This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: C 2133/10
DATE: 2013/04/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
– and –
D.S.
Respondent
Treena Watts, for the Applicant
Joel Kerr, for the Respondent
HEARD: January 31, 2013, February 1, 2013, March 1, 2013
The Honourable Madam Justice Deborah L. Chappel
JUDGMENT
I. INTRODUCTION
[1] This was the trial of a Protection Application which the Children’s Aid Society of Hamilton (“the Society”) commenced on December 6, 2010 respecting the female child B.S. (“the child”), who was born on […],2010. The Respondent D.S. (hereinafter referred to as “D.S.” or “the mother”) is the mother of B.S. The Society initially requested an order for six months society wardship. However, on September 19, 2011, the Society amended its Protection Application to request an order for crown wardship without access, for the purpose of placing the child for adoption.
[2] B.S. was apprehended at birth on December 1, 2010 and has remained in the temporary care of the Society on a consistent basis since that time. The mother is requesting an order that B.S. be returned to her care, and is agreeable to the Society monitoring the placement through a supervision order.
[3] For the reasons that follow, I am dismissing the Respondent’s request that B.S. be returned to her care, and I am ordering that B.S. be made a crown ward without access for the purpose of allowing the child to be placed for adoption.
II. BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS
[4] I make the findings of fact set out in this section respecting the mother’s background and the history of these court proceedings based on the evidence adduced by the Society and the mother at trial.
[5] D.S. is forty years of age. She was born on[…], 1973 in Ithaca, New York. She moved with her mother and brother to Ontario after her parents separated and remained in her mother’s primary care after that time. She completed High School in Burlington, Ontario and continued her studies at G[…] University, where she eventually completed a Bachelor of Arts Degree in Social and Applied Human Sciences. Subsequently, she attended N[…] College for a Media Studies diploma. D.S. was unable to complete her Media Studies program at N[…] College because she was involved in a motor vehicle accident in 2000 which caused injuries to her neck, shoulder, back, hip, and leg.
[6] D.S. has a history of mental health difficulties commencing from the age of nine years. The details of this history are described in fuller detail below. Her family physician, Dr. Grzeslo, has been involved in her physical and mental health care since she was a child. The mother reports that her mental health difficulties intensified after her motor vehicle accident in 2000. As a result of her mental and physical health difficulties, D.S. applied for and has been in receipt of disability benefits from the Ontario Disability Support Plan since approximately 2000.
[7] D.S. became pregnant with B.S. in 2010. The father of the child, K.R., was found not to be a parent within the meaning of the Child and Family Services Act[^1] (the “CFSA”) by order of Pazaratz, J. dated July 12, 2012. The Society initially became involved with the mother as a result of a referral on June 10, 2010 from Martha House staff, who reported that B.S. was pregnant and that she had a history of mental health difficulties. Subsequently, on June 14, 2010, the Society received a second referral from Ms. Alyson Young of the Maternity Centre in Hamilton, who also relayed concerns about the mother’s history of mental health difficulties.
[8] Society Intake Worker Ms. Melanie Temple was assigned to work with the mother on July 13, 2010. Ms. Temple apprehended B.S. at birth on December 1, 2010 on the basis of concerns respecting the mother’s history of mental health difficulties, her inconsistent compliance with treatment recommendations and medication, the quality of her support network, her physical ailments which the Society felt could impact on her ability to care for B.S. and concerns regarding the mother’s insight into her health difficulties.
[9] As previously noted, the Society commenced a Protection Application on December 6, 2010, requesting an order for six months society wardship. On December 6, 2010, Mazza, J. granted a temporary order providing for B.S. to remain in the care of the Society, with access to D.S. in the discretion of the Society and supervised in the Society’s discretion. The Society amended its application on September 19, 2011 to request an order for crown wardship without access. On October 7, 2011, it brought a motion requesting an order requiring the mother to undergo an assessment pursuant to section 54 of the CFSA, and for the standard statutory findings pursuant to the CFSA. D.S. did not appear on that motion, and her counsel did not have instructions from her. Accordingly, Lafrenière, J. made an order on an unopposed basis on October 7, 2011 requiring D.S. to undergo a parenting capacity assessment by Dr. Milton Blake, finding the child B.S. to be in need of protection pursuant to section 37(2)(b)(i) and (ii) and (g) of the Child and Family Services Act, and finding the child to be non-Catholic, non-Native and non-Indian.
[10] Dr. Blake completed his assessment on March 30, 2012. Following receipt of the assessment report, the Society brought a summary judgment motion originally returnable on June 18, 2012, requesting an order for crown warship without access. The hearing of the summary judgment motion was delayed due to issues relating to the mother’s legal representation. The motion finally proceeded on November 15, 2012, at which time Steinberg, J. dismissed the Society’s motion and scheduled a trial of the matter.
III. POSITIONS OF THE PARTIES
[11] The Society is requesting an order for crown wardship without access, for the purposes of placing B.S. for adoption. It correctly notes that by virtue of the time limitations set out in section 70 of the CFSA for a child of B.S.’s age to remain in care, the only options available to the court are crown wardship with or without access, or a return of the child to the care of the mother either with or without Society supervision. No other family members or members of the community have advanced alternative plans for B.S.’s care. The Society’s position is that D.S. is unable to meet the child’s basic physical, developmental and emotional needs due to her own mental health and physical challenges, her limited insight into the seriousness of her personal issues, her longstanding pattern of inconsistent follow through with treatment recommendations and her parenting deficits. It submits that less intrusive alternatives have been attempted and have not satisfied the child’s need for permanency. In addition, it argues that B.S.’s history of inconsistent compliance with treatment, her inconsistency in the level of her cooperation with Society and other community professionals, and the results of her personality testing all point to the conclusion that the protection concerns respecting B.S. could not be adequately addressed by means of an order placing B.S. in her care subject to Society supervision. With respect to access, the Society’s position is that the child does not have a meaningful bond with D.S., and that access would therefore not be beneficial to the child.
[12] D.S. seeks an order placing B.S. in her care subject to Society supervision. She is agreeable to numerous terms of supervision, including provisions requiring her to follow through with recommendations for community services and treatment recommendations made by medical professionals. She acknowledges that she has at times been inconsistent in taking her medications in the past, but states that she is now compliant and stable from a mental health standpoint. She states that she has demonstrated an ability to meet the child’s physical and emotional needs during supervised visits when her mental health has been stable, and that she will now be able to meet B.S.’s needs on a consistent basis given that she is compliant with her treatment and has demonstrated a period of stable mental health. With respect to access, the Respondent agrees with the Society that if an order for crown wardship is granted, there should be an order for no access. She takes this position because she feels that it would be too disruptive to her daughter to have ongoing access if she is placed with a family on a long term basis.
III. CREDIBILITY AND RELIABILITY
[13] The only witnesses in this case were D.S. and the assessor, Dr. Milton Blake. With respect to the mother, I had significant concerns about the accuracy of her perspective and recollection of events. It was difficult to determine whether this problem was attributable to credibility concerns, or whether it stemmed from reliability concerns arising as a result of D.S.’s mental health difficulties. As discussed in further detail below, the mother has a longstanding history of significant mental health challenges. Regardless of the underlying cause of my concerns regarding the mother’s testimony, I conclude that her evidence was not believable in many respects, had to be considered with great caution, and that the evidence of Society workers should be preferred over hers in cases of conflict.
[14] There were a number of times during D.S.’s testimony when her focus waned, she lost track of what she was talking about, and had to be reminded about the topic which was being explored with her. Concerns about her reliability with respect to past events became particularly apparent when she testified about her mental health history. She was unable to remember some admissions to hospital or the reasons for the admissions, and with respect to other admissions, her recollection of events was drastically different from the version of events set out in the medical records. For example, with respect to her hospitalization in October 2004 to the Penetanguishene Mental Health Centre, D.S. denied that she had attempted to commit suicide by overdosing on medications. Her version of events was that she ran out of her fentanyl medication for pain, took extra hydromorphone to make up for the lack of fentanyl, suffered from withdrawal from the fentanyl, and she tried to call a taxi to pick her up but the taxi could not find her in the woods. However, the medical records relating to this admission indicate that she made a very serious suicide attempt by overdosing on not only hydromorphone but various other medications and marijuana, that she in fact had her numerous medications, including fentanyl, in her possession when she was found, and that she could not make any telephone calls because the battery on her cellular phone had died. With respect to D.S.’s admissions to Joseph Brant Hospital in August and September/October 2005, the medical records clearly indicate that she was brought to hospital by police on both occasions because she was found by police hanging from the railing of her balcony. On the first occasion, she was threatening to jump, and on the second occasion police noted that she had broken the glass door of the balcony to get outside. During her testimony, however, D.S. adamantly denied that she was suffering any mental health difficulties on those occasions, and criticized the police for accusing her of being suicidal. Furthermore, although the medical records relating to D.S.’s admission to hospital for mental health difficulties outline numerous incidents when D.S. presented as delusional, D.S. testified that she believes that she has only been delusional on one occasion, when she believed that a young girl who she was at the hospital was her own daughter.
[15] My concerns respecting D.S.’s reliability are also based in part on her inconsistent explanations for the many visits which she missed with B.S. During her testimony, she insisted that most of the missed visits were attributable to a respiratory infection which was so serious that she could not function properly for three or four months. However, she did not provide any medical documentation to support this explanation, and in her affidavit sworn October 22, 2012, she stated that she believed her missed visits were all due to her mental health issues. She did not make any mention whatsoever in that affidavit of having suffered any respiratory illness which impeded her ability to attend visits. With respect to visits which she missed while she was hospitalized in the summer of 2012, D.S. insisted that she had called the Society while she has in the hospital to request access. However, the Society has no record of her having called during the period of her hospitalization or after her discharge. Ms. Nicol’s evidence is that D.S. did not ask for visits to resume with B.S. until after Ms. Nicol finally learned about the hospitalization and called D.S. on August 14, 2012, approximately one month after D.S. was discharged from hospital.
[16] Dr. Blake noted a number of concerns regarding D.S.’s credibility/reliability during his assessment process. For instance, he noted that D.S. refused to meet with him on the originally scheduled appointment date of December 19, 2011, and subsequently stated during his interview with him on February 8, 2012 that she had told him that she could not meet because she had pneumonia. However, he emphasized that D.S. had not made any reference to having pneumonia when he saw her at her visit with the child on December 19, 2011.
