RESTRICTION ON PUBLICATION

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any child involved in the proceedings as a party or a witness or any information likely to identify any such child, or the child’s parent or foster parent or a member of the child’s family. This judgment complies with this restriction so that it can be published.

COURT FILE NO.: FC-03-314

DATE: 20130816

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FAMILY, YOUTH AND CHILD SERVICES OF MUSKOKA

Applicant

– and –

LP

Respondent

L.H. Hall, for the Applicant

P. De Buono, for the Respondent

OFFICE OF THE CHILDREN’S LAWYER

Graham Butler

HEARD:

November 19,20,21,22,23,26,27,28,29,30

December 3,4,6,7 (2012)

January 8, 24

February 19,20,21,22

May 13,14,15,16,17,21,22,23, 24 (2013)

Midtrial conferences: December 5, 2012; March 14, 2013

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any child involved in the proceedings as a party or a witness or any information likely to identify any such child, or the child’s parent or foster parent or a member of the child’s family. This judgment complies with this restriction so that it can be published.

REASONS FOR JUDGMENT

WILDMAN J.:

OVERVIEW

[1] “A” turned 12 on […], 2013. He and his mother, “L”, love each other and both of them are hoping A can return to live with her.

[2] In the face of this painful reality, I have decided to make him a Crown ward, without access to his mother. Although I have looked for other alternatives, I am satisfied that this is the only way that A will be able to get appropriate help for his behavioural and sexual difficulties. Without this, he will be unable to move forward to try to become a stable, functioning adult with a chance of a normal, happy life. I hope it is not too late.

[3] This was a lengthy and difficult trial. I am satisfied that A is struggling but I am still not completely sure why. A and his older brother, G, engaged in sexual activity when they were both living with L, but it is unclear whether this was the sole source of his difficulties. A has a history of concerning sexual comments, such as telling a teacher, when he was seven, that he would “lick her down there (and) it would feel good”. He still seems to struggle with sexual behaviour, as he recently exposed himself to another boy in his foster home. He is in a special section class at school because of his behavioural and other needs. He becomes physically abusive in his foster home and has to be restrained in a “double hold” by two people. He has expressed suicidal thoughts. He blames himself for being in foster care, and he feels responsible for his mother. He is moving into his teenage years and is frustrated that he has to be supervised whenever he is around other children. A is at a critical point in his development and, clearly, he needs serious help to try to get him back on track.

[4] Day after day, I hoped L would give us something to work with, so that she could be included in the team trying to find a solution for A. If only she had demonstrated some glimmer of understanding, or a willingness to work with Applicant (“the Society” or “the CAS”) to search for an answer to A’s problems, perhaps I could have fashioned a solution that would allow A to spend time with his mother, yet continue with the gains and treatment he is receiving in foster care. With a concerted joint effort, and further progress by both A and L, he might even have been able to return to live with her someday, either part-time or permanently. However, as each day passed, it became clearer and clearer that this hope was in vain.

[5] L has some valid complaints about some of the things the Society has done. Unfortunately, she has become so fixated on her quest for vindication and revenge that she has lost sight of A and his needs. She displayed no insight into A’s difficulties and how she, too, may have contributed to them. She has a blind rage: it is all the fault of the Society and A would be just fine if he were returned to her.

[6] L is negative and angry about everything that is being done to try to help A. She maintains her position that the Society takes children into care because it is their “business” to take children for money. She practically spat out the name of the children’s mental health facility that is assessing A, as she apparently discovered a reference on the internet to a past incidence of serious abuse by a staff member against a special needs child. This eclipsed any possibility of her focusing on possible benefits of the assessment and treatment recommendations. She continues to believe that the intensive assessment is really an attempt by the CAS to bolster their case against her. She believes that the doctors who have recommended medication for A’s behavioural problems are poisoning him. She distrusts the foster mother. It does not matter that A loves hockey and is proud of his accomplishments on the team this year: she feels hockey is dangerous, and he should not be playing it. The list goes on and on.

[7] There is no doubt that A cannot be returned safely to L’s care. He acts out physically and L cannot manage him. The incident that led to the last apprehension was a physical attack by A against his mother, and the need for her boyfriend to intervene to protect her. The foster family is trained in physical restraint, and have recently had to put A in two-person holds. L says she lives alone. Physically, if nothing else, A is too much for his mother to handle.

[8] However, far more important than the physical risk, is the risk to A’s emotional health and development if he were to be with his mother. He needs an insightful, sensitive caregiver, who appreciates his special needs and can work with his various therapists and medical professionals to assist him. One professional after another testified about their lack of success in working with L. The evidence overwhelmingly establishes that she cannot, or will not, be able to meet A’s therapeutic needs.

[9] The evidence also establishes that A is torn. He wants to get help but he is concerned that he is being disloyal to his mother if he opens up in treatment. One of his first concerns about participating in the assessment with the team of children’s mental health experts, was “Will my mother get in trouble?”

[10] The Society recently experimented with allowing L unsupervised access. Almost immediately, A’s behaviours regressed. He expressed anger towards his foster mother, calling her a liar and trying to stab her with a pencil. He threatened to kill himself. He was swearing, trying to bite, and banging his head. Once he calmed down, he said he was stupid, he did not know why he did those things, and he was never going to talk to anyone, including his therapist, about his feelings again.

[11] It is not necessary for me to determine whether L is purposely undermining A’s placement or not. What is clear is that she is unable to actively support it. This leaves A in a terribly conflicted position, which is causing him further behavioural problems and holding him back from getting the treatment he needs.

[12] Unfortunately, there appears to be no other choice. Although A loves his mother, his relationship with her is standing in the way of him moving forward.

[13] L has not rebutted the statutory presumption against access. Although A’s relationship with his mother may be meaningful to him, the evidence does not establish that it is beneficial to him, or that an access order would not impair his future opportunities for adoption.

[14] There will be an order for Crown wardship, without access.

DISCUSSION

[15] I turn now to a more thorough review of the facts and law, to explain why I have reached this conclusion. Due to the number of witnesses, and the fact that the trial began almost ten months ago, I have elected to review the highlights of the testimony of most of the key witnesses in more detail than I might otherwise have done, to refresh the memory of those who were present at the trial, and help them to try to understand why I have reached my decision.

THE AVAILABLE CHOICES

[16] A turned 12 on […], 2013. I need to decide if he should be returned to the care of his mother, L, with or without a supervision order, or made a Crown ward. Everyone agrees that Society wardship is not an option available to me, as A has been in care at various times of his life. Cumulatively, his total time in care at the time of trial was approximately 37 months, which is well beyond the statutory maximum of 24 months allowed under the Child and Family Services Act, R.S.O. 1990, c. C-11 (the “CFSA”), even with the maximum available six-month extension.

[17] If an order for Crown wardship is made, I need to decide whether to order access to his mother.

THE POSITIONS OF THE PARTIES

[18] The Applicant was originally asking that A be made a Crown ward, with access to his mother in their discretion. However, the Society acknowledged that they do not believe that access is beneficial to A, and could not point me to evidence that would rebut the statutory presumption against access. They also indicate that, if there is no access order, they will search for an adoptive placement for A that can respond to his special behavioural issues, possibly with his current foster family. However, there was no evidence before the court about A’s adoptability, or the willingness of the foster family to adopt him. If his current foster family does not wish to adopt him, I suspect that it may be difficult to find an adoptive placement for A, given his age and behavioural issues.

[19] The agent for the Children’s Lawyer is Mr. Butler. On A’s behalf, he is asking the court to make an order that A be returned to his mother’s care, as this is consistent with A’s instructions. If this order is not granted, Mr. Butler asks that the court make an order for as much access as possible to L, with as few restrictions as possible. Everyone accepts that A has frequently expressed that he would like to be with his mother.

[20] L is asking that A be returned to her care, preferably without supervision, so that the Society is out of her life. She says that what A needs is his mother. She says she is perfectly capable of caring for A and getting him any treatment he may need. If necessary, she would accept terms of supervision, and maintains that she has abided by everything that has been required under the terms of prior supervision orders. If an order for Crown wardship is made, she is asking that I order unsupervised access between her and A.

THE LAW

[21] The case of Catholic Children’s Aid Society of Toronto v. S.S., 2011 ONCJ 803, [2011] O.J. No. 6076, was presented to the court. In paragraphs 92 to 97, Justice Sherr sets out a helpful review of the statutory framework to decide about the disposition order once a finding in need of protection has been made. It reinforces the principle that Crown wardship is a last resort. If a child can safely be returned to a parent, with or without a supervision order, that is the preferred order.

[22] Justice Sherr also reviews the requirements in s. 57(2), (3) and (4) of the CFSA that must be met before a Crown wardship order is made. The court is required to inquire about the efforts the Society has made to assist the child before intervention, the least disruptive alternative before removing a child from the person who had care of him before intervention (in this case L), and community placement, possibly with relatives.

[23] I would add to this that the court should be ever mindful of s. 1 of the CFSA: the paramount purpose of the Act is to promote the best interests, protection, and wellbeing of children. Additionally, so long as it is consistent with a child’s best interests, the court should recognize that support should be given to assist parents to provide for their children and should protect the autonomy and integrity of the family unit. Children’s services should be provided in a manner that respects a child’s need for continuity of care and stable relationships within a family, and should include the participation of a child, and his parent or relatives, where appropriate. Section 37(3) provides some assistance to the court about factors to consider in determining best interests.

[24] Finally, if an order for Crown wardship is made, there is a statutory presumption against access found in s. 59(2.1) of the Act. That section says that a court shall not make an access order to a Crown ward unless it is satisfied that the relationship between, in this case, L and A, is beneficial and meaningful to A, and it will not impair his future opportunities for adoption.

How does that apply to this case?

[25] This is a status review application. A has already been found to be in need of protection under s. 37(2)(l). This means that I do not need to focus on the issue of the finding of whether or not A is in need of protection. As long as I am satisfied that state intervention is still necessary to protect A, I can focus on the appropriate disposition under s. 57: return to his mother (with or without supervision) or Crown wardship.

[26] However, in considering the appropriate disposition, it is important to understand the context for the previous finding, and how we got to this point. A’s history, and the reasons for the involvement of the CAS throughout most of his life, are relevant to getting a full picture of A, and what has been tried in the past to keep this family together.

[27] Given the amount of time that L spent focusing on her version of issues from the past, I recognize that L believes it is important to vindicate herself from many of the historical allegations. However, most of this information is not really relevant to what I have to decide. It is so far in the past that it has minimal impact on decisions about what will happen to A now. His current needs, and the plans of each party to meet those needs, must be the focus of my decision.

[28] The information in the next section is included primarily for historical purposes, and to explain why L and her children came to the attention of the CAS. I understand that some of the incidents below set out the CAS’s perception of possible child protection issues, and L takes issue with some of the details in their presentation of the facts. I will try to present them in as neutral a fashion as possible, using L’s version where I can, but I am not going to engage in a lengthy fact-finding exercise about details. That is not necessary in order to discuss what should happen with A now.

A’S CHILDHOOD: THE FIRST ELEVEN YEARS OF HIS LIFE

[29] A was born on […], 2001. He lived with his mother, L, and his older brother, G, who was born […], 1995. A does not know who his father is. L has maintained the same residence throughout these proceedings, in a permanent modular home that she has paid for from her disability benefits, located on the outskirts of Huntsville.

[30] The Society first became aware of this family before A was born. In 1999, L contacted them about G’s fascination with fire. He would have been four or five at the time. In 2001, friends of L’s ex-husband, “B”, (G’s father) contacted the Society with concerns about G being “slapped around”. There was no formal action taken by the CAS, and G remained with his mother.

[31] The Society’s first involvement with A was in February 2002, following a doctor’s referral regarding A’s poor weight gain and overall development. The Society believes that L minimized the doctor’s concerns and refused to follow through with the doctor’s recommendations. Again, there was no formal intervention and A remained at home with L and G.

[32] A few months later, in July of 2002, the Society received information that one-year-old A had sustained second and third degree burns on the soles of his feet while in his mother’s care. He had apparently managed to leave the house and walk across coals in an outside fire pit, which his mother said were still warm from the previous evening. Again, the CAS did not open an ongoing file, but their notes indicate that medical staff reported that L seemed unconcerned with A’s injuries.

[33] The first CAS court proceedings came as a result of L initiating contact with them. In October of 2003, when A was two, L called the CAS to report bruising on A’s buttocks. She said that she thought that this was as a result of him bouncing down stairs but, when he was assessed at Soldier’s Memorial Hospital and the SCAN Unit of the Hospital for Sick Children (HSC), the bruising was so extensive that the medical authorities did not think that bouncing on stairs could have caused it. The doctor at HSC concluded that the injuries appeared to be from being beaten with a rubber slipper or hand. L denied any mistreatment of her son.

[34] On consent, A and G went to live with their grandparents (SP and EP) from approximately November 20, 2003 to early February 2004. A then came back to live with L under a supervision order, with terms that the Society could have access to the children without notice and L would attend a parenting course. G stayed with his grandparents until the end of the school year, when both children were placed with L under a final supervision order, dated June 17, 2004. That order was terminated, on consent, in September of 2004.

[35] The boys stayed with their mother for a few years but there were escalating problems, particularly between G and L. Although the history was not completely filled in during this trial, a previous decision of Justice Wood[^1] provides some of the background. Apparently L voluntarily placed G with the Society in November of 2005, so that he could get some therapeutic foster care. TM, the Intensive Services Worker that tried to assist the family with in-home parenting support, notes that he was involved with L and her sons for over a year, although his average involvement with families is only eight to ten weeks. He had sessions with the family almost weekly, and was very concerned about the negative attitude L had towards her children. There was a lot of yelling, some hitting, and threats of physical discipline. L frequently responded to the children with belittling comments, and made only limited progress throughout the time that TM tried to work with her.

[36] Justice Wood’s endorsement reveals that between November 2004 and November 2005, G cut his wrists with a knife, had an unhealthy obsession with fire, and was generally acting out. He was suspended from school for possession of matches. L admitted that she was having increasing difficulty handling G’s behaviour, and Justice Wood noted, “Every conflict with G seemed to lead to loud and aggressive behaviour on the part of both mother and son”[^2]. G came into care, on consent, in November 2005. He has not lived with his mother since then.

[37] G did well in foster care and did not want to return to his mother’s home. The next Application seems to be in June of 2006. It indicates, “…despite the numerous interventions and services provided to L she continues (to) parent in a manner that is emotionally harmful to the children”. That application requests a number of terms, primarily relating to refraining from threatening, physical, or demeaning discipline, and cooperation with recommendations regarding parenting and children’s support services. On September 14, 2006, all parties agreed to a final order, placing A with his mother under a supervision order for three months and making G a Society ward for the same period of time.

[38] The next application relates primarily to G. It is filed in December of 2006, and requests a further period of three-month Society wardship for G, with a placement with his father (B), with whom he had resumed contact. The application states:

G came into care after disclosing physical harm by his mother, L. While in care G has refused to have any contact with his mother. G has recently re-established a relationship with his father, B. The Society is exploring placing G with his father.

L is more bonded and nurturing towards A than with G. A was indirectly involved in the conflict between L and G. With G’s absence from the home the emotional harm to A has been significantly reduced.

[39] In May of 2007, the parties reached Minutes of Settlement and agreed that G would remain with his father under a Voluntary Service Agreement, with access to his mother “commensurate with (G’s) wishes”. A remained with his mother.

[40] Unfortunately, G’s placement with his father did not work out. The reason for the breakdown was not specifically addressed in this trial but, on October 8, 2009, G was removed from his father’s home and placed in a group home in St. Catharines. In August 2010, G was convicted of sexually assaulting his younger step-sister. This probably explains why G was no longer able to live with his father. In any event, G ended up on probation and living in the group home in St. Catharines. Eventually, G was made a Crown ward, on consent. As mentioned, he has never returned to live full-time with his mother since coming into Society care in November of 2005.

[41] Just before this trial began, G was still living in the group foster home in St. Catharines. However, he turned 16 on […], 2011, and wanted to terminate his Crown wardship. During the trial, it was discovered that G had “gone AWOL” from his group home, and had called his mother quite distraught because he had nowhere to go. G is a convicted youth sex offender. This limits his mother’s ability to take him back to live with her, particularly while she is pursuing the return of A. L and G are having discussions about G’s future, and whether there would be some financial advantages to him remaining a Crown ward and pursuing independent living or further schooling. As of the end of the trial, nothing had been determined and G appeared to be staying at an undisclosed location, or locations, in the Niagara region.

[42] A continued to reside with L following the Minutes of Settlement in May 2007 but he, too, had escalating problems. There were several issues noted by the Society in 2008. In February, A suffered a burn to his eyelid, which was allegedly from L’s then partner (KC’s) “heater”. In June, L had a meeting with school officials, where she was informed that A would be expelled from school if his aggressive and sexualized behaviours continued. In October, there were concerns about A (then seven years old) being sent to school by his mother wearing a “diaper” for soiling issues, and also reporting that he was required to hold weights over his head as a form of punishment.

[43] On November 14, 2008, L took A to Soldiers Memorial Hospital for a multidisciplinary psychiatric consultation. The concerns she reported to the clinic staff were:

i. Sexualized behaviours including touching and grabbing his teacher’s breasts, and saying to his teacher “how about I lick you down there” (pointing toward her vaginal area);

ii. Touching other students inappropriately, to the point where he had to be segregated from the rest of his class;

iii. Behavioural problems including running away from home, going into rages when told “no”, lashing out, and hitting and throwing things; and

iv. Encopresis (soiling himself).

[44] In January 2009, there was a sexual incident at L’s home between A, who was then eight, and a three-year-old child. The details are not entirely clear, and L needs to understand that precisely what happened is not important for my decision. However, the gist of the various versions is that the young boy said that he had to put his penis in A’s mouth and A asked him to “pee” into A’s mouth. A may have disclosed later that he also put his own penis in the other boy’s mouth. The allegation is that L had not monitored A after she was first made aware that there was something inappropriate that had occurred, which resulted in the boys subsequently being discovered alone in A’s room with their pants down.

[45] Regardless of who did what to whom, and when it was brought to L’s attention, it is not disputed that the boys were found in A’s room alone. The Society was particularly alarmed because L had agreed not to leave A with other children unsupervised due to the sexual behaviours and comments he had made in the past. The boy’s father said that L seemed unconcerned about the incident, and it was her partner (KC) who seemed more concerned.

[46] The Society decided it was time to act. A was apprehended from his mother’s care on February 9, 2009. A remained in foster care until approximately April 4, 2011.

[47] During his time in care, A disclosed that he and G had engaged in inappropriate sexual activity, while they were both living with L. Subsequently, in December of 2010, G disclosed that he had asked A to suck on his penis, which A confirmed that he had done twice while in his mother’s living room. Again, the exact details were not made clear in this trial, and are not critical for the purposes of my decision. G would have been roughly eleven at the time of the sexual behaviour, and A would have been five or six. It is agreed that there was no penetration involved, and L does not believe that G performed oral sex on A. What is important is that there has been a verification of inappropriate sexual activity between the boys while they were living with their mother, which may assist in understanding A’s subsequent inappropriate sexualized behaviour and comments.

[48] A remained in care for over two years. Initially, he continued to attend Huntsville Public School, where he had an Educational Assistant (“EA”) for support. However, the Society received frequent phone calls about his behaviours. The teacher said that A was not completing any academic work and was frequently on YouTube. There were reported incidents of various disturbing behaviours such as urinating in the school shower, breaking a light by throwing a ball at it, and needing to have staff stand at the entrances of the school to prevent him from exiting the building, as he would not stop running through the halls.

