hours of blood diversion with her heart stopped, in a state of “deep hypothermia” with her body cooled to lessen tissue damage.

[8] Post-operatively, J.G. suffered complications. She was left with left-sided vocal cord paralysis which made it difficult to eat and to swallow and exacerbated her gastro-esophageal reflux disease. As an infant unable to verbalize pain, the paralyzed area removed her ability to cry normally and she was left with a “very breathy” and hoarse cry without vigour, again requiring a very astute and watchful caregiver. It was Dr. Ponti’s opinion that J.G. likely had some developmental delays because of the surgery and the post-operative pattern of sleep disturbance. She pointed to the fact that the child was not walking at 17 months.

[9] Dr. Ponti emphasized the great importance of adequate nutrition for a child displaying symptoms of a serious cardiac condition because of the body’s additional energy requirements when the heart “works extra hard to get blood past the areas of narrowing.” Unfortunately, J.G. faced real difficulty with oral feeding related to the reflux and was refusing to eat. A naso-gastric tube had to be inserted post-operatively and a dietician and occupational therapist called in to devise a plan which would enable the baby to eat without aspirating food into her lungs.

[10] M.G.-H. gave evidence about her foster-child J.G.. Ms. G.-H. has been employed by the Thames Valley District School Board for 15 years. She is on an extended leave of absence because of J.G.’s medical problems and the course of this proceeding. She holds diplomas in special educational services and education assistance. She worked at the Robarts School for the Deaf in the residential phase of that program where she learned and practiced sign language with deaf or hearing-impaired students. She has worked with and, over time, looked after blind children and children aged three to 21 years of age with cardiac problems, hydrocephaly, cerebral palsy, Down syndrome, ADHD, bipolar disorders, global developmental delays, anxiety and oppositional defiant disorders. She testified that her wealth of experience has assisted her in her care of T. and, especially, J.G..

[11] Ms. G.-H. decided that J.G. would be better equipped to learn speech and convey her needs if she could employ sign language, so she taught it to her. Her husband, D.H., also is learning sign language. The whole family communicates by sign at meal times, which Ms. G.-H. described as “a fun thing to do.” Fortunately, J.G., having learned some sign language, was assisted by that ability after the surgery when the vocal cord paralysis reduced her to a “soft, low cry.” Her foster mother placed her crib in her own room in order to be sure to hear her and communicated with J.G. mostly with sign language.

[12] Ms. G.-H. testified about learning of J.G.’s need for the extensive surgical repair and how scared she was, since she loved the child so much. Because of the child’s vulnerabilities, she changed her routines and began to drive J.G. to the supervised access with which Ms. N. and Mr. G. were provided at the Children’s Aid Society office, because some of the volunteer drivers had vehicles with residual or third-hand cigarette smoke and some had vehicles which were hot and humid. In those situations, J.G.’s cardiac and breathing problems would make her red-faced, sweaty, tired, irritable and cranky.

[13] The foster mother then started to avoid the outside heat and began to take special care in frequently sanitizing all the toys, furniture and articles with which J.G. came into contact. In the witness box she confessed that at times she thinks she is being a “worry wart,” but deems the precautions to be absolutely necessary.

[14] Ms. G.-H. described at some length the series of numerous medical checks and assessments J.G. has required. She had taken the child to 51 appointments by October, 2011. She said they involved a significant disruption of her life. J.G. does not like going to the medical appointments at all and is withdrawn, burying her head in the foster mother’s shoulder. She said the child associates the trips with being poked and touched and repeats that she wants to go home. After the appointment, J.G. is clingy and appears tired and worried, not wanting to be left alone.

[15] Significant preparations are required for each one of the child’s appointments. Ms. G.-H. said it takes her 45 minutes to get J.G. ready and to prepare the snacks, bottle and toys needed – as she is cautious about exposure to germs. Sometimes lengthy waits are encountered. They have had to wait as long as four hours at the cardiology appointments. The foster mother described how Ms. N. and Mr. G. behave when they sometimes attend at medical appointments. Informed about each one by the Society worker and invited to attend, they manage to attend some – later evidence suggested they attended 17 out of 40. She said that they will say hello to her if she initiates it. They are quite quiet and seem withdrawn (Mr. G. more than Ms. N.), and never appear to ask more than one question. If it is necessary to wait, Ms. N. will play with and make conversation with J.G.. She witnessed Mr. G.’s obvious frustration at one long wait of four hours. Mr. G. and Ms. N. abruptly left, saying they would come back. They did not.

[16] After the September, 2010 surgery, J.G. experienced real problems feeding and would aspirate her food, the paralysis of one side of her larynx preventing her from protecting her airway and lessening control of her swallowing. The occupational therapist and nutritionist taught Ms. G.-H. how to feed the baby, using a thickening agent which converts thin liquids to a jelly-like consistency less likely to be aspirated. She bought the thickening product at the Hospital for Sick Children and continues to obtain it from there. By the time of trial, J.G. remained difficult to feed. Because of the surgery, she missed the developmental stage where she would learn to differentiate among and tolerate a variety of different food textures in her mouth. The child panics, chokes and sometimes spits the food out. She does not accept most meats or vegetables and will push the food away. Extra care is needed to prepare J.G.’s food and hide or disguise meat so that she will accept it. She must be closely attended, coaxed or actually fed the food. Ms. G.-H. testified that she “constantly” talks to specialists and counsellors to receive guidance and tips concerning J.G.’s food and how best to feed her.

[17] J.G.’s gastro-esophageal reflux disease continues and she must take omeprazole twice daily. Her foster mother said she “hates all medicine” and cries and pushes it away. Giving medicine to J.G. was described as “a challenge for anybody” even when in the form of a reconstituted liquid – a special syrup – which the foster parents have specially prepared by a pharmacist. While the omeprazole reduces the gagging, choking and occasional vomiting from the reflux disease, Ms. G.-H. must apply a prescribed dental paste every night to J.G.’s teeth to prevent damage to the child’s enamel from the acidic stomach contents which go up into her mouth.

[18] The surgery has had serious consequences for J.G.’s disposition and emotional reactions. She is subject to night terrors and the foster parents have installed monitors both upstairs and downstairs in order to hear her screaming and be able to respond. The child is very difficult to console and Ms. G.-H. holds her and rocks her back to sleep, a process which can take as much as two hours. She and her husband have developed a system where, upon hearing the screaming, he goes to the kitchen and prepares a bottle while the foster mother holds J.G. and begins the rocking. At its very worst, the night terror has occurred four to six times per night – it happened twice the night before Ms. G.-H. began her testimony on October 12 – but it remains at a relatively constant frequency following the surgery. Ms. G.-H. testified that it happens “three or four times per week … more often than not.” For a time, the foster parents moved the child’s bed next to their own bed to be immediately available to comfort her, but now she is back in her own room right next door, although she does not like being left alone in her room since the surgery and cannot be left with the door closed. Ms. G.-H. described the child as more clingy and prone to sucking her thumb and displaying crankiness.

[19] The special attention which J.G. requires was underscored by Ms. G.-H.’s evidence about the demands of the child’s condition and how the foster family’s routines have been changed. She said she has to constantly think ahead and anticipate everything which J.G. might require, necessitating a high level of organization and a lot of thought. The child’s medical scripts must be kept filled and trips made to the pharmacist who prepares the drugs in the special syrup J.G. must have. Ms. G.-H. admitted that the child’s needs demand an unusual level of self-sacrifice which leaves “very little extra time for [them] as a couple.” She testified that J.G.’s many needs have “cut into T.’s time” as well. The foster mother talked about the high level of patience required in J.G.’s care and the constant need to be persistent in “reading her cues.” Everything the family does must be put on hold if J.G. is not feeling well or if she “has a grey day.” She emphasized that nobody can ever “make a big deal,” push the child to do something or get angry at her.

[20] All the foster family’s accustomed activities have had to change because of J.G.’s vulnerabilities. Afternoons outside in the heat are avoided. Ms. G.-H. will go in the water and swim with J.G.. She can play with a ball or with water and sand at a table or blow bubbles. She must be carefully watched and directed to another quieter activity or rest if she tires quickly, gets red in the face or experiences labored breathing. The foster mother testified about the child’s profuse sweating if she is holding her and she becomes too warm, if J.G. is outside and it is too hot or humid, if she exerts herself too much or her heart is working too hard. When J.G. sweats, she described her whole head of hair as “completely, soaking wet” and said the same sweating can happen if, at play, she “follows T. down the hall five or ten times.”