[17] Finally, on the important issue of D.S.’s follow up with treatment recommendations for her mental health issues, I have concern regarding inconsistency in D.S.’s statements regarding her involvement with Community Schizophrenia Services (“CSS”) following her most recent discharge from hospital in mid July 2012. On December 10, 2012, D.S. advised Family Services worker Ms. Spoelstra that she had seen Dr. Kiang at CSS once already, that she was following up with him once per month, and that she had seen the social worker at CSS, Kathleen, on two occasions. In fact, Ms. Spoelstra later confirmed with CSS, and the mother admitted at trial, that D.S. had not yet seen Dr. Kiang, that she had missed her initial appointment with him scheduled for December 7, 2012 and that her initial consultation with him had therefore been rescheduled for April 26, 2012. She told Ms. Spoelstra on December 14, 2012 that she missed the initial appointment with Dr. Kiang because she was ill, but at trial, she testified that she had missed it because she wrote down the time of the appointment incorrectly.
[18] With respect to Dr. Blake, I found him to be a highly credible witness. He was fully responsive to questioning both in examination in chief and cross examination, answered questions calmly and appropriately even when under aggressive cross examination, and in my view provided completely fulsome and satisfactory responses to challenges to his report raised by defence counsel. I did not have any concerns regarding any inconsistencies, gaps or errors in his evidence or report. There were a number of inconsistencies between D.S.’s evidence and that of Dr. Blake. For instance, Dr. Blake testified that D.S. failed to show for her first appointment with him on December 19, 2011, and that she also failed to attend when he offered to meet later that day at the Society’s offices. D.S. testified that she called in advance to tell Dr. Blake that she would be late. In fact, she did not attend the meeting at all. Furthermore, she testified that she offered to have a meeting with Dr. Blake at her home later that day, stating that she was not feeling well. Because of my general concerns regarding the mother’s reliability, I accept Dr. Blake’s evidence over hers in cases of conflict between their evidence.
IV. THE LAW
A. The Stages of a Protection Application
[19] The Society commenced the Application that is the subject of these proceedings pursuant to Part III, section 40 of the CFSA, which provides that a Society may apply to the court to determine whether a child is in need of protection. Once a Society commences an application under section 40, the court is required by virtue of section 47 of the Act to hold a hearing to determine whether the child is in need of protection, and to make an order under section 57 of the Act relating to placement of the child.
[20] The hearing of a Protection Application involves four stages, as follows:
a) The court is first required to determine whether the child who is the subject of the proceeding is in need of protection within the meaning of section 37(2) of the CFSA.
b) If a protection finding is made pursuant to 37(2) of the CFSA, the court must determine if further intervention through a court order is necessary to protect the child in the future.[^2]
c) The court must then make a determination regarding the placement of the child that is in the child’s best interests.
d) Finally, the court must decide the issue of access to the child.
[21] Evidence relevant to the protection finding, disposition and access arising any time up to the date of trial is admissible in a child protection proceeding, subject to the requirements of adequate disclosure to all parties.[^3]
[22] In this case, an order was already made on October 7, 2011 finding B.S. to be in need of protection pursuant to subsections 37(2)(b)(i)(ii) and (g) of the CFSA. These provisions relate to risk of physical harm to the child as a result of failure to or pattern or neglect in caring for, supervising or protecting the child, and risk of emotional harm to the child. The only issues to be determined are therefore placement of and access to B.S.
B. Placement of the Child
[23] The starting point for determining the issue of placement in child protection proceedings is section 1(1) of the CFSA, which stipulates that the primary purpose of the Act is “to promote the best interests, protection and well-being of children.” The court is required to advance this primary purpose taking into consideration the other purposes of the Act, which are set out in section 1(2) as follows:
Other purposes
1(2)The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:
To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
To recognize that children’s services should be provided in a manner that,
i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.
To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.
To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.
[24] These other purposes set out in section 1(2) indicate that in carrying out its duties under the CFSA, the court is required to analyze the best interests of the child with an eye to the importance of supporting the family, maintaining the family intact if possible, and accessing community supports if appropriate to promote the best interests of the child and the integrity of the family unit.[^4] The non-interventionist principles set out in section 1(2) are not aimed at strengthening the rights of parents, but rather are founded on the importance of keeping the family intact if this is consistent with advancing the child’s best interests.[^5]
[25] Where the court is satisfied that the child is in need of protection, but that a court order is not necessary to protect the child in the future, the court must order that the child remain with or be returned to the person who had charge of the child immediately before intervention under Part III of the CFSA.[^6] If, on the other hand, the court determines that ongoing court intervention is required for the child’s protection, section 57(1) directs the court to make one of the following orders, “in the child’s best interests:”
a) An order under section 57.1 granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons;
b) An order that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than twelve months;
c) An order that the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months;
d) An order 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.
e) An order that the child be made a ward of the society for a specified period under section 57(1)2 and then be returned to a parent or another person subject to society supervision under section 57(1)1, for a period or periods not exceeding an aggregate of twelve months.
[26] Section 57(1) of the CFSA confirms that “the best interests of the child” is the governing principle for determining placement of a child in a protection application. Section 37(3) sets out the following factors which the court is required to consider in carrying out the best interests analysis:
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:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
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.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
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.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
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.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[27] Sections 57(2)(3) (4) and (5) of the CFSA outline a number of additional factors which the court is required to consider in deciding the question of placement in the context of a protection application. These provisions reinforce that in child protection proceedings, the best interests analysis occurs against a backdrop that recognizes the desirability of assisting and maintaining the family unit through community and family support, if doing so is consistent with the child’s best interests. The sections provide as follows:
Court to inquire
57(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4).
Less disruptive alternatives preferred
(3)The court shall not make an order removing the child from the care of the person who had charge of 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. 1999, c. 2, s. 15 (1).
Community placement to be considered
(4)Where the court decides that it is necessary to remove the child from the care of the person who had charge of 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. R.S.O. 1990, c. C.11, s. 57 (4).
Idem: where child an Indian or a native person
(5)Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,
(a) a member of the child’s extended family;
(b) a member of the child’s band or native community; or
(c) another Indian or native family.
[28] The duty which section 57(3) places upon the court to consider whether less intrusive alternatives would be adequate to protect the child involves reviewing the services which have been offered to the family, and whether the parties and the child have benefited from the services. This inquiry should include an analysis of whether the services which have been recommended and implemented are sensitive and responsive to the family’s particular needs.[^7]
[29] Section 70(1) of the CFSA circumscribes the relief available on a Protection Application by precluding the court from making an order for society wardship that will result in the child being in a Society’s care for a period exceeding the time limits set out in that section. Subsections 70(2) and (3) describe the manner in which the time periods are to be calculated, and section 70(4) sets out circumstances when the court may extend the time limits. In the case of a child who is less than six years of age at the time that the court makes an order for society wardship, the order cannot result in the child being in care for a period exceeding twelve months.[^8]
[30] In this case, the Society is requesting an order for crown wardship. This is the most intrusive order that the court can make in child protection proceedings. The court should only grant this relief with “the highest degree of caution and only on the basis of compelling evidence, and after a careful examination of possible alternative remedies.”[^9] Furthermore, caution should be taken not to judge parents of limited means and potential by unfair, unrealistic middle class standards of child care, provided that the standard that is actually used is not contrary to the child’s best interests.[^10] However, the court must ultimately maintain a focus on the needs of the child, and the importance of pursuing permanency planning for the child within a timeframe that is sensitive to those needs.[^11] Where a parent has demonstrated a significant history of dysfunction impacting on their parenting capacity, a request that they be given more time to prove their parenting capacity must be very carefully and critically scrutinized to determine whether any meaningful, longstanding change is realistic. The longer the child has been in care, the more intense the focus will become on the child’s right to a secure and stable long term placement within a reasonable time frame.[^12]
C. Access
[31] Pursuant to section 58(1) of the CFSA, the court may make, vary or terminate an order respecting a person’s access to the child, or the child’s access to the person, and may impose terms and conditions on this access which the court considers appropriate. If an order for crown wardship is made, the focus of the CFSA is to ensure that the child benefits from a permanent and stable placement.[^13] Section 59(2.1) of the CFSA establishes a presumption against access if the child is made a crown ward, as follows:
Access: Crown ward
59(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.
[32] The onus is on the party seeking access to satisfy the court on a balance of probabilities that the criteria set out in section 59(2.1) have been satisfied.[^14] With respect to the first branch of the test, the focus is on the importance of the relationship from the child’s perspective. Quinn, J. outlined a number of important principles relating to the test in Children’s Aid Society of Niagara Region v. J.(M).[^15] He held that a beneficial relationship is one that is “advantageous,” and a meaningful relationship is one that is “significant.” He concluded that the existence of some positive aspects in the relationship between a child and a parent is not sufficient to meet the first part of the test in section 59(2.1); rather, it must be shown that the relationship is significantly advantageous to the child.[^16] Further, he held that the focus of the inquiry is the nature of the current relationship between the child and the party in question, and not on how that relationship may unfold in the future. Finally, he concluded that even if the parent proves that the relationship is beneficial and meaningful, the court must still weigh the overall benefits of access to the child as opposed to no access before making a decision on the access issue.
[33] Evidence indicating that a parent loves the child, that the child loves the parent, and that some visits were pleasant will not necessarily be sufficient to establish that the relationship is meaningful and beneficial to the child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child’s emotional health and well-being.[^17] Furthermore, the focus of the inquiry is the nature and quality of the relationship between the child and the parent at the time of trial, and not a relationship hoped for in the future.[^18]
[34] With respect to the issue of whether access will impair the child’s future opportunities for adoption, the onus of proof remains on the parent to demonstrate the access will not result in any such impairment. Pazaratz, J. described this onus in Catholic Children’s Aid Society of Hamilton v. L.S. as being an onus “to satisfy the court that access to the Crown Ward will not diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption.”[^19] There is no onus on the Society to establish that the child is adoptable, or to identify an actual prospective adoptive family for the child.[^20] While permanency planning through adoptive placement is the preferred long term option for crown wards under the CFSA, the Society cannot be expected to guarantee that adoption will occur or be successful in every case.[^21] The Society’s obligation regarding placement of crown wards is described in the legislation in more reasonable terms as an obligation to “make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family” through adoption, a custody order or a plan for customary care in the case of Indian or native children.[^22]
V. ANALYSIS RESPECTING PLACEMENT
A. Overview
[35] I have carefully considered all of the principles set out above relating to disposition in child protection proceedings and the evidence adduced at trial. There are many positive aspects to the evidence respecting D.S.’s personal and parenting history. It is clear that D.S. loves her daughter very much, that she has made genuine attempts to be part of B.S.’s life and to develop the parenting skills required to meet her needs, that she has demonstrated progress in her parenting skills at times during the Society’s involvement, and that she has a strong desire to parent the child on a long term basis. I have carefully weighed these positives against the significant concerns regarding the mother’s mental health difficulties, her inconsistent compliance with treatment recommendations and limited insight into her mental health problems, her physical challenges, her parenting limitations, and the nature of her support network.