[49] On November 22, 2010, A was transferred to a special “section” class at Spruce Glen Public School, which was better equipped to handle his behaviour, as there was a teacher, two EAs, and a much smaller class size of six to nine students. There was a high degree of supervision and interaction between the staff and students.

[50] Shortly after A was placed in this class, there was an incident on the school bus with A trying to touch a boy’s penis, and then trying to touch the boy’s sister’s private parts. This resulted in a physical altercation between A and the boy. A decision was made that the school would transport A to and from school privately by taxi.

[51] The following month, the principal of the school informed the CAS that A had a very rough day at school, had been speaking about the weekend he had spent with his mother, and had a lot of sexualized talk and gestures. The principal said A put his hands down his pants, was swearing at the teacher, had a soiling accident, and had a “meltdown” in which he was yelling and crying. The teacher advised the worker that A had heightened behavioural issues on the Wednesday afternoons when he had a visit with his mother. He was spitting and trying to bite and punch the staff. His behaviours were so problematic that the teacher felt the school might have to re-evaluate having him attend for full days.

[52] The following month, in January 2011, A requested that his teacher call his Child in Care worker (“CIC”). Among other things, the teacher advised that A was saying that he would not have to hear about CAS after January 28, 2011, A could not be friends with CAS, and that CAS is bad and steals children for money.

[53] January 28, 2011 was the day after a scheduled court date. Justice Wood’s endorsement indicated that A thought he was going home and was becoming very aggressive in his therapy sessions. L and the Society disagreed about the timetable for A to move home. L suggested it should be immediate and the Society felt things were moving too quickly. Justice Wood noted that L was indicating that she felt access was going well and there had been no acting out by A during access. He also noted that, “this matter is somewhat stalled as a result of the animosity between Ms. P and the Society. Unfortunately, the matter should now proceed to trial.”

[54] On February 3, 2011, A’s teacher called the Society to relay that A had been good that week but there had been an issue with A calling his teacher a “liar” and saying that the judge would not let him go back to his mom. The teacher stated that A said his mom told him that one of the reasons he could not come back (home) was because of his behaviour at school.

[55] However, during this time, both A and L did do some work with the therapists provided through Children’s Mental Health Services. The Society was encouraged that L was now engaging with supports and decided that, rather than proceed to trial, they would return A to his mother’s care. On April 4, 2011, the process began. The parties signed Minutes of Settlement that A would remain in Society care until June 30, 2011, but he would be reintegrated into his mother’s home. On July 1, 2011, A was returned to his mother under a six-month supervision order.

[56] During the time that A was being transitioned back into his mother’s care, there were several other calls by A’s teacher to the Society. On May 18, 2011, the teacher talked to the CAS worker about A’s sexual talk and gestures, and his statement that his mother had said “her friend was banging one of her friends”. He also reportedly told his teacher that he “heard him licking her boobs” and “him banging someone else”. It is unclear who A was referring to in these statements, but the sexual content was concerning. His teacher asked if A talked to his therapist about these issues but A said he couldn’t because his mom was part of the sessions.

[57] On May 31, 2011, the teacher called again to say that A had reported that his mother had snuck someone into the house but his mother had denied it. Alarmingly, his teacher reported that A had soiled himself every day since he had left foster care, and he did not want to bring his soiled underwear and socks home. He had asked his teacher to throw out the soiled clothing and not tell his mother.

[58] On June 7, 2011, the teacher told the CIC worker that A had said his mother told him that, if his behaviours didn’t stop, she would send him back to CAS and that she had already called them.

[59] Notwithstanding all of this, everyone honoured the terms of the Minutes of Settlement that had been signed, and A was returned to his mother’s care full-time as of July 1, 2011.

[60] A’s behaviour continued to be challenging but L was working with DM, an attachment therapist, to try to learn how to deal with it and provide proper parenting support for A. As late as January 2012, L reported to DM that a friend had said that, “if A were their (sic) child they would send him back to CAS” and “They didn’t know how I was dealing with A and his behaviours as they would not put up with it”.

[61] Despite this, things were apparently going well enough that the Society decided to withdraw from involvement. The supervision order was to be terminated effective January 15, 2012. In its application dated December 21, 2011, the Society indicated:

A has been successfully reintegrated back into his mother’s care during the past 6 months. (L) has complied with the terms of the April 4, 2011 supervision order, and the Society commends her for her diligence and following through with her work with therapist [DM] individually, as well as her work with A’s child and family therapist.

All reports from the clinicians indicate that (L) has been an active participant in both areas. There have been no further reported incidents of abuse or maltreatment. There was one accidental injury to A which was addressed without incident with (L), and there was no verification of abuse.

A has made strides in his school attendance and participation, and reported incidents of negative behaviour has decreased. Although (L) will likely face daily challenges in caring for A, she appears to be well equipped to utilize support service and appropriate behaviour management techniques.

The society is seeking to terminate the current supervision order, and the file with respect to (A) will be closing (sic) to the agency.

[62] However, the hope and promise that was captured in the application in December, turned on a dime. Just days before the proposed termination date, A was reapprehended, and he has not been home since.

WHAT HAPPENED IN JANUARY 2012 TO CAUSE A TO COME BACK INTO CARE?

[63] A was still in the section class at Spruce Glen, with the same teacher (SR). On Wednesday January 11, SR called the Society as a result of some alarming things that A had told her and one of the EAs. Some of the details were as follows:

1. A told her that he was married to a thirty-year-old woman he had met at McDonalds when he was previously in foster care. He said that he had a baby with this woman, and considered himself to be the stepfather to her two other children. He then said he was lying because he was bored.

2. A said a man named C lived in his house off and on. He said that C had grabbed him by the neck and carried him to his (A’s) bedroom by the neck and set him on the floor. A said that he had a concussion and that he could not breathe well. A said that C had done this in response to A body-checking L because she was taking away some of his toys.

3. A said that his mother and C were arguing on Sunday because his mom had decided to kick C out of her home again. C was writing a letter to the “false prophet” telling him about L, and A took the pencil from C so that he could not write the letter. A said that his mom knew that C was the “false Prophet” because she talks to the real prophet, AB. A said that in response to him grabbing his pencil, C pinched A’s side hard but it did not leave a mark.

4. A said that C had spanked him numerous times on another day, and hit him with a belt. He said that C tried to hit him with the belt a second time, but he said that when C pulled the belt back it hit the door and then hit C, which A found funny. A said that C was allowed to hit him because in the Bible it says “not to spare the rod”. A said he was naked when C hit him. He thought he was naked because he was getting ready for bed.

5. A asked his teacher not to tell the Children’s Aid. He said that the CAS tells lies and takes kids. He told her that his mom was going to be mad at his teacher and him, and again asked her not to tell. He said he didn’t want his mom to get in trouble.

6. A said that C was no longer living at his house, and was now living by Mac’s in Huntsville. A said he did not like C.

7. A had shown the EA a rug-burn on his right shoulder, which he said was from C dragging him on the floor one day, and that they were just joking around.

[64] A was interviewed by the police and demonstrated how C had allegedly picked him up, by placing both of his (C’s) hands around A’s neck. A was taken immediately into care and L and C were interviewed by the police.

[65] Both L and C gave their evidence-in-chief in this trial by affidavit. The following excerpts about the police interviews, and what was going on in L’s home at the time, are taken from those affidavits.

[66] L’s recollection of the police interview is as follows:

I informed the officer of what had happened that night (being A didn’t want to take a shower and was taking a fit, I sent him to bed). I was picking up A’s Lego (as he had been throwing them out of his room into the hallway all over) and A had been hitting me saying “no mom, stop” to which I continued picking up his Lego. I told A several times to stop hitting me. He continued to do so and the next thing I knew he body slammed me into the oven. C had just happened to walk into the room at that very moment and grabbed A to remove him and put him in his room. I informed the Officer that at no time did A say anything to me about anything about being hurt or unable to breathe, as A was stating to the Officer that he had a “concussion”. The officer asked how C had grabbed A and I stated I couldn’t very well say for sure, as I did not witness the incident. It was suggested when A may be/acts aggressive, to grab him around his arms so to keep him safe along with everyone else. I stated that I thought C may have grabbed him by the shoulders and neck (from behind).

I was questioned about the use of a belt and A being spanked while he was naked. I informed the officer that A was not naked on either event mentioned. Regarding the belt incident I told the officer that I did not know about A being hit with the belt as A never said anything, rather he came out of his room laughing and telling me how funny it was that C was playing around with the belt in his room and went to swing it and it hit the door and in turn hit C. As per the spanking it was C who told me he had spanked A before A did.

I informed the officer that C had stated when A would not settle down for a time out, C stated to A that if he had just gotten a spanking it would be all over and done with to which A responded, ‘spank me’.

[67] L said that, once she learned that C had spanked A, she spoke to C about it. The only detail of the discussion was her comment, “In no way did I state though that A had asked to be spanked with a belt”. Her focus seemed to be more on what she or A had said, than it was on C’s behaviour.

[68] She also gave her perspective about C’s intervention when A was attacking her:

[C’s] actions was (sic) risky by having physically removing (sic) A in an instance where he appeared out of control of himself exhibiting harmful behaviour towards me, his mother because I removing his toys as a discipline that does not work but causes him to get upset. I verily believe the quick reaction from [C] was necessary in this instance and that it was not physical abuse but rather a distraction from his present path of unruly behaviour and removing him from the kitchen.

At no time after A was removed from the kitchen did he complain or say that he had been hurt. Rather, A calmed down immediately and went to sleep.

[69] C describes what happened as follows:

… one night while at the house, (L) was taking away some of these toys from A and I heard her telling A to stop touching her. I came out seeing A slamming his mother into the oven and grabbed him by the shoulders and neck area, placed him on the floor of the kitchen, being careful to not hurt him, or bang his head on the hard kitchen floor, then gave orders for him to go back to his room and be quiet. When A failed to comply, A was picked up off the floor and carried to his bed and I exited the room where A stayed quietly for the rest of the evening.

[70] C also included in his affidavit some other comments about the issue of his involvement with discipline:

… in January 2012, it was brought to my attention that A was yet again taken out of school to tell the OPP things about myself, who was acting as a father figure, it sprang to my mind, what can’t a 10 year old say about anyone if he is in the mood to say anything?

The things in question always begin with this theme of disciplinary action and unfair treatment towards him i.e. that he should have a say when he goes to bed, has a shower, and to his room for timeouts along with how long he should be in timeout.

This kid has become more like a spoiled little rich kid then the child (L) and I have desired him to be i.e. Kind hearted, compassionate, peaceable and honest.

(L) and I don’t see eye to eye on much, but the basics like how to raise a child are clear for success, yet are hindered by the society, CAS.

I have witnessed firsthand A’s lack of respect of authority with regards to his mother, (L).

When at (L’s) house, she had told A to go to his room for a timeout. After a while and A not complying with his mother’s request, I asked A to stay in his room. After struggling to keep A in his room, and A stating he did not have to be in his room, I said to A how punishments would take less time if he were given a spanking as his method of choice rather than being put in time out in his room. A stated that he would prefer a spanking over the time out in his room and loss of privileges and therefore told me to spank him. (In cross-examination C advised he spanked A twice.)

[71] The police did not charge C with anything. The officer commented something to the effect of A was “quite the little storyteller”, probably, at least in part, as a result of the “story” told about A having a wife and child from McDonald’s. It appears that the police were satisfied with C and L’s version of events, as am I, and decided that criminal charges were not warranted.

[72] We will never know for sure what would have happened if the intervention by C in the kitchen had been the only incident of concern. It is entirely possible that the CAS might have accepted C’s explanation and the results of the police investigation, cautioned L and C about proper discipline, and continued with the planned termination of the supervision order (or requested an extension with terms).

[73] Apparently, the Society only expected A to be in care briefly, because the worker asked L to walk to the car and reassure him that everything would be okay but he would be staying somewhere else for a few days. L refused to do that, because, she says, she didn’t believe that it was true. As a result, A went from the police station into care, without any reassurance from his mother, and then didn’t see her for over a month. It is little wonder that he blames himself for having disclosed what went on in his mother’s home.

[74] The disclosure about the spankings and belt incident raised further concern because the worker had previously cautioned C not to physically discipline A. Understandably, the CAS became worried about what was really going on in the home, and was now uncertain about whether A would be at risk if they terminated their involvement.

[75] Then, other things happened that heightened the CAS’s concern about what had been happening to A in L’s home.

[76] First, when L went to the OPP station for her interview on January 11, she brought a friend, KO, with her as support. At the conclusion of the interview, KO approached the CAS worker, LM, in the parking lot and said that she had to speak to her privately.

[77] LM says that she suggested KO call her at the office the next day but KO followed her back to the Society office that night, saying it was urgent for her to tell LM her concerns about A. KO said she had initially tried to be a mentor and guide for L but, having now got to know L better and observe her parenting of A, she had serious concerns.

[78] LM, and A’s CIC worker, EC, met with A at his temporary foster home to discuss the things KO told LM and try to find out what had been going on in his home. LM’s evidence was that A told them:

… his mom made him do cleanses. He advised that the taste of the salt water made him want to puke and that he remembered crying and begging his mom for food sometimes, but she never gave in. A reported his mom made him do the “cleanses” so he would behave and be healthy.

[79] On February 7, 2012, LM received a telephone call from KO with further disclosures, including a suggestion that L had given A enemas. This was particularly concerning to the Society because A had been the victim of sexual abuse, and also because he had a longstanding issue with encopresis (soiling).

[80] On January 18, 2012 in the midst of these disclosures from KO, the Society also received an anonymous letter. The letter outlined concerns about partying in L’s home; drinking and marijuana use; L badmouthing the CAS to her son, (G); “sexual antics” with C; fraudulent receipt of ODSP; threats by L to commit suicide, and screaming arguments with C.

[81] LM says that she confirmed with KO twice that KO was not the author of the letter. This meant that the CAS was now dealing with A’s disclosure that he had been picked up by the neck by C; L’s admission that she had allowed C to discipline A against the CAS advice; L siding with C and blaming A for the physical incident involving C and A; and disclosures, seemingly from two different sources, of alarming conduct that was going on in L’s home. Understandably, the CAS was now uncertain about returning A back to L’s care.

[82] I pause now to comment that I put no stock in the truth of the statements in that letter. The author is unknown and there is no way to verify any of the allegations. As well, KO was not called as a witness, so her comments to LM are hearsay. L says that she and KO had a falling out, and KO was trying to cause trouble for her. This seems odd, as L brought KO with her to the police station for support but, regardless, it is possible that KO had an ulterior motive to create trouble for L.

[83] Even though some of the allegations, such as the “cleanses”, were also mentioned by A, none of these things have any impact on my decision. In my view, these things are not really relevant to what will happen now, and their original source is not reliable. The allegations are primarily mentioned to explain LM’s state of mind at the time, and better understand why the agency was not returning A to L, as previously planned. They are not, in any way, being considered by me as “truth of their contents”. Given the lack of ANY other evidence to suggest these things were going on, I find, on the balance of probabilities, that none of the events that were reported in paragraphs 79 and 80 actually took place.

[84] However, A continued to say alarming things. He made a disclosure to his doctor on February 9, 2012, of being sexually abused (anally). This disclosure was investigated by the Crime Unit but, following two unsuccessful attempts to interview A, the investigation did not proceed further. A was unwilling to have any more discussion about this or provide any details of what had allegedly happened.

[85] A had been reapprehended on January 11, 2012, and the supervision order was due to be terminated January 15. The Society had to bring the matter before the court within five days. If there was no agreement to return A to L, with or without a supervision order, the only option available to the Society was to request that A be made a Crown ward. As A had been in care for over the statutory maximum at that time, a further request for Society wardship was not an option.

[86] This led to the Society amending the application for termination that was already before the court. On January 16, 2012, the Society amended to request an order of Crown wardship. However, they were continuing to investigate, to see if they could get a better picture of what had actually been happening to A while in L’s care, so that they could see if the problems could be resolved.

[87] However, L forced their hand. She made no request to see A or to have him returned to her.

[88] When the matter was first in court on January 16, L did not request any specified access. In response to the Society’s Application, she filed an Answer and Plan of Care on February 7, 2012, indicating that she was not asking for A to come back and live with her. She did not offer any plan for A to be returned to her care. The order she requested the court to make was twelve months of Society wardship and an order for unsupervised access to her.

[89] Apparently, L must have subsequently been told that Society wardship was not an option, because she amended her Answer on February 13, 2012, to delete the request for Society wardship. However, she still did not make any proposal to have A come back to live with her. In the amended Answer, she only requested access. The details of her requested order were:

1/ I am requesting unsupervised access at a time, location, frequency to be determined by me, the mother of A in accordance with A’s best interest.

2/ I receiv (sic) access with A 1 day a week at my home for a period of up to 3 months to be reviewed by the courts.

2/ (sic) A to be in care, to receive professional and certified child psychologist, psychiatrist and behavioural therapist.

[90] At this point, L appears to have turned her focus in the court proceedings to G. Although there were a few court attendances in the weeks following A’s apprehension, L does not appear to have raised any issues relating to A. The CAS, however, was concerned about C’s involvement with either child, because of the disclosures that A had made about C picking him up by the neck.

[91] On January 24, 2012, L filed a contempt motion regarding an alleged “denial” of her access with G. She withdrew her motion, as a result of an agreement reached at court on February 10 that L would have access with G at her home. G was to have no contact or communication with C, and L was not to discuss the allegations concerning A and C with G.

[92] On February 13, 2012, the day that L filed her Amended Answer and Plan of Care requesting A stay in care and get therapy, she also agreed to a final order regarding G. On consent, G was made a Crown ward, with weekend access to his mother once a month at her home. There was also a term that G and A could have access as recommended by the children’s clinicians.

[93] Following that, the focus of the court proceedings switched back to A, and promoting some contact between him and his mother. There were conferences regarding L’s access with A on February 16, March 15, and April 19, 2012. At some point, L must have changed her position and asked that A come back to live with her, as Justice Quinlan released a temporary care decision on July 5, in which L’s request to have A returned home was denied.

[94] However, it was not until September 7, 2012 that L filed a new Answer and Plan of Care. That is the Plan that is still before the court. In it, she requests access and the return of A to her care as follows:

8. I am requesting the return of A to my care.

9. In the event that A is not returned to my care, I am requesting unsupervised access with A at a time, location, frequency to be determined by me, the mother of A in accordance with A’s best interests.

10. If A remains in care for any time instead of being returned to my care, then he should receive the services of a professional and certified child psychologist, psychiatrist and behavioural therapist.

THE PRESENT SITUATION: WHAT HAS HAPPENED SINCE A CAME INTO CARE?

[95] Following A’s apprehension, the Society was on the horns of a dilemma. L had confirmed to DM, the attachment therapist, that A’s behaviour at home was so challenging that her friends didn’t know how she was putting up with it. The CAS knew that matters between A and L had deteriorated into a physical altercation on at least one occasion, and L’s boyfriend had to intervene to protect her. They were not sure what was going on with A: his disclosures were concerning but not all of them could be true. For example, why would he tell the bizarre story about being married to, and having a child with, a woman from McDonalds? He had made a disclosure about being sexually abused, anally, but didn’t want to discuss it. They could not figure out what was going on, or how to best help him. L did not want him home and was insisting that he get “professional and certified” clinical assistance. So, the Society started searching for a treatment foster home.

