Dundas & Glengarry v. L.I.P., 2013 ONSC 4659

COURT FILE NO.: 11-684

DATE: 2013/07/11

ONTARIO

SUPERIOR COURT OF JUSTICE

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

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

and in the matter of: W. Jr., born […], 2007

B E T W E E N:

Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry

Cathy Legault, for the Children’s Aid Society

Applicant

– and –

L.I.P. and W.G.C.

Respondents

Helene Desormeau, for the Respondent

L.I.P.

Penelope Gardner, for the Respondent

W.G.C.

HEARD: April 15, 16, 17, 18, 19, 22, 23

and 24, 2013 (in Cornwall)

REASONS FOR JUDGMENT

MINNEMA J.

[1] This was a child protection trial where the applicant Children’s Aid Society was seeking Crown wardship of the child W. Jr., age five. The child had been removed from the home of the parents on February 7, 2012 and the parents were seeking a return of the child without conditions or the supervision of the Society.

Issues

[2] The first issue is whether the child is in need of protection pursuant to section 37(2) of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (“C.F.S.A.”). If the child is found to be in need of protection then the second issue is what order should the court make in the child’s best interests. The third and last issue is what if any access should be ordered if the child is made a Crown ward.

Facts as Found

[3] The respondents Ms. P. and Mr. C. are the biological parents of W.E.E.C.P. born […], 2007 (“W. Jr.”). Both parents indicated that they are 28 years old.

[4] Ms. P. indicated that she took two parenting classes in high-school that she passed with marks in the sixties. She graduated high-school late at the age 20, and afterwards began working at a discount department store, Giant Tiger.

[5] Mr. C. described a very poor childhood. He indicated that he was physically, emotionally, and verbally abused as a child and ran away from home at age 14 when he was just starting high school. He indicated that after living with a family for a short period he lived on his own in a forest for eight months until his mother found him and brought him home. Shortly afterward there was an altercation in the home where he felt he was defending his mother from her partner of one year. He said he “pounded on” her partner, meaning physically assaulted him. There were charges laid, and he was also charged with assaulting his mother. He indicated that the charge regarding his mother was dropped as he did not hit her. Despite admitting that he assaulted his mother’s partner, Mr. C. indicated that he was only convicted of ‘public disturbance’. However, he did say that he spent a few months in an open custody facility as a result.

[6] Regarding his education, Mr. C. mentioned that he and his brother were in ‘social adjustment classes’ in high school despite being normal and “very smart”. He said he took three parenting classes while still in high-school, although he did not indicate whether he passed or what his marks were. He said that when he was in the open custody facility he took three sessions of an anger management class, but said he did not remember the tips because it was over ten years ago. Other than this, there was no evidence of any formal or further education, and it was not indicated whether he graduated from high school. However, Mr. C. considers himself to be highly intelligent. He has more than the usual confidence in his ability to make correct decisions on all spheres of life. In particular, as noted below, he has a high opinion of his ability to research on the internet and make correct determinations in the medical and parenting fields, and will hold to these determinations even in the face of contrary suggestions by persons formally trained in those fields.

[7] Although they had known each other previously, Ms. P. and Mr. C. started dating in August of 2006. The pregnancy for W. Jr. was planned. Both confirm that Mr. C. attended all pre-natal medical appointments with Ms. P. W. Jr. was born on […], 2007 when Ms. P. was 23 years old and Mr. C. roughly the same age.

[8] Following W. Jr.’s birth, Ms. P. took maternity leave for a year. Mr. C. worked at a call center in Cornwall and also did odd handyman jobs. When Ms. P. went back to work at Giant Tiger, Mr. C. quit his job at the call center to stay home with the child. He indicated that he would still do odd jobs and would take W. Jr. with him to be looked after by his customers while he worked.

[9] The parents indicated that for W. Jr.’s first years their life was very good. The father would go on outings on his bicycle with the child in a pull behind carrier. The mother said that she would sing and read to him. They suggested a very active life with W. Jr. However, the mother also indicated that the television was always on in the home and that W. Jr. liked the television. She said that W. Jr. was a good baby and would sit for long periods by himself and be content. She said this was not a concern as her mother had told her that she had also been like that as well as a baby. The mother added that the television was always set to a children’s network.

[10] The medical records from the child’s first doctor for this period, Dr. M. Dokiso Nchama, were in evidence. They indicate that the child was seen on November 12, 2007, January 3, 2008, February 14, 2008, April 23, 2008, and October 20, 2008 (essentially over his first full year). For the first visit the child was under a month old and the attendance had to do with a diaper rash. For the following four visits, at roughly 2, 4, 6, and 12 months, appeared to be check-ups. On each of the last four visits W. Jr. received an immunization shot, and notes were taken about his height, weight, eating, etc.

[11] On the last visit of October 20, 2008, Dr. Nchama noted that at almost exactly one year old the child was in a world of his own for his age, and questioned whether he may be autistic. Later that day he sent a Consultation Request for W. Jr. by fax to the Child Development Services at CHEO (the Children’s Hospital of Eastern Ontario which is in Ottawa). The referral asked the hospital to call or fax with an appointment date and time.

[12] The next entry in Dr. Nchama’s file is a copy of a letter from J. Raymond, Intake Services at the Ottawa Children’s Treatment Centre (‘OCTC’) dated December 10, 2008, addressed to Mr. C. It informed Mr. C. that W. Jr. would not be receiving services because the “Parent(s) declined services.” It added:

As per your telephone message today, you “do not expect to hear from us again.” It is your feeling that [W.] does not need help and you have no worries regarding his development. [W.]’s request will now be closed. If you have any questions or concerns please feel free to contact us at 613-737-0871 x 4415.

[13] The next entries in Dr. Nchama’s file were dated January 19, 2009. The father called to cancel the appointment that day and said he would be switching doctors. He also wanted the child’s complete file. When told that there would be a $10 fee, the father said he was not willing to pay that and would bring his lawyer. The father wrote out his own Release of Information form suggesting that he was not prepared to pay the $10 “due to the stress they’ve caused myself & family.” He threatened legal action in the document, but eventually paid the $10.

[14] The father in his evidence said that the only reason they left Dr. Nchama was because he had told Dr. Nchama not to give W. Jr. a needle on October 20, 2008 but the doctor did anyway. He said he “fired” Dr. Nchama right then, taking W. Jr. from the appointment and leaving. Mr. C. said that he had researched vaccinations and scientology on the internet and was of the view that vaccinations are dangerous for children. He said he had held this view of “no needles” for a long time, and seemed surprised to learn at the trial that there were four previous vaccinations. He was very clear that there was no mention by Dr. Nchama in that visit of W. Jr. possibly being autistic or of a referral to CHEO.

[15] Although they are aligned in position and interest, on many points in the evidence the parents’ accounts of events were markedly different and confusing. Ms. P. was also of the view that immunizations could cause autism, but she said that she and Mr. C. only made the decision of ‘no more needles’ the night before the October 20, 2008 doctor’s appointment. She acknowledged knowing that W. Jr. had the other immunizations, as she saw him given the first needle, and had to look away for the other ones that she was present for.

