Lennox and Addington v. B.L. and [A.M.. 2013](https://www.canlii.org/en/qc/laws/regu/cqlr-c-t-11.001-r-1/latest/cqlr-c-t-11.001-r-1.html) ONSC642

COURT FILE NO.: 333/11

DATE HEARD: September 27, 2012

DATE: JANUARY 25, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Family and Children’s Services of Frontenac, Lennox and Addington Applicant

• and –

B.L. and A.M. Respondents

COUNSEL: Ayana Hutchinson, for the Applicant Douglas Haunts for the Respondents,

WARNING

This is a case under Part III — Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

76(11) PUBLICATION — No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

85(3) OFFENCES — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

REASONS FOR DECISION

Background

[1] The Applicant, Family and Children’s Services of Frontenac, Lennox and Addington (the “Society”) became involved with the Respondent parents (“the parents”), B.L. (“Ms. L.”) and A.M. (“Mr. M.”), on or about […], 2011.

[2] It was then that a case conference was held at the Katarokwi Native Friendship Centre (“KNFC”) to discuss health concerns in respect of Ms. L. Unbeknownst to the Society, Ms. L. was seeing her doctor every four weeks and was also enrolled in prenatal classes at KNFC, which were organized by a Ms. Sharon Beauden. Ms. Mary McColl from the Society attended at the case conference. Notwithstanding confirmation of Ms. L.’s prenatal care, it was Ms. McColl’s position that Ms. L.’s child would be apprehended at birth and that the Society would be applying for Crown Wardship.

[3] There is no quarrel that Ms. L. and Mr. M. have a long history of child protection concerns, which resulted in the apprehension of their previous children. The history is set out in findings of fact in previous child protection Court proceedings. In total, Ms. L. had seven previous children, all of whom were made wards of the Crown.

[4] The child, S.C.C.A.M. (the “child”), who is the subject of these proceedings, is Ms. L.’s eighth child. Mr. M. had two children of his own, who were also made wards of the Crown. Mr. M. and Ms. L. have four children together.

[5] On or about August 4, 2011, Ms. L. and Mr. M. left Kingston and moved to Odessa. As a result, their file with the Society was transferred to the jurisdiction of Lennox and Addington.

[6] The child was born at the Belleville General Hospital (“BGH”) on […], 2011 and was immediately apprehended at the request of the Society, by the Hastings Children’s Aid Society.

[7] At the time of the apprehension, the parents were being supported by the Mohawk’s of the Bay of Quinte, Mohawk Family Services (“MFS”).

[8] As part of the parents’ schedule “A” documents, (appended to their plan of care), they filed a letter from MFS, dated September 12, 2011, in which the author, Ms. Brandi Hildebrand, said, inter alia:

“Mohawk Family Services attended the hospital with the Hastings Children’s Aid Society in the morning hours of August 15, 2011, to witness the apprehension of [the child], and remained in the hospital until they were released on August 16, 2011. [The child] was noted to be a term newborn with no signs of birth defects or areas of concern. She was able to successfully breastfeed and passed her hearing and medical tests. It appears that [Ms. L.] had appropriate prenatal care and had a drug-free delivery for [the child]. Lennox and Addington Family and Children’s Services have applied for Crown Wardship, with no access for [the child] against [Ms. L.] and [Mr. M.].” (Emphasis added).

[9] Ms. Hildebrand further advised:

“It is our opinion that [Ms. L.] and [Mr. M.], with respect to [the child], have been co-operative with staff of all agencies involved. They have been punctual with their visits and have been very appropriate with [the child]. Both [Ms. L.] and [Mr. M.] have been attentive to the feeding, diapering, social and emotional needs of the child. They have also provided her with cultural experiences such as smudging and ceremonies. They are well supported by the Katarokwi Native Friendship Centre and the staff in the various departments at the Centre have made a great commitment to helping this couple be successful in their attempt to parent [the child]. Most of the visitations have been completely or periodically unsupervised, even though they have been held at the Agency or at Barrett House.”

[10] Ms. Hildebrand further advised:

“I have witnessed both [Ms. L.] and [Mr. M.] feed, diaper and comfort [the child] appropriately. They are supportive of her head when the pick her up and they hold her and rock her appropriately. Both [Ms. L.] and [Mr. M.] appear to be attuned to the needs of [the child].” (Emphasis added)

[11] Moving forward to November 9, 2011, a further case conference took place at the Society’s offices, which included the parents, a representative from MFS, a representative from KFNC, Courtney Farrar, (Support Access Worker), Leo Burosche (Family Services Supervisor), Thomas Brzezicki (Previous Family Service Worker), and Andrée Willetts (then newly assigned Family Service Worker and ongoing Child and Care Worker).

[12] On November 9, 2011, the Society affirmed its intention to proceed with a Crown Wardship Application, with no access. The Respondent parents were not in agreement with the Society’s position. They disputed the parenting capacity assessment of Dr. Beckett, dated August 15, 2003, which the Society was then relying on. In response, the parents contended that the assessment of Dr. Cooper, dated July 18, 2008, which supported the return of their previous child, O.M. born […], 2007, to them, was more current and, therefore, of greater relevance.