[96] Unfortunately, there were no available treatment homes in the Muskoka area. When questioned about the decision that was ultimately made to place him in a home in the Peterborough area, some two-and-a-half hours away, LM (the Family Support Worker) tried to address how A’s placement was balanced with the impact it would have on access with his mother:

I think we’re always thoughtful about that (the distance from L), and if we had something readily available in Muskoka that could meet the child’s needs, we would always use that first. Knowing A’s needs, I think that throughout the province, there are multiple placements that we’ve used in the past, with kids that have similar issues, and of those, the Peterborough residence was one of the closest. A lot of other kids are placed more so across the province, in various, kind of, more urban settings. So, it was one of the closest, and I think that given that we didn’t want A to be placed with a lot of other children, or as limited as possible, that was also an obstacle, where many therapeutic foster homes, they’re set up to have two, or three, or four children. So, I think that was part of the decision. And then the personality piece, where the foster parents available to A, it appeared, our resource department felt it was a good match. They discussed A’s needs thoroughly, and what would be involved in caring for him, and it’s a tall order, and I think that the Ds (the foster parents) appeared to be capable of doing that, and I think they demonstrated that they’re willing to put in a lot of extra work and support with A.

[97] While I can understand why the Society made the difficult placement decision that it did, I have trouble coming to terms with their position about access. I recognize that it is not the role of the court to address resource allocation, and I also recognize that this is a smaller agency, with limited resources. However, I do need to comment on a concern that was quite properly raised by L and her counsel.

[98] As L lives on disability benefits, her financial resources are limited. She does not have access to reliable transportation, so it was not reasonable to expect her to drive to Peterborough to see A. In any event, once L began requesting access, the Society required that it be supervised. This meant that, for every access visit, A had to travel approximately five hours in a car. As if this was not bad enough, the Society had no provision for supervised access outside of business hours. So, every time that L exercised access to A, he had to miss a full day of school.

[99] What a horrible position for L to be in. Access was ultimately set up for once a week. L wanted to see her son, but knew he was struggling in school and could ill afford to miss one day a week. Ultimately, she made the painful decision to reduce her access to once every two weeks, in order to minimize his school absences.

[100] Neither LM nor any of the other workers was able to give a satisfactory answer about any efforts made to explore other solutions. For example, L’s parents lived reasonably close by, and they had been the caregivers of choice during an earlier apprehension. They very much wanted to see A, but, for reasons that I still do not understand, the Society took the position that their contact with A should be limited. There were some vague references to L having conflict with her parents in the past; to A not wanting to be with his grandfather unless L was there; and to L’s mother doing too much of the talking for her. However, there wasn’t a clear enough reason given for not exploring the option of L’s parents supervising access outside of regular business and school hours, so that A would maintain his connection with his extended family and not have to miss school.

[101] Until a decision was made about A’s future in this trial, the Society had a statutory duty to continue to support the family unit. When various workers were asked about the Society policy not to offer supervised access on evenings or weekends, they were unable to provide a satisfactory response, other than “it is the way that the contract has been negotiated”.

[102] It seems to me that a small Society in a northern location needs to take a serious look at alternatives to ensure that contact with parents continues pending a trial, if they are going to place children outside their jurisdiction.

[103] I recognize that this is a complex issue and that funding is limited. However, it should be mandatory that the Society demonstrate that they have explored all other potential supervisors, such as friends, relatives, or outside agencies. If there are no possible alternatives, the requirement for supervision may need to be re-examined, or “the union contract” may need to be revisited to provide some limited service for supervised access on weekends, when children are placed in other jurisdictions. Possibly, it may be cheaper to assist parents to travel to the area where the child has been placed, and have access exercised there. I do not know the solution but I do know that it is difficult to understand how what happened with L and A is acceptable, and in keeping with the Society’s statutory responsibilities to support continuity and A’s relationship with his mother and extended family, until trial.

[104] However, my role is not to critique the decisions of the Society. I cannot change what has happened up to now. Even if I wanted to, which I do not, I cannot make decisions about A’s future to send a message of disapproval to the Society. The decision about A’s future placement needs to be made solely on the basis of what is in his best interests.

A’s BEST INTERESTS

What are his current needs and how can they best be met?

[105] As mentioned, A was placed in a treatment foster home in Peterborough where he still resides. LD and GD have been his foster parents at that home since February 8, 2012. The Ds run a therapeutic foster home through Phoenix Residential Treatment Services in Peterborough. They are employees of Phoenix, not the CAS. They have access to a 24 hour on-call support service and attend a full day training session each month. They have first aid and CPR training, and have received instruction in nonviolent crisis intervention. They are trained in dealing with behavioural problems, de-escalation techniques, and use of therapeutic restraints. They have assistance from a child youth worker, who provides relief by taking A into the community or to play sports two days a week, from after school to about 8 p.m. The other boy who resides in their home goes out on the alternating two days, so generally only one of the boys is in the home after school on weekdays. Finally, there is a respite worker who cares for A one weekend per month, from Friday at 4 p.m. to about Sunday at 4 p.m., so that the Ds get a break from their fostering duties.

[106] Although the historical events set out above are helpful to me in appreciating the context of how A got to this point in his life, the focus of my decision is on the here and now. I need to understand, as best as I can, what is going on in A’s life now on a day to day basis. What are his strengths and what are his challenges? What works to assist him when he is having difficulties?

[107] I am going to review the evidence of LD in considerable detail because she is in the best position to provide me with information about A’s current behaviour and needs. She lives with him day to day, and observes him first-hand. She also has detailed contemporaneous notes about many of the times when A has had a problem, which are very helpful to me in getting a better understanding of A’s struggles.

[108] LD testified in this trial twice, first in November of 2012, and later when the trial resumed in May 2013. She came across as a wonderful witness and an exceptional foster parent. She is clearly devoted to A and helping him to try to thrive. She appeared less patient in the second round of questioning, which is understandable given some of the events that have taken place, but LD still went to considerable effort to be fair, honest, and helpful in her answers.

[109] LD gave her evidence in a straight-forward manner. She did not appear to embellish, and often said she had no idea why A might have said or done certain things. Particularly in the first round of her testimony, she was very hesitant to connect A’s negative behaviour to visits with his mother, even though they were sometimes related in time. She freely discussed some of the things that had happened in her home that were negative, and did not try to cover up her own involvement. Despite considerable baiting and personal attack by L’s counsel, particularly when he tried, unsuccessfully, to get her to call A a “liar”, she held up well under cross-examination. She stood her ground and continued to maintain the proper focus: she was not there to draw conclusions about A’s behaviour, she was there to report what had happened in her home, so that the court could draw its own conclusions.

[110] I have a considerable degree of faith in LD’s evidence, and in the care she seems to be providing to A.

[111] I am also prepared to accept LD’s evidence about the things she says that A has said to her. LD said that she felt that she and A were close. She described how she talks to him each night, when she is putting him to bed. That is when he tends to share his feelings with her or express any need to talk. She described how she stays with him after he has a behavioural incident, attempting to soothe and talk to him. She immediately documents the statements that he has made to her during times that result in her filing an “incident report”. I am prepared to accept that they are accurate recollections of A’s words, although the statements are not being received as proof that what he is saying is true.

[112] I will deal first with LD’s testimony last November, and I will then turn to her more recent testimony in May.

LD’s evidence in November 2012

[113] LD described A as an “amazing child”, very kind and happy, and a people pleaser. She described the progress he has made in their care, and the fact that he is transitioning from a behavioural classroom to a regular class at school.

[114] It is easy to lose sight of A’s positive attributes because we are focusing so much on his difficulties. However, it is very important to emphasize that his problems, particularly in LD’s home, are the exception rather than the rule. For example, when LD first testified in November, she indicated that she had had very few serious behavioural issues with A between the time he arrived in February 2012, until approximately three weeks before the trial in November. His former teacher also talked about him having “great days, really great, super”, as well as days that were difficult.

[115] However, LD was also honest about A’s continuing behavioural outbursts. She admitted that she could not say what caused them, but about three weeks before the trial was to start, A’s behaviour began to escalate. He started to get angry, was hitting, pounding windows, and throwing things, mostly at home, but also at school.

[116] LD described how she handled those outbursts. She says, when he would first start to misbehave, she would send him to his room but he would scream, “I don’t want to, my mom put me in my room for hours!”, or words to that effect. If his behaviour continued, and he started to become aggressive physically, LD would put him in a “basket hold”. This is a therapeutic restraint, which is administered by the adult holding the child by his wrists from behind until he calms down, so that the child cannot move his arms or legs to lash out. She said she had to do this four or five times, and each outburst could last for one-half to a full hour. She said the school also had to physically restrain him three times, and, on one occasion, when she was picking him up for another appointment, A was required to stay home for the balance of the day as a result of his misbehaviour.

[117] LD describes the incidents when A gets so upset that he needs to be put in a hold as “very intense”. While he is in the hold, and starts to calm down, she tries to soothe him, rubs his back and they talk. She said she doesn’t leave him “until he is back to being A”. He has said to her, “Why can’t my mom do this if she sees that I am angry?” He further elaborated that his mother would put him in his room and, even though he was throwing things around, she would not come in to ask what was wrong[^3].

[118] LD says she sees these outbursts as “separate from A”, and she understands that he is trying to figure out what is going on and can’t communicate it. Her soothing ends with a comment to the effect of, “tomorrow will be a new day”, and they set aside the incident and try to move forward. LD confirmed that she has great affection for A and that his outbursts do not cause her any concern with keeping him in her home long-term. She is clearly very committed to trying to help A.

[119] When A first came into her care, he had frequent problems with soiling himself. This has been a long-standing issue for A. However, when LD testified in November, she estimated that A’s soiling incidents had reduced from four or five times a week to just a few times each month. LD has tried to assist him with his bowel issues by giving him a warm drink in the morning, following which A sits on the toilet for 20 minutes. When he does have an incident with soiling, they put his underwear in the toilet to soak and she then launders it. She says that A told her that when he soiled himself at home, his mother would say about his underwear, “Eat it, eat it”, and he had to wear diapers to school[^4].

[120] LD also testified about A’s involvement in sports. They keep him very active and he seems to be involved in at least one sport each season. He plays soccer in the summer and hockey in the winter. He fences and has taken swimming lessons. When LD testified in November, A was saying he wanted to do lacrosse in the spring and football in the fall. He seemed to be thriving in sports, particularly in hockey, and talked proudly to his CIC worker about the goals he had scored. He was doing fairly well in school and was hoping to transition to a regular class by the end of the 2012-2013 school year. One of his big motivators was to get out of the section class at his current school, so that he could be registered at the regular school in his catchment area, which most of his teammates attend.

[121] As an aside, I note that, while L had A enrolled in soccer, she is not supportive of hockey and views it as “dangerous”. I thought, perhaps, that her disapproval might stem from her limited financial resources, which might impact on her own ability to enrol A in all these sports. However, LD advised that A’s hockey fees and equipment are paid through an OHL/Canadian Tire program that assists children in need. L’s stated objection to hockey was not the cost, it was the violence. While her views are, perhaps, shared by many, it was disappointing that she did not seem to temper them with any expressed appreciation for the enjoyment, increased self-esteem, and sense of belonging that A seems to have experienced through his hockey involvement. It was a perfect example of L’s black-and-white approach to issues: if she disapproves of something, it is all bad. There does not seem to be much room for nuance in L’s thinking.

[122] LD says that A has been doing “pretty well” at school and was on track for all his credits. There had been no sexual acting out or soiling at school, even during times when his behaviour was otherwise escalated.

[123] A’s time at LD’s home has not been completely free of problems. A number of these incidents were reviewed during her evidence, as L had been concerned about them. For example, when A first came, the family dog snapped at him. LD checked him, and there was some redness but no open sores or bruises. They thought nothing more of the incident. However, following an access visit between A and his mother a few days later, the OPP arrived at LD’s home at 11 p.m. and asked her to wake A up so they could check his arm. L had called the police at about 10 p.m. to report that her son had been bitten and bruised. The constable checked A for injuries but found none. There are no other reports of any issue between A and the dog.

[124] There was also another minor incident where A managed to get hold of a razor in the bathroom and nicked his chin “trying to shave” himself. The razor had been left out by LD’s visiting adult son, and they immediately made arrangements for him to use LD’s bathroom to shave in future.

[125] Similarly, there have been some minor medical issues. For example, A had some white bumps on his ears and a rash on his hands and face. Each time, LD has obtained medical attention for A, and followed the doctor’s recommendations for treatment.

[126] I find that LD has provided excellent, hands-on care for A while he has been in her home, and I am not in the least concerned that there has been any mistreatment or lack of vigilance while he has been living with her. The incidents that were mentioned were minor issues that are likely to come up in the daily life of any family, and they have all been dealt with appropriately.

[127] L and her counsel have also tried to suggest that A may have been involved in sexual activity while living with the Ds.

[128] On one occasion, A said that he and the other foster child in the home had sucked on each other’s penises. However, when A was questioned about the details, they did not add up. He said it was when “Sammy came to get his cowboy hat”. Sammy was a visitor, and the other foster child was not in the home the day that Sammy came over.

[129] LD is aware of the concerns about A’s sexualized behaviour. She maintains a strict “eyes on” policy when other children are in the home, and says A is not permitted to be alone with any other child. She says it would not have been possible for A to have an opportunity to do what he said he did. Her only explanation is that A was resentful that, when three other children came over for family movie night, A was required to sit with the foster father on the couch, while the other foster child was allowed to sit with the three visiting children. When it was explained that this was necessary to “keep him safe”, A responded with the allegation that the other boy “did the same thing as him” (suck on penises), which led to the story about the two of them having sucked on each other’s penises the day that Sammy came over. The other boy denied it.

[130] I find that it is highly unlikely that A has been involved in any sexual activity while in the D’s home. I am satisfied that there are adequate safeguards in place to ensure that A does not have an opportunity to engage in any sexual interaction with other children, and his foster family is ever vigilant against this risk.

[131] I have heard the evidence of two of the CAS workers, that A is highly aware of the significance of making a disclosure of sexual activity or any sort of abuse. He has been through several investigations, both with the agency and with the police. It is certainly within the realm of possibilities that A may try to use an allegation as a tactic to change a situation that he is not happy with, such as having a different degree of supervision than another child.

[132] I note that A made another allegation of sexual activity while in foster care, which is also unlikely to have happened. This related to a previous foster home. He alleged that he and the son of the foster parents “humped and sucked each other’s penises” in the basement of the house. He said that he and the other boy slept together one night. The other foster mother explained how this was impossible, as she was also aware of, and adhered to, the requirement to have “eyes on” A at all times. In her words, the entire family was “super-vigilant” when A was living with them. A had his own bedroom, her and her husband’s bedroom was between A and the others, and none of the children were allowed in the basement of their home without an adult present.

[133] While L and her counsel seemed to try to put these incidents on par with the incidents of sexual activity in L’s home, they are much different. The incident with the younger boy in L’s home was verified by the other boy, and the other boy’s mother actually found them in A’s bedroom with their pants down. With respect to the activity between G and A, both of them have admitted to it.

[134] I am not prepared to treat the allegations about sexual activity in foster care as seriously as the incidents that occurred in L’s home. They are not the same. All have been investigated, but the investigations about the foster care allegations have concluded that the events were unlikely to have occurred. The conclusions about what happened in L’s home have been the complete opposite.

[135] However, the fact that A continues to make these allegations about oral sex is concerning. Part of the challenge is taking each of his disclosures seriously, without giving A the message that any such allegation will result in repercussions against the foster home. It is important not to empower A with the message that an allegation of sexual activity will result in a change of placement.

[136] As mentioned, A’s CIC worker has commented that A, more than any of LD’s other children, is keenly aware of the results of making these disclosures, and how seriously his allegations are treated. The CAS has, quite properly, conducted an investigation into each of A’s disclosures and determined that there is no credible evidence to support the allegations about activity in either of the foster homes. I accept that result as the proper one, but I am hoping that the report from the CPRI assessment, to be discussed below, will give some insight into why A may be continuing to make these concerning allegations.

[137] Returning to the situation in LD’s home, LD also described the day that A’s CIC worker (EC) and therapist (KL) came to visit A, just before the trial was commencing. They wanted to tell A what the trial was about and let him know that the Society was asking for an order for Crown wardship, which, if granted, would mean that he could not return to live with his mother. According to LD, A was emotional at first, but then he asked questions and switched topics. She said that by the time they left he was calm. When LD asked him a few hours later how the talk with EC and KL had gone, LD said that A told her, “I don’t want to be mean, but I’m not ready to go back to my mom’s yet.”

[138] LD acknowledges A has many ambivalent feelings. A has told her that he feels badly about telling what CS did to him (grabbing him when he was hitting his mom), and he would still be with his mom if he had not said anything. He blames himself for the incident because he should not have been hitting his mother. He does not trust the CAS and says they are all liars and they took him away from his mom. She also says that A has mentioned numerous times that he really wants to know who his father is.

[139] LD says that A has consistently said he wants to live with his mother. However, he has also told her that he wishes she, her husband, and his mom all lived together. She feels that he wants the best of both worlds – to have them all living together – because he misses his mom but also enjoys living with LD and her husband. LD freely acknowledged that one of the big draws for A may be the amount of sports he has been able to participate in while in her care.

LD’s evidence in May 2013

[140] When the trial resumed in May, LD was recalled to update the court about what had been going on with A in the six months since the trial began.

[141] A continued to be doing reasonably well behaviourally, although there had been some ups and downs, which will be discussed below. He was still struggling somewhat academically but had been successfully integrated into some of the regular stream science, gym and math Grade 6 classes several days a week. He no longer needed a CYW to accompany him to those classes, as his behaviour was not disruptive. LD was in the process of meeting with A and the school board to see if A could be transferred to a regular class in his home district in September. This remained one of A’s big goals because most of his teammates were at that school and he had formed a bond with them through sports.

[142] A is now on a number of medications, including Lactulose (a stool softener), “Singular” for his asthma, Biphentin for anger, and Risperidone for anxiety and “to think clearer”. All these medications were prescribed by his paediatrician and CAS got a second opinion before agreeing that the medications should be administered. L is understandably concerned that A has developed “tics” since beginning this medication, but the doctor has been made aware of the issue and is monitoring it.

[143] However, all was not positive. Once again, there have been a number of behavioural incidents. His behaviour peaked at Christmas, and he pushed LD down the stairs, punched her in the ribs, and kicked her in the kneecap. However, she remained remarkably tolerant about this treatment, indicating that she understood that A has mixed feelings surrounding Christmas because it is not a holiday that is recognized by his mother’s religion.

[144] At the beginning of 2013, the Society decided to try allowing A and his mother to have unsupervised access in the community. However, problems seemed to spike immediately afterwards.

[145] Although not all the problems occurred after access visits, there was now a definite escalation in A’s behaviour for a day or two right after access. He would then calm down and generally get back into his routine. A seemed to recognize this himself, as he talked to LD about why he was “bad” after visiting his mother. She tried to reassure him that it was probably just hard to come back to her home after seeing his mom.

[146] On one occasion, following an unsupervised visit with his mother in January, A had LD call his CIC worker for him. He was upset about how he was acting, left her a message asking, “Why do I get angry when I come back from a visit?”

[147] On February 8, there was an incident in which A was put in his room after he pushed LD. He reacted by slamming his door against the wall, screaming and yelling, until he was eventually restrained in a two-person hold for five minutes until he calmed down. This event does not seem to have been related to access, and LD freely admitted she had absolutely no idea what brought it on.