[21] Ms. G.-H. testified about the constant vigilance required by J.G.’s frail cardiac condition as it was in October, 2011. J.G.’s face could turn “red and blotchy” or, at times, “pale and grey.” The foster parents had to constantly monitor her heart rate which could approach 200 beats per minute. A pulse higher than 200 required an immediate trip to the hospital. Ms. G.-H. administers melatonin to the child when she goes to sleep at night to settle her when her heart races and she sweats.

[22] D.H., the foster father, also testified about the effort required to care for J.G.. He obviously has a deep emotional attachment to the child. He talked about breaking down at the Hospital for Sick Children when he saw the little girl with “tubes and wires” in her body after the surgery. He related the very close monitoring she required after her return home and the restrictions on picking her up under her arms while her sternum healed. He too testified about medicine being very difficult to administer and J.G. continuing to protest. He said it is “not a pleasant chore, whatsoever.” Mr. H. talked about changing the form of the medicine and selecting and experimenting at the pharmacy with different flavours of the masking syrup to find one that J.G. would accept. He described trying medication syringes but finding that J.G. would have more difficulty keeping the medicine down or would choke, all while keeping up her protests. Mr. H. testified that he and his wife found, over time, that it was he who had better luck administering the medicine to J.G..

[23] Mr. H. described J.G.’s night terrors as being disruptive to her caregivers but says “we managed.” He was emphatic that he and his wife have absolutely never become angry with J.G. despite all her demands and special needs as they recognize her behaviour is “not her fault.”

[24] The foster father described mealtimes as “very much family oriented” with the children sitting at the table. He testified about the real problems they face feeding J.G. with her picky eating and aversion to some textures. He assists in feeding her but admitted “at times it’s a chore.” He said “It’s a challenge … you have to think [every meal] out … it’s day to day and requires you to be very flexible and patient.”

[25] Both foster parents gave evidence about the access visits J.G. has with Ms. N. and Mr. G. Ms. G.-H. makes extensive preparations for the visits at the Society offices, preparing a diaper bag and snacks of finger food or crackers which she knows the child will be able to eat and will accept. When visits started, J.G. buried her head in her foster mother’s chest at the drop off and said “No, mummy, I don’t want to go.” Ms. G.-H. reassures her when this happens, although she testified that sometimes the child will not stop crying. When she picks J.G. up after access, the foster mother sanitizes the child’s hands and face and puts her in the car with the air conditioning already on, takes her home and changes her diaper and clothes. She testified that the child’s clothes can smell of smoke and cat urine and, at times, her face and hair can have an odour after J.G. has been exposed to her parents at access and been kissed and hugged. Ms. G.-H. described J.G. as exhausted after an access visit. She is tired and cranky when picked up and very clingy with the foster mother.

[26] Mr. H. also testified about J.G.’s reluctance at first to go to access with Ms. N. and Mr. G. and her display of screaming, crying and burying her head in his shoulder. He also noticed unpleasant odours of smoke and cat urine from the clothes of J.G.’s parents.

[27] The foster parents gave compelling evidence about the bond and attachment between J.G. and her sister T.. Ms. G.-H. described the two girls as “inseparable” and said most of their time at home is spent playing together. They have their baths together and the foster parents read to them both together and singly. Ms. G.-H. testified that the girls are very connected and very attached to each other. She said the girls wake up and go find each other, immediately getting out books or toys. She said that T. acts like J.G.’s “second mom” and that J.G. looks up to her big sister.

[28] Sadly, events immediately before the trial led to a reassessment of J.G.’s cardiac condition and, by the time this lengthy trial continued in December, she had been booked for another surgery at the Hospital for Sick Children in Toronto. In a clinical follow up in late September, Dr. Rosenberg had determined that J.G. was displaying pulmonary hypertension and a thickening of her tricuspid valve. Dr. Ponti described the potential for right-sided heart failure or damage to her lungs from the daily strain of the higher pressure in the pulmonary arteries. Clinically, she expected the cardiac problems would not let J.G. keep up with her peers, that she would demonstrate poor exercise tolerance and would suffer shortness of breath during activities and daily living. Although drugs, of course, do exist to combat hypertension, including some specific to pulmonary hypertension, it is a serious disease and can lead eventually to ventricular failure and the necessity of a heart transplant.

[29] The Society social worker, Debbie McDonald, saw how much J.G. had changed by mid-November, 2011. Instead of rosy cheeks, her skin had a “grey” or “ashen” tinge. She would be winded even after a simple task. While she usually would head for the box of toys in the Society medical clinic and immediately begin intensive play, she now sat in one spot close to Ms. G.-H., not engaging with others. Her breathing was laboured.

[30] Dr. Ponti testified about the probability that J.G. will have to have a mechanical mitral valve emplaced, which would require a number of replacements as she grows and matures. The mechanical valve would necessitate lifelong anticoagulant prophylaxis to thin the blood, and a possible side effect would be a susceptibility to a “brain bleed” or stroke, possibly from a fall resulting from J.G.’s mild gross motor delays and atypical centre of gravity from the macrocephaly. She was also concerned that the blood vessels may be thinner in the space where a greater volume of fluid surrounds J.G.’s brain – leading to easier bleeding – and testified that J.G. already demonstrated an old resolved subdural haematoma on her MRI. Dr. Ponti emphasized the “very narrow [therapeutic] window” involved with anticoagulant therapy and the necessity of constant vigilance and consistency in the administration of the drug.

[31] Prior to taking up her position as a physician with the Children’s Aid Society, Dr. Ponti practised as a paediatrician in a hospital neonatal care unit. She is well versed in the particular stresses and demands on parents of acutely ill small children and very young surgical patients. She described the traumatic effect and emotional cost of these circumstances and the stresses surrounding the necessity of arranging alternate caregivers, being away in Toronto for each surgery for nine or ten days – even without post-operative issues or complications – the high level of care required on a day-to-day basis through the weeks and months of recovery, the constant monitoring of food, liquid and pain and the negative psycho-social aspects of post-surgical care including developmental regression and fear (which J.G. already showed).

A.N.

[32] J.G.’s mother, A.N., has had a troubled and unfortunate life. Both her father and mother, L.B., were members of the Canadian military. They separated when Ms. N. was two years old. L.B. then formed a relationship with D.B., a Salvadoran immigrant, who became the stepfather of A.N., her sister T.2 and brother R.. D.B. was physically abusive to all the members of his family. He sexually abused T.2 and A.N. for many years. Ms. N. described the almost nightly sexual assaults practised upon her from the ages of 11 to 18, at which point she began running away at night. She left the home to move in with a boyfriend, J.L., a very unsavoury and again physically abusive character who abandoned her immediately after impregnating her with her first child, T..

[33] A.N. never disclosed D.B.’s sexual abuse to anyone (because of his threat to kill L.B. if she did), but he was exposed when he was arrested, in her words, “for raping a stripper.” A.N. confided to her brother what had happened to her and he decided that the truth had to emerge – which led to the revelation that T.2 had been victimized as well. D.B. was charged with multiple offences and sentenced to 11 years in the penitentiary in 2008. Both A.N. and T.2 read victim impact statements at his sentencing.

[34] When D.B. was arrested and taken into custody, L.B. could no longer support herself on her income as a personal support worker. She lost her house, her vehicle, her job and most of her belongings. A.N. was then about seven months pregnant with T.. Mother and daughter moved to a shelter, the Salvation Army Centre of Hope, and stayed there until Ms. N. went into labour. The Children’s Aid Society sent a worker to the hospital when T. was born.

[35] After the baby was born, they were moved to a family shelter, which Ms. N. called “The Rotholme.” L.B. described being given rooms, diapers, formula for T., bus tickets, help in applying for London Housing and a new job. Shortly thereafter, however, Ms. N. began to hear voices in her head telling her to shake T. when she was crying and to smother the baby “till [she] couldn’t hear her cry no more.” The Children’s Aid Society was told and L.B. testified that the Society worker, Michelle Dubitsky, began trying to develop a plan whereby L.B. would supervise A.N. and T. whenever they were together. Ms. N. would move to a different room, leaving L.B. and the baby “under locked doors.” Ms. B. complained, however, that when the public housing unit at 95 Primrose Court became available, the Society did not allow her a chance to supervise but simply took the child. Ms. N. testified about moving at night with her new boyfriend, D.G., into the Primrose unit on November 15, 2007, unpacking boxes and sending L.B. and a friend to Merrymount Children’s Centre to pick up T. – who had been left there for respite care. The Society apprehended T..

[36] Harper J. made an order pursuant to s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] requiring Dr. Milton Blake to perform a parenting capacity assessment. At the time of the December 29, 2008 report, T. was the subject of a four month Society wardship order to which Ms. N. had consented on September 29, 2008.