[13] It is against this general background that the matter came before the Court for trial.

ISSUES

[14] Is the child in need of protection pursuant to sections 37(2)(b)(ii) and 37(2)(g) of the Child and Family Services Act (CFSA)?

[15] If the child is found to be in need of protection, should the child be made a Crown Ward pursuant to Section 57(1)(iii) CFSA, or return to the parents’ care under a supervision Order, pursuant to section 57 (1)(iii) and 37(3)(iv) CFSA, as the least intrusive Order that is in the child’s best interest?

EVIDENCE AND ANALYSIS

[16] From the outset, Ms. McColl was of the view that the child would be apprehended at birth in light of the past parenting history of the parents and risks they posed to their previous children.

[17] Ms. McColl’s static view of the parents’ abilities coloured the Society’s analysis of the case, without due consideration being given to certain material changes in the parents’ particular circumstances.

[18] Mr. Brzezicki eventually became involved with the family on […], 2011, when he was working at the Society’s Napanee office in the role of designated back-up worker for the Family Services Team.

[19] Mr. Brzezicki made a telephone call to Ms. McColl to obtain her input regarding the matter. When Mr. Brzezicki asked Ms. McColl for information with respect to the family, she referred him to her affidavit sworn in these proceedings. Ms. McColl made it clear to Mr. Brzezicki that, had Ms. L. and Mr. M. remained living in the jurisdiction of the Kingston CAS, her agency would proceed to apply for Crown Wardship of the child, without access, by means of Summary Judgment. Ms. McColl’s unequivocal position was premised on the following two concerns:

(1) The parents’ previous history of not being able to provide an adequate level of care for their children; and

(2) The assumption that Ms. L. had not sought out adequate prenatal care in preparation for this birth.

With respect to her second concern, Ms. McColl knew, or ought to have known by that time, that Ms. L. sought and obtained prenatal care through Ms. Dionne Nolan, Program Director for the Aboriginal Healthy Babies, Healthy Children at KNFC.

[20] To that end, appended as schedule “F” to the parents’ Answer and Plan of Care is a letter from Dionne Nolan B.A. M. Ed. (c), Program Co-ordinator, Aboriginal Healthy Babies, Healthy Children Program Katarokwi Native Friendship Centre, dated September 14, 2011, wherein she advises, inter alia:

“I have been asked to write this letter on behalf of [Ms. L.] and [Mr. M.]. It has been my pleasure to get to know this loving couple over the past year or so. I have observed them to be very caring towards one another as well as towards all members of our community…”

“I remember the day that [Ms. L.] came in, with ultrasound in hand, to share the news that she was pregnant. Shortly afterwards, she asked to join my program as one of my clients. I am the program co-odinator for the Aboriginal Healthy Babies, Healthy Children at the Native Friendship Centre in Kingston. My program is identical to the mainstream Healthy Babies Program through the Health Unit, but with two important distinctions: The first being that it incorporates traditional aboriginal knowledge, education practices, and the second being that I have a smaller case load which allows me to visit my clients more frequently…”

[21] To exacerbate matters, the Society was not initially supportive of Ms. L.’s stated intention to breastfeed the child. As Ms. Hildebrand said in her letter of September 12, 2012:

“[Ms. L.] has been very successful for her provision of breast milk for [the child] and with breast feeding [the child] during their every other day visits. There are not very many babies who are able to readily switch between the bottle and the breast, but [the child] is doing an amazing job interchanging the two. [Ms. L.] has been able to provide more than enough breast milk to the foster home through pumping, to have (the child’s) diet to be completely formula free. [Ms. L.] has been attending the lactation support group for breast feeding mothers at the Community Well Being building on the Tyendinaga Mohowk Territory. That group is held weekly and is supported by a medical professional. The group leader has suggested that it would be better for both (Ms. L) and [the child] to attend the group together. They would not be left unsupervised. When Tom Brzezicki from Lennox and Addington Family and Children’s Services was asked if [the child] could attend the breastfeeding support group to support her growth and development through the nourishment of her body by the breast milk, Tom originally claimed that it would be difficult to arrange because of the issue of the finding a driver. When Mohawk Family Services offered to pick up [the child] from the foster home and bring her to the group, we were told by Tom Brzezicki that the Lennox and Addington Child and Family Services did not support [the child] attending the breast feeding support group on the Territory. Tom Brzezicki stated that the direction of the case with the application for Crown Wardship with no access for [the child], coupled with the extra travel time to the Territory, would lead their agency to not support attendance of the baby at the breast feeding support group. Mohawk Family Services does not agree with the decision made by Lennox and Addington Child and Family Services. [The child] is a normally developing, healthy infant who should be able to withstand the travel time by van to the Tyendinega Mohawk Territory. The travel time is approximately 20 minutes. Breast feeding is the most optimal source of nutrition for the health and well being of infants.” (Emphasis added)

[22] Ms. Hildebrand further advised that:

“Mohawk Family Services have not witnessed any behaviour required to support an Application for Crown Wardship with no access for [the child]. It appears that Lennox and Addington Family and Children’s Services has made application to the Court based on prior history with regards to their previous children. Mohawk Family Services does not support the application for Crown Wardship with no access. Mohawk Family Services would also like to facilitate the support of the cultural rights of [the child], which have been unsupported by Lennox and Addington Family and Children’s Services”.