[36] Because of the time requirements set out in section 70 of the CFSA, and the fact that no family or community plan has been presented, the only two options in this case are to return B.S. to the mother’s care either with or without Society supervision, or to make the child a crown ward, either with or without access. Based on the evidence and findings outlined below, I have concluded that B.S. would be at significant risk of suffering harm if she were returned to her mother’s care, that a supervision order would not be adequate to protect the child, and that it is in B.S.s’ best interests to be made a crown ward.
B. Factors Relating to the Best Interests Analysis: [section 37(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html) of the [CFSA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html)
1. D.S.’s Mental Health Difficulties
[37] In carrying out the best interests analysis under the CFSA, the court is required to consider the nature and extent of the protection concerns which have been identified, and the risk if any that would be involved in returning to the child to the care of the parent. One of the most significant concerns respecting D.S. is her serious and longstanding history of mental health difficulties. These mental health problems have greatly impacted her own general functioning in the community and her ability to be a consistent and competent parental figure in B.S.’s life. I make the findings of fact set out below respecting D.S.’s mental health history based on the medical records and the evidence of D.S., Society staff and Dr. Blake.
[38] D.S.’s first contact with mental health professionals occurred at the age of nine, when she showed signs of obsessive compulsive behaviour. She recalls being hospitalized for less than a month at that time, and taking amitriptyline for a period of six months following her discharge to manage her symptoms.
[39] In 1984, at the age of eleven, D.S. was admitted to Joseph Brant Hospital in Burlington due to concerns about depression and a severe germ phobia. She was discharged after an admission of approximately three weeks with a diagnosis of Affective Disorder and Unipolar Depression, and received outpatient service support from Dr. Battigelli for a period of approximately six months.
[40] D.S. experienced fits of rage and erratic mood swings from the ages of sixteen to eighteen. In grade 12, she was diagnosed as suffering from a learning disability. She suffered a serious bout of depression which rendered her unable to function effectively at the age of eighteen. She dropped out of school for several months at that time.
[41] In 1997, D.S. reported to Dr. Nichols of the Hamilton Psychiatric Hospital Mood Disorders Program that her mental health status had worsened significantly from 1993 to 1997. She began taking prozac during her first year of university, which resulted in periods of good functioning but also bouts of significant depression and serious negative physical side effects. From 1993 until 1997, she continued to take prozac at times, as well as various antidepressants but did not tolerate the antidepressant medication well. She decided to stop her medications in the summer of 1997, which resulted in feelings of extreme depression, suicidal thinking and social withdrawal. She received treatment for these issues from Dr. Nichols, who diagnosed her as suffering from recurrent depressive episodes, and possible disposition to bipolar illness.
[42] D.S. was admitted to the Penetanguishene Mental Health Centre from October 2 to October 19, 2004. The report of Dr. Pigeon relating to this admission indicates that she was admitted after attempting to overdose on hydromorphone, several other medications and marijuana. As noted previously in these Reasons for Judgment, the mother denied that she had attempted to commit suicide on this occasion, and stated that she had accidentally overdosed on hydromorphone after running out of fentanyl. However, the medical evidence indicates that she actually had fentanyl in her possession at the cottage where she was staying at the time. Dr. Pigeon identified eleven other prescription medications in her possession at the time of admission. D.S.’s mother reported at that time that D.S. had attempted to commit suicide on two occasions prior to this episode. During her hospitalization, D.S. was extremely hostile, resistant to recommendations, minimized her mental health difficulties, and demonstrated severe drug seeking behaviour. It was noted that she shied away from family supports, despite the fact that she was only functioning at 45% at the time of her discharge. Her discharge diagnoses included dysthymia, chronic pain syndrome, borderline personality disorder and narcotics abuse. Dr. Pigeon recommended that she receive psychotherapy.
[43] D.S. was admitted to Joseph Brant Memorial Hospital twice in 2005, from August 27th to August 30th and again from September 30th until October 3rd, after she was found by police hanging from the balcony of her apartment. As previously noted in these Reasons, on the first occasion, she was heard threatening to jump from the balcony. On the second occasion, police noted that she had broken the glass door leading to her balcony. On both occasions, the treating psychiatrists found her to be in a psychotic and paranoid state upon admission. During the second admission, her condition became so severe that she had to be restrained and secluded. She insisted on being discharged despite the recommendation of Dr. Turner that she receive ongoing treatment. Dr. Turner documented that D.S. remained significantly paranoid at the time of discharge, and that her insight into the nature and extent of her mental health difficulties was minimal. The discharge diagnoses were bipolar affective disorder type 1, manic state, paranoid symptoms, not otherwise specified, chronic back pain and psychosocial stressors (moderate).
[44] D.S. was admitted to St. Joseph’s Hospital from February 21, 2006 until May 8, 2006, after exhibiting several months of bizarre and concerning behaviour at home and in the community. She had not been attentive to her personal hygiene, had made several suicidal gestures, had made false accusations against people, had taken street drugs while visiting her father, and was experiencing delusions about wires coming out of her head and voices coming from the telephone. A few weeks prior to her admission, she had threatened staff at the office of her family physician, Dr. Grzeslo, with a knife and demanded copies of her notes. Dr. Carr noted that D.S. had minimal insight into her mental health difficulties, and that D.S. was convinced that her problems were purely skeletal in nature, resulting from the motor vehicle accident which she experienced in 2000. The mother was resistant to recommendations regarding medication. She was declared incapable of consenting to treatment, and the Public Guardian and Trustee became her substitute decision-maker. This declaration of incapacity remained in effect at the time of her discharge. Dr. Carr’s discharge diagnoses were schizophrenia, personality disorder not otherwise specified and fibromyalgia.
[45] D.S. received outpatient treatment from Dr. Webb of the East Region Mental Health Services following her discharge from St. Joseph’s Hospital. However she was admitted to St. Joseph’s Hospital again in December 2008 as a result of a deterioration in her mental health condition after a period of excessive alcohol use.
[46] D.S. was again admitted to St. Joseph’s Hospital from January 13, 2009 until February 10, 2009 after a period of non-compliance with her prescribed medications. During the period leading up to her admission, she experienced poor sleep, appetite and concentration, was making bizarre and paranoid comments, exhibited aggressive behaviour and did not attend to her personal hygiene. She was treated with antipsychotic medications and was referred for follow up with Community Schizophrenia Services, (“CSS”) with a first appointment scheduled for July 24, 2009. D.S. did not follow through with that referral.
[47] D.S was admitted again to St. Joseph’s Hospital from April 24, 2009 until June 1, 2009 to the Acute Mental Health Unit. She was brought to the hospital by the Crisis Outreach and Support Team after she began yelling that her doctor had removed her eyes and was holding a gun to her head which prevented her from sleeping. Her behaviour was bizarre and aggressive during the admission, and she had to be interviewed with guards present for the protection of hospital staff. Her discharge diagnoses were bipolar disorder and schizoaffective disorder.
[48] D.S. did not take her prescribed medication following her discharge on June 1, 2009, and she was admitted again to St. Joseph’s Hospital from June 24, 2009 until July 8, 2009. Prior to this admission, she had experienced poor concentration, memory and mood, and was noted by her family to be walking around in a daze. Her behaviour at the time of her admission was so aggressive and threatening that she had to be chemically restrained and placed in seclusion. Dr. Adam noted concerns regarding D.S.’s history of non-compliance with medications prescribed for her mental health difficulties and her problematic relationship with her parents.
[49] During her hospitalization at St. Joseph’s Hospital in the summer of 2009, D.S. was assessed by a neurologist, Dr. McNeely, to determine whether she was suffering from any cognitive impairment as a result of her motor vehicle accident in 2000. Dr. McNeely documented that the mother had been experiencing symptoms of psychosis, delusions and hallucinations since 2005, and that she had a history of abusing morphine and other narcotics as well as periods of excessive alcohol consumption. He also noted that D.S. had been evicted from many rental accommodations due to her aggressive and paranoid behaviours. Dr. McNeely concluded that it was unlikely that D.S. had suffered an acquired brain injury from the motor vehicle accident. However, he noted clinically significant impairments in a number of select areas, including verbal fluency, initiation of mental arithmetic, sustained attention, initial intake/immediate recall of new information and right hand simple motor speed. He found that most aspects of her clinical impairment were consistent with the effects of her current depression in physical well-being.
[50] Dr. Corey of St. Joseph’s Hospital noted in his discharge report dated July 8, 2009 that the mother had a history of non-compliance with medication, limited family supports, alcohol and narcotics abuse and aggressive behaviour when she was off her medications. Dr. Corey also noted that earlier in 2009, D.S. had struck her mother on the jaw after her mother refused to give her money.
[51] During her hospitalization in the summer of 2009, D.S. refused to work with the hospital psychologist and was resistant to recommendations regarding medications. She eloped from hospital on one occasion and returned in an extremely intoxicated state. Dr. Corey’s discharge diagnoses were dysthymia, substance abuse, learning disorder and borderline personality traits. D.S. was referred to Community Psychiatry Services for outpatient follow up. There is no evidence that D.S. ever followed up with this referral.
[52] In early January 2010, the mother discontinued the medications which had been prescribed for her at the time of her discharge from hospital in July 2009, and her mental health condition deteriorated once again. Her landlord called the police on January 11, 2010 and reported that she had spat and pulled a knife on him during a dispute at D.S.’s apartment. Police brought D.S. to St. Joseph’s Hospital for emergency assessment and treatment. The mother alleged that the landlord had assaulted her, but she did not call the police to make such a report. The Public Guardian and Trustee was appointed as her substitute decision-maker again, as she was found to be incapable of consenting to treatment. D.S. was irrational and delusional at the time of admission, and spoke about being married and having four children. On February 8, 2010, Dr. Zipursky noted that her most likely diagnosis was schizophrenia, undifferentiated type, but that a diagnosis of schizoaffective disorder was also a possibility. Dr. Zipursky concluded that the mother had very poor insight into her mental health condition, and felt that she required a highly supportive structure in a residential setting and with the possibility of a Community Treatment Order.
[53] D.S. was transferred to C2 Ward of St. Joseph’s Hospital on February 16, 2010 and remained there until March 19, 2010. She was under the care of Dr. Corey once again during this admission, and also received support from hospital social worker Rick Gwozdowski. Dr. Cory and Mr. Gwozdowski both had concerns regarding the mother’s inability to function appropriately in the community. They documented concerns regarding D.S.’s inability to manage her finances, her conflicts with landlords resulting in her having six different residences in the recent past, and her limited support network. Dr. Corey also commented that many of D.S.’s presentations to the emergency room and her escalations on the ward during admission to hospital occurred in the context of her abusing alcohol or marijuana. Dr. Corey’s discharge diagnoses were paranoid personality disorder, dysthymia, and substance abuse- marijuana and alcohol. Dr. Corey also noted that D.S. exhibited some obsessive compulsive traits. D.S. was referred to the Assertive Community Treatment II (ACT-II) team at the time of discharge, and it was also recommended that she connect with a Community Treatment Order coordinator to obtain assistance regarding compliance with medication and to access additional resources. There is no evidence that D.S. ever followed through with these services.