[37] Although Dr. Blake found that Ms. N. possessed certain strengths and positive indicators, he found deficiencies in her parenting abilities in her borderline range of intelligence, inability to manage financially, past post-partum psychosis, post-traumatic stress disorder, insufficient empathy, parenting stress, self-esteem difficulties and depression. He recommended Crown wardship.

[38] In a subsequent assessment report concerning D.G., Dr. Blake found areas of personality dysfunction which, he said, would detract from his ability to be a responsive and responsible father. While he found it conceivable that psychotherapy and training over a long term could elevate Mr. G.’s parenting competence, he would not move from his recommendation.

[39] J.G. was born [...], 2010. For over a year, the Society worker had been pressing Ms. N. to resume her treatment with her physician, Dr. Tanya Rubiayyat, who she last saw in October, 2008. Ms. N. admitted to having missed some appointments. She promised to arrange to be seen but did not. She had periods when she was without her medication, although she offered no explanation about why she could not get herself to the pharmacy. Ms. N. complained about flashbacks to her stepfather’s sexual abuse. She worried the worker when she denied having heard “the voices” for only “the past four or five months.”

[40] As far as counselling was concerned, the Society worker, Ms. Al-Hamza, reiterated A.N.’s immediate need for assistance with her troubled mental state and arranged for a referral to Larissa Webb at Family Service Thames Valley but Ms. N. took eight weeks to start the counselling and apparently discontinued after three visits. She had concerned Ms. Al-Hamza in early March, 2009 when she admitted that she could notice no change if she did not take her prescribed medicine and, in May, Ms. N. told the worker that she was off the medication as it was unaffordable because D.G. had found employment – which turned out to be short-lived – and they were cut off from their Ontario Works benefits.

[41] By mid-May, Ms. N. had still not managed to make a doctor’s appointment. The telephone she shared with D.G. had been cut off again because a large bill was unpaid. The worker had given Ms. N. 24 bus tickets to get her to her three weekly access visits to T., but she missed most of them and was cut off the access program. She and D.G. professed to have five cats in the house and their clothes gave off a “very, very unpleasant … very strong smell,” apparently of cat urine. Ms. N. confessed to smoking marijuana every day because of back pain from the scoliosis of her spine.

[42] In a June 17, 2009 meeting at the Society offices, Ms. N. had again promised that she would make an appointment with Dr. Rubiayyat and was reminded again that she still needed an evaluation of her mental health.

[43] Ms. N. met with the worker on September 23, 2009 at the agency. Ms. Al-Hamza confronted her with the fact that her aunt Delilah had told supervised access staff that A.N. was pregnant. Ms. N. denied that Delilah had said that and also denied the pregnancy. The worker refused to give her more bus tickets in the face of her failure to cooperate, after which she said Ms. N. “went out the door and lit up a cigarette right in front of [her].” It was not until mid-November, 2009 at the Crown wardship hearing concerning T. when A.N. finally admitted that she would give birth in January. She promised to discuss her circumstances with the worker by telephone. She never did.

[44] On December 2, 2009, Ms. N. admitted to Ms. Al-Hamza that she was still having flashbacks to the sexual abuse she suffered. She said she would consider going back to Family Services Thames Valley if Larissa Webb would agree. With Dr. Blake’s recent negative assessment of Ms. N. and Mr. G., the very recent consent to T.’s Crown wardship, the lack of any apparent improvement in A.N.’s abilities and mental state, and the Society workers’ belief that Mr. G. had, years before, been involved in inappropriate behaviour with young children – which was later proved doubtful – it was decided that the Society would apprehend the baby at birth.

J.G. IN NEED OF PROTECTION

[45] Mr. Mann conceded in his argument that there were sufficient protection concerns to justify taking J.G. into Society care at her birth on [...], 2010. I agree. He now seeks, however, J.G.’s return to his clients, Ms. N. and Mr. G., subject to a supervision order that he said should be crafted with sufficient terms and conditions to assure the child’s best interests would be met in the future. That, of course, necessarily implies his acceptance of an initial finding that J.G. is in continued need of protection, and I make that finding on these facts pursuant to subclause 37(2)(b)(ii) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended].

[46] As required by subsection 47(2) of the Act, I find the child’s full name is J.G. She was born [...], 2010, the respondents being her natural parents. She has no stated religious affiliation and possesses neither Indian nor native status.

DISPOSITION

[47] Having made a protection finding, the last required determination involves J.G.’s best interests, this plainly not being a fact situation where no court disposition is required as in s. 57(9). The choice is between an order returning the girl to her parents or committing her to the care of the Society as a Crown ward. There is no reasonable prospect of a sudden and significant change in the respondents’ circumstances or abilities which could justify an extension of time pursuant to s. 70(4) of the Act.

[48] The necessary factual circumstances to be considered are set out in the statute:

Best interests of child

37(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 take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The child’s cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6. 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.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8. 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.

9. The child’s views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. 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.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

THE PSYCHOLOGISTS

[49] Dr. Milton Blake, a clinical psychologist licensed by the College of Psychologists of Ontario, gave evidence about his testing of A.N. and D.G. in the course of the parenting capacity assessment in early 2009 having to do with J.G.’s older sister. Dr. Blake was the long-time Chief Psychologist at the Oxford Regional Centre (for the developmentally disabled) in Woodstock, Ontario, and for nine years a part-time clinical psychologist in the Child and Family Service at Woodstock General Hospital. From 1995 to 2002, Dr. Blake served as the Program Director (Mental Health) and Program Coordinator (Dual Diagnosis) at the Child and Parent Resource Institute in London where, thereafter, he acted as a Psychology Consultant for three years. He works part-time now as a consultant in Clinical Psychology at the Huron-Perth Centre for Child and Youth and maintains a small private referral practice where he treats and assesses adults, children and families. For nine years he has evaluated the oral examinations of psychologists applying for registration by the College. Dr. Blake, over the past 27 years, has conducted over 250 court-ordered independent assessments under the Child and Family Services Act and the Children's Law Reform Act, R.S.O. 1990, c. C. 12. He has given evidence many times in various courts.

[50] Dr. Blake testified in general terms about his concerns over Ms. N.’s unfortunate background and the awful situations she has had to face in her life.

[51] First, with respect to the almost daily sexual abuse A.N. experienced at the hands of D.B., Dr. Blake agreed that she showed symptoms of post-traumatic stress disorder (PTSD) and expressed concern as to those symptoms’ possible impact on her abilities. He testified that mothers who have experienced abuse (sexual or otherwise) face a difficult struggle in parenting in a consistent and even handed manner. The stressful symptoms can interfere with a parent’s ability to care for a child and, in Dr. Blake’s view, untreated PTSD can have a significant compromising effect on a parent’s ability to parent in a responsible manner. In his view, exacerbating factors surrounding the sexual abuse involved the almost daily acts over seven years, which Dr. Blake expected would scar a vulnerable pre-adolescent, and the fact that the misconduct represented the very antithesis of the trusting relationship that is expected to exist between a stepfather and a child. Added to what Dr. Blake described as “trust issues” was the fact that L.B. was unable to intervene to protect her children.

[52] Dr. Blake testified that a victim facing continued abuse of this sort requires trauma therapy allowing controlled revisiting and reliving the events, followed by careful reframing and cognitive redevelopment to render what had happened less pernicious. In his view, a course of successful individual treatment would typically extend from six months to one year, although particularly severe symptoms might require years of treatment.

[53] Dr. Blake was asked about A.N.’s admission that she was diagnosed with ADHD at quite a young age. He testified that an attention deficit disorder can potentially affect a parent’s ability to recognize and respond to a child’s needs. Although he said that sometimes a child can “develop out of it,” medication can only control symptoms and cannot eradicate the disorder. He distinguished between the disorder type characterized by “impulsive hyperactivity” and the “predominately inattentive” type featuring various difficulties in focus, concentration and handling multiple tasks. This was important, because several Society witnesses testified about Ms. N.’s apparent inability to completely understand instructions or explanations. Deb Al-Hamza testified that she had a hard time communicating with A.N. throughout her involvement, because Ms. N. had difficulty understanding her – she described it as “a little bit of cognitive difficulty” – when she would explain something and later Ms. N. would ask the access staff the same question. The social worker Debbie McDonald described unusual behaviour on A.N.’s part at the medical appointments. She said she was “quite immature” in her presentation. When difficult, serious matters concerning J.G.’s health were discussed, Ms. N. “would giggle and make animal-like, monkey, noises.” She described A.N. as being “distracted … [she] appeared zoned out a number of times.” Ms. McDonald said she saw “bizarre behaviour” and “[making] strange noises … not listening and playing with her hair instead of listening” at the medical appointments.