[16] Ms. P. also said that Mr. C. told her after the October 20, 2008 doctor’s visit that the child may be autistic. She said that she and Mr. C. thought it was too early to make that assessment. She said that they arrived at that conclusion because she claimed that someone they knew, a friend ‘Dr. Nadler’ who was a retired psychologist, came to their house and gave that opinion. This was the only time Dr. Nadler was mentioned, but Ms. P.’s account indicates that the parents had discussions with two medical professionals about W. Jr.’s development and possible autism by the time the child was one year old.

[17] I find that the parents changed W. Jr.’s doctor because Dr. Nchama raised the possibility that their child might have autism, and the parents were unwilling to accept that. Two CAS workers indicated that Ms. P. said the same to them.

[18] The parents located a new physician Dr. Elvira Salja Halili. They took W. Jr. in for a first appointment on June 10, 2009, 7½ months after the last one with Dr. Nchama. They thought that Dr. Halili was a pediatrician, and the father for one was genuinely shocked at trial to learn that she was practicing as a family physician. At this first visit the parents answered the questions regarding the child’s development in a positive way. This led Dr. Halili to assess the child as “Healthy”.

[19] The parents were not completely forthcoming with Dr. Halili. They indicated that W. Jr. at 20 months old “uses a spoon well”. However, Mr. C. himself was clear in his evidence at trial that up to age four W. Jr. was still not able to use eating utensils although he had tried to teach him. Ms. P. in her evidence said that prior to the apprehension W. Jr. was eating with his fingers quite a bit but that she had taught him to use a fork. That was over 2½ years later. None of the other witnesses had ever seen the child use eating utensils before apprehension. Upon apprehension it was noted that the child had no ability at all in this regard. Ms. H.P., the family friend who testified, said that when W. Jr. ate he would be fed by the father.

[20] The parents also told Dr. Halili that W. Jr. “uses 10 – 20 words” at 20 months of age. However, while certain of the parents’ witnesses said he used some words two and a half years later, even then all the words they listed in total were not as many as the parents had indicated to Dr. Halili. They acknowledged generally a lack of speaking ability. Further, they indicated to Dr. Halili that the child ‘piles 2 blocks.’ However, blocks were never identified as a toy that the child has ever played with in the home.

[21] I find that the parents answered the questions about the child’s developmental milestones in a misleading way intended to avoid Dr. Halili raising the same concerns about W. Jr.’s development as expressed by the previous physician.

[22] Indeed, inconsistent with many of the events already noted, the parents said that they had no indication that W. Jr. might be delayed up until the child was approaching two years old. They said he was walking a bit late at age 1½. He was not talking or using words yet but this was not a concern as they said they could understand what he meant. The mother said that she could read his cues and the father said he had taught W. Jr. “baby sign language” which he had learned on the internet and from someone in his neighbourhood whose name he could not recall. While claiming at trial that W. Jr. had constant exposure to other children coming and going from the house to compare him with, this was inconsistent with statements made to service providers at different times.

[23] The parents’ witnesses at trial did not identify any concerns regarding W. Jr.’s development to the parents. This is despite all of them having observed obvious delays. Ms. S.S. was a neighbor who had never been in the parents’ house, but said she saw them often in the neighbourhood. She had never heard the child talk. Ms. H.P. as already noted was a family friend, and she was also a past family hairdresser and co-worker of Mr. C. She moved away from Cornwall when W. Jr. was about two and a half years old and had only seen him three times since then. She suggested that she knew he was delayed, as she talked about her own son who she said was delayed “as well.” When asked if she had concerns about W. Jr.’s development she avoided the question saying that she was not an expert in the field – not a child development person – just a family friend. Mr. D.M., a friend, said he was still in the house twice a week but had never seen W. Jr. eat a meal so did not know if he could feed himself. He said that he never heard W. Jr. talk, he always mumbled. He said he didn’t think that was unusual, as in his experience some kids do not talk until they are six.

[24] The maternal grandmother P.P. also gave evidence. She said that the mother Ms. P. herself was a bit slow as a child so she did not have immediate concerns regarding W. Jr. She never said to Ms. P. that W. Jr. might be a bit slow until after the CAS became involved. At that point she was prepared to acknowledge that W. Jr. seemed generally to be “a little slow on the uptake.”

[25] The Society’s first involvement occurred on September 13, 2009 when it received a police referral about the state of the home. An ‘after hours’ child protection worker attended the home with the police. The parents and child were not home but the worker gained access through the maternal grandmother P.P. and verified the poor and unsafe conditions.

[26] The maternal grandmother P.P. lived on one side of the duplex with her mother the maternal great grandmother, since deceased. Her daughter, the respondent mother L.P., lived on the other side of the duplex with the father and child. There is a door-way opening between the two units upstairs allowing access between the units without having to go outside. P.P. said that she let the CAS into the parents’ home because she felt she had to.

[27] The parents arrived home with the child while the police and CAS were still there. Mr C. had an altercation with the police. He was very upset that a worker was in the home. The child appeared clean and healthy. When the situation calmed the worker explained to the parents her concerns about the condition of the home and the parents agreed to make some changes.

[28] Although he was not there when the maternal grandmother allowed the CAS worker into the home, Mr. C. indicated that he had researched and is very knowledgeable about the law, and this was an illegal warrantless search. He also maintained that in the altercation with the police he was wrongly assaulted and he has lodged a complaint against the police and has or is going to sue them.

[29] The worker left and returned to the home later in the day at which time the parents were cooperative and allowed her access. The condition of the home had been improved, many safety hazards addressed, and much cleaning had been done, even more than the worker had directed. There was still a concern about an inoperable fire alarm and a fire safety plan was discussed with the family.

[30] At that time Mr. C. put a quarter in the child’s hand to demonstrate that the child would not put items in his mouth, presumably to address a safety concern regarding the state of the home and a risk of the child choking. Mr. C. was told this is not a practice that should continue as babies are curious and unpredictable.

[31] When the worker was leaving, the parents went outside to the porch and the child was left unattended in the home. She cautioned them that it was necessary to supervise the baby at all times. Mr. C. said that he refused to let someone tell him how to raise his son and that they could see the baby and hear him talking. The worker’s general impression was that the child’s development seemed to be “off”, as he was not interacting as a two-year-old should.

[32] The first worker then transferred the file to a regular child protection worker who attended the home on September 17, 2009. There were still concerns about the safety of the home, although not related to a lack of cleanliness. The home was cramped and full of furniture raising a concern of safe exit in case of a fire. There was still an issue with the smoke detector. Following that attendance the worker contacted the Fire Department and asked for an inspection. She also subsequently brought an application for Social Housing and wrote a letter in support with a view to improving their accommodations.

[33] While still at the home on September 17, 2009, the worker observed W. Jr., one month shy of two years old, to have a flat affect; he made no eye contact with her or the parents, did not speak, and moved his arms in a peculiar way. She noted that Ms. P. seemed to be able to read his cues. Ms. P. advised her that she had changed doctors from Dr. Nchama to Dr. Halili, as the previous family physician Dr. Nchama had raised the possibility that W. Jr. had autism. Ms. P. said she was concerned about the child’s development and concerned about his keeping pace developmentally with his peers, acknowledging that he should be speaking at his age. The worker had a discussion with her about services and extra funding.