[54] The mother’s mental health condition began to deteriorate again in the fall of 2011. Society staff began to document serious concerns regarding the mother’s interactions with staff, the quality of her visits with B.S., and her irrational and bizarre comments and behaviour. Examples of these concerns include the following:
a) D.S. became increasingly agitated with Society staff and resistant to input regarding parenting issues. In addition, she became confused about the times of visits and the names of access facilitators who had been involved with her for an extended period of time.
b) At the court appearance on September 19, 2011, D.S. presented as extremely agitated, unfocussed and irrational. She spoke about acting as the child’s lawyer and judge. She glared at Society worker Ms. Nicol, asked “why are there Indian things here?” in reference to the court documents, and talked about not wanting Indians around her child.
c) D.S. began to make false allegations and insinuations. For instance, she accused Society access facilitator Ms. Bromley of ripping up the child’s birth certificate documentation in front of her, and made unfounded allegations that B.S. was being raped and physically abused in the foster home. During a visit on September 22, 2011, D.S. talked about having brought some mixed berries which the foster mother had provided for the child during a visit to show her lawyer. During the visit on February 23, 2012, she accused the foster parents of practising paganism on Brittany, because the child’s toenails were pointed and her hair had not been cut.
d) During a visit on January 6, 2012, Ms. Bromley asked a number of families at the visitation centre to retrieve items for their visits from the room, and D.S. loudly accused her of singling her out. She angrily shook her finger close to Ms. Bromley’s face, and blamed Ms. Bromley for the child being in the care of an “illegal alien” rather than in her care. The situation became so heightened that the other visiting families had to be relocated to another area of the visitation centre. The mother’s visit with B.S. was cancelled due to her irrational behaviour. When the mother left the building, she was observed trying to open the doors and trunks of a number of vehicles and inspecting the licence plates on the cars. Police were called to assist in managing the situation, and D.S. reported that she was looking for expired licence tags to call in.
e) On May 30, 2012, D.S. left a voice mail message for Intake Worker Melanie Temple, suggesting that she had not seen B.S. for a year, and stating that she wanted Ms. Temple to be involved again because she was sure that she was pregnant with her son.
[55] D.S. was admitted to St. Joseph’s Hospital again from May 19 until July 13, 2012. She was brought to hospital by police after she attended at a pharmacy at the Community Psychiatry Services demanding medications, and threatening to commit suicide and homicide. D.S. testified that she had been unable to get to Burlington to see her family physician, Dr. Grzeslo, to obtain prescriptions for her medications, and that she threatened suicide and homicide knowing that she would be taken to hospital and receive the necessary medications upon being admitted. D.S. claimed at the time of her admission that she was pregnant, which was not true. She presented as agitated, irritable and threatened to throw water at the attending psychiatrist, Dr. Biebr. She stabilized when she began taking her medication, and was given off ward privileges but failed to return on one occasion. D.S. testified that she did not return because she had discovered a fruit fly infestation in her apartment and was busy resolving the problem. She was brought back to hospital and presented again in a disorganized, illogical, and delusional state. She was stabilized again on medication, and at the time of discharge she was referred to Community Schizophrenia Services and the ACT team.
[56] Dr. Blake began his parenting capacity assessment of D.S. in December, 2011. The assessment process began during the time that Society staff were observing a deterioration in the mother’s mental health status. The assessment included an evaluation of D.S.’s mental health and personality functioning. Dr. Blake concluded that D.S.’s profile showed significant elevations on the Avoidant, Schizoid, Compulsive and Narcissistic personality scales, and on the Paranoid pathological personality scale. He found that individuals with D.S.’s profile would tend to display the following characteristic traits and tendencies which could impact negatively on their parenting:
a) Feelings easily hurt by criticism or disapproval, and afraid of appearing foolish or being embarrassed;
b) Exaggerates the potential dangers or risks in everyday situations;
c) No close friends or confidants, or only one, outside of relatives or members of the household;
d) Constricted affect;
e) Inflexibility and stubborn insistence that others submit to their way of doing things;
f) Feelings of resentment and anger;
g) Reacts to criticism with feelings of rage, shame or humiliation, grandiose sense of self-importance; and
h) Unwarranted tendency to interpret the actions of people and events as threatening.
[57] Dr. Blake concluded based on the testing which he carried out and the other information which he obtained through the assessment process that D.S.’s primary diagnosis is that of paranoid personality disorder. He noted that individuals with this disorder typically exhibit a number of traits that would impact on their ability to parent a child and work effectively with community resources to address concerns. Specifically:
a) They display a vigilant mistrust of others and a strong sense of defensiveness against anticipated criticism and deception;
b) They may blame others for their shortcomings;
c) They are abrasive and highly irritable, and tend to vigorously resist external influence and control;
d) They are likely to experience interpersonal conflict as a result of their marked suspiciousness and mistrust of others and their tendency to perceive mistreatment that has not occurred;
e) They may be inclined to wrongly attribute spiteful motives to their child if the child does not conform to their expectations;
f) They would be prone to engage in compulsively rigid and restrictive parenting practices that the child would likely perceive as oppressive;
g) They would have difficulty relating to their child’s perspective when it differs from their own due to their narcissistic tendencies, and would have a hard time being empathetic and sympathetic to the child in these circumstances.
[58] Dr. Blake highlighted that individuals with paranoid personality disorder may exhibit symptoms of other disorders, such as delusional disorder or schizophrenia. He indicated that the most common co-occurring personality disorders appear to be schizotypal, schizoid, narcissistic, avoidant and borderline. He clarified that the overlap of symptoms and the co-existence of other disorders help to explain why D.S. has received so many different diagnoses over the years.
[59] Dr. Blake carried out testing designed to measure D.S.’s self-reported psychological symptoms and distress. He found that D.S.’s symptom checklist scores were clinically significant on five of nine scales, namely: Somatization, Obsessive-Compulsive, Interpersonal Sensitivity, Depression and Paranoid Ideation. He concluded that the results of this testing were consistent with D.S.’s results on the mental health and personality functioning tests in supporting “the presence of compulsive behaviours and paranoid behaviours characterized by a persecutory belief system.” The results also supported the presence of clinically significant bodily pain and discomfort and interpersonal sensitivity.
[60] With respect to the impact of his findings on D.S.’s capacity to meet B.S.’s needs, Dr. Blake concluded that D.S.’s profile was such that she would in all likelihood lack the emotional stability and mental health competence to provide the child with stability and to meet the child’s basic physical, developmental and emotional needs.
2. D.S.’s Insight Into Her Mental Health Difficulties
[61] In determining the significance of D.S.’s mental health history and challenges, it is critical to consider the level of her insight into her difficulties. This information is important for the purposes of assessing the likelihood of D.S. being able to effectively seek out and accept appropriate treatment to address the concerns relating to her mental health. Unfortunately, I find that although D.S. is currently showing some acknowledgement that she has some type of mental health difficulties, her overall insight into the extent and severity of her mental health problems is minimal, and her ability to sustain even a minimal understanding of her issues is typically short lived.
[62] Throughout the period of Family Services Worker Andrea Nicol’s involvement in this case, D.S. maintained that she did not have any significant mental health issues. Similarly, during her interview with the assessor, Dr. Blake, she denied that she had any current mental health diagnoses, and insisted that her only issue has been depression since her motor vehicle accident. She acknowledged that she was taking two anti-psychotic medications, but insisted that they were only given to her to help her sleep. Dr. Blake’s impression was that D.S. had a strong tendency to defensively deny relevant symptoms, and to strongly demonstrate that she is a mentally competent and fit parent.
[63] In her testimony, D.S. acknowledged that she has some mental health issues, but stated that there have been so many different diagnoses that she does not know which one to accept. Despite this acknowledgement, a review of her testimony in its entirety highlights serious concerns respecting her insight into her mental health challenges, and her tendency to minimize them. For instance:
a) Despite the numerous references in the mental health records to situations when she presented as delusional, D.S. was adamant during her testimony that she was only delusional on one occasion during her hospitalization in the summer of 2012, when she thought that a young girl who she saw at the hospital was her daughter.
b) Despite the numerous serious diagnoses that have been assigned to her, she stated that in her view, she has suffered only from depression and post-traumatic stress disorder from the motor vehicle accident. She testified that she had no idea why she had been prescribed antipsychotic medication.
c) When she was questioned about various significant events which raised concerns about her mental health, her consistent response was to offer up what she perceived as perfectly rational explanations for her behaviour, rather than acknowledging that she was experiencing significant mental health challenges at the relevant times. For instance, when Society counsel questioned her about the apparent decline in her mental health functioning starting in the fall of 2011, D.S. attributed this deterioration in her condition to personal distress arising from the death of two family members and a serious respiratory infection which developed into pneumonia. However, she did not adduce any medical evidence to support the fact that she was suffering from a respiratory condition or pneumonia at that time. She minimized her behaviour on January 6, 2012 when she was found in the parking lot of the access centre attempting to open the doors of vehicles and inspecting licence plates, justifying it on the basis that she was simply angry at the Society. With respect to her threats of suicide and homicide at the CPS Pharmacy on May 19, 2012, she did not relate those threats to any mental health concerns, but rather insisted that she made the threats intentionally as a means of obtaining the medication which she required in a timely manner. During her testimony, she did not demonstrate any appreciation of the significance of those threats or the severity of the ripple effect which they caused in terms of community response and resources.
d) With respect to her most recent hospitalization in 2012, she was questioned about what the psychiatrist described as delusional comments which she made about suing the government for $400,000.00, and her mother owing her $100,000.00. She denied that these comments were delusional in nature, and minimized them by stating that she was simply upset that a number of her court papers had been stolen from her apartment.
e) When questioned about the comments of her long-time family physician, Dr. Grzeslo, that she tended to suffer from hallucinations, paranoia and delusions when she was off her medication, she responded that she could not understand why he would say these things about her.
[64] These examples highlight that although D.S. stated during her testimony that she knows that she has mental health difficulties, she continues to seriously minimize her problems and to attempt to rationalize behaviours which are clearly reflective of mental health challenges. Based on this evidence, I am not satisfied that D.S. will in the future be able on a consistent basis to identify when she is experiencing a deterioration in her mental health condition, and to seek out and access appropriate mental health support in a timely manner to avoid further mental health crises in her life.
3. D.S.’s Ability to Follow through with Treatment Recommendations
[65] In assessing B.S.’s best interests, I have also considered the evidence relating to D.S.’s compliance with treatment recommended for her mental health condition. Although D.S. has been complying with recommended treatment for the past several months, I am not satisfied that she will be able sustain this compliance on a long term basis, or even for the reasonably foreseeable future.