[54] Dr. Blake responded to questions about Ms. N.’s experience of post-partum psychosis which led to the apprehension of T. in November, 2007. He testified that modern therapy usually restricts the extent of this disorder to a term of several weeks. In fact, more recent medical opinion from the psychiatrist Dr. Sharma assessed the possibility of another psychotic episode as negligible because the event followed childbirth and was precipitated by antidepressant therapy. In his July 8, 2011 note (Exhibit 20) to Ms. N.’s therapist, Dr. James Mendonca, Dr. Sharma described A.N. as “currently symptom free and [possessing] an excellent insight into her illness and the need to remain on medication for prevention of mood/psychotic episodes.” On that basis, there seems little relevance in the past psychotic event to the issues now before me.

[55] Dr. Mendonca was called on behalf of the respondents. Also an experienced clinical psychologist, he was awarded a Ph.D. in Psychology from the University of Western Ontario in 1974. For 19 years, he was the Coordinator of the Crisis and Short-Term Intervention unit at the St. Thomas, Ontario, Regional Mental Health Centre. After that, he directed the Crisis and Relapse Prevention Service at the Centre for ten years. He has received a number of past administrative appointments to the Thames Valley District Health Council. He is a part-time professor in the Department of Psychiatry at the University of Western Ontario where he has undertaken some research involvement. Commencing in 1990, he has worked part-time as a consulting psychologist at the London InterCommunity Health Centre and continues to do so. For the past eight years, he has conducted a part-time private practice as a clinical psychologist in London.

[56] I note that there is nothing in Dr. Mendonca’s background, experience or training which could qualify him to give an opinion about parenting capacity or parenting capacity assessments. This became clear in the voir dire concerning his qualification to give expert opinion. Although he testified to involvement with perhaps five assessments over all the time of his work, I think when he was a consultant with the Child Abuse Review Committee of Family & Children’s Services of St. Thomas and Elgin County, it was not clear if he actually performed the assessments or simply reviewed the reports of others as part of a group. On that basis, I allowed him to give expert opinion evidence only concerning clinical psychology generally, and specifically psychological testing.

[57] The importance of the conflicted expert evidence concerning psychological testing rests mainly with the competing views of A.N.’s global intelligence, because Dr. Blake found her to be only of borderline intelligence, whereas Dr. Mendonca was quite firm that his testing and assessment revealed that she is close to or at an average intellectual level.

[58] The other aspects of Dr. Blake’s earlier reports about A.N. and D.G. are really of little relevance or assistance to me in coming to a view of the probable abilities of the biological parents to perform as potential custodians of their daughter J.G.. A considerable time has passed since Dr. Blake’s parenting capacity assessment concerning the child T. over three years ago. Ms. N.’s intellectual capabilities, however, have considerable relevance, because Dr. Blake’s uncontradicted testimony was that adult intelligence is very stable and not likely to change over time, absent some unusual intervening factor, like an injury to the brain itself.

[59] As I have said, most of Dr. Blake’s parenting capacity assessment can have little relevance or probative value here. It was prepared over three years ago and had to do with another child. Dr. Blake assessed, at that time, both Ms. N. and Mr. G. with respect to their parental knowledge and understanding of age-appropriate expectations, empathy for a child’s feelings, tendencies about discipline and punishment and role reversal between parent and child. He also tested their susceptibility to excessive parenting stress and their reports of psychological distress and, in Mr. G.’s case, assessed his level of emotional stability. I emphasize that the determinations arrived at then are now considerably dated and, in Ms. N.’s case, probably affected by her recent diagnosis with a serious mood disorder.

[60] When so much time has passed, it is important to remember the cautionary words of Katarynych J. in Children’s Aid Society of Toronto v. R.(J.) (2003), 39 R.F.L. (5th) 257 (Ont. C.J.), when she spoke of the use of s. 54 assessments and confirmed that the evidentiary value of the opinion in a report must be limited to the information then made available to the assessor. She said in paras. 43 and 48:

But there is a price to be paid for this "fresh" and "independent" look. The only real certainty for a parent and child in this assessment process is the uncertainty of the snapshot that may emerge.

The utility of the assessment findings and opinion are only as good as the information upon which those findings have been based. Findings and opinions fuelled by histories taken by others put in issue the extent to which the histories themselves were an accurate depiction of circumstances and persons. Findings and opinions rooted in "tests" peculiar to the field of assessment, whether standardized or otherwise, for measuring aspects of human functioning are sometimes ill understood.

[61] That observation confirms for me the decision not to rely on much of the T. capacity assessment except for clinical findings like Ms. N.’s global intelligence which would not change over time, and any specific otherwise relevant admissions the respondents may have made to Dr. Blake.

[62] A.N. was seen in consultation by Dr. Verinder Sharma, a respected psychiatrist, in late July, 2010. Apparently, she had been referred for a review. Dr. Mendonca had first seen her at the behest of Dr. Rubiayyat at the InterCommunity Health Centre in May, 2010. At his second assessment, he began to administer the Block Design (Comprehension Index subset test) to Ms. N. Although only able to administer a portion of the test, he said he immediately scheduled a meeting with the Society representatives to inform them that Dr. Blake’s conclusion that Ms. N. possessed a significant global intellectual deficit could not be correct, and that she would score in the range of average intellect.

[63] Dr. Mendonca had not been well prepared for his examination-in-chief. He had assembled an overwhelming amount of material and references to support his view that Dr. Blake used improper testing instruments, applied incorrect norms, scored inappropriately and arrived at unsupportable conclusions about Ms. N.’s intellectual capabilities, general mental state and personality features. When questions from the respondents’ counsel faltered, Dr. Mendonca took the bit in his teeth and started to lecture. The result was unfortunate, and seemed more disquisition than testimony. Dr. Mendonca seemed unaware that the s. 54 assessment had been an independent court-ordered report. Instead, he spoke of Dr. Blake having been “retained” by the Society. The intensity and nature of his attack on Dr. Blake’s findings made it clear that he saw him as his adversary.

[64] Dr. Mendonca administered the Wechsler Adult Intelligence Scale (WAIS – IV) to Ms. N. In his report to Dr. H.A. Alam at the InterCommunity Health Centre of September 6, 2010 (Exhibit 23), he described Dr. Blake’s diagnosis and prognosis as “inadequately evaluated” and found her intelligence to be in the 45th to 50th percentile, stating that she is free from any developmental delay. In his evidence, Dr. Mendonca denigrated the Revised Peabody Picture Vocabulary Test (PPVT – R) employed by Dr. Blake as only a “screening device” compared to the Block Design and WAIS – IV instruments he used, which he said were better tests because they afforded a comprehensive assessment of intelligence measured over several aspects. He harshly criticized Dr. Blake’s assessment of Ms. N.’s intellectual capacity as “gross error.”

[65] Dr. Blake, in his examination-in-chief, had explained his use of the Peabody scale stemming from his many years of work with a developmentally delayed population at the Oxford Regional Centre. He said he was trying to be fair to Ms. N. and his experience over the years showed the Peabody test tended to be a better instrument when developmental delay was suspected. He had already received background information indicative of delay and had spent a number of hours with Ms. N. in interview. He was quick to endorse Dr. Mendonca’s preference for the WAIS – IV test as a more appropriate instrument to test most people but, in this case, chose the Peabody scale because of its lack of imposed time limits and resulting reduced anxiety for the individual tested. He also preferred the nature of the Peabody scale which required simple one-choice answers, without the necessity of any interpretation by the test administrator, and anticipated an advantage to Ms. N. because it was “more objective.” He compared this to the WAIS – IV instrument which, in a lot of the subscales, requires much more involvement of the assessor in interpreting responses. Although formally a test of hearing vocabulary, Dr. Blake testified that Peabody results have historically been shown to have a significant correlation to the WAIS – IV scores, both – as he said – measuring intellectual capacity “admittedly in different ways.” In Dr. Blake’s evidence, an overall correlation of .72 was “pretty high” statistically and demonstrated a significant convergence after many replications of the tests, with the Peabody test manual itself even predicting a slightly higher score on the Peabody scale than a WAIS – IV result.

[66] Dr. Blake said that Dr. Mendonca was entitled to his opinion that the Peabody scale was limited to use as a screening device – and conceded that it did not assess problem solving or spatial facility – but disagreed with that description because of the established “very high correlation” with WAIS – IV full scale intelligence results. Mr. Mann cross-examined Dr. Blake on a 1985 article (Exhibit 39) written by Dr. Forrest Umberger concerning the Peabody Picture Vocabulary Test – Revised but the text itself, at p. 494, supports the vocabulary component as the test which “correlates more highly with full scale IQ scores than any other subtest.” That seemed to me to be perfectly consistent with Dr. Blake’s evidence. I accept Dr. Blake’s opinion concerning the propriety of his choice of the Peabody instrument to assess Ms. N.’s global intelligence.