[34] Still on September 17, 2009, Ms. P. made comments about Mr. C. being controlling and difficult to deal with, which she now denies. The worker spoke to her about safety and alternatives such as a shelter. Following this meeting the worker realized that she was distantly related to Mr. C. and the file was transferred to another child protection worker.

[35] After some trouble connecting with the parents the new worker arranged to attend the home on October 19, 2009. The house was cluttered but Mr. C. advised that they had spent the entire weekend cleaning and he was critical of Ms. P.’s housecleaning skills. At that time Ms. P. was working but Mr. C. was not. W. Jr. appeared happy and content, and although he was non-verbal Ms. P. was able to read his cues. When Mr. C. left the room Ms. P. was asked if she was fearful of him and she said she was not and that he had never hit her. The same worker attended the home again on October 29, 2009, and the home met all community and safety standards. The parents were cautioned about the affect adult conflict in the home would have on W. Jr., but the parents indicated this was not a concern.

[36] On November 18, 2009 with advance notice to the Society the family moved to a hotel, and Mr. C. obtained a part-time job at a grocery store. This move was as a result of conflict between Mr. C. and P.P., the child’s maternal grandmother.

[37] The Society worker attended the hotel and the living arrangements were adequate. The family moved to a different hotel on December 1, 2009, and advised the worker. Although Mr. C. presented to the worker as controlling of the mother, Ms. P. maintained there was no domestic violence and she was not fearful of him. The worker noted that the parents loved their son and would never intentionally put him in harm’s way. On December 4, 2009, the Society closed its file as the condition of the home had been addressed, the living arrangements were adequate, and the parents were seeking to obtain an apartment.

[38] There was a subsequent referral to the Society in March of 2010, and the last worker advised that she was uncomfortable being re-assigned to the file as at one point Mr. C. commented to Ms. P. that she should dress and look more like her?. So a new worker was assigned. The referral was from a friend of Ms. P.’s of an unknown nature, and when the Society was unable to locate the family, the file closed.

[39] In May of 2010 the Society received a referral from the police regarding possible drug dealing by Mr. C. On May 14, 2010 that was investigated by an assessment worker and was found to be unsubstantiated. The worker was allowed in the home by Mr. C., which at that time was on Second Street in Cornwall, and it was clean and free of safety hazards. W. Jr. appeared happy and healthy and well bonded to the father. Mr. C. reported that they were still having issues with the child’s speech but it had been coming along better in the last few months. Ms. P. was interviewed later and she noted she earned the primary income for the family and Mr. C. was the primary caregiver for W. Jr., and she had no concerns.

[40] The family then moved back to L[…] Avenue in Cornwall, the duplex owned by the maternal great grandmother. They had only been away from that residence for five or six months. The home was still undergoing some renovations. When the renovations were almost complete no concerns were noted, and the Society closed its file after the last visit on July 8, 2010.

[41] On July 25, 2010 the Society received a referral from Mr. C.’s brother with concerns for W. Jr. The file was re-assigned to the second last worker. She had difficulty contacting the family and then getting them to cooperate with a meeting at their home. Mr. C. misled the worker about his location. On the telephone Mr. C. was hostile, irate at being investigated again, and threatened to sue the Society before hanging up. After further telephone contact a meeting was arranged for September 8, 2010.

[42] The worker was not allowed into the home on September 8, 2010 but did not note any difficulties inside from her vantage point on the porch. W. Jr. was brought outside. He was clean, in good health and interacted appropriately with the worker. He had a limited vocabulary but the parents said they were working on that with him. The parents reported that he was being seen regularly by Dr. Halili, and they said that the reason for changing doctors was that Dr. Nchama had suggested autism but Mr. C. knew that a diagnosis could not be made until the child was three years old so he switched doctors to get a second opinion. The child was comfortable with both parents and did not demonstrate any fear towards them. The worker concluded that the parents were providing the child with good enough care and did not require further intervention from the Society. The file subsequently closed.

[43] It was misleading for the parents to tell the worker that the child was being seen regularly by Dr. Halili. After the June 10, 2009 appointment noted above the parents did not attend for the next two scheduled appointments on April 5, 2010 and May 26, 2010. W. Jr. in fact had not been seen by her in a year and three months.

[44] Regarding the two missed visits, the parents maintained that Halili cancelled those visits or, somewhat inconsistently, that they attended on those dates but that Dr. Halili was not there. Dr. Halili’s notes indicate that the parents did not show up, and that Mr. C. was not compliant with visits and not agreeable to regular visits.

[45] I find that the missed visits were as a result of the parents’ failure to attend. They did not seek make-up appointments. Further, their not attending was consistent with other statements they made. They were both clear in their evidence that they did not think that regular medical visits for the child were necessary. They had full confidence in their combined ability to determine the child’s medical needs and his development. Mr. C. said he does not believe in doctors, and Ms. P. shared this view.

[46] At the September 20, 2010 appointment, the second one with Dr. Halili, she had a number of concerns with W. Jr.’s health, the main ones being his weight, stereotyped movements, and his not being able to talk. She noted “Development: concerned Re autism” and “Assessment - ? Autism.” Regarding Mr. C., she noted that he was in denial regarding her concerns about the child’s eating and his stereotyped movements. She also noted that he felt that he could act as a pediatrician for his child, which he confirmed. Along these lines Dr. Halili also noted “All childhood immunizations received – not compliant with immunizations, he don’t want to put poison in his son’s body??!!!.”

[47] Dr. Halili indicated that her plan was to follow-up in one month for weight. Unfortunately W. Jr. was not seen by her again for another ten months.

[48] On October 24, 2010, the Society’s after hours service received a referral from the police regarding a verbal altercation between the parents on their porch, and a previous worker was reassigned the file. Mr. C. was irate about this attendance as he indicated that the parents were arguing about renovations and it was not in front of the child. He was frustrated that a neighbor had called it in. Mr. C. advised that W. Jr. was recently seen by Dr. Halili and other than a concern about the child’s weight no other concerns were identified about his development. This was misleading for as seen above Dr. Halili did have concerns about his development.

[49] Arrangements were made with Mr. C. for the worker to re-attend the home on November 1, 2010. Mr. C.o subsequently changed his mind and left a telephone message and a letter to the effect that he felt he was being harassed by the Society and if a worker came on his property he would sue the agency. The note read as follows:

DON’T CALL US!!! No matter what way you look at this it’s harassment. I will take legal action if this occurs or pursue’s anymore. Have a great day.

[50] The Society without grounds to pursue a court action advised the parents in a letter dated November 22, 2010 that it would be closing its file.

[51] Mr. C. indicated at trial that he decided then not to cooperate any further with the Society. He took the view that that the Society could no longer investigate his family as it had already investigated three referrals and “three strikes and you’re out”.

[52] On May 16, 2011, the Society received a referral concerned about W. Jr.’s development. A new worker was assigned. After dropping by the home and unsuccessfully calling a number of times, the worker sent a letter and the result was a telephone conversation with Mr. C. on June 1, 2011. Mr. C. was aggressive in this conversation indicating that the worker did not know who he was dealing with, suggesting that he, Mr. C., was a powerful man both physically and with connections. He said the Society had no right to bother them. Despite not being told who made the referral, Mr. C. blamed his mother. The worker offered to meet with Mr. C. at his home, but Mr. C. made it clear that the worker would not be entering his residence even if he attended with the police. The worker advised that he needed to follow up on the referral. Mr. C. indicated that he would need court papers to enter the home, and even then he would not allow the Society entry or to see the child.