[66] I find that D.S. has had a very concerning history of inconsistent compliance with medication and services recommended to her for her mental health difficulties. With respect to compliance with prescribed medication, D.S. insisted during her testimony that she has only failed to take her medication as prescribed on two occasions. Specifically, she stated that she failed to take her medication for a period of approximately one month in 2008 or 2009, because she was not getting her mail at her apartment and therefore did not receive her drug card through ODSP. She did not provide any explanation for her inability to problem solve around this issue at the time. She stated that the second occasion of non-compliance with her medication occurred for a period of approximately 2.5 to 3 weeks prior to her admission to hospital in May, 2012. According to D.S., she did not take her medication at that time because she was unable to get to Dr. Grzeslo’s office to renew her prescriptions.
[67] Society counsel questioned D.S. about whether she was compliant with her medication from September 2011 until April 2012, when Society staff noticed a significant deterioration in her presentation and the quality of her visits with B.S. D.S. insisted that she was compliant with her prescribed medications during that time. If this was in fact the case, there would be serious cause for concern regarding the effectiveness of prescribed medications in addressing the mother’s mental health issues. I find, however, that the more likely explanation for the decline in D.S.’s presentation during this period is that she was not following through with the medication which had been prescribed for her. I have reached this conclusion for two reasons. First, D.S. acknowledged at trial that she was not taking her medication for a period of time prior to her admission in May, 2012. Second, I find that D.S. was not reliable on the issue of her compliance with her medication over the past several years. The severity of her symptoms at the time of the various admissions over the years raises serious doubt as to whether she would be able to recall events leading up to the admissions. Furthermore, the evidence of the medical professionals who have been involved with D.S. over the past several years is highly inconsistent with the mother’s evidence on the issue of compliance with medication. D.S.’s family physician of many years, Dr. Grzeslo, advised the Society that the mother has a longstanding history of failing to meet with him as required to renew her prescriptions and neglecting to take her prescribed medications on a regular basis, and that this has been one of the main contributing factors to D.S.’s repeated admissions to hospital. In addition, the medical records relating to the mother’s admissions for mental health issues reveal a clear pattern of D.S. resisting recommendations that she take medication for her condition, and failing to abide by the medication regime prescribed for her.
[68] I also find that the mother has been inconsistent in following through with services recommended to address her mental health issues. For instance, she was referred to Community Schizophrenia Services in 2009, but acknowledged at trial that she does not recall receiving that referral and that she did not attend that agency at that time. There is no evidence that she followed through with the referral that was made for her to receive follow up services with Community Psychiatry Services in 2009, or with the referral to the ACT-II Team in 2010. There is also no evidence that she ever followed through with a referral made in 2010 to receive the services of a Community Treatment Order coordinator. At the time of her discharge from hospital in July 2013, she was referred again to Community Schizophrenia Services for follow up care. Her first appointment with Dr. Kiang at that agency was scheduled for December 7, 2012, but she missed that appointment. She gave inconsistent explanations for missing this appointment, stating to Ms. Spoelstra on December 10, 2012 that she missed it because she was not feeling well, but indicating at trial that she missed it due to an error which she made in writing down the time of the appointment.
[69] Dr. Grzeslo reported on November 11, 2012 that D.S. had been seeing him regularly since her discharge from hospital on July 13, 2012, and that she had been taking her medications. I accept that D.S. has been compliant with her medication regime for several months. However, she has had periods of compliance with her medication in the past which have lasted for many months, and these periods have typically been followed by non-compliance, serious mental health crises and further hospital admissions. Having regard for the ongoing concerns regarding D.S.’s seriously limited insight into the severity of her mental health issues, I am not satisfied that she will be able to maintain a consistent pattern of compliance with medication and treatment on a long term basis.
4. D.S.’s History of Substance Abuse Issues
[70] I find based on the medical evidence adduced at trial that there is a history of concerns about D.S. abusing alcohol, illegal substances and prescription medication. The specifics of these concerns are outlined above in the summary of the mother’s mental health history. The historical pattern of concerns, coupled with the fact that D.S. returned from a hospital pass in 2009 in an extremely intoxicated state, caused Dr. Corey to diagnose the mother as suffering from substance abuse in July 2009.
[71] There is no evidence that D.S. has undergone any substance abuse treatment or relapse prevention counseling since Dr. Corey’s 2009 diagnosis. While there is no direct evidence that D.S. has been abusing alcohol, illegal substances or prescription medication since the Society became involved with B.S., the medical records indicate that the mother’s deterioration in her mental health condition often coincided with substance abuse activity on her part. It is significant to note that on January 9, 2013, Society worker Ms. Spoestra attended at the mother’s home for an unannounced home visit, and the mother refused to allow her access to the home even to have a brief discussion. On that occasion, Ms. Spoelstra noted concerns that D.S.’s pupils appeared to be dilated, and that her eyes were watery and glassy. Ms. Spoelstra asked D.S. to undergo a drug test as a result of these concerns. Although D.S. initially agreed to undergo drug testing on January 15, 2013, she subsequently advised Ms. Spoelstra that she would not follow through with the testing. This incident, and the mother’s refusal to participate in testing, occurred during the period when Society staff were observing a concerning deterioration in the mother’s mental health presentation. At trial, D.S. denied that she had any current issues regarding substance abuse, and added that in her view this was none of the Society’s business. This response demonstrates a concerning lack of insight into the importance of this issue in terms of assessing whether B.S. would be safe in D.S.’s care. The concerns regarding D.S.’s presentation on January 15, 2013, her refusal to undergo drug testing, the evidence regarding her history of substance abuse problems and the fact that she has not engaged in substance abuse or relapse prevention treatment all lead me to conclude that there is a significant risk that D.S. may again experience substance abuse issues in the future.
5. Concerns Regarding D.S.’s Physical Well-being
[72] I have also considered the evidence regarding D.S.’s physical well-being and the potential impact of her physical health issues on her ability to meet B.S.’s needs. I conclude that D.S. suffers from a number of physical ailments, as well as physical side effects from her mental health medications, which are likely to impact on her ability to provide consistent care for B.S. on a long term basis.
[73] D.S. testified that she has a number of physical health issues arising from the motor vehicle accident which she sustained in 2000. Specifically, she stated that she suffers from chronic pain in her knees, ankles and hip, serious bladder and bowel control problems, significant nerve damage, sleep disturbances and fibromyalgia. D.S. also discussed the challenges which she has experienced as a result of the side effects of the various medications which she has taken over the years for her mental health issues. She described the side effects from her current medications as including tremors, fainting spells, weight gain such that she is required to use a cane at times, panic attacks, nausea and vomiting, eye tremors, shaking, constipation which aggravates her chronic pain, double sciatic nerve pain and drooling. The trial of this matter had to be adjourned one day because D.S. was not well enough to testify. When she resumed her testimony, she stated that she could not attend trial because of nausea, diarrhea and vomiting which she had experienced as side effects from a medication which she had recently begun to take for bladder and bowel control issues.
[74] Despite these serious physical impairments and side effects from her medication, D.S. insisted at trial that these issues would not impact her in any way in meeting B.S.’s needs. She stated that she had some concerns when B.S. was an infant that she would be unable to lift the child because of her physical limitations, but that she was no longer concerned since B.S. is now a toddler.
[75] I find that D.S. lacks a realistic appreciation of the impact of her physical challenges on her ability to meet B.S.’s needs on a consistent basis. She also lacks insight into the physical demands involved in caring for a child of B.S.’s age, and how these demands are in many ways greater than those involved in caring for an infant. The fact that D.S. missed trial time because of her physical difficulties is direct evidence of how these problems will in all likelihood impact on her ability to provide consistent quality care for B.S. Her explanation that she missed many visits commencing in the fall of 2011 due to pneumonia is not credible. Given the alleged severity of this condition, and the importance of the issue to the issue of her many missed visits, one would have expected D.S. to have produced some type of medical evidence to support the fact that she suffered this illness. She did not. I find that the more likely explanation for the missed visits was that D.S. was suffering from other physical or mental health problems during that period of time which were impacting on her ability to be a consistent figure in her daughter’s life.
6. D.S.’s Plan of Care, and Her Ability to Provide a Stable, Safe and Supportive Home Environment for B.S.
[76] D.S.’s plan is to have B.S. returned to her care, subject to Society supervision. She is agreeable to any terms of supervision that the court considers appropriate. Her intention is to reside with the child in the apartment where she has resided since approximately June 2010 until she is able to obtain a two bedroom apartment through subsidized housing. The Society does not have any concerns regarding the suitability of her residence.
[77] D.S. is in receipt of Ontario Disability Support Plan (“ODSP”) benefits. She would also receive the Child Tax Benefit and the Universal Child Care Benefit if B.S. resided with her. D.S. testified that she is also attempting to find part time employment, and that she has been working with a Vocational Rehabilitation Specialist, Ms. Freshta Ahmadzai, of the Ontario March of Dimes since the fall of 2012 to identify and pursue her employment goals. Her intention is to register B.S. in school at Q[…] Public School once the child is of school age. She would use her own family physician, Dr. Grzeslo, as the child’s family doctor.
[78] In terms of supports, D.S. testified that her mother, D.S.N., would be able to provide some support to her in caring for B.S. However, she acknowledged that she has had a challenging relationship with her mother and stepfather. She also admitted that there is sense of distrust between her and her mother, and that she does not know where she stands with her.
[79] D.S. identified two friends, C.1 and C.2, as possible supports for her in caring for B.S., but stated that the only friend who lives close by to her and who could assist her on short notice is a lady named A., who lives in her building.
[80] D.S. testified about her current relationship with a man named S.M.. She stated that she met S.M. at St. Joseph’s Hospital when she was hospitalized from May to July 13, 2012, and that S.M. was in hospital at the time for mental health issues. Her information was that S.M. had been diagnosed with a personality disorder at that time. During her testimony on February 1, 2012, D.S. advised that S.M. had recently been readmitted to hospital for spinal cancer surgery, and had been transferred to the psychiatric department at St. Joseph’s Hospital. She indicated that to her knowledge, S.M.’s cancer is terminal. D.S. stated that she had hoped that S.M. could participate in her plan to care for B.S., but that she was not sure whether he could play a meaningful role now because of his health issues and his obligations and feelings towards his own children and their mother.
[81] D.S. currently has a stable residence and a consistent source of financial support. In assessing the likelihood of her being able to maintain stability in these areas in the future, I have considered the evidence regarding her historical residential and financial situation, the level of her insight into her mental health problems, and her ability to comply consistently with treatment and service recommendations. Taking all of this evidence into consideration, I have serious concerns regarding her ability to maintain a stable residence and financial status on a consistent basis in the future.