[148] The next event was two days later, on February 10. A was cleaning the bathroom and turned around to pull down his pants and expose himself to the other foster child. At first, he tried to say the other child had done it as well, but later admitted that it was him. A’s behaviour escalated to the point that he had to be put in a basket hold, but he then calmed down and apologized. He said he did not know why he was acting this way, and asked LD why she couldn’t help him. He said he wanted to do better but he “always does bad things like hitting (LD) and showing his penis”. When LD said he needed to treat others like he wanted to be treated, A said, “I want people to hit me and show me their penises.” LD told him they needed to change that thinking because it wasn’t healthy, and assured him that he would get better.

[149] Another incident occurred on February 19. The incident involved A getting into a physical altercation with another student, grabbing a teacher’s sweater and refusing to let go, and throwing a chair and kicking it. As a result, A was not allowed to return to school.

[150] The next unsupervised visit was on February 28. The next day, A had a very difficult day in his foster home, which was so concerning that it was recounted in an incident report in great detail.

[151] On March 1, A was agitated, defiant, and physically aggressive with LD. He would not calm down and refused to sit on the couch, all the while telling LD that he knew everything about her, she was a liar, and she had lied to the court about not wanting A to go back with his mom. A would not tell LD who had told him this but he said that he hated her (LD) and wanted to live with his old foster parents. He came at her with a pencil and tried to stab her. He tried to hit her, and then said he was sorry.

[152] LD tried to calm A down by putting him in a basket hold but he was rolling and LD had to call for assistance because it was becoming unsafe for A. Restraining A required two people. He continued to escalate, trying to bite LD, banging his head on her arms and chest, and swearing. LD ultimately had her daughter call Phoenix to send back-up.

[153] Eventually, A calmed down and was able to sit on the couch. However, he then threatened to kill himself. LD told A that he needed to talk to someone about what he was feeling inside but A said he was never talking to anyone again, including his therapist (KL). A continued to repeat that he was stupid and didn’t know why he hits LD.

[154] On March 31, 2013, there was another particularly concerning case note, which I am going to set out in detail because this is the best evidence I have of what is going on for A at this time. It is particularly illustrative of an important issue, which is A’s continuing concern that he is being disloyal to his mother by participating in therapy.

[155] The Society had arranged for the intensive assessment of A at a children’s mental health facility in London (CPRI). The assessment was to begin on Tuesday, April 2. Although the Society attempted to engage A’s mother to attend in London to be part of the assessment, there were a variety of reasons why she did not end up going. These will be discussed in more detail later. However, the bottom line is that A was going to attend with his foster mother (LD) and his CIC worker (EC).

[156] […] was Easter Sunday and also A’s twelfth birthday. He had a bowling party for his birthday earlier in the day and was upset that LD had to be present throughout the party. A knows this is a requirement since he is not allowed to be alone with other children because of his past sexualized behaviour. LD responded that this was something they were going to work on through CPRI, to try to help A have a more normal life and healthier lifestyle.

[157] LD and A were sitting on the couch watching television, when A spontaneously asked who was going to be in London. LD explained that she would be there with EC, and A asked “if (his) mom would get in trouble if (he) talked”. LD told him to ask that at the meeting on Tuesday. LD reminded A that he has asked for help, and that this would be a good opportunity to get help. A responded by saying that his mom didn’t know half the stuff that has happened to him. LD says she told him that the trip was not about his mother and what she knew, it was about him and what he needed to do to make himself healthier.

[158] A then said that he did not want to get his mom into trouble. He told LD, “she told me not to talk, because when I do she gets into trouble and then she can’t see me unsupervised.” He then said, “My mom told me that you lie and you don’t want me with my mom”. When LD said that she had never spoken to his mother, A appeared frustrated and put his hands on his head. He said, “I don’t know what to think. I used to love you but after what my mom has said about you, I can’t trust you because you lie. Every other foster parent has told lies about my mom and now you have.” When asked what lies he was referring to, A said, “You told the judge I shouldn’t go back to live with my mom.” LD told him that she did not make those kinds of decisions.

[159] A said, “I miss my mom and that is why I was angry today, because I wanted to spend my birthday with her”. LD responded that she understood that but encouraged A to talk about his feelings to someone, so that he might start to feel better.

[160] According to LD’s note, A said, “God doesn’t like people that talk, and I need to be almost perfect to get to the New Jerusalem.” There was a further discussion about the Bible, and God, with LD reassuring A that she was “pretty sure God will love you even when you tell people how you feel”. Ultimately, A admitted he knew he would feel better if he talked about what he knew.

[161] This exchange captures the essence of the problem. This is a boy who desperately needs help. Yet, he believes that he is being disloyal to his mother by being honest and participating in therapy. I cannot see how A can make meaningful progress about his issues, as long as he continues to be in this loyalty bind.

Can A be returned to his mother’s care?

[162] Having decided that A needs help to overcome his behavioural issues, I turn now to a discussion of L, and whether she can meet A’s needs.

[163] Throughout the years that the CAS has been involved with L, there have been various resources offered to assist her to better appreciate her children’s needs and respond to them appropriately. Unfortunately, there are common themes running through the experience of those who have worked with her: a failure to understand her children’s issues, lack of insight into how she might better help her children, and an inability to work with those who are trying to help her children. This stands in the way of her making any meaningful change.

The Evidence of the Society Workers

TM – The Intensive Services Worker between June 2005 and March 2006

[164] As previously mentioned, TM was assigned as the Intensive Services Worker (ISW) to work with the family when G was still living in the home. G had been suspended from school 15 times between March and June of 2005. TM provided intensive in-home sessions, designed to give parents an opportunity to build upon their existing parenting strategies and techniques, or develop new ones to strengthen their functioning. TM’s average involvement with a family is eight to ten weeks, but he remained involved with the P family for ten months. Particularly at the beginning, he came for almost weekly sessions. However, after G went into foster care in November of 2005, the visits were less frequent. In total, he estimated that he met with L and observed her parenting her children approximately 30 times.

[165] TM was hoping to assist L to find more positive ways of parenting her children. He was concerned that she lacked an understanding of their developmental needs and stages, easily became frustrated with them, and often made derogatory comments or yelled and swore at the children. These were some of his observations:

• When TM first met L, she advised that she was on medication to address her depression and the only good times that she had were when her children were sleeping.
• At the next meeting, in the presence of both children, L informed TM that she had ceased taking G on outings because he does not stop “flapping in (her) ear”. G said he wanted less yelling and hitting by his mother and that he wanted her to take less of his “stuff”. L defended herself by saying she did not hit G “that much”. L did not correct G when he said his mother had told him that she been having problems “ever since (he) was born”.
• TM was so concerned about the yelling and derogatory comments that L made about her children that he suggested she undergo a psychological assessment and individual therapy. Although she was initially reluctant to participate, she did complete an assessment in October, and also had some individual counselling later, which will be discussed below.
• Despite efforts to assist L to parent in a less aggressive manner, TM continued to hear her raising her voice and expressing frustration with her children. She admitted to swearing at them. Normal parenting interactions seemed to cause her frustration. For example, she said she got frustrated when she was trying to complete a task and her children asked what she was doing or attempted to help her or work alongside of her. At the time, G would have been nine years old and A would have been four.
• TM had been working with L to reinforce for her that the negative comments she made about the children would have a significant impact on them. Although she said she understood this, almost immediately thereafter, L informed G twice within a few moments that he “lived like a pig”. Both A and G were present.
• L refused to reduce the time that she spent walking dogs for the SPCA, despite numerous attempts by TM to have her agree to do so, so that she would have more time and energy for herself and the children.
• TM tried to engage in a discussion with L when he observed her physically disciplining A by picking him up by his arm and carrying him, as he struggled, to his bedroom in response to the misuse of a video game. L insisted that she had tried other things but they were “too hard”.
• TM noticed a number of missed opportunities for L to provide nurturance and/or comfort to her children. On one occasion, he observed A gently reach to his mother’s leg, while they were standing in the kitchen. L quickly and sternly told A to get his hands off of her, and made no attempt to comfort A when he got noticeably upset. On another occasion, A was at the kitchen table with his mother and repeatedly and appropriately said he was thirsty. L ignored him until G politely provided a glass of juice for himself and A. L yelled at G for failing to put the juice directly into A’s hands, and also blamed G when A spilled his juice.
• TM concluded his report with an observation that, during his involvement with this family, he did observe some limited progress in L’s approach with her children. For example, once he saw her calmly remove colouring markers from A when he used them improperly. However, his overall impression was that he observed many more examples of harsh and demeaning statements with an overwhelming tone of sarcasm.

[166] TM was an excellent witness. He tried to present positives as well as negatives, but was honest that he saw many more examples of negative parenting by L than he did positive parenting. He gave some examples of how he instructed her, which were very clear and should have been easy to implement. He stood up under cross-examination very well, becoming neither intimidated nor combative. He made concessions where appropriate, and thought about the wording of questions before he agreed. He was firm and assertive enough to politely correct L’s counsel when he improperly reworded what TM had stated. He clearly came across as attempting to provide the court with an accurate report of his observations, without any defensiveness or attempt to justify his actions or positions. I have absolute confidence in the veracity of his statements as to what he observed. Although I recognize that his involvement was some time ago, his interactions provide me with an excellent baseline of the concerns about L’s parenting that existed in the early days. This is helpful for me to use in measuring what progress she may or may not have made.

CF – Child Protection Worker from November 2008 to May 2009

[167] CF was assigned as the child protection worker when the file was re-activated following the report that A, who would have been seven at the time, had been sent to school in a diaper. She said that L was unwilling to meet with her, felt there was little that the CAS could offer her family, and asked that all communication be in writing. CF provided a letter outlining the Society’s concerns and expectations, which included:

• A Risk Assessment had been completed to determine the likelihood of future child maltreatment and L’s rating was “extremely high”;
• The Society was concerned that L might not be fully supervising her children when G was visiting; and
• Although L had indicated that she was engaging in counselling services for herself and A, she would not provide consents for the Society to speak with those service providers. The Society indicated that, if they were able to speak to those professionals and there were no further reports of poor judgment in the next three months, the Society would consider closing its file.

[168] However, a month after the letter was provided, A’s teacher called the Society to tell them that A had spontaneously disclosed that, when he was younger, he was naughty and stuck his penis in a kid’s mouth. When CF came to the school to meet with him, A initially refused because he said he had been told by his mother not to meet with CAS because she did not like them. Ultimately, CF did have a discussion with A, who revealed the incident about him and the three year old boy being caught with their pants down in his bedroom. CF met with L about this and it was confirmed that the incident had happened, and that it occurred after an incident earlier in the day when A had told his mother that the other boy had pulled down his pants. The concern was that L did not seem troubled about the incident and allowed the boys to resume unsupervised play after the first report. A was apprehended that day (February 9, 2009).

[169] The only other incident of note prior to CF ending her involvement in May 2009 was a meeting with L’s boyfriend, KC. He advised CF that L had been charged with assault against him, as a result of her being frustrated when she was unable to get ink into an ink cartridge, him attempting to help her, and L becoming upset and “backhanding him across the face, leaving a hand print on his face”.

[170] I accept CF’s evidence to explain how the Society became involved again, and to show that the Society continued to feel there were concerns with L’s lack of supervision, lack of cooperation, and her anger.

[171] However, I put very little weight on CF’s evidence beyond that. First, her involvement was very limited. More importantly, I was not at all impressed with CF as a witness. She was aggressive, defensive, overly assertive, and directed much of her testimony to one of the CAS supervisors, who was sitting in the body of the courtroom, rather than to the court. Ultimately, I had to ask that the supervisor leave, to see if there was some dynamic with the supervisor that was causing CF to be so aggressive. Unfortunately, even after the supervisor left, CF continued to give curt, abrupt responses to questions and appeared quite impatient and resentful. She came across as arrogant and cut off questions from both counsel and the bench before they were completed.

[172] Unfortunately, CF’s demeanour was so abrasive that I do not have a lot of faith in the credibility of her testimony, other than to confirm facts that are not in dispute, such as the sending of the letter referred to in paragraph 167. If the manner in which she gave her testimony was any indication of how she dealt with L, it is understandable that she did not elicit much cooperation from her.

JS – A’s Child in Care Worker from August 26, 2009 to May 13, 2010

[173] JS’s evidence was relatively brief. She explained how, during the time that she was involved with A, he had been working with an art therapist, but the therapist decided to end the therapy. It was JS’s evidence that the therapist felt that A was trying to express things in his therapy that suggested he was not feeling safe with his mother, but was not getting the support he needed because he was continuing to have unsupervised access with L. As the therapist was not called, this statement is hearsay and I put no weight on it, other than to help me understand JS’s belief about what had happened in therapy. A began to push boundaries with the therapist and behave inappropriately, such as demanding hugs and pushing against her breasts. According to JS, the therapist did not feel it appropriate to continue to work with A, in part because of the increasing sexual overtones.

[174] JS talked about A’s soiling incidents decreasing while he was in foster care, but continuing to be an issue during transitions, including surrounding visits with his mother. She talked about A having a decrease in facial tics, speaking about being required to hold weights as a form of punishment, and A being concerned about spending time with his grandparents without his mother because his grandfather got angry.

[175] JS discussed an incident where she believed L had been drinking when she came in to sign papers, as she stumbled, threw up in the bathroom, and smelled slightly of alcohol. However, JS freely admitted in cross-examination that L might have been ill. I accept that as an explanation. There is no information that was presented in this trial that would establish that L has any substance abuse problem or that there is a concern about her use of alcohol.

[176] JS also spoke about A’s mixed feelings about his mother, and concerns about his mother sharing her feelings about the situation with A. He said that he wanted to go home because he had been in foster care too long, but then said it was his mother who felt that way, and he felt that way “a little”. A few weeks later, he told JS that he did not think he should go back to his mom’s residence because she might do inappropriate things, such as make him hold weights.

[177] JS talked about A’s ambivalence surrounding access, and returning home to his mother. A discussed his mother “getting mad at him” and asked for someone to talk to her about “better ways of being mad”. She said that A talked about his mother yelling at him and “when he poops his pants she puts it in his face almost touching his face and says look what you did – eat it”. JS also commented about A saying on other occasions that his mother was better now, and nicer than his grandparents, and that he wanted to go home.

[178] There was also a discussion about A making a disclosure about another possible sexual experience when he had been living with his mother, involving a little girl. This was investigated, but the results of the investigation were inconclusive.

[179] Overall, JS was a fairly good witness. She was a little tentative at times, and did not appear overly experienced in giving evidence, but she was obviously very bright and thorough. I have no doubt that she was being truthful with the court. She gave her answers thoughtfully and fairly. I have no trouble relying on her testimony to establish that A has been struggling for some time with ambivalent feelings regarding his mother. On the one hand, he loves her and wants to be with her, but on the other, he has concerns about her ability to keep him safe and secure, and her problems with anger. The feelings that he now discusses with LD are remarkably consistent with the feelings he shared when he was in foster care three years ago.

The Evidence of AR – Access Supervisor from February 18, 2009 to July 15, 2011 and February 28, 2012 to present

[180] AR has been the person observing almost all of L’s access visits for over four years. She was a delightful witness, very thoughtful in her answers and careful not to embellish. I can understand how she would be an excellent access supervisor, as her charming personality would be likely to quickly put parents at ease. When she spoke of L having a good visit with A, her face lit up and her enthusiasm was contagious. She would beam with pleasure, obviously very pleased to be talking about things that had gone well.

[181] I am satisfied that AR was trying to be as positive about L as she could be and tried very hard to give a balanced view of the visits. I am also satisfied that her suggestions to L were very well motivated, and she was doing whatever she could to be helpful and try to give L positive ideas to address the areas of L’s care that could be improved.

[182] She noted that most of the visits between L and A were positive. She reinforced that A and his mother obviously care for each other, and openly express affection towards each other. She had no concerns about A’s physical safety when he was visiting with his mother.

[183] However, AR did have concerns about L’s ability to identify and respond to A’s emotional needs. For example, there were occasions that A has been worried about his mother and, rather than reassure him, she continued to discuss her problems. L was also upset when she read a journal entry that he loved his foster parents. While this may be understandable, it focuses on her feelings rather than supporting A in trying to be happy, even if he was in foster care. AR said that A is overly aware of his mother’s emotions during visits and continues to be very concerned for his mother’s welfare.

[184] A good example of L’s lack of empathy for A was illustrated during a visit in April of 2011. This was a visit at L’s home, as A was being reintegrated into his mother’s care. A accidentally broke an ornamental mask. L was understandably upset, as she said she had her mask collection since before A was born. She wanted an apology and A ran to her, hugging her and crying. When he repeatedly apologized, L responded that she had “heard him the first time”. After the visit, AR tried to ask her about A’s feelings about the incident. L responded that she had no idea how he felt as she “is not psychic”.

[185] There were a few occasions where A tried to broach the subject of his father with L, but she brushed his inquiries aside, and did not acknowledge his need to deal with this question.

[186] There has also been concern about whether L is transferring her antagonistic approach with the CAS to A. For example, during one visit, she passed A a picture of an old friend, but had noted on it the phone number for the Child’s Advocate office. On another occasion, she reminded A that he has the right to speak to his lawyer or the Child’s Advocate office. When A saw L picketing the CAS office, and expressed concern about L being arrested, L did not acknowledge his feelings or reassure him. Instead, she focused on the issue of “rights”. She explained that she was protesting for A and his brother’s rights, and reinforced for him that he had rights and could speak to his lawyer or the ombudsman any time.

[187] L does not seem to recognize how difficult it must be for A to be given the message that CAS is not to be trusted. He is a child, he is in care, and he needs to be able to rely on his worker, therapist and foster family for support. L’s inability to understand the position she is putting A in is quite disturbing.

[188] When A had mosquito bites, L insisted on photographing them. When she saw a Band-Aid on him, and learned that he had cut himself with a razor, she told him she was very concerned about the cut and risk of “transmission of bodily fluids” through the razor. A had to reassure his mother, and try to reduce her anxiety about his cut. It is L who should have been reassuring him, not the other way around.

[189] AR’s testimony confirms my general impression of L’s care of A. She loves him and is able to handle his basic needs. However, she has not demonstrated an adequate ability to tune into his emotional needs, nor to respond to them with sensitivity. Her reaction to a problem is generally either to ignore it, or to become defensive or combative. Her focus is on how she is affected by an issue, and whom she can blame, rather than responding to A’s needs and allowing him to process his feelings. AR’s observations reinforce the concerns of A’s therapist (KL), which will be set out below, that A is becoming “parentified”, and feels the need to look after his mother’s emotional health, rather than relying on her to look after him.

The Evidence of LM – The family service worker from May 2009 to July 2011, and January to May 2012

[190] When LM first took over as the primary care worker from CF, L was very reluctant to engage with either CF or LM. She communicated primarily in writing or through her counsel. LM discovered that L was more likely to participate in meetings regarding plans with A if there was a support person present. This allowed for some “guarded” communication by L. She became increasingly engaged with the Society, and had some discussions with them, albeit strained at times. She also agreed to participate in a “Parenting Capacity Assessment (PCA). Her increased participation prompted the Society to allow her to exercise unsupervised access in the community.

[191] Although there were some concerns with A’s emotional reaction to some of the unsupervised visits, there were no incidents of his physical safety being compromised, so the visits continued throughout 2009. However, after the results of the PCA were disclosed to L, a Case Manager at G’s group home called LM to report concerns about L discussing the recommendations of the PCA regarding A with G. Thereafter, L’s access became supervised for a short time because of concerns that L would share inappropriate information about the court case or assessment, with A, as well.