[53] The Society decided it needed to complete its investigation. It attended on at the home on June 2, 2011 with the worker, a second worker, and two police officers to ensure worker safety and keep the peace. Mr. C. initially refused the Society entry into the home or access to the child. A friend of the family was called over. Mr. C. was extremely aggressive, reactive and hostile. Eventually access to the home was permitted after extensive negotiations.

[54] The worker noted that the home was unsafe as there was no clear exit in the event of an emergency. Ms. P. admitted in evidence regarding this and the earlier concerns about the condition of the home that she is somewhat of a ‘hoarder’ and is trying to improve on that. The worker also noted that the child appeared developmentally delayed in that at three years seven months he had no speech, was not toilet trained, and was unreactive to the chaos in the home. The parents explained that they could understand him by sign language and anticipate and attend to his needs. The parents did not acknowledge that their son needed assistance. At one point the worker recommended W. Jr. be seen at SD&G Developmental Services (‘SD&G’ being Stormont, Dundas, and Glengarry counties). Ms. P. agreed it would be helpful but when Mr. C. resisted she retracted her agreement.

[55] The workers decided to leave the home to allow the situation to calm and to give the parents an opportunity to address the pressing safety concerns. When they came back later in the day with the police the safety issues had been addressed except for the need for a safety gate which was addressed later. Mr. C. was calm at that time, and apologized for his behavior earlier. However he still continued to make grandiose statements about his own intelligence and his own physical prowess. He produced a note signed by him and Ms. P. saying that they were prepared to see a specialist (psychologist/speech therapist) of their choice for W. Jr., but not in Cornwall. The worker advised that the Society would do what it could to identify potential services in Ottawa. A follow-up appointment was arranged for June 8, 2011. The worker commented that he had lengthy interaction with the family on these attendances and never heard the child speak.

[56] The worker was four minutes late for the June 8, 2011 meeting and when he arrived met Mr. C. in an agitated state. Mr. C. advised that he was not letting anyone into his home and made grandiose statements about his powerful connections. He was not agreeing that W. Jr. was delayed and indicated that there are five year old children who do not speak. He was angry with the Society’s past questioning of Ms. P. regarding whether he was controlling of her. This exchange took place in front of the home, and before the worker could respond the family left the home on their bicycles with W. Jr. in his pull-behind carrier.

[57] The Society, noting concerns with the child’s development and lack of assessment, as well as the father’s volatility and the parents’ lack of cooperation, then brought an application for a supervision order. An interim without prejudice supervision order was granted on June 29, 2011, not on consent, leaving the child in the custody of his parents subject to the following conditions:

1. L.P. and W.C. will cooperate with the Society’s workers and be amenable to recommendations made by them.

2. The Society’s workers shall have access to Ms. P.’s and Mr. C.’s residence when they wish to assess the state of the same.

3. Ms. P. and Mr. C. must advise the Society in advance if they intend to move and must give the Society their new address in advance of moving.

4. The Society’s workers shall have access to W. Jr. when they wish to see him.

5. Workers from the Society are able to obtain information from, and release information to, any service provider involved or previously involved with L.P., W.C. or their child, W. Jr. This is specifically meant to include Dr. Nchama and Dr. Halili.

6. W. Jr. is to undergo a complete medical examination. In the even the parents are not prepared to arrange same and take W. Jr. to the appointment(s) for same, a worker from the Society may do so and may consent to such examination and any treatment recommended as a result of same.

7. W. Jr. is to undergo a complete developmental assessment. In the event the parents are not prepared to arrange same and take W. Jr. to the appointment(s) for same, a worker from the Society may do so and consent to such assessment and any treatment recommended as a result of same.

8. Mr. C. will obtain a complete mental health assessment and follow any recommendations resulting from same.

9. Ms. P. and Mr. C. are to maintain their residence so that it is a safe and healthy environment for W. Jr.

10. Mr. C. is not to display angry, demeaning or threatening behavior in the presence of W. Jr.

[58] The file was assigned to the current worker and she and the previous worker attended the home on July 13, 2011. The parents allowed the workers into the home, and its condition was appropriate. The father took the position that the second supervisory condition regarding access to the child only allowed the workers to “see” W. Jr., so he directed them not to talk to the child or else they would have to leave. Mr. C. went through mood swings during this visit, from being cooperative and open to discussion, to quickly escalating to being angry and irate. The child watched television and did not talk during this visit. The workers confirmed that the parents had made an appointment for the child with Dr. Halili on July 20, 2011.

[59] On July 20, 2011, the worker contacted Dr. Halili’s office and communicated with the parents to ensure that they attend at the right location as there had been some confusion regarding this appointment.

[60] The parents did attend at the doctor’s office with the child that day. As noted this was the child’s first attendance since the one on September 10, 2010, some ten months earlier, and only the third visit with Dr. Halili. Dr. Halili noted that as a three year old child W. Jr. was non-verbal, used stereotyped movements, and had poor eye-contact. She concluded that W. Jr. was a “3 y.o. boy. Not speaking with main features of the Autistic child. Father in denial, his grandmother have suggested assessment.” She made a referral to CHEO for an assessment to be done. The father was at this appointment. This was another confusing point in the parents’ evidence, as they both claimed they did not agree to having an assessment done only speech therapy, yet would later complain about how long it took for the full assessment to start.

[61] The worker tried to contact the parents by telephone twice without success, and at a court appearance on August 17, 2011 she tried to set up a home visit for the next day, which was initially refused. The parents were argumentative and resistant to speaking with the worker but eventually a home visit was arranged for September 7, 2011, with the worker indicating she would be attending with another worker.

[62] On September 7, 2011, when the workers arrived at the home the parents met them on the porch. Mr. C. presented them with six written rules on a clipboard that they had to agree to before he would let them into the house. The rules included that they could only “see” W. Jr. but not touch or talk with him. They were not to engage in any conversations with the parents. They could not speak about issues in front of W. Jr., only on the porch. At the end of the visit Mr. C. advised that he was suing the CAS. When the workers suggested that they was not being cooperative, Ms. P. began swearing at the workers, and given the high level of resistance the visit ended early.

[63] The parents retained counsel in September and their answer was filed on September 28, 2011, about three months after the application was issued. While disputing the application, in their answer the parents indicated that they were willing to work with the Society on a voluntary basis to investigate, assess, and act upon any issues concerning the well-being of W. Jr. They also indicated that they were willing to arrange for an assessment of W. Jr. by a mutually agreed upon assessor. They seemed to be unaware of the referral Dr. Halili had tried to make to CHEO for an assessment back on July 20, 2011.

[64] The workers met with the parents at court on September 28, 2011. While the parents were initially resistant they eventually reviewed the Plan of Care. They agreed to meet at their home on September 30, 2011.

[65] When the workers met with the parents at their home on September 30, 2011, the parents were cooperative. The workers gave the parents a pamphlet regarding normal speech development, and offered to go through it with them but the parents declined indicating that it was not necessary. The workers suggested that the parents have W. Jr.’s speech assessed at the Eastern Ontario Health Unit and encouraged the parents to set up an appointment. There was an agreement that the worker in charge could contact CHEO to follow up on the assessment of W. Jr.