[23] On September 20, 2011, Mr. Brzezicki and Ms. Hildebrand made a visit to see Ms. L. and Mr. M. at their home in Odessa. During the visit, Mr. Brzezicki remarked to the parents that they had continued to demonstrate a pleasant and sociable manner towards the staff of the Society, despite having their daughter apprehended and placed in the Society’s care. Mr. Brzezicki further acknowledged the level of cooperation that the parents had shown working with the Society and particularly the good relationship they had developed with the child’s foster parents, which had helped to ensure there was frequent and direct communication between them and the foster parents in matters concerning the care of the child.

[24] Notwithstanding these observations, Mr. Brzezicki advised the parents that, despite their positive attributes, it was still the Society’s plan to apply for Crown Wardship, with no access. He concluded that the parents were unable to demonstrate a capacity to provide for the child’s care and well being in the long term. Mr. Brzezicki confirmed this information in a letter to the parents, dated September 23, 2011, in which he said:

“I am writing to thank you for agreeing to meet with me at your home this past Tuesday evening, September 20, 2011. Ms. Brandi Hildebrand of Mohawk Family Services was present at this home visit as well. In the course of our conversation, I spoke to you about our Agency’s plans for your daughter. I said that although your access visits have gone quite well and you have both been very co-operative and pleasant in talking with the foster-mother, and other staff agency, we are still going ahead with our plan to ask the Family Court to have [the child] made a Crown Ward with no access, that is to have her placed for adoption.”

[25] When asked about the basis for this decision at trial, Mr. Brzezicki pointed to the parenting capacity assessment completed by Dr. Beckett in 2003. In that assessment, the parents were described as having “little or no chance of improvement, or ability to learn from experience, as indicated by the fact that all seven of Ms. L.’s previous children had been adopted.” Moreover, Mr. Brzezicki was unequivocal in asserting that he had reviewed the parents’ entire file, yet there was no explanation as to how he had overlooked Dr. Cooper’s, 2008 assessment, which recommended the return of the child O.M. to the parents’ care. Further, Mr. Brzezicki offered no explanation as to why he did not go back and read Dr. Cooper’s more recent assessment, once he became aware of it.

[26] At the case conference held on November 9, 2011, the Society staff reviewed its plan for Crown Wardship, without access for the child and with a view to finding her a permanent adoptive home. Again, Ms. L. and Mr. M. objected to this plan. They contended that the child should be returned to their care, and in doing so they relied on Dr. Cooper’s 2008 assessment.

[27] In reply, Mr. Baroche informed the parents that, if the matter went to trial, the Court proceedings would not likely begin until October or November of 2012, and that based on the parents’ history, it was very likely that the Society would be successful in its Application for an Order of Crown Wardship, without access. In effect, Mr. Baroche asserted that any attempt by the parents to contest the matter would be futile.

[28] Mr. Buroche’s statement, which was never refuted in evidence, is perhaps the best indicator of the monofocal view that the Society took in respect of this file. The Society relied, in large part, on the parents’ prior history alone, without due consideration being given to material changes in their particular circumstances. Moreover, the Society summarily dismissed Dr. Cooper’s assessment. To that end, the Society went so far as to exclude Dr. Cooper’s assessment in the Notice of Intention to introduce evidence under Section 52 of the Evidence Act, filed in preparation for this trial. Put simply, the Society acted as though Dr. Cooper’s assessment didn’t exist.

[29] During Mr. Brzezicki’s involvement with the family, he observed that Ms. L. was almost invariably cheerful and sociable with Society staff and displayed little or no animosity towards them, despite having this child and her seven previous children apprehended by child welfare authorities. Although occasionally appearing sullen and withdrawn, Mr. M. was also reasonably polite in dealing with Society staff. Further, Ms. L. and Mr. M. attended their supervised access visits with the child on a regular basis. Indeed, the evidence shows that over the course of more than a year, these parents never missed a supervised access visit. Moreover, they were always on time or early for the visits.

[30] One of the chief criticisms leveled against the parents is that they lack the capacity to pick up on cues or signals from the child. Put another way, they are not attuned to the child’s needs. Evidence provided by the Society’s own witnesses undermines this contention.