[192] LM was asked about her interactions with A. She explained that her relationship with A deteriorated in 2010, when he began to call her a liar, devil, bad person and say that she took children for money. In order to make A as comfortable as possible, she arranged for someone else to supervise visits, and deal with A, whenever possible.

[193] As previously mentioned, the Society had some concerns about L’s care of A but, once she started to work with an attachment therapist (DM) and A’s therapist (KL), they were more hopeful. The Society began reintegrating A into his mother’s care in 2011 and things were going well enough towards the end of the year that they decided to terminate in December. At that point, the Society thought that L had made significant progress in her management of A’s behavioural issues. They were also reassured that CS would not be involved in the primary discipline of A. However, before the termination could be completed, the physical incident involving A and CS occurred in January of 2012, and A came back into care.

[194] After that point, things really deteriorated between L and the Society. In her interview with the OPP, L blamed A for the incident, and supported CS. She refused to speak to LM, or meet with her, after the apprehension. She completely disengaged from communicating with LM either verbally or in writing. She would not engage with LM in any discussion about providing support, or planning for A’s future. She would only communicate through LM’s supervisor or the Society’s lawyer.

[195] After several months, LM gave up. She requested that the file be assigned to another FSW, in the hope that L might re-engage in further communication and interaction with the Society, if she felt less animosity towards the worker.

[196] I was very impressed with LM. She maintained a professional, calm demeanour on the stand, despite very aggressive questioning by L’s counsel. At one point, Mr. De Buono was actually shouting at her, and it was interesting to watch how professionally she handled this. She remained articulate and respectful, and continued to focus on doing her best to answer questions, regardless of the manner in which they were posed. This exchange helped me appreciate LM’s considerable skill in dealing with difficult people and trying situations. I am satisfied that L’s lack of participation was very frustrating, yet LM did everything she could to try to engage her productively. LM’s ultimate decision to request that the file be reassigned was impressive and professional. Judging from her performance on the stand, if LM could not engage in productive problem-solving with L, it would be very difficult for anyone else to do so.

[197] L’s inability to resolve conflict with LM makes me very concerned about L’s ability to productively resolve problems with A, or to work with any service professionals who are telling her something with which she does not agree. This would not bode well for A, or his treatment, if he were to be returned to his mother’s care.

Evidence of AS – FSW from June 8, 2012 to present

[198] When LM asked that the file be transferred to another worker, AS was assigned. She has had primary carriage of the file since then, right through the trial.

[199] While AS has had a better relationship with L than LM, she, too, talked about the challenges of trying to get L to engage with the Society.

L’s failure to participate in the CPRI assessment

[200] For example, at the conclusion of the first “round” of the trial last November, plans were underway for A to receive the intensive assessment at the children’s mental health facility (CPRI). There had been considerable discussion about L’s distrust of assessments arranged by the Society, particularly in relation to the PCA assessment. L felt that the information that the Society provided to the assessor was not accurate, which, in her mind, invalidated the results of the assessment. The Society was quite concerned that L be a part of the CPRI assessment, not only so she could share her perception of A and his needs, but so that she could serve as a support for A throughout the assessment, and be on board with any treatment recommendations they made.

[201] AS went to considerable effort to draw L into the process. She notified L of the dates for the assessment and reassured her that the Society would work with her to overcome any financial or other barriers, because they really wanted L to participate. She offered L $95 for gas and arranged for accommodation for her in London.

[202] L said that $75 wouldn’t cover the cost of her gas. She refused the offer of a bus ticket, saying she didn’t want to sit on a bus for half a day.

[203] L said that she had contacted CPRI about participating by Skype. AS immediately investigated that possibility and learned that CPRI was not prepared to use Skype, but would allow L to participate through the Ontario Teleconference Network (“OTN”), as it was more secure.

[204] AS let L know that the Society had access to the OTN resources and would facilitate her participation. L was concerned about privacy issues, and AS assured her that her interview would be private.

[205] AS informed CPRI that L would not be attending the assessment in London. “Schedules were juggled” and the CPRI team agreed to do the OTN interview a few weeks later. On April 15, they advised AS that they would interview L on April 17.

[206] Initially, L didn’t respond to AS about the appointment. However, late on the evening of April 16, L sent an email to say that she had not received enough notice, and had an appointment “out of town”, so she would not be available. At trial, L admitted that the appointment “out of town” was about ten minutes away, and was a generic group education session that she had signed up for about managing children’s behaviour. As it turned out, the session was dealing with techniques for working with children much younger than A. It is difficult to understand why L would give that session priority over the OTN interview about A.

[207] When L did not participate in the interview on April 17, AS set up another date for her. An appointment was arranged for May 2 at 1 p.m. L confirmed she was available but later insisted that the time be changed to 1:30. Ultimately, she did attend at that time, and had an interview lasting about an hour.

[208] During her evidence, L indicated that she could not attend the CPRI assessment in London because of a religious day of observance. AS advised that this had never been proffered as a reason for non-attendance. L then suggested that she did not have advance notice because the actual date was dependent upon the last full moon.

[209] I reject this explanation. L would have known about the possibility of this religious day by March 28, when she was talking to AS about possible options for her to participate. I find that, had the real reason been a concern about a religious obligation, she would have said so.

[210] I also find that, had L wanted to participate, she might have been able to do so on the second day that A was at CPRI, April 3. If worst came to worst, the assessment might have been rescheduled, so that L could be there. However, she really did not express any interest in attending.

[211] LD has made sure that she accompanied A to any appointments he needed to get to, even though one was on New Year’s Day. It is unfortunate that L couldn’t have made a similar commitment to her son, and found a way to attend the CPRI assessment.

[212] However, from the beginning, L was suspicious about the CPRI assessment. Even as late as the last week of trial in May, L continues to state that she really believed the purpose of the assessment was to gather information about her. She spoke about CPRI with venom, practically spitting out each letter, and citing an incident she had discovered on the internet about a former staff member abusing a child. At no point, did she express any faith in the assessment. She had no real interest in participating, nor did she demonstrate any willingness to be a support for her son during the process.

[213] When asked about her non-attendance in London, L responded “I did the interview on the phone, what’s the ordeal?”

[214] It was a very big deal: her son needed her there. One of the first things he asked was, “Is my mother going to get in trouble?” She needed to be present, supporting him, and giving him the message that she would help him in whatever way she could, to try to find some answers and get better.

[215] L’s inability to set aside her own needs, and focus on A, was very unfortunate. A’s behaviour, and the appropriate treatment, remained a mystery. The hope at the end of the first part of the trial was that the CPRI would give some answers for everyone about what was going on with A, and how we might best help him[^5]. The Society bent over backwards to try to include L. If she wanted to have him come home, she should have shown some openness to seeing what the CPRI process might have to offer him, and her, to help him to move forward on his behavioural issues.

The problems with L’s access, and L’s reaction to the difficulties

[216] AS also testified about access in 2013. AS had obtained approval to offer L some unsupervised visits. However, as previously noted, the day after the first unsupervised visit, A left a voicemail for his CIC worker indicating that he thought that he was having problems after his visits with his mother. He indicated that, when he did not see his mother for two weeks, he was “good” but then he acted up after his next visit with her.

[217] A’s next scheduled visit was February 13, but there were the two incident reports on February 8 and 10. A’s behaviour had escalated for some reason, and there was a concern because he had required two people to restrain him. AS asked that AR, the usual supervisor, with whom L seemed to get along, be present on the February 13 visit, in case L needed assistance.

[218] L objected, saying what happened in the foster home should not impact on her visits but AS tried to convey that AR was not there as a supervisor, she was there for support in case A’s behaviour escalated. She reinforced that AR would not need to be present for all visits but a decision would have to be made about the need for extra assistance at times when A’s aggression seemed to be rising.

[219] The next visit, on February 28, was unsupervised. The next day, there was the very troubling “incident report”, in which A had a dispute with his foster mother about completing his homework and then said he had “her number” and wanted to call her. A would not disclose who “she” was but tried to go into LD’s room to use the phone, over her objections. When told “no”, he pushed her and refused to sit on the couch to calm down. His behaviour escalated, with him telling LD he knew everything about her, that she was a liar, and that she had lied to the court about not wanting A to go back with his mother. He said he hated her and tried to stab her. Ultimately, A again ended up being restrained in a two-person hold and LD had to call for backup assistance. Once A had calmed down he threatened to kill himself.

[220] This was obviously so troubling that the CAS made a decision that AR should be present in the room in future to monitor what was happening in the visits. A would not disclose who had told him “everything about LD” or what had happened in court, but it is understandable that the Society would be suspicious of all this happening right after the second unsupervised visit. Unfortunately, L objected to AR being present in the room and cancelled her next visit with A. There seems to have been no thought given to how this might affect A. Once again, L was focused solely on herself, and the power struggle with CAS.

[221] L did have a visit with AR present in the room on March 27 but she was not happy about it. When AS returned from her vacation on March 28, she had a discussion with L about why A might be saying the things he did. L denied saying anything inappropriate to A. AS agreed with her that some of the things that A had been saying were logistically impossible. For example, he suggested that on the February 28 unsupervised visit, he had been to his grandparents and played a computer game. However, the distance to travel would have made this impossible.

[222] AS accepted that what A was saying couldn’t be correct but explained to L that they had to figure out why he might be saying these things. There was also the obvious issue that, although the comment about going to his grandparents’ house might have been wrong, that did not mean that everything that A was saying should be disregarded. The fact that A returned from an unsupervised visit insisting on calling someone, talking about court, and calling his foster mother a liar, was very concerning, and a little hard to brush off as a coincidence.

[223] AS tried to engage L in helping her to figure out why A might be saying these things. L dismissed any suggestion that A could be purposely sabotaging the unsupervised visits because he felt unsafe. AS reinforced that they had to try to determine what was going on with A. She invited L to provide ideas about what might have prompted A’s statements but L was unable to think of any explanation.

[224] AR was also present for the next visit on April 10. AS received a page because L was upset and demanding that AR leave or she would terminate the visit. Ultimately, L calmed down and the visit proceeded. However, AR was concerned that L had said to A, “I love you but I am not sure that I can continue doing this.”

[225] Shortly after that visit, the foster parent called to see if the April 24 visit would be proceeding because A was very upset. He had come home from the April 10 visit worried that it was the last time he was going to see his mother.

[226] AS tried to get L to confirm that the next visit would go ahead but L e-mailed her to say that she had to consult with her lawyer before confirming her attendance. It was not until the day before the visit, April 23, that she finally advised she would be there.

[227] It is astonishing to me that L would leave A worrying about this for two weeks, or that she would consider refusing to see him, rather than have someone present. That all this was happening within a few weeks of the trial resuming is even more remarkable. How could L expect the court to return A to her care, when she was demonstrating such a flagrant lack of commitment to him, and was clearly continuing to focus on her own needs rather than his?

[228] AS was an exceptional worker and witness. She was extremely articulate and presented her evidence in a balanced way. She seemed to take every opportunity she could to acknowledge L’s strengths or positive interactions.

[229] It was abundantly clear that AS exercised considerable skill in trying to establish a working relationship with L. She noted that she had come onto the file at a difficult time, as it was heading into a trial, and there had been a considerable period of acrimony between L and the Society. She put a lot of effort into having productive conversations with L, and validating as much of L’s perspective as she could. She tried hard to demonstrate a level of trust and cooperation, and was pleased to be able to report that she and L had some very good conversations about difficult topics. Over and over, she tried to move L away from focusing on the problems and establishing blame, and tried to engage L in the search for solutions.

[230] However, ultimately AS quite properly pointed out that L had to bear some responsibility for her problems. For example, when L’s counsel tried to question why AS did not discover the issue about the possible religious holiday conflicting with the CPRI appointment on her own, AS replied that it was unfair to put the entire onus on her. She conveyed her expectation that, if there was an issue, she should be given the benefit of being told, and an opportunity to work through solutions with L.

[231] This was a classic example of L’s continuing attempts to blame everyone else for her problems. As will be discussed below, L’s counsellor had commented years earlier about L’s failure to accept responsibility for her own life.

[232] The evidence of AS satisfies me that L has made little progress in this regard. She continues to blame others when things go wrong, and reacts immaturely and in anger, as shown by her inconsistent attendance at visits with her son this year because she didn’t like the terms being imposed on her. Her failure to attend the CPRI interview also demonstrates her inability to focus on A’s needs, rather than her own, and embrace the search for solutions to help A.

[233] If A were to be returned to L, the evidence of AS satisfied me that A would be unlikely to make progress with his behavioural issues and would likely regress. L does not have the insight and maturity to support him in the therapeutic process.

Evidence of EC – A’s CIC worker from June 6, 2010 to July 1, 2011 and January 17, 2012 to present

[234] EC’s evidence confirmed many of the concerns of other workers. She talked about A’s teacher’s conversations with her in late 2010, which highlighted that A’s behaviours escalated on Wednesday afternoons when he had visits with his mother. She outlined the teacher’s call to her on January 20, 2011 that A was referring to an upcoming court date and saying he “would not have to hear about CAS” after that; and that the CAS was bad and steals children for money. She talked about the teacher’s disclosure that, after the court date, A called her a liar and said his mother told him that one of the reasons he could not return home was because of his behaviour at school. She outlined the teacher’s concerns that A’s soiling occurred every day after he left foster care and returned to his mother, and he was asking the teacher to throw out the soiled clothing and not tell his mother. She also said that when she met with A’s teacher in June of 2011, the teacher said that A had told her that his mother said she would send him back to CAS if his behaviour didn’t improve.

[235] EC’s evidence about what was happening in 2010 is a good reminder about the context in which to judge A’s behaviour after his recent unsupervised visits with his mother.

[236] For example, despite L’s protestations that she did not tell A that LD was a liar, she admits that they had a discussion during the February 28 (2013) visit in which L told A that “some people lie”. She said they were discussing former foster parents and, when A asked her if LD had lied, she told him that she didn’t say that. However, she didn’t reassure him that LD had not lied, which is what A was looking for. It is also very suspicious that A came back from this visit talking about statements that LD had apparently made at court. L did not deny having any discussion with A about the court proceedings.

[237] L also admits that when A told her he “had” to talk to someone (in reference to the upcoming CPRI assessment), she told him he did not have to talk to anyone.

[238] L seems to be a very literal thinker. She focuses on debating the EXACT words that were said, rather than the impression they left with A, as evidenced by his statements after the visit. The evidence of many prior witnesses, including the teacher in 2010, demonstrates that A is keenly aware of his mother’s distrust of the CAS and the foster care system. L’s evidence about her discussions with A during the February 28 visit establish that she continues to do little to shield A from her conflict with the CAS, and she continues to have inappropriate conversations with him about this case, if she is left with him unsupervised.

[239] EC has supervised a few visits since A came back into care. Like AR, she did not observe any concerns about A’s physical safety but she did have concerns about L putting A in a difficult position of divided loyalties by enlisting him in her campaign against the Society.

[240] For example, when A was living at home, he and his mother apparently played a computer game called “Crush the Castle”. This involves killing inhabitants of a castle to gain control of a kingdom. A apparently believes that the game is a metaphor for defeating the CAS, and says that the word “castle” is code between him and his mother for “CAS”.

[241] On one occasion, EC was cleaning up toys with A. L said to him that when he came home, they would “take down the castle”. On another, when A kept asking L about his father, and L refused to tell him who his father was, A asked twice if this was “because of the castle”.

[242] EC had glowing reports about the progress A has made since moving to the LD home. She acknowledged that he had some problems but was impressed by the commitment that the foster parents had shown to A, despite these problems. She was very moved by the exceptional care that he was receiving from LD and her husband, and the way that they treat him like their own child. She wished that all children in foster care could experience such a caring environment, and noted that A was a “different kid” than when he was previously in foster care. She talked about how much A’s various sports seem to have boosted his self-confidence, and how proud he is to tell her about his athletic accomplishments.

[243] Although EC was a soft-spoken, tentative witness, who appeared nervous at times, she acquitted herself well. She answered questions directly, to the best of her ability, and acknowledged when she did not know an answer. She also acknowledged when she had made mistakes, such as leaving A unattended in the waiting room of a dentist’s office one day.

[244] I have no doubt that EC was doing her best to present an accurate, balanced account of her involvement with A. Her affection for him was apparent, and it was touching to see how pleased she was about his current placement. In her words, he is a “great kid, despite some of his behaviours”, and she is so pleased to see him positive and happy most of the time, as that has not always been the case previously.

The Evidence of the Clinicians

KL - A’s therapist from November 2010 until present

[245] KL is a therapist employed by the Children’s Mental Health branch of Family and Youth Services of Muskoka. Although they share a building with the Child Protection Services (the Society), they are separate entities.

[246] KL has been working with A around attachment issues through a “theraplay” program, which tries to generate opportunities for the child and parent (or caregiver) to connect through play, and hopefully change the child’s view of himself to one of being worthy and lovable. The therapy also works to engage the child with his parent in a way that will make the child feel safe, secure, cared for, and connected, so that he will come to view relationships as positive and rewarding, rather than unpredictable and a source of insecurity.

[247] As part of her work, KL has had an opportunity to work with A individually, as well as with A and L, and with A and LD.

[248] KL describes her initial sessions with A as very challenging. He was aggressive, hiding behind chairs and throwing things, and making threatening and intimidating gestures. On one occasion, he locked himself in a closet, swearing, and demanding that KL get him home to his mother. He made many negative comments about CAS, including how he hates them and they take kids away for money. He expressed suicidal thoughts and said he hated himself. He wrote, “Fuck me, I’m a bastard” on his wrist (rather than writing a goodbye letter to his foster parents, as KL was trying to get him to do) and told her “you don’t know how much stress I am under”. Another time, he said, poignantly, “I’m probably more sad than you will ever be in your life.”

[249] However, KL says the sessions now are completely different. She feels A trusts her and discloses many of his concerns to her in a much more productive way. She does not have any problems with him acting out during sessions, and he is able to discuss issues that would previously have “dysregulated” him.

[250] KL says that it has been particularly useful for LD to attend with A, as she is a source of nurturance and support. For example, on one occasion A spoke to KL about his mother responding, “That’s not important”, when he asked her about his father. KL had LD and A role-play about how A might approach his mother regarding questions that he wants answered, so that KL could explore A’s feelings about talking to his mom. Eventually, A acknowledged that he does not want to push his mother for answers because she may get “mad”. As he only sees her for a short time, he does not want to ruin their visit.

[251] KL felt this was an example of the progress that seems to have been made in therapy. Previously A would likely have become overwhelmed by his emotions and acted out, rather than sorting them through and coming to an understanding of what might be causing him stress.

[252] KL confirms that A is quite conflicted about his feelings for his mother and feels “so guilty about his mom because he likes it at (LD’s)”. Although KL was not qualified as an expert, she did say that it is her impression that A is worried about his mother and is showing signs of being “parentified” because he wants to take care of her and make sure she is okay.

[253] KL had several opportunities to work with A and his mother. She saw them while A was in foster care in 2011, after his return to L’s care, and also after A’s reapprehension and placement with LD.

[254] When KL says that when she first met with L, L was quite emotional and guarded. For example, L expressed reluctance to complete a questionnaire to provide her perspective and information, as she was worried it would be held against her in court. While this might be understandable, the lack of information made it difficult for KL to assist in therapy.