[82] With respect to D.S.’s residential situation, I find that in the past, her residential situation has often fluctuated in tandem with her mental health status. There have been a number of times in the past when she has either had numerous residence changes or has been homeless because of a deterioration of her mental health and admissions to hospital leading to changes in the amount of her ODSP benefits. D.S. testified that she was homeless and lived on the streets for periods of time in 2005, 2006 and 2008 because she had been admitted to hospital and her ODSP benefits dropped. Dr. McNeely, the neurologist who assessed D.S. in August 2009, and Dr. Corey of St. Joseph’s Hospital both noted in 2009 that D.S. had been evicted from numerous rental accommodations due to her aggressive and paranoid behaviors. In his report dated December 18, 2010, St. Joseph’s Hospital Social Worker Mr. Gwozdowski noted that D.S. had had six different residences in the recent past. At the time of D.S.’s discharge from hospital in mid March, 2010, D.S. was homeless. She testified that she was not able to live with her mother at that time, because she and her stepfather do not get along and her mother chose her stepfather over her. She stated that she was on the streets for a period at that time, and went to an “On the Run” coffee place at night for shelter. She eventually obtained short term housing relief at Martha House shelter.
[83] With respect to D.S.’s financial stability and her ability to manage her affairs, the historical evidence raises serious concerns regarding her capacity to maintain stability on a long term basis in this area. As noted previously in these Reasons, the Public Guardian and Trustee has been appointed as D.S.’s substitute decision-maker on two occasions in the past as a result of mental health professionals declaring D.S. to be incapable of consenting to treatment. The medical records filed as evidence indicate that in the past, D.S. has accumulated significant credit card debt and has experienced serious problems managing her personal affairs. The concerns regarding her ability to manage her personal affairs were so significant in 2010 that she was referred to the ACT-II team and a Community Treatment Order coordinator for the purpose of receiving intensive community support to assist her in these areas.
[84] D.S.’s ability to maintain residential and financial stability since June 2010 is commendable and demonstrates progress in this area. However, this period of stability must be measured against the fact that her stability in these areas has been cyclical in the past, depending on her mental health status. The question is whether D.S. will be able to maintain this stability on a long term, consistent basis. I find that there have been no significant changes in terms of the overall dynamics in D.S.’s life that would provide some reassurance regarding her ability to maintain stability in these areas on a consistent basis in the future. D.S. still minimizes her mental health difficulties. She has not accessed services for her history of substance abuse issues. She adamantly denies her longstanding history of inconsistent compliance with treatment recommendations, and failed to make her first appointment with Dr. Kiang at Community Schizophrenia Services in December 2012. D.S. states that she is working with her ODSP worker, Mr. Blair Cornforth, and a financial advisor, Mr. Binko, to obtain assistance in managing her affairs and maintaining stability in her life. However, she did not call either of these individuals as witnesses to provide details as to how they will be assisting her to avoid the instability which she has experienced in the past. Furthermore, she acknowledged that Mr. Cornforth has been her ODSP worker since approximately 2008, well before her last period of homelessness in 2010.
[85] Turning to the issue of D.S.’s support network, I find that D.S. unfortunately lacks the type of community and familial support that she would require in order to meet B.S.’s needs. It is important to note that in her Answer and Plan of Care dated January 31, 2013, she does not specifically name any family members or friends who would be able to assist her in caring for B.S. The only possible family supports in caring for B.S. that she identified in her testimony at trial were her grandmother, who is very elderly, and her mother. The evidence respecting her relationship with her mother clearly indicates that while she and her mother love each other, D.S.N. is not able or willing to provide any meaningful support to D.S. and B.S. D.S. acknowledged that she could not turn to her mother for housing assistance in 2010, and stated at trial that she could not even visit her mother at her home due to the conflict between her and D.S.N.’s husband. She also testified that her mother would not drive her to Burlington in early 2012 to see Dr. Grzeslo and obtain her medication prescriptions, even though her mother was allegedly aware that she had run out of her medications. D.S.N. acknowledged to Society worker Ms. Nicol on April 18, 2012 that she had a very troubled relationship with her daughter, and that she would not allow D.S. to ever live with her.
[86] I find that D.S. has not in the past enjoyed the support of a stable partner, and that her current partner S.M., will not be able to provide her with the type of assistance and stability that she requires to effectively parent B.S. D.S.’s choice in partners raises concerns regarding her judgment and her ability to provide a safe and stable home environment for B.S. I find that her previous partner, K.R., suffered from schizophrenia, stole money from her, was threatening towards her and her unborn child, and generally treated her poorly. Her most recent partner, S.M., also suffers from significant mental health difficulties and has a concerning history of involvement with child protection authorities dating from 1998 right up until 2012. The child protection concerns identified respecting S.M. include domestic violence, against his previous partner, assault against a male in 2012, cocaine and marijuana use, drug trafficking and other criminal involvement. S.M. has now been diagnosed with terminal spinal cancer.
[87] I conclude that D.S. lacks an appreciation of the risk which S.M. would have posed if B.S. were placed in her care, and the extent to which his involvement in her life could destabilize her and her daughter. The mother acknowledged in her testimony that she was aware of S.M.’s child welfare history, but she indicated both prior to and at trial that she had hoped before learning about S.M.’s terminal cancer diagnosis that S.M. would be a significant part of her plan to care for B.S. When she was questioned about S.M.’s historical involvement with child protection authorities, she minimized the significance of the protection concerns and adamantly denied that S.M. would pose any risk to B.S. She acknowledged that S.M. and his former spouse had had a serious domestic incident during which S.M.’s spouse had stabbed him with a knife, and stated that she was not certain that she believed S.M.’s version of events in relation to this incident. She indicated that S.M. had offered to show her the police occurrence reports relating to the incident to allay her concerns, but that she never bothered to ask him to produce them to her. D.S.’s poor choices respecting partners and her tendency to minimize concerns respecting them lead me to conclude that B.S. would be at significant risk of being exposed to negative and potentially dangerous male influences if she were returned to her mother’s care.
[88] D.S. also lacks a supportive network of friends. Although she mentioned three friends who might be able to assist her, there is no evidence that she ever spoke to Society staff prior to the trial about these individuals being supports, and she told Dr. Blake in early 2012 that she did not have any friends. She did not know how to spell the last name of the woman in her apartment building who she said could help her with B.S. if she was in urgent need of assistance. She did not call any of the three friends that she identified as witnesses at trial to testify about their backgrounds and how they would be willing to assist her.
[89] The findings of Dr. Blake reinforce the concerns regarding D.S.’s ability to develop and maintain a meaningful support network. Dr. Blake noted that individuals with paranoid personality disorder are generally very difficult to get along with and frequently have serious problems in forming close personal relationships. He noted that the typical behavioural features associated with this disorder which impede the ability of those suffering from it to establish meaningful personal supports include excessive suspiciousness and hostility, over argumentativeness, hostility, stubbornness, sarcasm, and failure to accept responsibility for their shortcomings.
7. B.S.’s Parenting Abilities
[90] In carrying out the best interests analysis, I have carefully considered the evidence of D.S., the Society workers involved in this case, Society access facilitators and Dr. Blake respecting D.S.’s parenting abilities. Based on the totality of the evidence, I conclude that D.S. loves B.S. very much, and that at times, she demonstrated progress in her ability to meet the child’s basic needs. However, I find that the quality and consistency of D.S.’s parenting skills and knowledge are very much connected with the status of her mental and physical health. When her health deteriorates, her parenting of B.S. also suffers and she is unable to effectively meet B.S.’s basic physical and emotional needs. Given the concerns outlined above regarding D.S.’s longstanding mental health problems, her lack of insight into those problems and her history of inconsistent follow through with treatment, I conclude that D.S. would not be able to consistently maintain the level of parenting that B.S. would require in order to achieve her potential.
[91] I note that Dr. Blake had D.S. undergo the Adult-Adolescent Parenting Inventory (“AAPI”) as part of his assessment process, which is a tool designed to evaluate a parent’s knowledge and understanding regarding four specific parenting constructs. The results of this testing suggested that D.S. had an average score on the Age-Appropriate Expectations Scales, the Corporal Punishment Scale and the Empathy and Role Reversal Scale. Despite these results, the evidence supports a finding that D.S. has considerable difficulty understanding and meeting the child’s emotional and developmental needs. My conclusions respecting D.S.’s difficulties in these and other important parenting areas are based on the findings set out below.
[92] With respect to feeding, D.S. initially demonstrated an inability to appreciate concerns which hospital staff relayed to her about breastfeeding B.S. due to the presence of antipsychotic medications in her system. She rejected these concerns and attempted to convince nursing staff to allow her to breastfeed. During the initial visits at the Society’s offices, D.S. had difficulty feeding B.S. a bottle. She required instruction not to force milk down the child’s throat while she was sleeping, which could cause aspiration, and had to be encouraged to continue feeding the child when it was appropriate to do so. Although she demonstrated progress in terms of her feeding skills, access facilitators noted ongoing concerns in early 2011 about basic issues such as checking the temperature of the bottle, burping the baby and cleaning the child up after she spit up. During the visit on April 8, 2011, D.S. indicated to access facilitator Ms. Bromley that she still did not understand why she needed to check the temperature of the bottle.
[93] As visits progressed in 2011, the mother demonstrated an ability to meet B.S.’s feeding needs, and brought appropriate food items for the child. However, as Society staff began to note a deterioration of D.S.’s mental health from September 2011 onward, they also observed a decline in D.S.’s patience and skill in feeding B.S. During the visit on December 19, 2011, access facilitator Ms. Pastorelli and the assessor, Dr. Blake, noted that the mother inappropriately allowed the child to smear her food all over the high chair table due to her unrealistic expectation that the child could feed herself.
[94] Society staff noted similar concerns regarding D.S.’s ability to consistently address other basic child care issues in an appropriate manner. D.S. initially had some difficulty carrying out tasks such as changing the child’s diaper and clothing, but she demonstrated some progress in this area over time. Unfortunately, the progress in this area was inconsistent. For instance, on December 14, 2010, D.S. left the child unattended on the change table and had to be warned about the dangers of doing so. Despite this warning, access facilitators had to intervene to protect the child when D.S. left her unattended on the change table during the visits on January 20, 2011 (two times), May 19, 2011, February 16, 2012 and March 8, 2012. At times, D.S. had to be directed to change the child’s clothing because it was wet, and during the visit on December 19, 2011, she became extremely frustrated while trying to put on B.S.’s shoes, and finally told Ms. Pastorelli to put them on the child. The Society also documented concerns in March 2011 about the mother sending a bottle of gripe water with 95% alcohol content to the foster home with directions to give it to the child, without first obtaining direction from a physician on this issue. In July 2011, D.S. again wished to give the child gripe water for hiccups, despite the fact that the child was not experiencing any significant problems with hiccups, and wanted to give her orajel although the child was not exhibiting any major teething difficulties.