[31] Society worker Joleen Castell was involved with the family beginning in February 2012 when she supported access service through the Family Access Program. Ms. Castell supported the family on seven occasions, with her involvement ending April 27, 2012. Ms. Castell made the following observations:

• On March 9, 2012, the parents brought infant toys and an infant activity mat. Ms. L. provided the foster parent with expressed breast milk for the child’s feeding between access visits. Ms. Castell sat on the floor with the family and engaged them in discussion about infant development, focusing on developing gross motor and language skills. Ms. L. verbally provided examples of how she could promote the child’s development including tummy time, singing songs and finger games like “this little piggy” and “paddy-cake”. By all accounts, Ms. L. engaged positively in these discussions.
• On March 16, 2012, the parents again brought infant toys and an infant activity mat to the visit. Again, Ms. L. provided the foster parents with expressed breast milk for the child’s feedings during access visits. Ms. Willetts attended a portion of the visit to meet with the family. During the visit, Ms. Castell observed Ms. L. sit with the child in the supported upright position, as discussed during their last session. Ms. Castell engaged the parents in discussion about introducing babies to solid food. By all accounts, both parents participated positively in these discussions and talked about an upcoming workshop they were taking through the KFNC regarding the preparation of baby food.
• On March 30, 2012, Ms. Castell reviewed with the parents the Nippising District Development screen for six-month olds. Ms. L. observed that the child was doing everything except rolling from her back to her side. They also reviewed the Nippising District Developmental screen for nine month olds to anticipate the child’s emerging development. Ms. L. participated appropriately in the discussion. Moreover, Ms. Castell observed Mr. M. place the child on the floor and engage in play activities that they had discussed previously, such as banging toys together and placing toys just out of the child’s reach to encourage her to roll over.
• On April 13, 2012, Ms. Castell observed Mr. M. laying on the floor with the child engaging her in play and encouraging her to roll over. Ms. Castell engaged the parents in a discussion regarding the development of an eight month old. Ms. L. engaged positively in these conversations providing examples of progress in the child’s development, such as rolling over, pulling knees up to crawl, dropping objects and babbling more, as discussed in the article that they had previously reviewed together.
• On April 20, 2012, Ms. Castell engaged the parents in a discussion about responding to the baby’s communication. They discussed the importance of recognizing and responding to the child’s signals and cues. Ms. L. provided examples of how the child communicated and what her signals could mean. Ms. L. participated positively in the discussion. During the visit, when the child fussed, Ms. Castell encouraged the parents to sit on the floor and play with her. Both parents followed her direction in role modeling different play interactions with the child. When the child continued fussing, Ms. L. accepted Ms. Castell’s direction and changed toys. The child responded positively.

[32] Society worker Courtney Farrar was involved with the family regarding the provision of supervised access and supported access services from August 2011 to February 2012. Over the course of approximately 19 access visits, Ms. Farrar observed that the parents were either on time or early for every access visit. Further, Ms. Farrar made the following observations:

• On November 11, 2011, Ms. Farrar observed Ms. L. interacting with the child by singing nursery songs and clapping her hands. Ms. Farrar observed the child cooing while Ms. L. was singing.
• On November 18, 2011, Ms. Farrar noted that both parents discussed different methods as to how they would prevent tooth decay. The parents gave specific examples as to how they would prevent tooth decay and received from Ms. Farrar a copy of a handout that she provided to them with respect to tooth decay.
• On December 2, 2011, Ms. Farrar noted that both parents participated in a discussion regarding providing examples of the child’s development. She observed both parents interacting with the child on the floor. Ms. L. used the child’s hands to make different actions. Thereafter, they reviewed ages and stages of development for children from four to six months.
• On December 9, 2011, Ms. Farrar reviewed with the parents’ safety tips for new babies, birth to two years old. They reviewed information in preventing falls, burns, scalds and drowning. In turn, Mr. M. and Ms. L explained to Ms. Farrar what they had done to baby proof their home.
• On January 13, 2012, Ms. Farrar discussed with the parents strategies that could be used when a caregiver is frustrated. The parents discussed the strategies that they would use, such as having the other partner help take turns with childcare responsibilities, breathing exercises and taking space.
• On February 3, 2012, Ms. Farrar discussed with the parents tips and techniques for introducing solid foods to a baby. The parents advised Ms. Farrar that they were making baby food and storing it in the freezer, as a result of taking the course through the KNFC.
• During the twelve supported access visits with the parents, the parents engaged in discussions with Ms. Farrar pertaining to the developmental goals for the child in a positive and appropriate manner.

[33] In addition to the evidence of Ms. Castell and Ms. Farrar, Mr. Brzezicki made certain relevant observations. Beginning August 18, 2011, Mr. Brzezicki began supervising access visits between the parents and the child. He noted during the visits that the parents appeared to know how to attend to the child’s needs. The parents would take turns holding and cuddling their daughter and talking to her softly. They were observed to check her diapers and change her when necessary. If the child seemed tired, they picked up on this cue and would rock her gently until she fell asleep.

[34] Ms. Hildebrand corroborated this evidence in her letter of September 12, 2011, where she said:

“I have witnessed both [Ms. L.] and (Mr. M) feed, diaper and comfort [the child] appropriately. They are supportive of her head when the pick her up and they hold her and rock her appropriately. Both [Ms. L.] and [Mr. M.] appear to be attuned to the needs of [the child].” (Emphasis added)

[35] Ms. Hildebrand further advised:

“The child calms when they speak to her, responds to their voices, and is soothed by their attempts to calm her when she is upset. [Ms. L.] and (Mr. M) appear to work as a team, prompting and reminding each other of safety concerns like making sure that the child is not placed near the edge of the couch during a diaper change. (Mr. M) is also there to distract the child when she is upset about her diaper being changed. [Ms. L.] and [Mr. M.] speak to the child in a quiet and loving voice and call each other mom and dad”.