[255] At a subsequent session, when KL was trying to convince L to participate in the attachment therapy and intervention, L was very defensive about the suggestion that she had an attachment issue with A. She was also defensive about any discussion related to her own upbringing and attachment. When KL tried to get her to focus on the breaks in a number of A’s attachments, one being with her, L wanted to blame the Society. Although KL tried to refocus her away from blame, as it would not assist A to get through his issues, L was diverted a number of times back to her anger about the Society.

[256] This description was certainly in keeping with L’s presentation at trial. She directed most of her evidence towards her quest for vindication and attacking the Society, rather than focusing on A’s needs and how she could meet them.

[257] Although L should be given some credit for ultimately agreeing to participate in the attachment therapy with A, it was far from a resounding success. KL expressed concern about L’s failure to meet A’s needs for nurturing and connection. Although there were some “great” occasions, where she appeared to respond to A appropriately, there were many other occasions when L ignored A’s requests and missed opportunities to connect with him.

[258] For example, on one occasion that occurred while A was still living with his mother, KL tried to have A and L engage in a nurturing activity called “checking for hurts.” Although L participated initially, A wanted his mom to find more hurts, and she responded, “We already did that one.” It was KL’s impression that A wanted to be nurtured by his mom but she was resistant to doing so. If L is that dismissive of A’s needs in the presence of his therapist, it is highly unlikely that she would be able to give him the emotional support he so desperately needs, if he was living in her care.

[259] On another occasion, after A had been brought back into care following the incident with CS, KL met privately with L before the session with A. KL was going to be part of a supervised visit between A and his mother, and part of the purpose was to discuss what had happened with CS, to try to reassure A. KL explained to L how best to support A and maintain her neutrality when they talked about the incident.

[260] KL also told L that A was doing very well at his new foster home and L said, “I don’t want to hear that.” When KL said she could not understand why L would not want to know her son was doing well, L responded with complaints about the number of activities “the agency is giving him” and said, “No wonder he doesn’t want to come home”. KL explained that A does want to come home but has conflict about also liking LD.

[261] During the supervised access visit, L brought up the incident with CS, telling A that he could ask her some questions. A was very anxious. Although L verbally reassured him, she had a stern face and voice.

[262] A was expressing anxiety in this session. He told KL that he was worried about his mom and wanted L to rub his feet. Although L reassured A that she was “okay”, she did not respond to A’s obvious attempt to reach out and connect with her physically. Instead, she told A that she had already rubbed his feet. KL felt that this would have been a very good way to reconnect with A but L did not avail herself of this opportunity.

[263] In a subsequent session with A alone, after a visit with his mom, A presented as “emotionally dysregulated, not able to focus, and impulsive”. KL did some nurturing activities with him, such as deep pressure on his feet and “checking for hurts”, and he was able to settle. He talked about CS being mean to him and his mom “sometimes”, and he talked about liking his foster mom, but wishing he could go back to his mom. On another occasion he said he loved CS.

[264] These conflicted feelings resurfaced in other sessions as well, with A saying he would like to live with his mom but have LD and GD next door.

[265] KL labelled A’s feelings as “confused”, and said that it was her impression that very little meaningful therapy could be done at this point, until A was feeling safe and secure. She felt this would only happen once a decision was made about whether he would live with his mother or his foster mother.

[266] KL also expressed reservations about whether she could continue to do productive work if A came home to live with his mother again. She said she understood why L might have reservations about coming into her building, as it is shared with CAS, but she said that things would have to change with L’s attitude in order for KL to make progress with her and A.

[267] My impression was that L is so guarded, that it is difficult for her to really open up to the extent necessary for family therapy to really work. This, in turn, makes it difficult for A to be open, and does not set up a productive dynamic for KL to work with them.

[268] On KL’s recommendation, the CAS authorized a referral to CPRI, the children’s mental health facility in London, to conduct the intensive trauma and sexual behaviour assessment. The hope was that this assessment would deliver some of the keys to why A acts the way he does, and assist with treatment options for not only his behaviour issues, but also the development of healthy sexuality as he heads into his teenage years. Unfortunately, as previously mentioned, the CPRI results were not available before this trial was completed, and counsel collectively decided that my decision should be made without that evidence.

[269] KL also participated in two “telepsych” consultations with A and Dr. Clive Chamberlain, a psychiatrist consulting for the Hospital for Sick Children. Dr. Chamberlain felt that permanency planning for A needed to proceed as soon as possible, and stressed the need for KL to continue to be involved with A after a decision was made, even if A was living in Peterborough.

[270] I agree with that recommendation. A will have to deal with enough changes in his life, and it is difficult to see how a break in the continuity of his therapy would be in his best interests. While I understand the CAS funding structure may present some barriers to KL’s continuing involvement, it is my sincere hope that every effort will be made to circumvent those barriers, bearing in mind that it was the Society’s decision to move A to a home outside their jurisdiction.

The psychological assessments

[271] L completed two psychological assessments with Dr. Jeffrey Phillips, a psychologist. A completed one. For a number of reasons, I do not intend to put much weight on the assessments.

[272] First, Dr. Phillips, who was a very good, fair witness, freely admitted that a psychological assessment should not generally be relied upon more than two years after it has been completed. The most recent assessment was released January 29, 2010, so, according to Dr. Phillips’ own criteria, it was out of date.

[273] Second, Dr. Phillips’ assessment was critiqued by another well-known and respected psychologist, Dr. Peter Marshall, and some of the conclusions were questioned. Given Dr. Phillips’ caution to the court about relying on the assessments after two years, it seems to me that it is an unnecessary and unhelpful exercise to try to reconcile the assessments and the critique, when the assessments are going to be given such limited weight in any event.

[274] Third, Dr. Phillips’ assessments are only part of the full PCA. The other part of the PCA did not end up being entered as evidence.

[275] On October 8, 2009, Dr. Phillips was engaged, on consent, to complete a s. 54 Parenting Capacity Assessment. Dr. Phillips was chosen, in part, because he had conducted a previous assessment of L in 2005.

[276] The 2009/10 PCA was conducted by two “teams” of assessors, so that it would have a multi-disciplinary perspective. Dr. Phillips completed the psychological testing of A and his mother. The balance of the assessment, involving the “psychosocial issues” and most of the questions directly relating to L’s ability to parent A were handled by an independent team, led by a woman named Sharon Chayka, who has a Master’s in Education. She is not a psychologist.

[277] Although L was represented when Dr. Phillips was selected, and his “team” approach was apparently disclosed, neither L nor her counsel gave any indication from the time of the release of the PCA in January 2010 to the time that L and her counsel parted ways in March of 2011 that there was any issue with Ms. Chayka’s qualifications, or the validity of the assessment. However, at the Trial Management Conference in August of 2012, L’s new counsel, Mr. De Buono made a note to say that he was admitting Dr. Phillips’ qualifications, but did not refer to Ms. Chayka in his admission.

[278] The issue of her qualifications was raised when Ms. Chayka was waiting in the hall to testify at this trial. Mr. De Buono took issue with whether it had been proper to delegate parts of the PCA to her. Ultimately, rather than delay the trial further to sort that out, the Society decided that Ms. Chayka’s part of the PCA was not necessary for their case, and only called Dr. Phillips as a witness.

[279] This meant that the critical pieces of the assessment, those relating to L’s ability to parent A and meet his needs, were not entered into evidence. Without the whole picture, both Dr. Phillips’ assessment and Dr. Marshall’s critique are of limited assistance to me.

[280] For all these reasons, I have elected to put very limited weight on Dr. Phillips’ assessments. However, I do wish to comment that I found him to be a very fair, professional witness, who tried to assist the court. My decision not to rely on his assessments should in no way be construed as a lack of endorsement of his work, or as a lack of appreciation for his attendance at this trial.

[281] Dr. Phillips’ psychological testing does establish that A, at least at the time he was assessed in late 2009, had good intellectual potential, perhaps with some characteristics of ADHD. Dr. Phillips also ruled out any cognitive difficulties by L that would stand in the way of her parenting A or learning proper parenting techniques. He did not find any psychopathology or mental health issue that would render L unfit to parent.

[282] I therefore accept that L does not have any significant special needs that cause her to be unable to properly parent A. Her parenting defects relate to other issues, rather than cognitive or mental health problems.

Dr. Pamela McDermott

[283] Dr. McDermott is a “physician therapist”, providing mental health and personal counselling through her private practice in Muskoka. She worked with L as a therapist for almost two years, from October of 2007 to July of 2009.

[284] L’s family physician had referred L to Dr. McDermott due to concerns about “worsening depression”. Problems identified at the time included difficulties in relationships and looking to others for opinions as to self-worth. Over the course of the 21 months that Dr. McDermott worked with L, she saw her for 32 fifty-minute sessions and also did some work with her over the telephone. Dr. McDermott’s focus was trying to assist L with her own personal issues, rather than with parenting issues regarding her children.

[285] As with Dr. Phillips, Dr. McDermott confirmed that L does not have any serious mental illness, and commented positively about L’s intelligence and her resilience in “keeping going” despite all her problems.

[286] It would be hard to imagine a better witness than Dr. McDermott. She was articulate, insightful and her compassion shone through in every answer. She was very balanced and was making an obvious effort to be as fair to L as possible. When asked if she was successful in helping L, she was self-deprecating and assumed responsibility for the lack of progress, indicating “Overall, I failed.”

[287] Dr. McDermott was trying to assist L to reduce the stress in her life. She outlined the multiple stressors that L was dealing with: financial issues; relationships with men; her relationship with G and G’s father; conflict with her landlord, neighbours, friends, and parents; and the intervention of the CAS with A. She indicated that it was difficult to do any work involving introspection and change, because there were so many crises and emergencies. It was difficult to get to a point where L’s life was stable enough to begin any meaningful therapeutic work.

[288] She observed that a recurring theme with L was her “deep need for connection with others.” This led her to situations that continued to be unhealthy and disruptive, such as her unsuccessful relationships with men. In her words, “L’s longing to be with someone caused her difficulty in her home and interfered with having a stable home life for A. She had a high commitment to parenting but (was unable to address) what is interfering with that.”

[289] Dr. McDermott felt that L lacked the ability to see how she was contributing to her own problems. It was very hard for her to grasp that she might be able to do things differently in the future, to reduce the amount of conflict she was experiencing in various aspects of her life. L blamed others for her problems. Dr. McDermott was trying to address the idea that every individual is the author of her own life, to the extent that she can be, and that we each need to think in advance about what we do and what that might create. Instead, L was often upset with others whom she felt were not helping her enough.

[290] Dr. McDermott said that she had worked with many patients who were involved with CAS. She would try to get them to adopt more effective strategies to get to where they were hoping to be. One such strategy was to be less defensive, and not constantly defend oneself or go on the counterattack. The other was to focus on identifying those things that would most likely make the person be seen as a good parent, and try to work towards those things, to establish credibility and get to a situation where CAS would be likely to back out. Unfortunately, Dr. McDermott could not engage L in productive work along those lines.

[291] Ultimately, Dr. McDermott took a step that she said she had rarely done: she terminated her relationship with L. She did not see her role as merely being available to listen to L’s problems and provide supportive counselling. She felt she had a professional responsibility to try to help her move forward and improve. Dr. McDermott decided that she could not, in good conscience, continue to bill OHIP for her work with L, due to the lack of progress. She also hoped that, by releasing L, she might allow her to find another therapist who would be able to have more success with her.

[292] Dr. McDermott wrote L a letter on July 2, 2009, setting out her reasons for ending their relationship, and offered some suggestions for what L might work on. In that letter, she eloquently and sensitively points out what personal work L needed to do.

… I do have some suggestions for you. First, look closely at the problematic situations that you are in and consider what your role might be in either causing them, maintaining them, or worsening them; all of us participate in our own problems in some way or other and these things are what we need to address first. Otherwise we will keep setting new problems in motion.

We all have the right to make our decisions about relationships, what we do with our time and money, whether we get into conflicts or not; in addition to that right, we then have the responsibility to deal with the outcomes of our decisions. The fact that our decisions lead to problems does not mean we can expect others (friends, doctors, government agencies, etc) to consistently be there to help pick up the pieces. It makes sense to seriously consider what we are going to set into motion before we do things.

My second concern is to ask you to rethink your commitment to parenting. I have no doubt you truly love your children and want the best for them. It also appears that your boys have some issues that add to the challenges of parenting them. And of course, trying to parent on our own is a very tough job. Here’s one way of looking at your situation. We often have competing priorities, for example, to be a good parent and to have an active social life, two goals which often do not go well together. Look at what your highest priority or value is, and then match what you actually do with that. It means that you will have to accept the realities of life that will entail making significant sacrifices. For example, if you said that raising your children as best you can is your highest held value, then creating a stable environment for them is critical; this would mean accepting a life that has routines, calmness, lack of disruption and conflict, healthy things like regular meals, bedtimes and so on, having the time and energy to be consistent and loving and firm. There is a downside of such a life: it can be lonely, boring, repetitious at times, as well as the hard job of putting one’s own needs aside until the kids are independent.

… You have a lot of personal attributes (energy, determination, willingness to stand up for things, a strong desire to help others, courage and many others) and I hope you can direct your strengths in ways that are beneficial to yourself and children. If we don’t meet again, I sincerely wish you all the best in the future. I value having met you.

[293] Dr. McDermott and L met one more time to discuss the reasons for the termination in person. If only L could have taken Dr. McDermott’s advice to heart, we might not be here today. Unfortunately, Dr. McDermott’s impression at the end of their final meeting was that L considered her as one more person who had let her down.

[294] L’s situation now is not much better than when she was working with Dr. McDermott. The fight with the CAS continues; it has even intensified. L’s divided loyalty between her personal life and her children continues: she remains in an on again-off again relationship with CS, even though the conflict between him and A precipitated the most recent apprehension. She has not presented any evidence by a therapist, counsellor, or other mental health professional to show that she has done any personal work or counselling to address the concerns outlined by Dr. McDermott.

[295] L’s testimony at trial continued the defensive theme that was previously identified as such a problem: she was angry and focused on establishing “blame”. She continued to show a breathtaking lack of insight into her own contribution to her current situation. She still is unable to establish a working relationship with the CAS, to the point that, shockingly, she did not attend at the CPRI assessment with A, even though AS tried so hard to encourage her to do so. Of even more concern is her repeated demonstration of her inability to focus on the needs of A. It is all about her and vindicating herself from the CAS allegations. Her defensiveness and combativeness continue unabated, and there is no indication that she has identified A as her “highest held priority”, and made the necessary changes in her life to focus on him, and his needs, in priority to her own.

The evidence presented by L

[296] I turn now to some of the evidence presented by L. However, I am not going to go into as much detail as I have with some of the previous witnesses. This is because much of the focus of L’s case was on her “blame-finding” exercise and her quest for vindication in her battle with the CAS. Very little related to A and his needs, or L’s plans to meet those needs. Since that evidence is not very relevant to what I need to decide, it is not helpful to spend a lot of time reviewing it.

The evidence of L’s supporting witnesses

CS

[297] CS’s evidence has been dealt with previously. He is 33 years old and has been involved in a romantic relationship with L since 2005, although he says there have been “years in between” when there was no contact. It was hard to get a clear picture of their current living arrangements. Although L says CS is not “living” with her, CS vaguely said he has spent about a month at a time living with her, over a number of years. He estimated that it was now “more often a week or so”, and then a week or so back living with his parents. CS describes them as “a couple”, and their relationship as “growing”. CS is not employed but does some occasional work as a labourer for relatives.

[298] CS’s evidence-in-chief was presented by affidavit. He confirms that L is “strong willed and very outgoing”. He says she tries to do her best as a mother and has never deprived her children of “food, shelter, clothing, medical, spiritual growth and getting them an education and taking them on outings.” I accept that evidence. Nothing in this trial satisfied me that there was a risk that L would deprive her children of their basic physical needs.

[299] CS says that he has never experienced L having an issue with drinking or illicit drugs while her children were in her presence. I also accept that evidence, and find that there is no credible evidence that there is any issue that substance abuse would affect the safety of A in her care.

[300] As set out previously, CS describes A as having become “more like a spoiled little rich kid than the child (L) and I have desired him to be i.e. kind hearted, compassionate, peaceable and honest”. He also talked about A being kind, affectionate, agreeable, and a “pretty good kid” but continued, “add a schoolyard of bad influences and a TV of demonic spirits and you get a kid like any other kid”.

[301] CS deposes in his affidavit, “(L) and I don’t see eye to eye on much, but the basics like how to raise a child are clear for success, yet are hindered by the Society, CAS.”

[302] In cross-examination, CS explained what he meant by that statement. He says that he and L can continue to manage A’s behaviour by taking the Society’s advice about how to discipline A, or keep praying that the Society is removed so they can discipline in a “more effective manner”. When asked what that would be, he advised that it would “obviously depend on the offence” and what is “lawful”. He indicated that he was physically disciplined as a child and that he would prefer this method of disciplining A. He said he sees the present laws as a “hinderance” to how to raise a child. He admitted to having spanked A twice.

Comment

[303] L has been through a lot and she deserves companionship. I am sure she is lonely at times, and it is a great source of support and comfort to be in a romantic relationship.

[304] However, I am satisfied that the involvement of CS in her life would not be positive for A. I am particularly concerned about his attitude towards A, as a “spoiled little rich kid”, and his feelings about the law and CAS hindering his ability to apply corporal punishment, which he feels would be a more appropriate form of discipline.

[305] It is not necessary for me to engage in the “spanking” debate. Even if CS were correct that physical discipline may be effective in controlling some children’s behaviour in certain circumstances, it is absolutely not the correct way to manage A. A has had problems with physically acting out. He needs to understand that this is not an effective way of dealing with frustration, and that physical violence is inappropriate and unacceptable. He needs someone who can understand what may be motivating his behaviour, someone who can work with him, as LD does, to calm him down and soothe him when he becomes overwhelmed. The consequence for bad behaviour cannot be physical punishment.

[306] Dr. McDermott wisely asked L to revisit her commitment to parenting, and examine whether her choice of partners was getting in the way of providing A with a stable home environment. It appears that she has made a choice: it is more important to continue to have CS come in and out of her life and house, than it is to terminate the relationship, so that she can provide A with a less chaotic home life. She understands the CAS’s concerns about CS, yet she has continued to be in a relationship with him, even while trying to present a plan to have A returned to her. Having failed to make any changes, it is difficult to understand how she would expect to have A returned to the same situation that ended so badly last time.

CV- A’s former foster parent

[307] CV presented with remarkable credentials. He is a high school teacher and rugby coach, with four post-graduate university degrees and a military degree. He is also certified as an air traffic controller, and has travelled extensively. He came to Canada 15 years ago and he and his wife, who is also a teacher, have a 400 acre farm, where they foster children “as a service to the community”. A was placed with them from October 2010 to July 2011, when he was returned to his mother’s home.

[308] CV described A as a “beautiful human being”, who was generally happy, and said, genuinely, “We loved that child”. CV said that A loved his mother, and his mother loved him. CV said, early in A’s time with them, A wanted to be with his mother so much it was distressing. CV communicated to “the powers that be” that A had said he would rather die than not be with his mother.

[309] CV said that A had problems acting out physically at school but not in their home. He said that, once the reintegration into his mother’s home began, A’s anxiety decreased significantly but his problems at school increased. He was involved in more physical altercations and they had to go and pick him up from school a few times.