[67] Dr. Mendonca also assailed Dr. Blake’s exploration of the history of D.B.’s sexual abuse of Ms. N. and then proceeding to administer the test to measure global intelligence. He termed it a “major faux pas,” but Dr. Blake again disagreed, pointing out that a luncheon interval occurred between talk about the abuse and the testing and confirming that A.N. had displayed no sign at all of any distress during her responses to the rather simple questions she had to answer in the Peabody test.

[68] Dr. Blake frankly admitted he could not explain the divergent finding of intellectual ability reported by Dr. Mendonca in cross-examination by Mr. Mann. He said a different, higher, score of global intellectual capacity “would indeed surprise [him],” but the fact that A.N. had completed Grade 12 studies did not alter or affect his finding that she scored around the 10th percentile (the borderline range) in intelligence. Dr. Blake testified that Ms. N., as well, performed adequately during a lengthy interview but testified that, like the Grade 12 graduation, that “[did] not necessarily inform the broader question of her intellectual level.” It was his understanding, he testified, that Ms. N.’s scholastic experience at Catholic Central High School was “not at a regular class sitting.” Indeed, this is borne out by both the descriptions of the courses undertaken in the transcript provided by the London District Catholic School Board (Exhibit 27(b)) and Dr. Mendonca himself referring to her education being “in the occupational stream” (p. 2 of Exhibit 23). Mr. Mann, in cross-examining the expert, expressed surprise that a student with only borderline intellectual ability could graduate from a Grade 12 program, but Dr. Blake testified it was not unusual for a student with some developmental delay to complete high school, due both to the wide availability of special classes and an administrative tendency to “push through” the student to the next level. He expressed no surprise when reminded that Ms. N. had briefly been employed, explaining that an individual with a borderline intellect would be able to stock shelves and possibly even to act as a cashier.

[69] Pressed by Mr. Mann to try to explain Dr. Mendonca’s contradictory test finding that Ms. N. possesses almost average intellectual ability, Dr. Blake posited that Dr. Mendonca may have indulged in liberal test administration and scoring procedures which would have given her an advantage. He repeated that although different tests were administered and different dimensions of intellectual ability examined, it was quite unusual not to have a high correlation in the full-scale IQ. I accept both Dr. Blake’s testimony that Dr. Mendonca must have used “rather liberal scoring and interpretive methods” and his explanation that, when looking to be critical of other findings – as Dr. Mendonca clearly was – an effect known as a “demand characteristic” could cause him unconsciously to give the benefit of any doubt to Ms. N., inflating her scores.

[70] One of the interesting results of the recent comprehensive inquiry into expert evidence by the Honourable Stephen T. Goudge: Report of the Inquiry into Paediatric Forensic Pathology in Ontario, (Toronto: Ontario Ministry of the Attorney General: 2008, is a renewed scholarly interest in bias and opinion evidence. See Sordi v. Sordi, (2010) 82 R.F.L. (6th) 286, 2009 CarswellOnt 887 (Sup. Ct.) and Durham Children’s Aid Society v. A.S., G.S. and K.H., 2011 ONSC 1001 (Sup. Ct.). In the latter case, Scott J. referred to a recent article by David Paciocco, “Taking a “Goudge” Out of Bluster and Blarney: An “Evidence-Based Approach to Expert Testimony” (2009), 13 Can. Crim. L.R. 135, and said:

[27] In Professor Paciocco's aforementioned monograph relating to the assessment of expert evidence, as cited by Timms J. in Sordi aforesaid, the difficulty of discerning bias was described as a "complex problem":

... It can arise because the expert is not independent, being connected in some way to the party calling them. Or it can be a form of what has come to be known as "adversarial" bias, which arises either because the witness has been selected to fit the needs of the litigant rather than for the integrity of the opinions ("selection bias"), or because of "the natural bias to do something serviceable for those who employ you and adequately remunerate you ("association bias")." In our system we notionally assign experts to teams, and this has a strong tendency to predispose the witness. Bias can also stem from the professional interest of the expert in their theory or technique, or in their own credibility once having taken a position, or it can arise from "noble cause distortion," the belief that a particular outcome is the right one to achieve.

What makes the bias of expert witnesses so invidious is that it is often unconsciously held. Whenever anyone is attracted to a particular outcome for whatever reason there is a natural tendency to search for evidence that supports the desired conclusion or to interpret evidence in a way that supports it -- the phenomenon known as "confirmation bias." (footnotes omitted)

[71] Unfortunately, I find that Dr. Mendonca has somehow become an advocate for Ms. N.’s position and interests, although it must be said that, in cross-examination, he denied that, indignantly saying: “I’m completely behind good clinical work … I don’t marry my patient!”

[72] Last, Dr. Mendonca testified about Dr. Blake’s characterization of Ms. N.’s global intellectual impairment as demonstrating a mental capacity of around 14 years of age. He professed that “this kind of statement makes [him] sad” and firmly asserted that “psychology abandoned the concept of mental age related expressions since 1945.” Dr. Blake, however, did not join in this blanket condemnation of the practice at all. While agreeing that the use of mental age was “tending to fall out of favour” and was being used less, he thought it useful in the context of a parenting capacity assessment because it provided a helpful approximation for an intelligent reader who may yet be without much sophistication about psychological scores. That is why, in his view, the Peabody test manufacturers include the actual conversion table on the very back of the test. He testified it was a useful approximation. I agree.

[73] I find Dr. Blake’s assessment of Ms. N.’s global intelligence to be relevant, more probably than not, and correct when all of the evidence is taken together. I also think there is considerable evidentiary value in the balance of his testimony which did not concern the old parenting capacity assessment. Having said that, it is necessary to deal with some of Dr. Mendonca’s other complaints concerning Dr. Blake because they were so forcefully expressed and engaged so much time in both Dr. Mendonca’s evidence and the cross-examination of both expert witnesses.

[74] Dr. Mendonca was critical of Dr. Blake’s use of the Revised Symptom Checklist 90 - R (SCL90R) measuring self-reported psychological symptoms and distress, referring to it as a “screening inventory” of less comprehensive value than the MMPI (Minnesota Multiphasic Personality Inventory) which was one of a large battery of tests he administered to Ms. N. – some of which were repeated a number of times. I accept Dr. Blake’s explanation for his preferring the SCL90R tool because he was looking for the particular possible mental health problems with which Ms. N. actually presented, as opposed to a broad assessment of her personality features. Dr. Blake also convincingly deflected Dr. Mendonca’s objection to his employing scoring norms applicable to the general population. Dr. Mendonca had insisted that “outpatient” norms should have been applied to Ms. N.’s scores because she had, at that time, begun to seek psychiatric assistance. He applied those norms to his own SCL90R testing of Ms. N. and come up with a much more optimistic view of her mental state. I accept Dr. Blake’s evidence, however, that his task was to compare Ms. N. to the average member of the community with respect to her mental health status to determine if she displayed any clinical symptoms. I prefer his view that the outpatient norms would only be relevant if the tester were seeking to find improvement compared to patients receiving treatment. Dr. Blake completely dismissed Dr. Mendonca’s characterization of his use of the general population norms as a “graduate student mistake.”

[75] Dr. Mendonca had criticized Dr. Blake for the use of only a small number of testing scales and testified that a considerably larger battery of tests would be required to show “convergence” or a consistency in result. To my mind, Dr. Blake had a complete answer for this complaint when he testified that convergence became quite apparent to him for the purposes of a general parenting capacity report when his testing results coincided with his previous clinical observations and findings. I also accept his evidence concerning the propriety of his choice of the Revised Millon Clinical Multiaxial Inventory (MCMI – II) in his assessment of Mr. G’s mental health and personality functioning in April, 2009 instead of the later version MCMI – III which Dr. Mendonca so strongly endorsed. Dr. Blake was emphatic about his continuing comfort and confidence with the MCMI – II version. He testified that the view of the psychological community is that it still represents a “very sound instrument for assessing clinical symptoms” and demonstrates very strong validity data. I have reviewed my notes carefully concerning Dr. Mendonca’s attack on the use of that version and am not satisfied that his complaints were warranted, particularly when Dr. Blake easily agreed with Dr. Mendonca that he had found no personality disorder on the part of Mr. G, simply indications of a personality “style.”