[36] Moreover, evidence that the parents are strongly committed to the child’s best interests is supported by the provision of breast milk and positive interaction with the foster parents, throughout the case. To recall, Ms. Hildebrand commented on their commitment in her letter of September 12, 2011, where she said:

“[Ms. L.] has been very successful for her provision of breast milk for [the child] and with breast feeding [the child] during their every other day visits... [Ms. L.] has been able to provide more than enough breast milk to the foster home through pumping, to have (the child’s) diet to be completely formula free.”

[37] Ms. Hildebrand’s evidence is augmented by Mr. Brzezicki’s investigation. Through his inquiries with Ms. Sharon Beauden of the KFNC, he learned that Ms. L. attended training in breast feeding. Further, on August 23, 2011, Mr. Brzezicki observed Ms. L. arriving with an insulated cooler that she said contained 20 bags of breast milk. Ms. L. put the breast milk in the refrigerator at Barrett House and told him that it was for the foster mother to use in feeding the child. Mr. M. then gave Mr. Brzezicki an information sheet on the safe storage of breast milk to give to the foster mother.

[38] Notably, Mr. Brzezicki confirmed that during the parents’ access visits they displayed no animosity or suspicion toward the foster parents. It was the foster mother who usually brought the child to her access visits and Ms. L. and Mr. M. would usually go out to greet the foster mother when she arrived and help get the child out of her car seat. While doing so, Ms. L. would chat with the foster mother in a friendly manner and ask for an update on the child on how the child had been doing since the last access visit. At the end of the access visit, Ms. L. would again have a friendly conversation with the foster mother about what the child had done during the visit and would then confirm the date and time of the next access visit.

[39] Mr. Brzezicki’s was impressed by the positive connection that the parents seemed to have formed with the staff and activities at the KNFC. It appeared to Mr. Brzezicki that they were receiving strong support from this agency and that the parents had developed a trusting relationship with its staff. He further observed that staff from the KFNC were willing to attend court appearances with the parents, along with any other meetings that the parents had with Society staff.

[40] It was Mr. Brzezicki’s impression that Ms. L. and Mr. M. derived a sense of fellowship and positive self-identity from their involvement with the KFNC, which perhaps helped to compensate for the troubles and disappointments that they had experienced previously in other areas of their lives.

[41] Mr. Brzezicki noted that the parents registered for a ten-week parenting program called “Beyond the Basics” through the Society’s Napanee office on Thursday evenings, beginning September 29, 2011. Mr. Brzezicki observed that the parents attended two of the sessions. The parents later informed him that they would not be continuing with the course as it conflicted with other activities they attended at the KNFC on Thursday evenings. The parents did, however, tell him that they would be receiving parenting instruction, on a one to one basis, at the KFNC, which in fact they followed up on and completed.

[42] Mr. Brzezicki agreed that the parenting program offered by the KNFC was equivalent to anything provided by the Society, yet Ms. Willetts relied on the parents’ decision to withdraw from the Society’s course as a reason to move for an Order for Crown Wardship, without access. Moreover, Ms. L. informed Ms. Willetts that in 2010 she and Mr. M. had attended two, one day parenting workshops offered through Pathways for Children and Youth. Ms. L. identified these workshops as “Powerplay” and “Security Blanket”. Ms. L. further advised that they wished to engage in more parenting courses, and that they were currently taking a baby food making program.

[43] During Ms. Willetts testimony, she referred to Dr. Beckett’s 2003 parenting capacity assessment, with little, if any, attention paid to Dr. Cooper’s 2008.

[44] Ms. Willetts relied on the assessment completed by Dr. Beckett, dated August 15, 2003, which indicated that Ms. L. was reading at the Grade 3 level, spelling at the Grade 3 level and doing arithmetic at a Grade 4 level. However, Dr. Cooper refuted those findings in his assessment of 2008. Moreover, there was direct evidence from Ms. L. that she has completed Grade 12. Further, Ms. Willetts relied on Dr. Beckett’s assessment that Ms. L.’s profile is “characteristic of an individual who has underlying resentment and hostility and who has difficulty appropriately expressing negative emotions”… “This client is usually emotionally unstable”.

[45] In 2008, Dr. Cooper refutes this finding by concluding that there is a lack of animosity demonstrated by Ms. L. toward Society staff. Indeed, the overall impression that Ms. L. and Mr. M. gave throughout the trial, while they were seated at the table with their counsel and during their evidence, was one of composure and respect for the process. The same cannot be said for Ms. Willetts, who seemed unable to control herself while sitting at the counsel table. On more than one occasion, Ms. Willetts was asked to refrain from: 1) shaking her head in disbelief in response to evidence given by other witnesses; 2) telegraphing her displeasure in response to evidence unfavourable to the Society’s case; and 3) blurting out answers to questions posed to another witness. Stated bluntly, Ms. Willetts’ lack of composure and apparent lack of respect for the process stood in stark contrast to that exhibited by the parents, throughout the trial.