[310] CV said he would be prepared to take A back into his home. He has no specific training regarding physical violence but he has taught for 30 years and coaches rugby, so he did not think there would be anything he could not handle. He and his wife would have been prepared to have A back in their home when he was reapprehended, although he recalls that they may not have had room at the exact time that the CAS called looking for a placement in January 2012. This suggests to me that there were other children living there, which was not the ideal placement that the CAS was looking for at the time, given A’s behavioural and sexual issues.

Comment

[311] CV was a great witness, and I am sure he is an excellent foster parent. He was fair and thoughtful in his answers, and his compassion and commitment to A were extremely evident. I have no problem accepting all of his evidence. However, it is not my role to decide where A should be residing. There are various considerations, including the need for A to be constantly supervised if other children are present.

[312] Given my decision that it is not in A’s best interests to return to live with his mother, or have access to her, I can see no reason why A would be uprooted and moved from the LD treatment home, to a placement with the Vs.

DH – L’s friend

[313] DH has been a friend of L’s since November 2009. He says she always had plenty of food, treats, and toys for her children and they always seemed happy. He says she sought out sporting and community activities for them and openly displayed affection for them. He confirms that she owns her own home and does not have any debts. He says she does not drink in her home with her children, does not drink and drive, and he has never known her to do any narcotics.

[314] I accept all of this evidence.

[315] DH outlined some issues that he had with the way that L had been treated by the CAS. I agree with him that they have failed in their duty of disclosure and have taken far too long to get her copies of documents that she has requested.

[316] DH said L expressed some concern to him that A was exposed to deer and rabbit hunting with his foster parents in November of 2009, where he witnessed a rabbit being shot in the eye and a deer being gutted (this would have been the “R” foster home). A would have been eight at the time.

[317] This issue came up in the testimony of a number of L’s witnesses, so I wish to address it. I agree that this was inappropriate and probably very upsetting to A. However, it was many years ago. The CAS spoke to the foster parents about the incident. There is no suggestion that he will be returning to that home. The issue with the deer and rabbit has no relevance to the decision that I have to make. I have no idea why this issue was raised so many times.

[318] DH thought that A was receiving some sort of professional help from New Path before he went into care in March of 2009, which the Society discontinued. He did not really know any details about what the professional help was, other than to say it was “with drawings and stuff like that”. As I did not hear evidence from these professionals, I cannot comment on whether or not this assistance should have been continued. I accept the evidence of LM that she had a consultation with “Terry” at New Path, and determined that A’s clinical needs would be better met by KL, rather than New Path, now that he was in care.

[319] DH said that when he attended at the Society offices with L, the issues were “always converted to other things, not giving proper answers.” He found the meetings to be unclear and confusing. Without specifics of what issues he was talking about, it is difficult for me to comment. However, I do find that there is no question that L knew what was expected of her, and what the Society’s concerns were. They were well documented in the court applications and orders. L herself insisted that she always complied with the terms of the orders, so she must have been aware of what was required of her.

[320] DH commented about an allegation in May of 2010 that A jumped out of a bedroom window when CS was chasing him, and CS went out of L’s house through the sliding glass doors to catch A. DH confirmed that L had no sliding glass doors in her home. I accept this. However, this is yet another example of L and her friends focusing on disproving irrelevant details from years ago, and failing to address the important issue of A’s current needs and how best to meet them.

[321] DH confirms that L’s former partner, KC, was “vengeful” towards her, and was swearing and aggressive when he came to pick up his possessions. I accept this testimony but it is, perhaps, further evidence that L does not make the best choices in partners.

Comment

[322] DH struck me as a truthful witness but his evidence did not add much to assist in the decision that I am required to make.

AE – A’s foster parent from January 11, 2012 to February 8, 2012

[323] A resided in this home from when he was reapprehended until he was transferred to the LD home. AE confirmed the living and household arrangements set out previously, which had A separated from the other children in the home. She advised that she was aware of the need for A to be constantly supervised because of concerns about his sexual behaviour. As she put it, everyone was on “hyperalert” while A was there. She said A understood that he needed to be in sight at all times and complied.

[324] AE confirmed that there was a full investigation into A’s allegation, several months after he had left her home, that he and her son (who would have been seven at the time) engaged in sexual activity in the basement of her home. Two or three workers visited and she had a foster parent advocate present. Her son was interviewed, without either her or her husband present, and she and her husband were interviewed as well. Her son denied that the incident ever took place, and, according to AE, it would have been impossible. Children were not allowed downstairs without an adult and, in any event, A was within sight at all times.

[325] AE was a straightforward and thoughtful witness. She was not defensive, although she did, understandably, say that she did not think she could accept A back into her home now, as she would not want to put her family through a false allegation again.

Comment

[326] I am not sure why L and her counsel chose to call AE as a witness. Her evidence satisfies me that, for whatever reason, A seems to have fabricated a story about engaging in sexual activity with her son. It also satisfies me that the Society takes A’s allegations seriously and conducts an appropriate investigation when a concern is raised.

SP – L’s mother (A’s maternal grandmother)

[327] SP’s evidence-in-chief went in by affidavit. She confirmed the evidence of earlier witnesses about L having plenty of food, paying her bills, and not having any drug or drinking problems. She said her daughter had not been abused by anyone. I accept this evidence.

[328] SP talked about the first time that the children were apprehended in 2003. They were placed with her and her husband during that time. She confirmed that she had an issue with G taking a box cutter to school and she talked about a conversation she had with the police constable. He informed SP that he had previously worked with troubled youth at Camp Dare. As a form of punishment, they would have the boys stand in the corner with weights for 15-minute increments, without speaking or turning around, for a maximum of 30 minutes. SP said that she checked with the CAS worker prior to instituting this punishment and she had the impression that he could see nothing wrong with it. It was only used with G, as A was too young, and SP felt it was quite successful.

[329] SP complained about the lack of contact from the CAS while the boys were living with her.

[330] When A was reapprehended in 2009, SP was unable to take him in as she was going to Texas to help out her sick mother. She said that she and her husband would be prepared to take A in upon her return.

[331] SP (sic) talked about the worker, LM, not returning her phone calls. SP left her a message that she would “have no alternative but to call my lawyer in Toronto, to enable my access to my grandson as his Maternal Grandmother and Maternal Grandfather’s rights”. Ultimately, LM explained to them that she could not discuss A or G’s issues with her, as they were L’s children and there were issues of confidentiality. However, SP’s message to LM provides a clue as to where L may have learned her litigious reaction to conflict.

[332] There were several pages of testimony about various incidents over the years, such as the rabbit and deer being shot in front of A in 2009. SP set out various concerns about how she felt issues such as this were handled by the CAS. I do not intend to go through them, as I have previously indicated that these historical incidents are not relevant to the decision that I have to make now.

[333] There was a discussion about SP’s younger daughter, K, and her disability. K has a Traumatic Brain Injury from a motor vehicle accident in 1996. Apparently, LM incorrectly said at some point that K was born “mentally challenged”. While I can understand that this might be upsetting to SP, I had difficulty comprehending the relevance of this evidence.

[334] I understand, as SP put it, that this is the only chance that she has had to “say her piece” about what has happened during the course of her daughter’s litigation with the CAS. I realize it was important to her to get some of these things on the record. However, I continue to be struck by the lack of insight of L and her counsel. The fact that these pages and pages of irrelevant information were included in SP’s affidavit further reinforced that the focus of L’s case seemed to be her, and perhaps her mother’s, need for vindication, rather than A and his needs.

[335] SP talked about the difficulties she and her husband had trying to secure access to A, even though, according to her, Justice Wood had approved them as supervisors. She also talked about a request that she and her husband and L made for A to have a visit with his great grandparents, who were due to be traveling through Ontario. According to SP, the request was refused without explanation. When the trip was rescheduled due to health reasons, another request was made and refused.

[336] I agree with SP that it is difficult to understand why this request could not be accommodated. The Society has a statutory duty to preserve the child’s connection to his family, as is consistent with his best interests, while he is in their temporary care. If a decision was made, for whatever reason, that the visit was not in his best interests, it should have been made very cautiously, and clear and compelling reasons should have been given to L and her family to explain the refusal.

[337] There were further problems surrounding the issue of access between A and his grandparents. For example, on September 2, 2011, SP was given permission to attend a meeting at the Society offices between G and A. Both she and L had requested this meeting, so that SP could be aware of the Society’s concerns and expectations surrounding possible future visits.

[338] SP was welcomed into the room with the boys but then told abruptly, in front of the boys, that she could no longer stay. The worker said she had just talked to LM, who had given these instructions, but neither LM nor her supervisor gave any reason. No one was available to speak with SP. Ultimately, SP was told she could have five minutes with the boys but that she then had to leave and sit outside alone, or the balance of the visit between the boys would be cancelled.

[339] It is difficult to understand the way SP was treated that day. It is particularly troubling that she was told in front of her grandsons that she had to leave. SP has reason to be upset.

[340] I understand that there have been concerns about A expressing discomfort about being alone with his grandfather, in the past. However, he was not present that day. There have also been concerns about L having a difficult relationship with her parents and, understandably, the Society has to be cautious about issues of confidentiality. However, since L brought SP to the meeting, confidentiality was not the problem that day either.

[341] There may have been a valid reason for SP not to be present for a sensitive meeting where the brothers were re-establishing contact. However, SP should have been told in advance and there should have been a clearly articulated reason given. The issue was not handled very well by the Society and it was inappropriate that SP was not allowed any opportunity to talk directly with someone in authority to try to work out a satisfactory solution.

[342] SP is A’s grandmother. He has lived with her in the past. Her affection for him is obvious and touching. She is an important link for A to his identity, and place in an extended family. The Society should have made better efforts to support that relationship, or have clear and compelling reasons why supporting that relationship was not possible.

[343] A was moved from the “R” foster home to the “V” foster home on October 1, 2010. SP was contacted by a worker in her area (Nipissing) in September of 2010, about having A come to live with them again. SP and her husband signed a consent to have a CPIC completed in order to finalize the assessment of them and their home as an appropriate placement for A.

[344] Shockingly, they have never heard the results of the assessment or the record check. SP called twice to find out the status of the plan for A to move in with them. She says the worker in Nipissing advised that LM had told her not to speak to SP. She says that she “was then, literally, hung up on, no goodbye, nada.”

[345] I suspect that there may have been concerns being expressed by L about her parents caring for A, or about the Society discussing her case with her parents. Whatever the reason, the Society should have told SP and her husband why A was not coming to live with them. I am not sure what the cause of the communication breakdown was but SP has every right to be upset by the failure of the Society to follow up with her.

[346] SP did provide some evidence that was relevant in assessing L as a caregiver. However, it was not helpful to L.

[347] When L was living with A, SP was often contacted when there were difficulties. She said L was “a screamer”. L would get into arguments with A, particularly surrounding shower or bath times, and would phone her mother to intervene. L would put the phone down, so that her mother could hear what was going on.

[348] SP said she was not as concerned about A’s behaviour as she was about L’s. She describes L as yelling so loudly that “you could hear her across the street.” Eventually, L would put A on the phone to talk to his grandmother, and, according to SP, she would be able to convince A to apologize and do what his mother wanted him to do. She said that A “listens to (me) better than his mom … I don’t know why.”

[349] SP thought that L had “toned down” as a result of some anger management courses. However, there was no evidence presented to me of anger management courses having been taken by L.

[350] SP said that L takes after SP’s mother: “accuse her of something she didn’t do, and you are in for a fight with a lion. Accuse her of something she did do, she’ll squawk”.

[351] There was an interesting exchange between L and SP while SP was on the stand. At one point, she said to her daughter, “Enough!”, then turned to me and advised, “I said that to my daughter.” She later explained that she was reacting to L’s angry body language and “sighing”, when she did not agree with her mother’s testimony.

[352] This was an ongoing issue in the trial. L frequently became very agitated and had trouble staying quiet, if she did not agree with the evidence of a witness. For example, when her counsel was cross-examining LM, L was chattering to herself, shaking her head vigorously, pulling on her counsel’s sleeve and talking to him during his questioning. Although her mother tried to stop L’s unproductive behaviour while she was testifying, other witnesses had to try to ignore it.

[353] SP confirmed that A blames himself for being in care, particularly for disclosing what happened between him and G. She said that A has told her, “If it wasn’t for me saying things, I’d be home right now, home with my brother.”

[354] SP expressed the view that A needed to be taken to a “licensed certified child psychologist” and a “licensed registered therapist”. This is the language that was mirrored by L in her own testimony and in her Answer and Plan of Care. SP also expressed a concern about the medication that A was on, and the lawsuits surrounding that drug in the United States.

[355] Many of L’s thoughts and ideas seem to stem from her mother. However, L does not seem to apply much critical thinking to things she may have heard her mother say. She doesn’t seem to have a great ability to adapt the comments she hears from her mother, to fit the needs of her children.

[356] For example, the discipline technique of having a child stand in silence, while holding weights in the air for an extended period of time, may be appropriate at a facility for adolescent youth offenders. However, it is hard to understand how L felt it was appropriate to apply the same punishment to a seven-year-old (A), who was experiencing behavioural problems. It was not appropriate to leave him holding one pound weights in the air for ten or fifteen minutes at a time. L doesn’t seem to appreciate any distinction between the two situations.

[357] The same sort of critical analysis is lacking in, for example, her blanket rejection of A’s medication based on what she has heard from her mother and the internet. L does not seem interested in obtaining information about why the paediatricians felt the medication would be beneficial for A, so that she can balance the pros and cons. She latches on to one perspective and there seems to be no room for other points of view.

[358] SP gave a mixed response to questions about having A live with them now. It is clear that SP thinks that she and her husband do not need assistance with any parenting issues, and would not be open to having A back to their home, if they had to “answer to” the CAS. SP’s attitude towards parenting, A’s lack of problems, and the need for the CAS is similar to, although not quite as extreme as, L’s. SP also made it clear that her first choice would be to have A returned to his mother, and that this would be the goal if A was to come to live with SP and her husband

Comment

[359] Like her daughter, SP seemed so focused on historical events that she is unable to assess A’s current situation and look forward to solutions. She appears to not have been given all the details of what has happened in the past. For example, she seems to think that all that happened between G and A is they exposed themselves to each other, and that it was “innocent”.

[360] SP and her husband have not been treated fairly by the CAS, and there should have been a greater effort made to ensure that A had ongoing contact with them. I have already commented that the way that the Society handled SP’s exclusion from her grandson’s visit was inappropriate, and the failure to advise her of the results of the assessment of her home as a potential placement for A was inexcusable.

[361] However, SP did not demonstrate any greater insight into A’s problems, and L’s contribution to them, than did L.

[362] SP is a grandmother. She loves her grandson and, I suspect, he loves her. I struggled with whether or not there would be a way to maintain A’s contact with his grandparents, yet allow him to move forward with his treatment.

[363] Unfortunately, I cannot see a way to fashion this. Any reminder of his mother, and his old life with her, seems to dysregulate A. There could be no greater reminder of his mother than his grandparents. They also are not supportive of the need for A to remain in care. There would be concerns about his stability and treatment being undermined if he was visiting his grandparents.

[364] L has apparently had issues with her parents, and has not always wanted them to be part of her plan for A. A has expressed concern about being alone with his grandfather. There is no request before the court for access to them.

[365] Despite my compassion for SP, who was a delightful witness, the onus is on a person seeking access to a Crown ward to rebut the statutory presumption against it. Even if there had been a formal request for access to A’s grandparents, which there is not, the sad reality is that the evidence does not establish that access with his grandparents would be beneficial and meaningful to A, nor does it establish that it would not impair his future opportunities for adoption.

[366] Should the Society, in consultation with A’s therapists, decide that it would be in the best interests of A to have some sort of contact with his grandparents at some point in the future, they would have the flexibility to allow that contact under s. 59(4) of the CFSA for as long as he remains a Crown ward. However, the statutory presumption against access has not been rebutted, and I will not be making an order for access.

The evidence of L

[367] It is difficult to know where to begin in describing L’s testimony. She started with a fifty-one page, 484 paragraph affidavit, responding in minute detail to facts with which she takes issue. For example, she felt it was important to bring to the court’s attention that she did not tell TM that the children were “up her ass”, she said they were “up her butt.” The affidavit lacked focus and very little of it addressed A, his needs, or L’s plan to meet those needs.

[368] In her oral testimony, L continued her attack against the CAS and her quest for vindication. She was so emotional and intense that she sometimes completely lost her train of thought. She gave long-winded answers that bore little relation to the question she had been asked. At times, she was so angry that her answers stopped making any sense whatsoever. It was a barrage of blame, blame, blame.

[369] The following exchange is an example. It illustrates how L answered questions about her children with a discussion about herself. Her counsel asked, “What’s your perspective on the impact of G becoming a Crown ward, the impact on G?”

[370] At first, L had some difficulty understanding the question. After some discussion, she was asked by the Court to tell what she thought I should know about the answer to that question. Her response was:

Okay. Well, I’ve always tried to assist both my children, and I believe that testimony has shown that as well as my evidence. My opinion, which is not just my own, which I will show the Court as well from other witnesses, is that I have tried to seek the assistance that my children have needed, and when I sought it throughout the Society, I see it as that I’ve been failed, and it just kind of escalated and grew from there because it, my viewpoint and my mother, she’ll speak to that, is that G was taught that whatever he didn’t want he didn’t have to do. So it got a little bit hard at one stage when he went, when he was taken from the Society in 2006 that because of the whole scenario, the circle of everything, I ended up, after fighting for eight, ten months for him through his dad, who came back in the picture, to give him over to his dad. And then when this incident had occurred it kind of made it hard because he was shipped down to St. Catharine’s because of a probation order that ended up occurring on G’s behalf, and with G being the age he was that’s where I came up with the Crown Wardship, and he had also stated that it was his belief through his lawyer that it was the best option for him. So I did it for G’s benefit at that point in time, though in, in so many ways I wish I hadn’t of, but there was just so many circumstances that there was roadblocks there that I, I couldn’t do anything but Crown Ward. And I just need to point out with that it’s because A was my priority, and because I couldn’t have them both residing in my care, and I, and I had made G aware of that and he understood.

[371] Most of L’s evidence was similarly unhelpful. I do not intend to go through it in detail. I have heard, and reviewed, it all. Most of it is irrelevant to the decision I have to make. While I can understand that there might have been some therapeutic effect for L in getting her story before the court, her testimony did little to address why it would be in A’s best interests to return him to her care.

[372] L did make some valid points about things that the Society could have done better. I have already commented on the failure to maintain contact between A and his grandparents. L correctly points out that it took far too long to set up therapy for A when he was in care in 2009. The delays in setting up the Parenting Capacity Assessment were also unfortunate. There were times when the Society did not comply with the court orders regarding access. The lack of a clear decision making model within the Society was confusing, and made it difficult to determine who had authority to make what decisions. The Society did not comply with their obligation to provide timely disclosure. Finally, moving A to Peterborough, while insisting that any contact with his mother had to be supervised and occur during school hours, placed both L and A in a terribly difficult position, and did not adequately provide for A’s need to maintain meaningful contact with his mother until a decision was made in this trial about his future.

[373] However, L’s combative attitude with the Society has not helped matters. As pointed out by Dr. McDermott several years ago, L has to accept some responsibility for improving her situation, rather than constantly blaming others for her problems.

[374] I can understand some of L’s frustration. From her point of view, she did what was asked of her under the last supervision order, to have the Society to terminate their involvement and leave A in her care. She then “had the rug pulled out from under her” when A was reapprehended.