[66] On October 27, 2011, the worker contacted Mr. C. to set up an appointment to see the family. Mr. C. refused, saying that she could see him in court. He said this matter had become much more serious as he had had a stroke, and he needed to remain calm to avoid having another. When asked whether he would follow through with services when CHEO called for an appointment, Mr. C. said he could not agree with that. He said that he had not agreed to look at the information she had left him regarding speech and language development, and did not need to. The worker asked him to speak to Ms. P. and reconsider allowing her to come to the home for a visit and telephone her back. Mr. C. acknowledged that he had made it difficult for the workers to see his family and advised that he would continue to do so.

[67] Regarding the ‘stroke’, Mr. C. gave an account in his evidence of passing out for twenty minutes and being revived by a trusted friend who was hammering on his heart. 9-1-1 was not called. He self-diagnosed this as a stroke, and has never been to see a doctor about it. He said he doesn’t believe in doctors and hasn’t seen his own doctor in over fifteen years. Ms. P. shared this view about doctors and she did not seek any medical attention for herself after an episode where she fainted at work.

[68] In November of 2011, Mr. C. called the agency advising that Ms. P.’s grandmother had died and he would call back later to arrange a meeting. The worker called a week later on November 22, 2011, and spoke to the maternal grandmother P.P. who advised that the family was taking the death hard and now was not a good time. The worker left a message for the parents that she needed to see W. Jr. whether at the home or in the office.

[69] The three court attendances after the interim supervision order were adjourned in part to follow-up on the status of the CHEO referral made by Dr. Halili in July. When the worker confirmed with CHEO that it did not have the referral, she contacted Dr. Halili’s office on November 22, 2011 asking that it be sent again. Upon learning that the CHEO wait time was very long, on December 16, 2011 she contacted SD&G Developmental Services and confirmed that a functional developmental assessment could be processed very quickly. When the application was next in court on December 21, 2011 it was adjourned again, but with a signed consent indicating that the reason for the adjournment was “Child to be assessed by SD&G Developmental Services.” The parents had counsel at that time.

[70] Both parents indicated that they did get a call from SD&G. The mother said they were not expecting it. They both indicated that they refused the referral. They were clear in their evidence that they did not want to work with any services in Cornwall. Despite what occurred in court on December 21, 2011, they asserted that they never agreed to work with SD&G.

[71] The parents’ evidence here was also inconsistent and confusing. On one hand they made statements saying that they did not feel that W. Jr. needed services at all or needed only speech therapy and that they had no concerns regarding his development. They did not seek out any services on their own because they did not feel that he needed them. On the other hand they asserted that they wanted services for him but were adamant that he needed better than the services that were available in Cornwall – they needed services from Ottawa or anywhere but Cornwall. I cannot reconcile these positions. I find that their position is consistent with their pattern of avoiding services as they felt that W. Jr. had few if any delays. With their aversion to doctors they felt they could look after him themselves. This is in keeping with what follows.

[72] On January 19, 2012, the worker contacted the parents and spoke with Mr. C. to schedule an appointment to access services for W. Jr. In that conversation Mr. C. clearly indicated that the Society did not need to see the child, that they were not willing to work with the Society or anyone, and that they did not need to access any services. He also said that he was not allowing the worker in his home or around his child ever again.

[73] The Society obtained a warrant on February 1, 2012. The basis for the decision was the parents’ lack of cooperation, their refusal to accept the possibility that their son had developmental issues, and their unwillingness to follow through with recommended services. Essentially the Society took the position that the parents were not in compliance with paragraphs 1, 2, 4, 7 & 8 of the interim supervision order. There was little disagreement from the parents regarding failing to abide by most of these terms. As noted further below, they simply did not agree with them. W. Jr. was apprehended on February 2, 2012. He was four years three months old at the time. When the workers arrived with the police there was a cardboard sign in the window that indicated that it was private property and that no CAS workers were allowed to trespass unless there was a case. The father was home alone with the child. The inside was once again cluttered and chaotic. The child was found upstairs in his bedroom standing behind a safety gate. The father claimed that when the CAS arrived W. Jr. ran up the stairs, which is inconsistent with his making it over the safety gate.

[74] The mother upon finding out later about the apprehension was very upset, indicating that the foster parent would not know how to take care of her child. However, she did not respond to the suggestion that she tell the Society what the foster parent needs to know, or to the suggestion that she send along a few of W. Jr.’s comfort items.

[75] Upon apprehension W. Jr. was observed by the workers, foster mother, and Dr. Halili who did the intake medical, to be underweight, with many dental cavities, and with obvious developmental delays in the areas of speech and motor ability. He could not speak or even use basic words and was not toilet trained. He could not feed himself.

[76] The Society amended its application to seek six months’ Society wardship. On February 7, 2012 the Society obtained a without prejudice order placing W. Jr. in the Society’s interim custody with access to the parents in the Society’s discretion.

[77] The parents submitted separate answers dated March 4, 2012. The mother in her answer:

− On one hand acknowledged W. Jr. was a bit delayed, but also expressed doubt saying “If W. Jr. has any problems we are ready to help him any way we have to speech therapy a doctor whatever he needs.” She seemed to struggle understanding the Society’s concerns, questioning how W. Jr. could be in need of protection if he was well fed, cleaned every day, and had so many clothes.

− Her main theme was that the parents just wanted to be left alone and raise their son as they saw fit. She said they wanted to raise their son happy and healthy and did not want anybody to tell them how to raise him. In particular they did not need the CAS telling them how to raise W. Jr. or to tell them to take him to see a doctor.

− She repeated many times that she and Mr. C. were working hard for services for the child, which amounted to waiting for the referral from CHEO to come through and not accepting any local services. Despite being ambivalent about W. Jr. being delayed, she said they wanted the best services for him. She added that “We are two adult people who know how to take care of their child and can get doctors to help their child.”

− Again, despite being less than sure about W. Jr. having problems, she said Mr. C. never said that he did not want to get W. Jr. help, just that they didn’t want the help of the CAS.

[78] The father in his answer,

− Repeated many of the points noted by the mother, including the view that they do not need the help of the CAS to raise their child.

− He also made the same point of not wanting any local services. However, his take on waiting for CHEO was that he had told the CAS that there was a two-year wait, and the CAS were not willing to wait that long. He said it was not the parents’ fault if the professionals are busy, and suggested that they should just wait the two years and that the CAS has no patience.

− He made the point that W. Jr. is not falling behind but is traumatized. He indicated that W. Jr. was perfect until the assaults on the father by the police and seeing strangers in his home, referring to the first CAS involvement on September 13, 2009.