[76] Dr. Mendonca tested A.N. with some of the same instruments employed by Dr. Blake and repeated some of the tests at intervals. His better test results were adopted in his findings in coming to an opinion and prognosis much more favourable to Ms. N. He passed it on to Dr. Sharma. While Dr. Mendonca denied the possibility of “response bias” or purposeful under-reporting of negative symptoms by Ms. N., I found Dr. Blake’s evidence much more persuasive when he was critical of readministration of a scale to a parent who has shown previous clinical elevations, when the surrounding circumstances involve the potential return of a child as a goal to which he or she would aspire. Dr. Blake gave an example of the SCL90R demonstrating a significant structural weakness in detecting under-reporting of symptoms where it would assist the test subject, and was quite clear about his suspicions concerning Ms. N.’s self-reporting about her condition to Dr. Sharma. She was then well aware what the parenting capacity assessment had said about her mental state and, in Dr. Blake’s view, there was a lot at stake for her. She was “fighting for her child” and it would not surprise him, he said, if she wanted to present a more positive and favourable impression to the psychiatrist and those assessing her.

[77] I also accept Dr. Blake’s evidence that the readministration of scales allows better scores because of familiarity with the questions, or a “practice effect.” I thought Dr. Mendonca’s evidence was weak when he testified that, after a delay, “one would not see that necessarily there would be a practice effect.” It seems to me much more probable that Ms. N. did benefit from the multiple administration of the test scales and that her better responses may not be completely realistic for that reason and may not support Dr. Mendonca’s more sanguine view of her parenting abilities.

[78] My acceptance of Dr. Blake’s assessment of Ms. N. having a borderline range of global intellectual function (between a developmental disability and average normal intellectual attainment) is of considerable importance because deficiencies in intelligence in a parent can potentially lead, in the expert’s view, to problems with proper judgment, proactive planning, assessing and sizing up an immediate problem and making a good decision, providing support as a child ages, problem solving with a child and, eventually, assisting a child with homework and relations with the child’s peers. This is all very relevant when one recalls J.G.’s health problems and extraordinary needs.

[79] Dr. Blake was quite complimentary about Ms. N.’s ability to look after many of the ordinary aspects of J.G.’s physical care, having had the opportunity to interview her at length, review the Society information available about her parenting of T. and observe her efforts with the latter child for a 90 minute supervised access visit. He expressed the view that A.N. would be quite able to feed, handle and clothe a young child, although he expressed a possible safety concern around her attentiveness. In his professional view, however, these physical aspects of caregiving are frequently less important than the needs of a child in the area of emotional development and that is where Ms. N.’s limitations might prevent her from recognizing, and responding to those needs. Notably, while testifying about meeting a child’s needs, Dr. Blake was unaware of the exceptional and unique vulnerabilities J.G. displays and will display in her fragile medical state in the future.

[80] Dr. Blake’s assessment scales and tests of Ms. N. in 2008 led him to suggest the presence of a mood disorder which, when combined with the post-traumatic stress disorder characteristics, allowed him to predict a negative effect on both her employability and the quality of her child care in her ability to meet J.G.’s needs. Now that A.N. has been diagnosed with a bipolar disorder (Type 2) and is being treated for that, he testified he was even more concerned about her parenting capacity.

[81] Dr. Blake had identified depression in his initial assessments of Ms. N. and, after more than two years had elapsed, Dr. Mendonca and Dr. Sharma diagnosed the bipolar Type 2 disorder. Dr. Blake testified that possibly the manic phase of the disorder had showed up in the meantime, leading to the diagnosis. He found it interesting that Dr. Sharma can now find no trace of bipolar disorder but Dr. Mendonca maintains it still afflicts Ms. N. While Dr. Blake testified that this demonstrated that knowledgeable people in the field can disagree, he certainly disputed Dr. Mendonca’s characterization of bipolar Type 2 disorder as “eminently treatable.” He insisted that if Ms. N. still has the bipolar disorder, it would be very important to monitor the extent of the symptoms and how they might affect her parenting ability. He stressed the necessity of maintaining proper medication and regular appointments with a psychiatrist to assess the sufficiency of the drug therapy. Dr. Blake was persuasive when he described the complexity of the disorder and the fact that some patients display life-long symptoms while others progress well only to have the symptoms reappear.

[82] Dr. Blake testified to the presence of a whole host of issues when a parent is afflicted with a bipolar disorder. Combined with the intellectual impairment, he said even treated bipolar disorder can feature continued depressive symptoms and tendencies which could negatively affect the parenting of a child. Dr. Blake described the probability that all Ms. N.’s personality shortcomings, including the residual trauma sequelae, could together produce “fluctuating restrictions” in coping, being constantly aware of a child’s needs and even in being able to travel to a child’s appointments. I think he is quite accurate in that assessment and the testimony of the social workers, and even the respondents, bears it out.

THE PARENTS

[83] Both A.N. and D.G. gave evidence. Ms. N., 24 years of age, was somewhat articulate but almost childlike in her responses. Her speech seemed somewhat sad and slightly stilted and monotonic. In cross-examination, she talked of “remembering things partially” and that she “almost always says ‘I believe’ because [she] can’t remember for certain.” She became quite confused in cross-examination and would easily become sidetracked into inconsistent and illogical responses. Mr. G., who just turned 35, in his evidence gave the same general impression. He was presentable and testified in a stolid and serious way. At times in his examination-in-chief, and certainly in cross-examination, he displayed frequent and serious failures of comprehension. He is not sophisticated. Like Ms. N., while he seemed to understand the issues on a superficial level, I was not convinced he mentally embraced or recognized the real needs and circumstances of his daughter J.G..

[84] Ms. N. was questioned about the descriptions of a significantly bad odour emanating from herself and her partner. She admitted that the Society complained about the seven cats which the couple had maintained and how the number was reduced until only one cat remained which, in fact, has now been disposed of. She attempted to divert some part of the blame for the bad smell and odour to the condition of the Primrose Court living unit which was provided to the couple by London Housing. It is much more probable that the smell noticed by the foster parent and some Society workers, however, was directly related to the cat urine and the strong smell of cigarette smoke on the parents’ clothing.

[85] The respondents were candid about the fact that they have had relatively little experience at competitive employment. Ms. N. enjoyed two months of short seasonal work at a Dollar Store, receiving a minimum wage allotment for stocking shelves, opening the store and acting as a cashier. After a time, she moved to work as a telemarketer at Millward-Intelliquest but quit shortly thereafter. She said it was “not something [she] would see doing for the rest of [her] life.” She has been receiving “OW” (Ontario Works government assistance) for a long time but says she is “trying to get on ODSP” (the Provincial disability plan). She reported that “D.G. is also on [her] cheque.” The couple exists on $410 monthly, their rent and hydro payments being made directly from the government. Naturally enough, on a gross of “$750 to $775 for both,” their finances are tenuous. They shop carefully for groceries and resort to the Food Bank when “[they] really need to.” They have no vehicle to use and apparently no ability to purchase and operate one. They walk to their destinations or bike. They enjoy the company of a number of friends who live reasonably close to them. For travel through the city to take part in some of J.G.’s medical appointments, they rely on bus tickets provided to them by the Children’s Aid Society, although Ms. N. did say that Ontario Works had recently provided her with a bus pass because she had passed the bureaucratic threshold of having three necessary weekly appointments to attend.

[86] Mr. G.’s work record is unusual as well. He admitted having lived with more than a dozen women partners in the years before coming to London and meeting Ms. N. about six or seven years ago. At that time he worked as a labourer at A-1 Restorations for just one season and then was relegated to occasional odd jobs. By the time he met Ms. N. about five years ago, he had been doing some body work at Abdul’s Auto Body “for a few months” before he was unemployed again. Mr. G. began living with A.N. shortly after T.’s birth and, presumably because he shared her Ontario Works income, he was required to take a course at Pathway’s Employment Assistance Centre. He took part in a two month course of Light Industrial Training concerning the safe operation of a lift truck and achieved a student placement at Rona, the home improvement store, but was let go after about eight months because of the seasonal nature of the work. Mr. G. declined seeking employment in that area later “because [he] didn’t like the job that much.” In her evidence, Ms. N. described Mr. G.’s only consistent work as fortnight stints over the past two or three years at the Western Fair in September when he is in charge of the pony rides, setting up and tearing down the site and walking the children on the ponies.

[87] The frail logic demonstrated by Mr. G. was revealed in examination-in-chief when he testified about a plan that J.G., if returned to her parents, would be looked after “presumably” by Ms. N. and her mother, L.B., who would “share the duties” if, as he anticipated, he found work which he envisaged “in construction” and “based around London.” He admitted, however, that he was “kind of looking for part time” until the court case concluded. He said he has been “walking around and talking to places” although “not recent, recent.” Unfortunately, I concluded that he was not as fixed or firm in his mind about his employment motivation when he promptly said in cross-examination that he would “avoid construction work because [he’s] done it and it’s too hard on [him].” The probability of his being engaged in substantial employment in the future appears somewhat thin.