[95] D.S.’s ability to understand the child’s emotional and developmental needs and cope with the child has also been highly inconsistent. During a number of visits, D.S. was appropriately affectionate with and responsive to B.S., was able to manage and soothe the child when she became fussy, and demonstrated an appropriate appreciation of B.S.’s stage of development. However, there have been serious concerns respecting the mother’s ability to consistently appreciate B.S.’s needs in these areas throughout the Society’s involvement. Examples of these concerns are as follows:
a) St. Joseph’s Hospital social worker Ms. Jodi Pereira noted concerns that the mother’s interactions with B.S. following the child’s birth were flat, detached and mechanical in nature.
b) Although there were some positive visits between the mother and the child in early 2011, D.S. often presented as overwhelmed and frustrated when B.S. became fussy. She did not demonstrate an understanding of how to respond when the child became fussy on February 24, 2011. On March 10, 2011, she became frustrated and agitated when B.S. would not settle, and required smoke breaks to calm down. She stated during that visit that she wanted to just let the child cry on her own so that she could not become “a big suck.” Society facilitator Ms. Lauren Sharples noted serious concerns regarding B.S.’s safety during this visit due to the level of D.S.’s frustration. During a subsequent visit on March 21, 2011, D.S. suggested just putting B.S. on the floor and letting her cry as a means of getting her to settle.
c) Although Ms. Sharples noted some improvements in the quality of D.S.’s interactions with B.S. during visits in early April 2011, concerns arose again in mid April. On April 14, 2011, D.S. settled B.S. a few times, but eventually gave up on trying to calm the child and just let her cry profusely while she remained seated. During the visit on April 15, 2011, D.S. was unable to calm B.S., and the child became so agitated that she broke out in a sweat. Ms. Bromley was able to calm the child down, but the child began to cry immediately again when D.S. took her. Ms. Bromley showed D.S. how to calm the child, including modeling some interactive rhymes, but D.S. did not implement these techniques and chose instead to simply place the child on the floor.
d) During the visit on May 5, 2011, D.S. asked the access facilitator to take the child five times to calm her down, because she could not settle the child. On May 6, 2011, the mother made no meaningful efforts to calm the child, and simply let her cry on her own throughout most of the visit. At one point, she asked the access facilitator Ms. Bromley to “get her to just be quiet,” stating that she could not take the child’s crying any longer.
e) On June 10, 2011, the mother presented as flat and unresponsive to B.S. throughout most of the visit. She did not respond after Ms. Bromley modeled face-to-face verbal contact with the baby, appeared zoned out near the end of the visit and failed to respond to B.S.’s cues.
f) During the visit on July 8, 2011, D.S. became overwhelmed when attempting to settle the child, was flat in her interactions with B.S., did not show signs of affection towards the baby, and did not use the various techniques that access facilitators had taught her to calm the child.
g) There were some positive interactions between D.S. and the child during visits in the spring and early summer of 2011, and the mother demonstrated some progress, albeit inconsistent, in terms of the quality of her interactions with B.S. as the summer progressed. However, commencing in September 2011, Society staff began to note a sharp deterioration in the mother’s interactions with B.S. at the same time as her mental health status appeared to be declining. While there continued to be some positive visits, D.S. usually presented as very frustrated, impatient, withdrawn, unresponsive and hostile in response to directions from access facilitators. During the visit on September 16, 2011, she left B.S. in the high chair for fifty five minutes. On September 26, 2011, she responded to B.S.’s crying by telling her that she could cry all she wanted to, but that she was only going to make it worse. She did not react when the child began playing with a plastic bag, and when the access facilitator told her that she needed to respond, she grabbed the bag aggressively from the child. During the visit on October 14, 2011, D.S. left B.S. in the high chair for sixty five minutes.
h) Dr. Blake was present for the visit on December 19, 2011. Society access facilitator Ms. Pastorelli noted that the mother exhibited a flat affect throughout most of the visit, and spent significant periods of time simply staring at Dr. Blake, the child and Ms. Pastorelli. When Ms. Pastorelli attempted to provide D.S. with suggestions regarding toys which the child may like, D.S. responded by telling her not to talk to her. Dr. Blake noted that the mother did not appear to have an appreciation of the types of toys that were appropriate for B.S., or of B.S.’s developmental capabilities in terms of being able to feed herself with a spoon. D.S. was dismissive and abrupt with the access facilitator throughout much of the visit.
i) During the visit on March 8, 2012, D.S. did not respond to the child’s cues or to suggestions from Society access facilitator Ms. Marianna Violarus-Dariawesh about how to calm the baby. She responded to the child not eating by stating that she would put the child in the high chair to teach her a lesson for not eating, and did not appear to appreciate that the child would not comprehend this type of response. D.S. refused to rock the child or walk around the room to calm her down when she became fussy. On March 22, 2012, Ms. Violarus-Dariawesh reported that in her view, the visits were becoming torturous for B.S., because the child was crying throughout the visits and D.S. was not responding appropriately to calm her. Soon after this visit, the Society reduced the frequency of D.S.’s visits from three times per week to once weekly because of concerns regarding the impact of access on the child.
8. D.S.’s Ability to Be Consistent and Meaningful Influence in B.S.’s Life
[96] It is clear from the evidence that D.S. loves B.S. very much, wishes to parent her and has attempted to be a consistent figure in the child’s life. However, I conclude that her mental and physical health difficulties have significantly undermined her ability to remain a consistent influence with B.S., and that they will in all likelihood continue to do so in the future.
[97] Following the apprehension of B.S., the Society arranged access for D.S. to occur three times per week at the Society’s offices. Until the fall of 2011, D.S. was fairly consistent in attending access visits. Although the Society had concerns regarding D.S.’s parenting during the first several months of access visits, it agreed to move access to a less structured group setting in the summer of 2011. The plan at that time was to work towards visits between D.S. and the child in the mother’s home, provided that D.S, demonstrated stability and progress in her parenting.
[98] Unfortunately, as described above, there were increasing concerns regarding the quality of access in the fall of 2011. The general consensus among access facilitators was that the mother’s mental health presentation was deteriorating, and that D.S. was unable to attend appropriately to B.S.’s emotional needs on a consistent basis. The Society decided to reduce D.S.’s access to once each week for 1.5 hours in October 2011 due to serious concerns regarding the mother’s mental health status and the negative impact of visits on B.S. Based on the evidence and findings summarized above, I find that this decision was in the best interests of B.S. The Society also advised D.S. that she would need to call the Society to confirm the visits by 10:00 a.m. on the day of the visit due to a number of missed visits, as detailed below.
[99] D.S. remained fairly consistent in exercising her access with B.S. until August 2011, when her attendance at visits with the child started to become irregular. In August 2011, she missed the visit on August 5, 2011, stating she had a sore throat, and on August 25, 2011, when she stated that she had a job interview. She also missed the visit on August 26, 2011, stating that she was ill. She missed the following visits from September 2011 until April 2012:
a) September 8, 2011: D.S. stated that she was ill.
b) September 14, 2011: she did not show for the visit and did not call to cancel.
c) September 30, 2011: she did not attend because she stated that she would be in court. However, the court file indicates that she did not attend court on that day.
d) October 3, 2011: she called to cancel the visit, stating that she had sores on her hands.
e) October 7, 2011: she arrived late and the visit had been cancelled by the time she arrived.
f) November 7, 2011: she cancelled stating that she was ill.
g) December 2, 2011: she cancelled again on the basis that she had a doctor’s appointment.
h) December 5 and 8, 2011: she cancelled the visits, stating that she was ill.
i) December 12, 16 and 23, 2011: she did not show for the visits and did not call to cancel. She later called regarding the December 16, 2011 visit and stated that she had pneumonia, although a previously noted, she has never provided any medical evidence to support this assertion.
j) December 29, 2011: she cancelled the visit because she stated that she had to do Christmas shopping.
k) December 30, 2011: she cancelled, stating that she was ill.
l) January 26, 2012: she did not show and did not call to cancel.
m) February 9, 2012: she cancelled, stating she was ill.
n) March 29, 2012: she cancelled on the basis that she had to do groceries.
o) April 5, 2012: she cancelled, alleging that she was ill.
p) April 12, 2012: she did not have a visit because she failed to call in advance to confirm the visit.
q) April 19, 2012: she did not call to confirm the visit.
[100] As a result of the decline in D.S.’s attendance at visits and the ongoing concerns regarding her mental health and presentation during access, a decision was made in March 2012 to reduce the weekly visits to one hour in duration. Based on the findings set out above regarding the decline in the quality of access visits, I find that this was a reasonable decision and in B.S.’s best interests.
[101] A.D.S. missed her fourth visit in a row on April 19, 2012, Society worker Ms. Nicol sent her a letter advising her that visits would be put on hold until she called Ms. Nicol to discuss the situation. In that letter, Ms. Nicol also informed D.S. that visits would be terminated if she had not heard from her by May 3, 2012. Ms. Nicol attempted to contact D.S. on May 1, 2012 to discuss the access situation, but could not reach her. The mother did not call the Society by May 3, 2012, and therefore access was suspended.
[102] As noted previously in these Reasons, D.S. was admitted to St. Joseph’s Hospital on May 19, 2012, and remained hospitalized until July 13, 2012. I find that she did not contact the Society to inquire about the child or to request access, despite the fact that she received day passes during her hospitalization. Furthermore, she did not call the Society to request access following her discharge. She only requested that visits resume after Ms. Nicol called her on August 14, 2012 after eventually learning about D.S.’s hospitalization from D.S.’s mother. The Society did not agree to resume visits at that point. I conclude that this decision was in B.S.’s best interests, given the difficulties which the mother had been experiencing during visits, the distress which the child was experiencing during many visits as a result of D.S.’s inability to implement parenting strategies which she had been taught, the many missed visits from the fall of 2012 until April 2012, and the fact that the child had not seen D.S. at all for a period of approximately five months as of August 14, 2012. Furthermore, the Society had brought a Motion for Summary Judgment that was returnable on September 6, 2012, in which it was requesting an order for crown wardship without access. The Society expected the matter to be dealt with expeditiously, but the mother was not prepared for the Summary Judgment Motion and requested an adjournment to allow her time to prepare materials. The Summary Judgment Motion was dismissed by Steinberg, J., and the matter was placed on the trial list. The Society did not anticipate that it would take until late March, 2013 for the case to be heard by the court.
9. B.S.’s Progress and Needs, and the Merits of the Society’s Plan in Relation to Those Needs
[103] B.S. is now two years and four months of age. She has been in foster care her entire life. I find based on the evidence of the Society Children’s Services worker, Ms. Gail Buckley, that she is a physically healthy child who has made excellent progress in terms of her overall development, with the exception that she has experienced some challenges in the area of gross motor skills. She has been monitored by Dr. Selwyn, who does not have any significant concerns regarding her gross motor delays from a long term developmental perspective. She has also been seen by ophthalmologist, Dr. Sabri, due to some issues with her left eye, but this problem has been correcting itself without the need for further intervention.