[46] Ms. Willetts relied further on Dr. Beckett’s conclusion that the degree of cognitive limitation assessed in relation to Ms. L. could substantially interfere with her ability to understand social rules and expectations, to acquire skills and to function effectively without considerable support. Dr. Beckett also concluded that, in addition to cognitive deficits, Ms. L. had difficulties managing her emotions, adding that “interpersonal problems and self centeredness are also present”. Ms. Willetts relied on Dr. Beckett’s conclusion that “the results of the psychological assessments raised serious concerns about the capacity of any one of these adults to provide adequate parenting, either singly or as part of a couple.”

[47] Issues related to the parents’ personal care and hygiene seemed to weigh heavily in Ms. Willetts’ assessment that they could not provide adequate care for the child. Indeed, on a number of occasions throughout the trial, witnesses from the Society were quite harsh in their assessment of these parents by saying that they “stunk”, that they consistently presented as disheveled, and that Mr. M. had rotten teeth. Firstly, in the face of these very personal and critical statements, not once did either of the parents react adversely to what was being said about them. Secondly, the parents presented themselves each day in Court appropriately dressed and more than adequately turned out in terms of their personal hygiene. Thirdly, while admittedly Mr. M. struggles with dental issues, his experience is not unusual for individuals who are caught up in a cycle of poverty. That said, being poor is not a crime, nor is it necessarily a basis for determining that a parent cannot adequately provide for a child’s care.

[48] In Dr. Cooper’s report, he confirms that his assessment of Mr. M. and Ms. L. revealed significantly different findings than that of the parenting capacity assessment of Dr. Beckett. Dr. Cooper reported that Ms. L.’s full-scale I.Q. was identified to be at the 8^th percentile and Mr. M. scores placed him at the 9^th percentile. Dr. Cooper concluded, therefore, that both parents were at the bottom extreme of the low average range, but that this range would not inherently compromise parental capacity. Dr. Cooper also noted that Ms. L. was suffering from post partum depression at the time she was assessed by Dr. Beckett. Dr. Cooper concluded that his test findings were consistent with this supposition.

[49] Dr. Cooper appreciated that the parents’ history was such as to “engender some understandable concern or caution”, however, it was his overarching impression that the positive aspects of these parents’ [then] present circumstances and functioning were such as to merit consideration of OM.’s return to their care. Dr. Cooper concluded that his “respectful recommendation is to the effect that this arrangement should, therefore, be implemented and supported.” Dr. Cooper further recommended that a “fairly lengthy period of supervision would be appropriate.”

[50] In response to Dr. Cooper’s report and without further explanation, Ms. Willetts simply advised that O.M. became a ward of the Crown, in August of 2010, notwithstanding the recommendations made by Dr. Cooper. The fact is, as the Court later learned, the Society refused to acknowledge and support the opinion provided by Dr. Cooper.

[51] Ms. Willetts took over responsibility for supervision of access commencing April 27, 2012. In contrast to the many positive observations made by previous Society staff, particularly Ms. Castell and Ms. Farrar, Ms. Willetts seemed less inclined to attribute anything positive to the parents’ efforts. On one occasion she observed that Mr. M. and Ms. L. presented with inadequate personal hygiene, wearing clothing that did not appear clean and noting that Mr. M. had body odour. Further, she observed interaction with the child to be very systematic and routine, consisting of frequent feeding changes, diaper changes, cuddling, sleeping and some verbal communication expressed by the parents to the child.

[52] On another occasion, Ms. Willetts observed that Ms. L. attempted to breast feed the child, but the child was not interested in breast feeding and began to demonstrate distress through attempting to sit up and kick her feet. After several attempts made by Ms. L. to breast feed the child, Mr. M. proceeded to play soothing music while rocking the child and walking with her. Ms. Willetts observed that the child simply fell asleep, without recognizing Mr. M.’s efforts. On numerous occasions during her evidence, Ms. Willetts asserted that the parents lacked the capacity to pick up on “cues” from the child. However, the example above served to undermine the conclusatory assertion made by Ms. Willetts.

[53] On another occasion, Ms. Willetts watched on as Ms. L. changed the child’s diaper and while changing her, the child was “whining”. Mr. M. responded by rattling keys above the child’s head to distract her, which allowed Ms. L. to successfully complete the diaper change. This was yet another example of the parents working co-operatively in assessing the child’s needs and responding appropriately.

[54] One of the more egregious allegations leveled against the parents was in relation to the child being fed hummus, without the new food being approved by Ms. Willetts. As the Court later learned, it was the lactation consultant, Ms. Gail Hayward, who fed the child some hummus at a breast feeding class. Ms. Hayward would routinely provide snacks for the women and the children who attended at her breast feeding classes. In the circumstances, it was remarkable how something as innocuous and bland as hummus could have taken on such importance in the Society’s criticism of the parents.

[55] Moreover, friction arose between Ms. Hayward and Ms. Willetts. Ms. Willetts advised that it was not her expectation that the foster parents should meet privately with the parents in order to pick up breast milk, other than what was provided at access visits. Ms. Willetts told Ms. Hayward that the foster family had been advised of this the previous week, and that Ms. L. would continue to provide as much breast milk as she could during access visits, but there would be no more meeting on weekends to exchange breast milk. Clearly, the Society was not supportive of Ms. L.’s intention to breast feed the child from the outset, as articulated in Ms. Hildebrand’s letter, dated September 11, 2011.