[88] Ms. N. was referred to the Goodwill Careers Centre by the Ontario Works program in mid-2010 and was counselled by Jacqueline Winegarden who testified at the trial. A.N. was assessed and attended a series of classroom workshops and learned how to target a suitable job and go about finding employment. It was decided she needed special skills training and was taught “enhanced customer service skills” in a classroom setting. While she received some complimentary reports, she had difficulty and was not successful in the subsequent employment placement phase of the program. Ms. Winegarden said that her “personal situation [her upset over J.G.’s medical condition] was causing her difficulty and not allowing her the motivation and confidence to go out and do the job searching.” After a time, the program case attendant returned Ms. N.’s referral back to Ontario Works by reason of lack of participation and attendance. Her file was closed.

[89] All of the evidence discloses little likelihood of any real change in the financial and physical resources available to Ms. N. and Mr. G. in the foreseeable future. Certainly their ability to care for any child is severely circumscribed and, with respect to J.G. herself, there is abundant evidence of the extent of additional resources that are required to maintain her care. Although Ms. B. and Ms. N. herself mused during their testimony about the possibility of some additional extraordinary allocations of money being available from the disability plan or Ontario Works, there was no cogent or reliable evidence of that fact.

[90] There appears to be a strong bond between Mr. G. and Ms. N. which certainly stands in their favour. Indeed, they are effusive in their praise of each other as a parent. Mr. G. said that A.N. “did an amazing job” caring for T. and Ms. N. describes her partner as a “great dad.” They both express the utmost confidence in their abilities to meet all of J.G.’s needs. As Mr. G. testified: “I love the little girl with all my heart and I just want to have her home.” Even after sitting in court and listening to the testimony of the foster mother and foster father about the constant oversight of J.G. which is required, all the special requirements necessary to keep her safe and well, the special feeding problems and the need for trips to the pharmacy to obtain special medicine and her problems with her development and interrupted sleep, the respondents and L.B. all simply reiterate what Mr. G. said in his evidence: “We would do whatever we have to, to make it work.” At the time of the capacity assessment, Dr. Blake was worried by Mr. G.’s repeated assurance that Ms. N. was “quite fine” and that he would see no reason to actively participate in raising a child because he completely overlooked her intellectual limitations and other problems. That concerns me as well.

[91] It my view, all of Ms. N., Mr. G. and L.B. fail to really appreciate the nature and severity of the demands J.G.’s care would place on them. In fact, even Dr. Mendonca tested A.N. and came to a consistent conclusion: that A.N. generally did not see the parenting of J.G. as stressful or burdensome.

[92] I am also concerned about the lack of reality in the proposals of Mr. G. and Ms. N. With respect to the recurring issue of their insisting on smoking cigarettes, they say they accept as fact that, were J.G. to live with them, even residual smoke would be absolutely inimical to her health. They then respond with a most bizarre plan that they will smoke outside and, when each cigarette is finished, they will come inside, run upstairs, remove all their clothes to the laundry hamper for immediate washing and take a shower.

[93] The parents’ proposed responses to J.G.’s other special requirements are just as dubious. Any necessity to transport the child to an appointment or to the emergency department would be met by their calling around to find a friend who has a vehicle that has no smoke residue and has an air conditioner to prevent J.G. from overheating and suffering respiratory problems on the trip. They will provide an air conditioner for their new London Housing residence, wherever that is, although there was no cogent evidence about where the funds for the unit would come from. Ms. N. testified that she would continue with the dietician and therapist’s recommendations with respect to J.G.’s special food without, again, particulars about how she would actually carry this out. Questioned about facing a lack of money, as has happened from time to time, Ms. N. and Mr. G. indicated that they had friends from whom they could borrow money if they ran out. Interestingly, however, most of the friends who were called to the witness box to support Ms. N. and Mr. G. were themselves in receipt of public assistance.

L.B. AS A CUSTODIAN

[94] L.B. was put forward by Ms. N. and Mr. G. – should they be found incapable of caring for J.G. – as a responsible party who could live with them to provide an adequate home for the girl. Although she slipped on occasion and referred to herself as potentially obtaining “sole custody” of J.G., Ms. B. said her plan would be to come and move to London, near J.G.’s doctors and the hospital and testified that she would budget for taxi cabs to transport J.G. to appointments from her own disability support benefit.

[95] The possibility of L.B. filling a role in J.G.’s care arose during the hiatus which occurred in the middle of this lengthy trial. The circumstances of her coming forward are of note. Interestingly, Dr. Mendonca had treated L.B. and D.B. in 2000 in counselling sessions involving her recurrent problems with his physical abuse. In the witness box, L.B. testified that she had seen Dr. Mendonca recently “to see if [she was] willing to help A.N. with J.G..” She said: “He [Dr. Mendonca] arranged it and asked me to meet him at the All Saints Roman Catholic Church in Strathroy to talk to him ... he asked me what I could do to help A.N. and D.G. [G.]” L.B. responded by offering to move and then approached A.N. and D.G. to tell him that she would help. Ms. B. placed the time of this meeting as “probably October of this year,” as she knew the trial had already started. With respect to her motivation, she continued: “I will do whatever it takes to make my granddaughter live with her family ... I’ve already lost one granddaughter to the CAS – I’m not going to lose another.”

[96] Dr. Mendonca had a completely different story. He denied meeting L.B. for the purpose of encouraging her to present a plan to assist her daughter. He maintained that he “stayed far from that.” He said he was simply interviewing L.B. as part of his assessment in the therapy of Ms. N. He called it a “field visit.” He testified that it was Ms. B. who expressed an interest in moving to London and said: “That’s when that thing came out about her interest and that’s when I put her in touch with Mr. Mann.” In cross-examination, Dr. Mendonca admitted that he made no attempt to talk to Ms. N.’s brother or sister about the tragic events which befell her earlier in her life and also admitted that he had telephoned Mr. Mann after talking to Ms. B., although he maintained that they spoke of other matters as well.

[97] Dr. Blake thought it “not really appropriate” for Dr. Mendonca to go and discuss an issue at the trial with someone who had not testified at that point and questioned the combining of the roles of treating therapist with undertaking a critique or countervailing assessment and then getting a third party involved in an alternate plan. He said the College demands objectivity of a professional psychologist and requires the avoidance of dual or multiple roles to avoid a conflict of interest. He testified that the role of therapist is required to be supportive and empathetic and conflicts with that of the administrator of psychological tests requiring interpretation. All in all, Dr. Mendonca’s plain involvement in Ms. B. appearing mid-trial as a potential aid to Ms. N. and Mr. G. lends considerable support to the probability that his even unconscious bias in favour of his patient affected his findings and his scoring of the tests he administered.

[98] L.B., unfortunately, is a frail straw to grasp to save Ms. N. and Mr. G.’s opportunity to parent J.G.. She is pleasant, likeable and quite candid about herself and her circumstances. She has had a horrific background and considerable trouble in her relationship with A.N. when the latter was a younger girl. She suffered terrible abuse at the hands of D.B. – as did her whole family – and lost everything she had when he was sent to prison. She has met J.G. on only two or three occasions. That notwithstanding, she says “[J.G.] is my granddaughter, I love her ... she’s my number one priority.” Her evidence bespeaks an unrealistic yearning for the little girl to rejoin her family.

[99] Although L.B. has many illnesses and is restricted in climbing stairs by arthritis, she insists that she would be physically and financially able to attend to all J.G.’s special needs. Even without available transportation, she says she can take the child to her many medical and other appointments. While I am sure Ms. B. is well motivated and certainly means what she says, in my view it is highly unlikely that she has the wherewithal, physical, financial or otherwise, to carry through on her good intentions.

[100] Debbie McDonald conducted a wide ranging, intense interview with L.B. immediately after she sprang up as a potential caregiver for J.G.. Ms. McDonald was called back to the witness box and testified about the very exact information and questions she put to Ms. B. who was accompanied by Ms. N. In each case she quizzed Ms. B. about her ability to meet the child’s specific needs and was dismayed when L.B. simply responded “yup.” Oddly, Ms. N. did not provide any assistance or answer – in her evidence she said, oddly, that she was there only to support Ms. B. and was not part of the interview. Ms. B. testified that she was nervous in the interview and responds as she did when she is nervous. All in all, I am convinced that she put forward no specific plan or detail because she was bereft of a response. I am satisfied that Ms. B. does not really understand and appreciate the medical and developmental needs that J.G. presents. She purports to have no concerns at all about her ability and resources she can provide to her daughter. Although she bravely asserts: “I can do anything the foster parents do,” I know she is mistaken when I recall all of the evidence of the demands this little girl places on even the enormously competent and capable Ms. G.-H. and her husband.