[79] It took convincing but eventually supervised access was arranged for Ms. P. starting on March 13, 2012 for one and a half hours twice a week. These visits were expanded since March 7, 2013 to go from 9:30 a.m. until noon, two and a half hours each. The child seems to have no difficulty at the visits and is quite active, although at times he has resisted the foster mother bringing him there. The mother is consistent in attending with her mother P.P., and they both show love and affection for the child. The child, however, does not reciprocate. W. Jr. has no visible reaction to seeing them at the start of the visits. He has a positive reaction to meeting the access supervisor but not to meeting the mother and grandmother. Ms. P. believes that W. Jr. always clinging to her neck when she tries to put him down near the end of the visits is a sign that he wants to come home with her. However, the access supervisor observed that the child does this when he does not want to be put down, regardless of whether it is the mother, himself, or the foster mother who is holding him. The access supervisor also noted that Ms. P. shows little interest in working with him on suggestions to improve her parenting or to implement strategies for W. Jr.’s development. Sometimes she will be compliant, but without consistency or enthusiasm. Ms. P. avoids conversations and exchanges with him, and they are quite minimal. There were no motions requesting the expansion of visits or the lessening of the supervision.

[80] Mr. C. has never had access with W. Jr. Based on a comment he made that if he had access he could not trust himself from taking W. Jr., the Society requested a meeting with him to address access safety concerns. That meeting never occurred. The Society made overtures over time to have this meeting and get the access started even asking Ms. P. to encourage Mr. C. to attend. Mr. C. explained that he decided not to have access as it would be too traumatic for the child. He said he did not want to traumatize W. Jr. any more as the child would not want him to leave. He also indicated that it would be too traumatic on himself. Ms. P. however said that Mr. C. told her he did not want to go to access even though she begged him to go because he did not want the CAS saying bad things about him. When asked whether Mr. C. was putting his own needs ahead of the child’s with this decision she would not agree, supporting his decision.

[81] There is no dispute that the choice not to attend access was made by Mr. C. This was very unfortunate as both parents were clear that he had been the child’s primary caregiver before apprehension. At the time of trial by his own decision Mr. C had not seen W. Jr. for over fifteen months.

[82] Ms. P. after her visits would make comments to Mr. C about things she had seen or information that she had received, and these would lead to aggressive communications from him to the Society. The complaints would include that the child’s clothes were too big or too small, a diaper being fitted too tightly, and the child having an unhealthy wax build-up in his ears. They were particularly upset when they learned that the foster mother lay beside W. Jr. to get him to sleep, and Mr. C took to the social on-line media accusing the Society of allowing the foster-mother “to sleep with” their son. The foster mother in her evidence explained that given W. Jr.’s level of development she needed to be creative in her care of him, and sometimes when he wakes up she would need to lay down with him until he goes to back to sleep. This explanation did not mollify the parents on this issue. The Society took the complaints seriously, but their investigations did not verify any of the concerns and this was explained to the parents. In fairness, the parents did provide in evidence one picture that showed W. Jr. in a pair of sandals that seemed too big for his feet lengthwise. Other than this none of these concerns were proved and yet Mr. C. and Ms. P. remained angry with the foster mother’s care of their child.

[83] Following the apprehension, the Society took steps to arrange for services for W. Jr. Psychologist Dr. Vicky Martin did an assessment and her report is dated June 25, 2012. W. Jr. has “global developmental delays.” He cannot speak, his mobility is behind, he cannot communicate other than by rudimentary gestures and signals. Dr. Martin indicated that at age five W. Jr. was functioning at the developmental level of a one year old. Her assessment is consistent with the concerns noted by Drs. Nchama and Halili, the CAS workers, and the foster mother.

[84] On August 15, 2012, on the consent of all parties the court ordered a Family Court Clinic Assessment. The assessment was not completed. The psychologist Dr. McLean of the Clinic wrote a letter to the parents dated December 17, 2012, reiterating the process which he said had been explained at the initial attendance, and in particular noting the need for each parent to be seen individually. Dr. McLean also set out a condition in the letter that Mr. C. needed to maintain his anger and cease threatening and intimidating statements and behavior. Mr. C. denied being inappropriate, although he said that he and Ms. P. walked out of the second attendance at the clinic upset because they had to be seen separately. He also noted that he can be naturally perceived as intimidating in that he is six feet six inches tall and has a loud voice. He said they did not go for the third appointment because they had received Dr. McLean’s letter.

[85] Dr. Martin noted in her assessment that early intervention for children like W. Jr. is very important and crucial for development. If caught early such children benefit from services to move them back on the normal developmental sequence as soon as possible. She said that because W. Jr. did not get early services, he would need many professionals to build up his skills in all areas. Dr. Martin recommended services, and the Society followed through and arranged speech therapy and occupational therapy. These service providers also gave evidence, and W. Jr. is showing some slow progress. They were clear that the child’s future care provider would need to be motivated and incorporate treatment strategies to ensure his continued progress. Dr. Martin had also recommended dietary services to the foster mother which the Society also arranged.

[86] On March 15, 2013, the Society amended its application to seek Crown wardship. W. Jr. had been in care for over a year, and pursuant to section 70 of the C.F.S.A. unless an extension is granted the court could no longer make an order for society wardship. A permanent plan was required, and the Society decided to pursue adoption.

[87] The parents filed amended answers. A key element in both their positions was that when in their care W. Jr. was at worst developing at only a slightly slower rate than an a normal child. They asserted that he had some issues but they were minor and the problems only developed after he was apprehended.

[88] To make this point, on the stand the parents highly exaggerated W. Jr.’s pre-apprehension abilities and contradicted the evidence of almost all of the other witnesses including their own witnesses and themselves. Ms. P. said W. Jr. could climb the stairs without holding the rails, although Mr. C. said he needed the rails. Ms. P. said that W. Jr. could say his alphabet; Mr. C. said he could also write it. They said he could count to one hundred, and Mr. C. said he could write that out too. Mr. C. even claimed that W. Jr. could play the guitar, a feat likely well beyond the capacity of a normal four year old.

[89] Mr. C. said that Dr. Martin’s assessment was “invalid” as it assessed W. Jr. four months after the apprehension, and the delays she identified had occurred within that four-month period. The parents pled that the rapid regression coincided exactly with the apprehension. Mr. C. said W. Jr. was progressing normally like any other child, and once taken away by the CAS “all this happened.” This was in the face of Ms. P. having already suggested that the vaccinations caused W. Jr. to regress pre-apprehension and Mr. C. having said that the regression started with the first police and CAS attendances at their home almost a year and a half earlier.

[90] Dr. Martin was asked about the likelihood of W. Jr. functioning normally with just a mild speech delay before apprehension and developing his global delays afterward. She said that while it might be possible in some cases, she did not see that here on a balance of probabilities. She said that kind of marked regression would likely be linked to the onslaught of a neurological deficit. However, if that were the case the downward spiral would be expected to continue rather than drop suddenly and plateau. Further, in such a case there would likely be no ability for positive development, and W. Jr. has shown some improvement in many areas. She also noted that when she interviewed the mother in detail about the child’s history in the home, Ms. P. gave an account of W. Jr.’s development that coincided with the delays we now see.

[91] This opinion supports the bulk of the credible evidence heard in this trial. The evidence of the social workers and doctors involved with W. Jr. before apprehension were consistent with Dr. Martin’s observations and findings. As noted even the parents’ contradictory evidence and most of their witnesses’ evidence pointed to serious pre-apprehension delays, particularly in the areas of speech and W. Jr.’s inability to feed himself.

[92] I find that W. Jr. was seriously delayed in all aspects of his functioning while in the care of his parents and that they were unwilling to recognize this and not prepared to accept it. They were content with the child as he was and avoided professional assistance and outside interference.