[104] I also find that B.S. is a very affectionate and loving child, and that she requires a great deal of physical closeness, especially with her foster mother. The foster mother describes her as a happy, delightful and intelligent little girl.
[105] B.S. has had the benefit of a secure and stable placement since her apprehension. She will need to make the transition from the care of her foster parents who she has been with since the apprehension to a long term placement, and this will be challenging for her given the bonds which she has formed in the foster home. I find that she has often experienced significant difficulty settling in the foster home after difficult access visits with her mother. Permanency planning has been delayed for B.S. for well beyond the statutorily mandated period of one year set out in section 70 of the CFSA. B.S. now urgently requires a stable, secure long term placement with caregivers who have been assessed as having excellent parenting skills and the ability to provide B.S. with a safe and stable home environment.
[106] The Society’s plan is to place B.S. for adoption. While there is no obligation on the Society to provide a guarantee that B.S. is adoptable, I find that there are no impediments to her adoptability. I conclude that this plan would meet B.S.’s need for quality parenting in a secure, long-term placement.
C. Efforts Made to Assist the Child Before Intervention under Part III of the CFSA, and Consideration of Less Intrusive Alternatives: [Sections 57(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html) to [(4)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html) of the [CFSA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html)
[107] Section 57(2) of the CFSA directs the court to consider what efforts the Society or any other agency or person has made to assist the child before intervention under Part III of the CFSA. I find that numerous services have been offered to this family with the goal of assisting the child both directly and indirectly by supporting D.S. The mother has received extensive support from medical and social services professionals to assist her in addressing her mental health issues. This support includes the services of her family physician, Dr. Grzeslo, who has been loyal and attentive to her over the course of many years despite her failure at times to attend appointments and the fact that she has made official complaints against him. She has also received the services of psychiatrists at various hospitals, social workers at those hospitals, her ODSP worker Mr. Carnforth, the Ontario March of Dimes for vocational planning support, and referrals to Community Psychiatry Services and Community Schizophrenia Services for follow up monitoring and support from Dr. Kiang.
[108] D.S. has also received parenting instruction through the Beyond the Basics Program, and was also planning to attend the COPEing with Toddler Behaviour program as of the time of trial. She has received extensive one-on-one parenting instruction from Society access facilitators since December 2010, and participated in a “learning through play” program run through the access centre. She has had the benefit of a period of society wardship that far exceeds the statutorily mandated period set out in section 70(1)(a) of the CFSA, which has given her a protracted opportunity to address the protection concerns which the Society has identified. Unfortunately, the protection concerns described above persist despite the input and services of these various community professionals and agencies.
[109] I am also required by virtue of section 57(3) of the CFSA to consider whether alternatives which are less intrusive than crown wardship would be adequate to protect the child. I conclude that there are no less intrusive alternatives that would adequately protect B.S. As noted previously in these Reasons, no family members, friends or other members of the community have presented a plan for the care of B.S. Because of the time restrictions relating to society wardship set out in section 70(1)(a), the only options available are crown wardship with or without access, or a placement of B.S. in her mother’s care either with or without Society supervision. The protection concerns summarized above are serious and I am satisfied that the child would be at considerable risk of suffering both physical and emotional harm if she were returned to her mother’s care.
[110] I am not satisfied that a supervision order with D.S. would be adequate to protect B.S., given the magnitude of the protection concerns, the concerns regarding D.S.’s capacity to comply with treatment recommendations and her limited insight into the severity of her problems. I have also taken into consideration D.S.’s history of inconsistent cooperation with mental health professionals and Society personnel. D.S. has a history of exhibiting extremely hostile, resistant and at times aggressive behavior towards mental health professionals during periods when she has been in crisis. With respect to her cooperation with the Society, I find that although there were periods when D.S. was cooperative with and responsive to the instruction of Society personnel, there were also many periods when she presented as hostile, confrontational and resistant to parenting instruction. She did not advise the Society about her relationship with S.M. until October, 2012, despite the fact that she intended him to be an integral part of her plan for the care of B.S. In addition, as late as January 2013, she declined to allow the Family Services Worker access to her home for even a few minutes, and refused to undergo a drug test. D.S.’s periods of poor cooperation with the Society and other professionals have not been the result of any ill will on the part of the mother; rather, they have typically occurred at times when her mental health has deteriorated and her judgment has been impaired. Regardless of the cause, I conclude that if B.S. were to be placed in D.S.’s care, difficulties would quickly develop regarding the level of D.S.’s cooperation with the Society and other professionals and the Society’s ability to effectively monitor B.S. in her mother’s care.
[111] I agree with the submission of the mother’s counsel that D.S. is essentially a very good person. She has struggled for many years with her mental and physical impairments, and she has made genuine efforts to address these problems. As I have stated a number of times, it is very clear that she loves her daughter. However, the focus must remain the needs of B.S. and her best interests. For all of the foregoing reasons, I conclude that it is in the child’s best interests to be made a ward of the crown.
VI. ANALYSIS RESPECTING ACCESS
[112] As previously stated, D.S.’s position at trial was that if crown wardship were ordered, there should be no order for access. Her view was that access in these circumstances would undermine B.S.’s ability to form a strong and secure attachment with her long term caregivers. D.S.’s position on this issue is a testament to her love of her child and her desire for B.S. to enjoy every possible opportunity of achieving her greatest potential.
[113] Even if D.S. had not taken this position on access, I would have concluded that she had not satisfied the test for access after crown wardship set out in section 59(2.1) of the CFSA. I find that although D.S. loves her child dearly, the relationship between her and the child is not meaningful and beneficial to B.S. Accordingly, the first branch of the test for access as set out in section 59(2.1) of the CFSA would not have been satisfied. As discussed in depth above, the interactions between D.S. and the child were frequently strained and problematic during visits. Furthermore, D.S. missed numerous visits with B.S. before the Society suspended access, and she has not seen the child since late March, 2012. I find based on the evidence of Dr. Blake that after such a lengthy period of no contact, the child’s attachment with her mother would be very minimal or non-existent. To use Dr. Blake’s words, the mother and child would essentially be “starting again from scratch” in terms of the attachment between them.
[114] Counsel for D.S. attempted to lay responsibility for the lack of access and resulting loss of attachment between mother and daughter at the feet of the Society. However, as stated previously, I find that the Society’s decisions respecting access were reasonable responses to the difficulties which D.S. was experiencing during the course of the Society’s involvement, and were all in the best interests of the child.
VII. TERMS OF ORDER TO ISSUE
[115] Based on the foregoing, an order shall issue upon the following terms and conditions:
a) The child B.S., born[…], 2010 (“the child”) shall be a ward of the crown and shall be placed in the care of the Children’s Aid Society of Hamilton.
b) There shall be no access to the child.
[116] In conclusion, I appreciate that this outcome will be difficult and painful for D.S. The concerns outlined in these Reasons for Judgment are attributable to challenges which life has handed to D.S. and which are in many respects beyond her control. I emphasize once again my impression that D.S. is a kind, loyal and good person, and a loving mother who wished very much to parent her daughter. I was genuinely impressed with D.S.’s love and sense of dedication for her child, and her perseverance and strength of character in pursuing her plan to care for B.S. despite the challenges which she has experienced. I encourage D.S. to continue to access all available community supports to address her personal issues so that she can achieve the long term stability in her life that she needs in order to maximize her happiness and achieve her personal goals.
The Honourable Madam Justice Deborah L. Chappel
Released: April 12, 2013
COURT FILE NO.: C 2133/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
-and-
D.S.
Respondent
REASONS FOR JUDGMENT
The Honourable Madam Justice Deborah L. Chappel
Released: April 12, 2013
[^1]: Child and Family Services Act, R.S.O. 1990. c. C-11, as amended.
[^2]: CFSA, Section 57(1).
[^3]: Children’s Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2011] O.J. No. 5754 (S.C.J.); Brant Children’s Aid Society v. J.A.T., 2005 ONCJ 302; Catholic Children’s Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717 (Ont. C.J.).
[^4]: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.)., 1994 CanLII 83 (SCC), [1994] S.C.J. No. 37, 2 R.F.L. (4th) 313, 18 O.R. (3d) 160n., 165 N.R. 161, 113 D.L.R. (4th) 321 (S.C.C.).
[^5]: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), Ibid.; Catholic Children’s Aid Society of Hamilton v. M. (M.A.), 2003 CarswellOnt 1122 (Ont. S.C.J.).
[^6]: CFSA, Section 57(9).
[^7]: Catholic Children’s Aid Society of Hamilton v. M.(L.), (April 28, 1989), Doc. Hamilton-Wentworth C-1096/85 (Ont. U.F.C.); Catholic Children’s Aid Society of Hamilton v. M. (M.A.), Supra.
[^8]: CFSA, s. 71(1)(a).
[^9]: Catholic Children’s Aid Society of Toronto v. S. (S.), 2010 CarswellOnt 10496 (Ont. C.J.); Catholic Children’s Aid Society of Hamilton Wentworth v. G. (J.), 1996 CarswellOnt 1428 (Ont. Div. Ct.); Children’s Aid Society of Toronto v. U. (L.), 2008 CanLII 26661 (ON SC), 2008 CarswellOnt 3192 (Ont. S.C.J.).
[^10]: Catholic Children’s Aid Society of Toronto v. S. (S). Ibid.; Catholic Children’s Aid Society of Hamilton v. M. (M.A.)., Supra.
[^11]: Catholic Children’s Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717 (Ont. C.J.)
[^12]: Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.); Children’s Aid Society of Hamilton v. A.D.L., 2009 CarswellOnt 6358 (S.C.J.).
[^13]: Children’s Aid Society of Hamilton v. L.S., 2011 ONSC 5850, 2011 CarswellOnt 11097 (S.C.J.)
[^14]: Catholic Children’s Aid Society of Toronto v. M. (L.), 2011 ONCJ 146, 2011 CarswellOnt 2068 (Ont. C.J.).
[^15]: Children’s Aid Society of Niagara Region v. J. (M.) 2004 CanLII 2667 (ON SC), 2004 CarswellOnt 2800 (S.C.J.).
[^16]: See also Children’s Aid Society of Niagara Region v. J.C., 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.).
[^17]: Ibid., at para. 29.
[^18]: Ibid., at para. 46; Children’s Aid Society of Niagara Region v. D.B., [2011] O.J. No. 4956 (S.C.J.).
[^19]: Catholic Children’s Aid Society of Hamilton v. L.S., 2011 ONSC 5850, [2011] O.J. No. 4512 (S.C.J.).
[^20]: Children’s Aid Society of Niagara v. J.C., Supra.; Children’s Aid Society of Hamilton v. A.D.L., Supra., at para. 159.
[^21]: Ibid., at para. 42.
[^22]: CFSA, section 63.1.