[101] I am also satisfied that Ms. N. does not understand the impact of T. being adopted by the foster parents and the bond and attachment that has grown between the two sisters since J.G. was placed in that home. That bond and attachment would be severely impaired if J.G. were removed and placed with Ms. N. and Mr. G., even though Ms. N. asserted in the witness box that J.G. “could go home and see her sister every weekend ... there’s no way I am going to keep them two apart.”

[102] Finally, I am concerned about the real depth of the commitment Ms. N. and Mr. G. so earnestly say they have to J.G.’s care. When J.G. was hospitalized in Toronto, the Society paid for accommodation and transportation for Ms. N. and Mr. G. to attend at their daughter’s bedside. They had not had access for a considerable period because of her medical condition and now, by arrangement, were able to be with her in her hospital room for one hour, three times daily. J.G. was in the hospital from September 12 to the 25, but Ms. N. and Mr. G. left Toronto on the 18th and therefore gave up their available access for the last seven days. Cross-examined about the choice to leave Toronto, Ms. N. variously said that she had “ran through a brand new pair of shoes” and had no money to replace them. She said: “And also there were a few things I had to take care of at home.” She said she had to take care of their cat because the cat sitter was unable to remain. She said she found out “some people had tried to go through [her] kitchen window.” Interestingly, she was asked if she had considered staying in Toronto and visiting with J.G. while Mr. G. went back to London. She admitted that would have been possible but she “didn’t know Toronto ... it was [her] first time and D.G. had been twice before.” When Mr. G. was cross-examined about giving up the week of access with J.G., he had a different story. He said they left “because we thought she was okay and basically we assumed she’d be home in a couple of days ... we figured it was okay to go back.”

[103] I wondered, when Ms. N. testified, if she is much less independent than she would have me believe and if she requires leadership and the presence of Mr. G. more than she wants to admit. In re-examination, she insisted that her ability to go out alone, walk around and do things had returned to her by early 2010. These were things she swore she was not able to accomplish because of the residual symptoms of the trauma she experienced since she was 16 or 17 years of age.

[104] My doubt about Ms. N.’s asserted level of functioning and the extent of her commitment to her daughter was underscored by the evidence of the Society worker Julie Smith called in reply by Mr. Belecky. She had met with Ms. N. and Mr. G. at the Society offices on October 4, 2011, a few days after this trial had adjourned for continuation. She reviewed three upcoming appointments for J.G.: an October 19 meeting with the dietician, an October 26 medical review at the Society offices and a December 13 appointment with the cardiologist where J.G.’s serious crisis would be discussed. After making sure the parents understood about the meetings, Ms. Smith prepared a handwritten memorandum and gave it to them, promising to write a letter to confirm the actual site of the dietician and cardiologist consultations. That letter (Ex. 41) confirmed the times and locations of the appointments and extended an offer of 40 bus tickets to get the parents to the meetings. In the middle of the trial about J.G.’s potential placement, one would have thought that the parents would have put their best foot forward to demonstrate their commitment to their daughter; however, they did not attend any of the three appointments. Despite Ms. Smith calling for confirmation of their attendance on October 19, she was told by Ms. N. that she and Mr. G. “wouldn’t be able to make it there in time.” Given an opportunity to respond, Ms. N. testified that that particular appointment was at the Cherryhill Mall and said that she was “not that familiar with London ... that part of it.” She said that Mr. G. was helping a friend with some house renovations and they were at the stage of pouring concrete. Apparently when he was available they had only 45 minutes to get to the Cherryhill Mall. From her demeanour and the way she tendered her evidence, I had substantial doubt that she was able to get herself to the appointment and that she needed the presence of Mr. G.

[105] It appears clear that the couple forgot the other appointments. Mr. G. admitted that to Ms. Smith the day after the cardiology appointment and Ms. N. was beside him when the admission was made and did not contradict it. Although Ms. N. admitted obtaining the bus tickets, she explained that the couple “accidentally misplaced the memorandum” and “accidentally deleted” details of the appointments that she had recorded in her cell phone.

[106] I have no confidence in the promises and assertions of these respondents about their ability to respond to the unusual level of care their daughter requires. I would have expected more commitment on their part at a time when they were obviously under some scrutiny and in the middle of a trial concerning their daughter’s future.

[107] In considering all of this evidence in the context of J.G.’s best interests, past performance is, admittedly, no guarantee of future conduct; but in the context of probability, it can be a predictor.

[108] The foster parents are clearly bonded with J.G. and have completely accepted her as a part of their family. While a court should be cautious about allowing foster parents to gain advantage over, and compete with, natural parents, Mr. G. and Ms. N.’s inadequate plan and inabilities cannot overcome the primary attachment that J.G. has developed with her foster parents during almost all of her young life. In this case involving extraordinary special needs of a child, a comparison between her parents and the foster parents is both appropriate and essential: Children’s Aid Society of the Niagara Region v. W.D., [2004] O.J. No. 475 (Sup. Ct.).

[109] These reasons already deal extensively with most of the enumerated “best interests” considerations in subsection 37(3): J.G.’s needs and required care (clause 37(3)(1)); the child’s level of development (clause 37(3)(2)); the importance of continuity in her care and the risk to J.G. if that continuity were disrupted (clause 37(3)(7)); the impossibility of delay (clause 37(3)(10)) and the potential risk to J.G. of a return to her parents (clause 37(3)(11)).

[110] While some other clauses bear little importance on these facts, the unanimously expressed and heartfelt desire of the parents and L.B. to have J.G. introduced again as part of her natural family, the members of which have never been given a chance to care for her (just as they had only a scant opportunity to raise her sister T.) requires comment. Familial relationships are an important consideration in the statute as set out in clauses 37(3)(5) and (6). I can do no better than the exposition of Thibodeau J. in Children’s Aid Society of Haldimand and Norfolk v. J.A.M., 2011 ONCJ 53, [2011] O.J. No. 723 (Ont. C.J.) in para. 24:

• Paragraph 37(3) para. 5: "The importance for the children's development of a positive relationship with a parent and a secure place as a member of a family."

This paragraph in the context of section 37 itself, including subsection 37(1) -- definition of "parent" -- cannot be used by the society or the foster parents to advance the children-and-foster-family relationship directly. The juxtaposition of the defined word "parent" with the undefined word "family" in this paragraph does not lend itself to the interpretation that the word "family" can mean the foster family. Neither does paragraph 1(2) para. 1, which in the purpose and scheme of the Act, clearly refers to parents of first instance before apprehension with the result that the words "autonomy and integrity of the family unit" must relate to that kind of parent. It is too far a stretch to equate a biological family unit or a family unit prior to intervention with a foster family after intervention that is mandated to care for a child solely through a society, which alone has authority over the foster family. A foster parent is expressly not a "parent" for purposes of Part III (Child Protection) of the Act based upon the definition of "parent" contained in subsection 37(1) therein. ...

However, the definition collaterally emphasizes the need for consistency and permanency as a specific goal for the proper care of children, in general, by including in the definition of parent a right of a child, not the parent, to have a caregiver who has demonstrated a minimum 12-month involvement with concomitant settled intention, to be the physical and emotional caregiver for the children. Here paragraph 37(3) para. 5 reinforces the importance attached to continuity of proper and appropriate care in providing for the well-being of children.

The general proposition for all children that they have a positive relationship with a parent or parental figure and a secure place in a stable family environment is particularly important for these two children. Their circumstances are such that a pivotal aspect of future successful treatment leading to progress and opportunities for a normal healthy life is an uninterrupted and unchallenged participation in a secure routine in a stable family group aided by appropriate professionals for years to come.

• Paragraph 37(3) para. 6: "The children'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."

Here the emotional ties are not to a biological parent, as contemplated by paragraph 37(3) para. 6 [sic] of the Act but to the emotional parents, the foster parents, caregivers for all of the memory lives of these two children. Now and for some time, the foster family will be the pivot point for the children's community interaction...

[111] Ms. G.-H. and her husband have been J.G.’s emotional parents. Her other significant tie is to her sister T., now the foster parents’ daughter. When one combines these important bonds with the statutory insistence on security for a child expressed in clause 37(3)(5) and the real risk to J.G. if the efforts of the parents and L.B. to care for her fall short, a return to them would be inimical to her best interests and is impossible.

THE RESULT

[112] An order will go making J.G. a ward of the Crown and committing her care to the Children’s Aid Society of London and Middlesex. There will be no order for access, although I do hope that the foster parents will continue their practice of sending pictures and cards to Mr. G. and Ms. N. of both the girls.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Released: April 2, 2012

COURT FILE NO.: C1953/07-03

DATE: April 2, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX

Applicant

• and -

A.L.N. and D.G.

Respondents

REASONS FOR JUDGMENT

VOGELSANG J.

Released: April 2, 2012