[93] There was much evidence led as to the viability of a supervision order as a possible disposition in this case, some already noted above. Both parents said that they would cooperate with the CAS if ordered. These statements were not in any way believable. They had already breached the interim supervision order. Ms. P. said she did not like the CAS workers breathing down their necks, and felt that they were not needed. She said regarding her lack of cooperation with the Society, that she and Mr. C. did not want anyone to tell them how to raise their son, particularly child protection workers who did not have children of their own. When asked why she had not cooperated with the Society in the past, she said her answer to that question is to ask a question back to the CAS: “What’s it to you? Why do you matter?”

[94] Mr. C. was even more direct. He was clear that he had no intention of cooperating after the first three file closures. He said he did not agree with having to cooperate with the Society as it has not cooperated with him. He said its workers had not met his concerns so he did not feel the need to meet theirs. He said he did not trust the Society, and acknowledged showing his disdain for it in his Internet postings. He said he did not agree with the CAS workers seeing the child at school and did not agree to a supervision order. He called the Society workers “kidnappers”. When asked what help he would envision from the CAS if W. Jr. was returned, he said he has never needed them and does not need them now. He said he had already sued the Society and questioned how he could be expected to cooperate with it in that situation.

[95] Some of Mr. C.’s statements about lack of cooperation were more ominous. The backdrop here is important. While he tried to downplay the number of people feeling threatened by him – the CAS workers and Family Court Clinic staff for example – Mr. C. did acknowledge as noted that he is an imposing figure at six foot six inches with a loud voice. He said he is destined to become a professional fighter, and could take down four police if he wanted to. Both he and Ms. P. acknowledged that he gets angry when people do not listen to him, meaning when they do not agree with him. He was opinionated on a number of subjects involving childcare, and felt he knew better than the child protection workers and doctors. He had some self-awareness of his effect on people, commenting on the CAS decision not to invite him to participate in Dr. Martin’s assessment by saying “I admit I’ve been pretty rambunctious – I don’t blame them to a degree.” He acknowledged that some of his letters to the Society could have been viewed as threatening.

[96] Against this backdrop when asked about a possible supervision order, he asserted “the CAS will not enter my home again as long as I live … and I’m only twenty-eight.” When asked about the foster parents’ interest in adopting W. Jr. should he be made a Crown ward, Mr. C. asserted that would only happen “over my dead body.”

[97] Turning now to the evidence about supports the parents might have available to them, this was also quite contradictory. They pled that they had the support of the community, and said in evidence that there were all sorts of family and friends with young children for W. Jr. to play with in their home. However, Mr. C. also said that they have no friends, having put their friendships “on the backburner” so that they could put their time and effort into their son. They called three witnesses in support of their case and, other than the maternal grandmother, none suggested that they would provide any kind of ongoing support. The maternal grandmother has been closely involved with the family throughout and has had no impact in identifying W. Jr.’s needs and having them attended to.

[98] The parents were able to successfully refute the concern of the Society and doctors about W. Jr.’s lack of weight gain. The parents pointed to their own genetics. There was no evidence to suggest that the child had not been fed in the home. Added to this was the child’s lack of weight gain in the Society’s care. I am satisfied that neglect by the parents in this area was not proven.

[99] Similarly, I do not find that the cavities the child had upon apprehension established neglect. While the parents admitted they had never taken the child to see a dentist, they claimed that Mr. C. brushed W. Jr.’s teeth regularly. Children can get cavities even with the best brushing routine, and other factors could be in play. Without expert evidence I do not find that W. Jr.’s dental difficulties were directly related to a failure by the parents to attend to his oral hygiene.

[100] Lastly, although the Society had suspicions throughout its involvement, there was no proof of any domestic violence between the parents, or any domestic conflict in the presence of the child.

Analysis

[101] Regarding the parents’ plans, first and foremost common to both is that the father and mother will remain together as a couple. Ms. P.’s own formal Plan of Care has the family continuing to reside at L[…] Avenue her continuing to work at Giant Tiger, her mother assisting with childcare as needed, and services being provided for the child “as recommended”. Mr. C.’s formal plan was similar, noting that he was not working but intended to pursue a career in Mixed Martial Arts. Nothing was said about help or services the parents might consider for themselves. These plans are really no different than the situation that existed for most of W. Jr.’s life up until to the time of apprehension, and do not represent any real changes.

[102] Even in the face of these formal plans, various other scenarios emerged during the course of the trial. Mr. C. talked about working an eighty hour week and making a lot of money if W. Jr. were returned. He said Ms. P. would quit her job and look after W. Jr. Ms. P. concurred, although somewhat reluctantly as she indicated that she really liked her job. She expressed interest in home-schooling W. Jr. Mr. C. also mentioned that when W. Jr. was returned they planned to move away from Cornwall. These possibilities did not seem to be well thought out. The overall impression was that if W. Jr. was returned home little would change. There was no evidence about the chances of Mr. C. successfully obtaining employment as a professional fighter.

[103] The Society’s plan is for adoption of W. Jr. The C.F.S.A. directs the Society to make all reasonable efforts to assist a child who is a Crown ward to develop an enduring relationship within a family, and this includes an adoption. An adoption worker was called who explained the matching and adoption process. She was experienced and indicated that despite W. Jr.’s delays she was confident that the Society could fulfill its legislative obligation. The foster mother’s indication that she is prepared to put forward an adoptive plan supports this conclusion.

Protection Findings

[104] The Society has pled that the child is in need of protection pursuant to subsections 37(2) (f), (f.1), (g), (g.1), and (h). I find that W. Jr. is a child in need of protection on all the grounds. There is overwhelming evidence that prior to and at the time of the apprehension W. Jr. suffered emotional harm demonstrated by serious delayed development and there are reasonable grounds to believe that the extent of the emotional harm resulted from the parents’ failure to act and their failure or refusal to provide the child with services or treatment to alleviate the harm (subsections 37(2)(f), and (f.1)). Their resistance to having anyone tell them how to raise their child, their failure to appreciate the seriousness of the concerns, and their active avoidance of professional involvement to address the concerns, satisfies me that there is also a risk that the child is likely to suffer emotional harm while in their care (subsections 37(2) (g) and (g.1)). In a similar vein, the parents in the face of W. Jr.’s obvious delayed development did not provide treatment to alleviate the harm (subsection 37(2)(h)). Even when under a supervision order the parents were not prepared to either work with the Society or address the issues. They wanted to be left on their own, and reacted inappropriately to the child’s doctors and the CAS workers. I do not accept that the lack of attention to W. Jr.’s needs was caused by their being thwarted in their attempts to have the best care possible.

Disposition

[105] Having found the child to be in need of protection, I am now directed to either make a supervision order to the parents (s. 57(1)1), a Crown wardship order (s. 59(1)3), or an order returning the child to the parents without conditions (s. 57(9)).