[375] In L’s mind, the reapprehension was not justified. CS redirected A when A became physically abusive to her. He did not hurt him; he physically restrained him and put him in his room. It is difficult for her to understand why this is so objectionable, when LD and her husband physically restrain A frequently. She says A wants to come home, and he should be permitted to do so, as nothing is really different than it was in 2011, when the Society was agreeing to back out of involvement with L and A completely.

[376] However, A is not being made a Crown ward because of L’s failings prior to the reapprehension. I am prepared to accept that in December 2011, L’s care of A was deemed sufficiently adequate that the Society was prepared to terminate. My focus is on what happened after that.

[377] L has not satisfied me that it would be in A’s best interests to be returned to her care again. Although I have commented about some of the issues previously, when discussing the evidence of other witnesses, the following concerns were reinforced by L’s testimony.

The risk of physical violence and the involvement of CS

[378] When A last lived in L’s care, the situation deteriorated into a physical altercation. CS had to intervene to protect L. L sided with CS about this incident and steadfastly refuses to acknowledge that the CAS had cause for concern.

[379] Although L was evasive about their relationship, and put great stock in stressing that no one was “living” with her, she has not denied CS’s evidence that they are a couple. I find that CS continues to be a significant part of L’s life, and she does not see any difficulty with him continuing to be involved in A’s life, if A were to live with her.

[380] CS believes the most effective means of discipline is corporal punishment. He restrains himself from physically disciplining A only because he believes he is limited by law and the CAS. CS indicates that L agrees with him. She did not say otherwise.

[381] This would not be a very promising environment for A to make progress on his behavioural issues.

[382] A’s frustration often erupts into violent behaviour. L herself admitted that she was having a great deal of difficulty with A in 2011, having told DM that her friend said, “if A were their (sic) child they would send him back to CAS”, and “They didn’t know how I was dealing with A and his behaviours as they would not put up with it”. L talked to DM about how stressful it was to try to handle A and his behaviour.

[383] A continues to be a challenge. He needs a caregiver, such as LD, who understands that the use of physical intervention with A needs to be to restrain and protect him, not to discipline him.

[384] Caring for A appears to continue to be quite demanding. LD has the assistance of a youth worker two days a week, and receives a respite weekend, where A goes elsewhere, once a month. It is understandable that it would be very draining for one person to try to care for A entirely on her own.

[385] Without CS or another adult present, I am not persuaded that L could handle A’s physical outbursts. L has not sought any training in therapeutic restraints, nor has she expressed an interest in doing so. L has a temper, and has been described by her mother as a “screamer”. She found parenting A to be very challenging when he last lived with her, and I am sure that she would quickly discover that caring for him full-time would, once again, be overwhelming.

[386] Yet, in all the time that he has been away from her, she does not seem to have felt the need to seek out any anger management therapy, or assistance with dealing with pre-adolescent behaviour management.

[387] If A were to be returned to his mother’s care, I am certain that, sooner or later, there would be an incident involving A acting out physically. I would be very concerned about the physical safety of both A and his mother when that occurred.

L’s lack of attention to A’s emotional needs

[388] LD has described how she calms A down after an outburst, sitting and holding him for over half an hour. She soothes him with therapeutic touch, and with sensitive, nonjudgmental conversations. This is what A needs.

[389] In contrast, L admits that when CS carried A to his room after the altercation, A was left there for the balance of the evening. She did not even go to check on him. Shockingly, L still has expressed no remorse for this, or admitted that it was inappropriate.

[390] Her inability to acknowledge how upsetting this incident must have been for A, and her complete failure to help him address what had happened, demonstrates her lack of understanding of A’s developmental issues. He seems to continue to have a problem with becoming overwhelmed and reacting inappropriately. She does not have the skills or patience to help him with this.

[391] If L had gone back into A’s room to talk with him after the incident, or even if she had expressed some willingness to learn how to handle a situation like this better in the future, there might have been some hope for improvement. However, she remains completely unrepentant, which leaves me no reason to believe that she would respond any differently in the future.

[392] Another example of L’s lack of sensitivity to A’s needs is her continued unproductive response to A’s questions regarding his father. No matter how many times A raises this, L refuses to acknowledge that this is a legitimate issue for him. Her response that A believes “The Father” (meaning God) is his father, belittles A’s inquiries. Once again, if something is not an issue for L, then she is completely dismissive of it being a potential issue for A. It is very hard for her to grasp another person’s perspective, even if, or perhaps particularly when, that other person is her child.

L’s inability to put A’s needs ahead of her own, her inconsistent commitment and her lack of support for A’s treatment

[393] Following the incident where A came into care, L did not request that he return home to her. She did not even request any access to him for over a month. She would not say goodbye to him.

[394] This is unfathomable to me. How could any parent do this to a child?

[395] A had been through a distressing physical altercation with his mother and her boyfriend. When he, quite properly, disclosed what had happened to a teacher, he was made to pay the price. From his perspective, he was removed from his home and his mother severed contact with him for five weeks. It is no wonder that A blames himself for everything that has happened, and now expresses reluctance to open up in treatment about things that have gone on.

[396] There is no question that A has serious problems and needs some help. He acts out physically, continues to behave inappropriately sexually, and gets overwhelmed with his emotions. He desperately wants to get help, and is mortified that he has to be accompanied by an adult at all times as he heads into his teenage years. His lawyer has, quite properly, emphasized how damaging it would be to A’s emotional and social development if this situation continues.

[397] That is why the CPRI process was so important. Yet, one of A’s first reactions was to worry about whether his mother would get into trouble. He needs not only her permission, but also her support as he moves forward in this process. She needs to be a full-fledged member of the “team” that is working together to help A.

[398] However, his mother was not supportive of the CPRI process. She expressed distrust, and viewed it from her own self-centered perspective: she said she honestly believes it is an attempt to gather evidence against her.

[399] I am very troubled that L was unable to set her own feelings about CPRI aside and attend, if only to be there with her son as he went through the process. Her statement that she participated in a one-hour interview by phone, “I don’t know why we’re making a big ordeal”, demonstrated her complete failure to appreciate the need to be there to support her son. If there was a religious or financial issue, she had been reassured that the Society would work through that with her to ensure her participation. L made no genuine effort to be at the CPRI assessment with A, as she was, once again, focusing on her own distrust rather than A’s needs.

[400] Another very concerning example was L’s reaction to the need for supervised or “supported” visits. Just before the trial was to commence, L cancelled a visit, and threatened to leave another if she did not get her way about who would be in the room. It was heartbreaking to hear that she told A, “I love you but I am not sure that I can continue doing this.” She then left him hanging and worrying for two weeks about whether or not he would ever see her again. No matter how upset she was, how could she be so cruel to her son?

[401] In addition to demonstrating a serious lack of judgment, given the upcoming trial and her request to have A returned to her, this reinforces that L continues to be unable to set aside her unproductive power struggles in order to focus on A and his needs.

[402] A needs to be able to rely on his mother. He has had several breaks in his attachment with her, and it is critical that he knows that she will be there for him. However, she has clearly demonstrated that she is unable to give A that reassurance consistently. It “depends”: depends on whatever battle L may be fighting at the time and, from A’s point of view, depends on his behaviour.

[403] The psychological damage that such unpredictability and lack of commitment can do to any child is enormous. For a child with all the problems that A has, the damage may well be irreparable.

L’s lack of conflict resolution skills and her inability to work with A’s service providers

[404] Over three years ago, Dr. McDermott gave L this advice:

… look closely at the problematic situations that you are in and consider what your role might be in either causing them, maintaining them, or worsening them; all of us participate in our own problems in some way or other and these things are what we need to address first. Otherwise we will keep setting new problems in motion.

[405] I have seen no evidence to suggest that L took any steps to consider her role in contributing to the “problematic situations” she finds herself in. Just as Dr. McDermott predicted, she has kept setting new problems in motion.

[406] L has a long-standing response to problems: she becomes combative. As her mother said, she is like a “lion”. She blames others for her problems, and lacks insight into her own contribution to them.

[407] Raising teenagers can be fraught with conflict at the best of times. Dealing with A in the next several years, with his pre-existing issues, will be a real challenge for any caregiver. It is frightening to think what L’s response would have been to an incident like the one last Christmas, when he pushed LD down the stairs. Had that been L, it is unlikely that she could have exercised the restraint or sensitivity to deal with an issue like that productively.

[408] As Mr. Butler pointed out, G is already a convicted youth sex offender. His mother was unable to properly parent him: he had frequent school suspensions and behavioural problems when living with her, and TM was unable to make any progress with L about her parenting. G left her home and said he was unable to handle the “drama”. He wanted to have nothing to do with her. The outcome for G has not been good.

[409] Neither L’s past parenting, nor her aggressive approach to difficulties with the CAS, bode well for her ability to parent A through his teenage years. She needs to be able to resolve conflict with A effectively, and she needs to be able to forge positive working relationships with A’s service providers.

[410] The only evidence I have of L working well with someone is a letter from an art therapist (ES). L took A to ES while he was in her care in 2008.

[411] ES described herself as an “EXA Practitioner, Artist/Author”. Although I did not hear any evidence about her formal qualifications, if any, ES’s engagement letter indicates that she had spent over 26 years facilitating workshops, painting and managing her art studio, and she believes that “through the arts we can clearly access our true potential”.

[412] The letter from ES, dated July 8, 2009, indicates that she had twenty-two sessions with A and felt that he had made progress in a positive way. She felt that L followed and implemented her suggestions. ES, understandably, expressed concern that her work with A was “suddenly, without warning” ended when the CAS removed him from his home on February 9, 2009. I agree that it would have been better for the CAS to arrange some wrap-up sessions with ES, to give him some sense of closure.

[413] ES also described a psychological assessment that she attended on November 14, 2008, with A and his family, as well as a psychologist, psychiatrist and representatives from New Path.

[414] It is difficult to place much weight on the letter from ES, as she did not testify in person. However, I do accept this letter as proof that L was able to arrange some services on her own, and was an active participant. She also appears to have been able to get along with the therapist, which is encouraging, but there is nothing in the report to suggest that L was able to work through any issues of conflict with her productively.

[415] However, the letter from ES does not negate the overwhelming evidence from the professionals who actually testified in this trial, which is far less encouraging. TM, Dr. McDermott and KL, all expressed reservations about L’s ability to understand her own contribution to her children’s problems. LM and AS reinforced the struggle in trying to bring L into the process of working on A’s problems.

[416] L, herself, filed an exhibit that demonstrated how poorly she approaches a problematic situation with a professional working with A. This was the September 14, 2011 letter to LM, which dealt with L’s concerns about a meeting that she had with LM.

[417] Like much of L’s evidence, the letter is long, rambling, and filled with unnecessary and unproductive detail. While it acknowledges how LM kept trying to ask L for ideas to improve their communication, L offers no solutions. Once again, the focus of the letter is almost exclusively on assigning blame, with no ideas for how to move forward productively.

[418] Despite the letter from ES, I am not satisfied that L can form productive working relationships with A’s service providers. A’s current therapist, KL, indicated that L’s lack of trust would negate the likelihood of a positive therapeutic environment. L does not trust the professionals at CPRI, and she feels that his doctors are poisoning him. Her lack of support for any of the initiatives that are currently in place to try to help A satisfies me that she would undermine his treatment.

[419] A seems to be making some progress. The next few years are critical. I am satisfied that his mother would not only be unable to participate as part of the therapeutic team to help A, she would also undermine the efforts of the others, leaving A in a terrible loyalty bind.

L’s failure to respond appropriately to A’s sexual behaviour

[420] I have heard from various witnesses about L’s lack of concern when A and the young boy visiting their home were engaged in inappropriate activity, despite A having previously displayed sexual behaviour and talk at school. She also does not appear to be overly concerned about G and A having engaged in oral sex in her home.

[421] What is more concerning is the fact that A continues to make reports about sexual activity in the foster home, which do not appear to have been logistically possible, and has recently exposed himself to another foster child.

[422] This is troubling behaviour. It is difficult to understand what is going on with A, and how to help him. A is frustrated by his need for constant supervision, which is understandable as he is entering his teenage years. However, as Mr. Butler pointed out, A needs some help to ensure he does not follow in his brother’s footsteps and engage in inappropriate sexual activity in his adolescent years.

[423] The CPRI team has been engaged to assist with this. I have no confidence that, if A were returned to her care, L would be prepared to follow the direction of the CPRI team. Despite her reluctant statement to her counsel that she would do what they suggested, her tone was not at all enthusiastic. Actions speak louder than words. L has already stated and demonstrated her lack of faith in the CPRI process, and I am not satisfied that she would be a productive resource that A could rely on as he attempts to develop a healthy sexual identity during his upcoming teenage years.

A’s concern for his mother

[424] KL, A’s therapist, has shared her concern that A has become “parentified” and feels responsible for his mother. I agree with that concern.

[425] I was particularly struck by A’s concern that his mother might get in trouble if he talked to the CPRI assessors. In times of stress, A often seems to withdraw, saying that he won’t talk to anyone again. He needs to be encouraged to open up fully in therapy, as he tries to make progress with his personal issues. L does not help him much by responding to his inquiries with a statement that, “You don’t have to talk to anyone.”

[426] A understands that his mother distrusts the CAS. Over the years that he has been involved with the CAS, A has frequently repeated statements about the CAS being “bad”, and expressing mistrust about trusting anyone, such as teachers, who might talk to the CAS. He feels disloyal to his mother when he is engaged with the CAS or when he has positive feelings about his foster home. He sometimes becomes emotionally overwhelmed following visits. During times of stress involving his mother, he expresses ambivalence towards his foster family and his therapist.

[427] This is a terrible situation for any child to be in.

[428] If his mother had demonstrated any willingness to turn things around, and work with the CAS and foster family, despite her feelings for them, I would have tried to fashion a remedy that would have given A the best of both worlds. Perhaps his mother could have provided respite for the foster family on weekends, or during holiday periods. Perhaps they could all attend therapy sessions together, to develop a consistent approach to supporting A, and relieve A from the terrible loyalty bind he seems to be experiencing.

[429] Unfortunately, the evidence clearly demonstrates that it is unrealistic to expect this will ever happen. If left alone with A, L will continue to, advertently or inadvertently, undermine the work that is being done with him in care. A will continue to struggle with his loyalty to his mother, and the feeling that he is letting her down by committing to the treatment plans being pursued by the CAS and his foster family.

[430] A needs a break from contact with his mother, so that he can be relieved of the responsibility of worrying about her and focus on his own needs and recovery.

Conclusion

[431] A’s Telepsychiatry Consultations with Dr. Clive Chamberlain at the Hospital for Sick Children took place in March and June of 2012. Dr. Chamberlain expressed his opinion that permanency planning was critical for a good outcome for A. He also stressed the need for A’s current therapist, KL, to remain involved with A, rather than transfer treatment to Peterborough. He noted A’s long history of “anxiety, impulsivity and family disruption” and the fact that A was now at a critical stage in his development. He concluded, “(A’s) foster placement and treatment arrangements show early signs of success. It is hoped that this current initiative will not falter.”

[432] Dr. Chamberlain was not called as a witness and I am not relying on his opinion to reach my decision. However, I do adopt his words. I have set out his recommendations because he has articulated precisely what my conclusion is, having heard weeks of evidence in this trial.

[433] A needs permanency planning. Any further placement with his mother is almost certain to break down. There is no chance that she can either recognize his needs, or respond to them productively. A feels caught in a loyalty bind between his mother and his need to move forward. He cannot be expected to make meaningful progress as long as he continues to be in this bind. His dysregulation and stress after visits with his mother speak volumes about his inability to “maintain one foot in both camps.” He desperately wants to get better. It is time to give him that opportunity.

[434] The only option that will give him a chance to stabilize and make progress is an order for Crown wardship, so he can begin to get the treatment he needs and try to blossom and thrive.

[435] I have considered the factors set out in s. 37(3), and tried to appropriately balance them to determine which plan is in A’s best interests.

[436] I have considered the requirements of s. 57(2), (3) and (4), and am satisfied that the Society has made significant efforts to assist this family before intervening; that there is no less disruptive alternative that would meet A’s needs; and that there is no other appropriate community placement available.

[437] I am satisfied that an order for Crown wardship is appropriate.

[438] I have also considered s. 59(2.1). The statutory presumption against access has not been rebutted. Although I am satisfied that access may be meaningful to A, an access order will impair his chances for adoption. More importantly, access is stressful for him and sets him back in his progress. It is a continual reminder of his mother, and reinforces concerns that he is being disloyal to her in trying to move forward with his therapy. Her inconsistent commitment to access in the spring of this year was, understandably, traumatic for A. I am not satisfied that an order for ongoing access would be beneficial to A.

[439] I recognize that it may also be traumatic for A to completely terminate the relationship with his mother. This is an issue that will need to be monitored and dealt with by his clinicians. Should his therapeutic team recommend that he have any sort of any contact with his mother at some point in the future, the Society will have the flexibility to allow appropriate contact or communication under s. 59 (4), at any time prior to adoption.

[440] I hope that his mother will pursue serious counselling and anger management training for herself, so that she will be in a position to provide appropriate support to A if his clinicians ever recommend that he have contact with her. However, an order for any sort of court mandated access between L and A is not in his best interests. A needs a break from his mother at this time.

[441] I agree with Dr. Chamberlain. Having made the decision to move A to Peterborough, the Society owes A a duty to not abandon him. Although I do not have the power to order that the Society arrange to continue his therapy with KL, I would be very concerned if they decided to withdraw that support. A will now be a Crown ward and the Society will be his statutory parent. I trust that they will live up to their obligation to continue to give A the therapeutic support and stability that he needs in the next few years, as I am sure that this will be a difficult time for him.

[442] As Mr. Butler pointed out, A is at a crossroads in his development. A seems to have two sides to him: the happy, kind, “amazing” child that so many people love, and the troubled, angry side that has caused him so many problems.

[443] It is my sincere hope that this decision will give A the right direction at this crossroads. I hope that it will allow that happy, positive side of his personality to grow and flourish and, with treatment, his troubles and anger will become more manageable and less problematic for him.

[444] A deserves this chance.

[445] Order to go that A is to be made a Crown ward, with no access to any person.

WILDMAN J.

Released: August 16, 2013

[^1]: Endorsement dated March 19, 2007.

[^2]: Ibid at para. 7.

[^3]: In order to avoid having A testify, counsel agreed that statements that A had supposedly said could go in through other witnesses, but not as proof of their contents. This is an example. This statement is not proof that L locked A in his room for hours, but it is helpful for me to know that this appears to be A’s perception of the contrast in how his mother may have handled him when he was acting out.

[^4]: This is another example of hearsay statements by A, which were not received as proof of their contents. This statement is not proof that L told A to eat his soiled underwear. However, it is helpful information to know that A made this statement and, apparently, wanted his foster mother to believe that L responded negatively to his soiling incidents. It is also helpful to know that A remembers being sent to school in diapers, despite his mother’s testimony that he was not concerned about it.

There are several other examples throughout LD’s testimony that are also hearsay statements, received not as proof that the things actually happened, but as LD’s evidence of things that A has been saying to her. I will not comment on any more of them individually, as the same rule applies to all of them. None of the statements are proof of their contents.

[^5]: The results of the CPRI assessment had not been received by the beginning of the second part of the trial, in May of 2013. There was a discussion about whether we should wait for the CPRI report but Mr. De Buono indicated that his client would not consent to it being entered into evidence, unless L was given an opportunity to have the report critiqued by another expert. Rather than delay the trial decision any further, all counsel agreed to complete the trial without the CPRI report.