[106] Other options that are sometimes available in child protection cases are not available to me here. An order for society wardship is foreclosed as the one year timeline in section 70 and the discretionary six months’ extension have both expired. While an order under section 57(1)1 (supervision order to another person) is by virtue of section 57(4) given first consideration over a Crown wardship order, it is also not available. The maternal grandmother P.P.’s involvement is part and parcel of both parents’ plans. It is not a viable independent plan and was not presented as such. Members of the father’s family were in contact with the Society but have not proposed any plan. With no formal plans to consider, it is not possible to place W. Jr. in the care of a member of his community or extended family.

[107] In deciding which of the available dispositions to order, I am directed to consider the child’s best interests, and the circumstances set out at section 37(3) that I consider relevant. I am also required to ask what efforts the Society made to assist the child before intervention under this part (s. 57(2)). Lastly, I cannot make the Crown wardship order unless I am satisfied that less disruptive alternatives such as a supervision order would be inadequate to protect the child in the parents’ care (s. 57(3)).

Pre-Intervention Efforts

[108] Pursuant to section 57(2) of the C.F.S.A., I am satisfied with the efforts made by the Society to assist the child before intervention. The Society only became more intrusive as the requests to the parents to address the issues went unanswered or were rebuffed.

Best Interests

[109] The following are the s. 37(3) factors that I consider relevant regarding W. Jr.’s best interests.

[110] The child’s mental and emotional need and level of development and the appropriate care or treatment to meet those needs was the main focus of this trial. The parents did not attend to these needs when W. Jr. was in their care. What Dr. Martin indicated, namely that the earlier intervention for a child with delays the better the outcome, is common sense. Without the Society’s intervention it is not clear when W. Jr. would have ever received services, particularly if Ms. P. followed through with her plan for home-schooling. The parents still did not appreciate the full extent of W. Jr.’s delays. The Society and its foster mother, on the other hand, have recognized the child’s needs and have been diligent in attending to them since he was apprehended.

[111] I have considered the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. While Ms. P. is regular with her access, W. Jr.’s primary caregiver was Mr. C. and he ceased all contact as of February 2, 2012. I have also considered 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. No one from the child’s pre-intervention community has a relationship with the child except the mother and maternal grandmother who visit him twice a week.

[112] I have considered the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. The child had been in the care of his foster mother since apprehension. If her adoption application is made and is successful he will remain there. He has had no contact at all with his previous primary caregiver, Mr. C., for that same length of time.

[113] I have already looked at the respective Plans of Care in this case. In weighing their merits I find that the Society’s plan offers the child the best chance of timely and effective attendance to his developmental needs.

[114] I have considered 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. Despite the theory of the parents, I find that the evidence does not support that the child has been harmed by the apprehension or that his delays manifested themselves at that time. I note that W. Jr. is making gains now. I have also considering the degree of risk that justified the finding that the child is in need of protection, and in doing so find that I have no confidence that W. Jr.’s recent gains would be sustained if he were in the care of his parents.

Inadequacy of a Supervision Order

[115] I considered very carefully whether I could return W Jr. home and protect him by way of a supervision order. Seriously delayed children get extremely good results and excellent love and care in the custody of their parents where those parents are attentive to their developmental needs and seek out the services they require. Ms. P. and Mr. C. have not shown proper parenting. As they refused to participate in the Family Court Clinic assessment, their history is all the court has on which to assess their parenting capacity. They have not accepted the full extent of their child’s delays and have actively resisted or interference by outside services. Their attitude towards the CAS makes a supervision order unworkable. There was no credible evidence of any commitment or ‘buy-in’ to work with service providers with a view to assist W. Jr. to realize his full potential. I find that the services and assistance referred to in sections 57(2) and (3) would be inadequate to protect the child in the circumstances, as the less disruptive alternative of a supervision order would not be followed.

Summary re Disposition

[116] Given all the above, I find that an order for Crown wardship is in W. Jr.’s best interests. The child is in need of protection, nothing has really changed in the home, and reuniting him with his parents would put him at great risk of further delays and fail to address the current gap between his developmental age and his chronological age. The parents’ proven inability to accept W. Jr.’s delays and to work with outside services forecloses any other disposition.

Access

[117] Upon W. Jr. being made a Crown ward the existing interim access order automatically terminates. A legislative presumption arises against my making any further access order unless pursuant to s. 59(2.1) the parents prove each of the following on a balance of probabilities: that the relationship between them and the child is meaningful to the child; that the relationship between them and the child is beneficial to the child; and that the ordered access will not impair the child’s future opportunities for adoption: Children’s Aid Society of the Niagara Region v. C.(J.), 2007 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.).

[118] The father has not had access since the child was apprehended. There is no evidence to suggest that his access would be meaningful or beneficial to the child. His own stated reason for not attending the access is that he feels it would be harmful.

[119] The access is meaningful to Ms. P. She believes that it is meaningful to W. Jr. but the evidence does not support this. Also, there is no evidence that it is beneficial in the sense of the visits providing an advantage to the child.

[120] I appreciate that it is difficult here as in many cases for the parent to meet the onus under s. 59(2.1). This is by legislative design, as the presumption against access is to facilitate permanency planning of the child through adoption. In this case, however, the parents had an excellent opportunity through the Family Court Clinic to establish the importance of their having a continued role in their child’s life. They chose not to take it. I find that on the meager evidence they have put forward, and in the face of the contrary evidence from the Society, they have not established the access is meaningful and beneficial to W. Jr.

[121] I understood Ms. P.’s position regarding whether an access order will impair the child’s future opportunities for adoption to be that with the new s.145.1.1 there is no reason not to order access as the Society can simply terminate it later on giving thirty days’ notice of its intent to place the child for adoption. The parents could upon receiving notice apply for an openness order. However, all the s. 59(2.1) tests have to be met together and an openness application under s. 145.2.2(6) involves consideration of whether an openness order would permit the “continuance” of a relationship that is meaningful and beneficial to the child. I have already found that no such relationship exists.

[122] If I am wrong and there is a relationship between the child and one of his parents that is meaningful and beneficial, then I note that one of W. Jr.’s future opportunities for adoption is the interest put forward by the foster mother. That plan has yet to be assessed but it has a number of obvious positives in that it promotes the child’s continuity of care and minimizes delay in determining his final placement. The parents remain unjustifiably angry with the foster mother’s care of their child, and Mr. C. has made a threatening comment regarding her adoption proposal. One would expect therefore that if the court made an access order for the purpose of leaving the door open for future openness possibilities the foster mother would have reason to pause. She was not asked in her evidence about the impact of such an order on her intentions going forward, but I would not order access in this case on the ground that I am not satisfied that the parents have met their onus of proving that their access would not impair the child’s future opportunities for adoption with respect to this plan.

Decision

[123] Given the above, I find that W. Jr. is a child in need of protection pursuant to subsections 37(2) (f), (f.1), (g), (g.1), and (h) of the C.F.S.A. He is hereby made a Crown ward. There shall be no order as to access.

[124] This is not an appropriate case for costs.

Mr. Justice Timothy Minnema

RELEASED: July 11, 2013

Dundas & Glengarry. v. L.I.P., 2013 ONSC 4659

COURT FILE NO.: 11-684

DATE: 2013/07/11

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

and in the matter of: W. Jr., born, […], 2007.

B E T W E E N:

Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry

Applicant

– and –

L.I.P. and W.G.C.

Respondents

REASONS FOR JUDGMENT

Mr. Justice Timothy Minnema

Released: July 11, 2013