[56] During one particular access visit, Ms. L. asked Ms. Willetts if it would be possible for the parents to have a day visit with the child at Bon Echo Park, with staff from the KNFC and a staff member from MFS to provide supervision. Ms. Willetts said that she would need to discuss the request with her supervisor.

[57] During the same visit, Ms. L. and Mr. M. were asked by Ms. Willetts whether the foster parents could go away for a week’s vacation with the child, which would require the parents to forego an access visit during the week. Ms. L. and Mr. M. conceded that they would give up their access visits to allow the foster parents to go away with the child. That concession having been made, the parents reasonably expected that their request would be given equal consideration. On July 18, 2012, Ms. Willetts advised Ms. L. that the access requested involving the trip to Bon Echo Park had not been approved. The Society determined that the duration of the trip would be too long for the child, requiring approximately 3 hours of travel time to and from the park. However, as the Court later heard, the foster parents were allowed to take the child to the Pembroke area, which was considerably further away than Bon Echo Provincial Park.

[58] Ms. Willetts inquired regarding Ms. L.’s and Mr. M.’s use of drugs or alcohol. Mr. M. stated that neither he nor Ms. L. used drugs or alcohol, and that drugs or alcohol were not permitted in their home. This evidence stood alone, uncontradicted.

[59] Ms. Willetts inquired as to whether Mr. M. and Ms. L. had experienced any domestic violence in their relationship. Ms. L. informed her that in 2003 the couple engaged in some verbal domestic disputes when Ms. L. was struggling with post partum depression. However, Ms. L. did not experience any post partum depression after the birth of the child, adding that “[Mr. M.] was very helpful following the birth.”. Again, this evidence stood alone, uncontradicted.

[60] One of the more serious allegations made against Ms. L. was that she covered up an injury to the child at an access visit. The visit was being supervised by Ms. Lacey Maracle of MFS, who was observing the family through a window. Ms. Maracle saw Ms. L. trip and heard Mr. M. call out “watch it”. Ms. Maracle did not hear the child cry, however, after the visit, Ms. L. pointed out a mark on the child’s leg, advising that it had been there when she arrived for the visit. Ms. Maracle reported to Ms. Hildebrand that the mark looked like a footprint. As it turned out, the red mark had no relationship with the tripping incident whatsoever.

[61] The parenting course taken by the parents through KNFC was twelve weeks in duration and facilitated by Ms. Seguin, coordinator Aboriginal Community Action Program for children. To reiterate, when Mr. Brzezicki took the stand, he confirmed that the parenting program offered by KNFC was equivalent to anything offered by the Society. Ms. Willetts confirmed that she spoke to Ms. Seguin regarding the parenting course. Ms. Seguin advised that it was indeed a twelve week course in which one other couple participated along with the parents. Ms. Seguin confirmed the course consisted of the following modules: “taking care of the parent”, “passing on our values”, “attachment and connection”, “understanding the child”, and “hands on skills for child management”. Ms. Seguin also confirmed that Ms. L. and Mr. M. did very well in the parenting course, particularly Mr. M. who was very engaged, did his homework, took initiative, and participated in discussion groups.

[62] Notwithstanding the efforts made by the Respondent parents, the Society contended that it would be moving ahead with the Crown Wardship Application, with no access. At that point Ms. Hildebrand indicated that she had identified a potential resource family residing on the Mohawk Territory, who would present a permanency plan for the child, in the event the child was to become a ward of the Crown.

[63] Dr. Cooper’s report of July 16, 2008, although not included in the Society’s Notice of Intention to Produce evidence at trial, was appended as Exhibit “P” to Ms. Willetts’ Affidavit, sworn August 1, 2012. Certain portions of Dr. Cooper’s report read bear repeating here, specifically:

• “In the course of preparing this report, I have had an opportunity meet, on a number of occasions[^1], with these parents both individually and together. I have also conducted psychological testing with them.”
• “Quite frankly, I must allow, that when this matter was originally referred to the FCC and particularly having had an opportunity to review the file materials, I was of a mind to consider the process as representing something of a formality. The history is such that one is tempted, then, to suggest that it simply speaks for itself. The general impression one has from this review is of individuals whose parental functioning has been inadequate, and, at best, uncertain or borderline. Both Mr. M. and Ms. L. have had all of their previous children made Crown Wards. The most recent assessment conducted in 2003 provided an estimate of Ms. L.’s intellectual ability that placed her within the lowest one percentile of the population. Mr. M. learning capacity was estimated to be at the fourth percentile. Particularly in the former instance, this is suggestive of a level of functioning that is in itself likely to represent a significant impediment to effective parental functioning. In addition, the report prepared in 2003 makes reference to the parents being ‘unresponsive to supports’ and ‘likely to be unresponsive to professional help’. The report concludes by noting that the likelihood of change in this particular instance is ‘virtually non-existent’”. (Emphasis added)
• “I would also want to make it explicit at this point that I have always been, and I remain, a strong proponent of history taking, and I have taught and emphasized its value in the course of clinical teaching. It is not too far-fetched to suggest that the history in this particular instance, bluntly put, a rather damning one. As I have suggested already, the background here appears to be sufficiently clear-cut, that one was left in something of a quandary as to why an assessment might be considered necessary. It is more striking, therefore, to consider the history that one is presented with in juxtaposition with what one actually experiences in the course of meeting with these individuals over the past several months [^2]and in the context of information gathering from others who have been involved with them.” (Emphasis added)
• “In the first instance, it is one’s experience that these parents are fully engaged, co-operative and fully responsive. Ms. L. and Mr. M. attended at all of the appointments arranged with them, punctually and, in fact, they demonstrated some initiative in respect to arranging appointments when, for various reasons, these had not been scheduled. On balance, they were entirely compliant with the assessment process.”
• “What is perhaps even more significant, however, is their level of compliance and engagement with community resources. It is in my view, quite noteworthy, that Ms. L. took proactive measures to preclude, or if necessary to control, symptoms of post partum depression that she felt had been present when she gave birth in 2004.[^3] In her view, these symptoms had significantly impaired her ability to function at the time. In any event, one gathers that Ms. L. requested that her family doctor make referral to psychiatry for a follow up appointment, and this eventuated in her being followed by Dr. Oliver for some time post partum. It is also one’s understanding that Ms. L. took some initiative in respect to alerting the CAS of the fact of her pregnancy. She reportedly did so after taking some opportunity for consultation with a social worker at the Kingston General Hospital. As a consequence of these discussions, Ms. L. voluntarily elected to disclose her pregnancy to the Society.”
• “It is one’s understanding that although there were some discussions with the CAS beforehand, Ms. L. was not informed that O. was to be apprehended until she was actually in labour. Notwithstanding the apprehension, Ms. L. and Mr. M. appeared to have remained quite favourably disposed to the Society. The resentment and ‘fault finding’ that seems to characterize many of those individuals in similar circumstances appears to be signally lacking. The overarching impression that one is given is that they had been, and remained, co-operative, engaged and even respectful.”[^4]
• “This foregoing instance appears to reflect a degree of understanding and foresight that strikes one as being, frankly, rather surprising.[^5] Certainly, this takes one somewhat aback when one considers the results of previous psychological testing conducted by Dr. Beckett, or at least under her hospices in 2003. The results of this assessment identified Mr. M. as functioning at the fourth percentile. [Ms. L.] was identified as functioning in the first percentile. Dr. Beckett noted that this particular score placed [Ms. L.] within the lowest one percent of the population and within the mild range of developmental delay. Reassessment of these individuals at the present time reveals significantly different findings. Most strikingly in respect to [Ms. L.]. Thus, [Ms. L.]’s full-scale IQ is identified at the eighth percentile and Mr. M.’s score places him at the 9^th percentile. A number of additional comments, are, however, warranted. Although some variation of performance in respect to IQ might be expected, the discrepancy here [particularly in regard to Ms. L.] strikes one somewhat more unusual. She comments that she was, in fact, still suffering from post partum depression at the time that she was assessed by Dr. Beckett and the present test findings would seem to fit with this supposition. As noted above, the test findings presented by Dr. Beckett are such as to raise, in themselves, some serious questions as to [Ms. L.]’s parental capabilities. However, the present findings place both of these individuals essentially at the bottom extreme of the low average range and this level of functioning, is not, then, such as to inherently compromise parental capacity.”
• “Certainly, an estimate of intellectual functioning within the range identified by the present testing appears more consistent with the overall or adaptive functioning of these individuals then does the previous test findings”.
• “In summary, then, in recognizing that the history of this matter is such as to engender some understandable concern or caution, it is one’s overarching impression that the positive aspects of these parents present circumstances and functioning are such as to merit consideration of O.M.’s return to their care. My respectful recommendation is to the effect that this arrangement should be implemented and supported. [^6]In the latter regard, of course, it is my further recommendation that a fairly lengthy period of supervision of this arrangement would be appropriate, and I believe that Mr. M. and Ms. L. would be amenable in this respect.” (Emphasis added)

[64] Appended as exhibit “Q” to Ms. Willetts Affidavit sworn August 1, 2012, is a letter from the Mohawks of the Bay of Quinte to Dr. Rowe, Family Court Clinic, dated July 5, 2012. The authors of the letter, Brandy Hildebrand and Lacy Maracle, came to the following conclusions, subsequent to finding a permanent placement for the child on the Tyendinega Mohawk Territory specifically:

“The observations made by Mohawk Family Services have led to our conclusion that (Ms. L) and (Mr. M’s) interactions with the child illustrate clearly how a low functioning intellect and the inability to connect with the child’s needs can negatively affect their ability to parent this child. The most disturbing piece made in all of the observations, is the inability of [Ms. L.] and (Mr. M) to clearly read the signals that the child sends to them and the messages she expresses to how adults in her life meet her needs.”

[65] Neither Ms. Hildebrand nor Ms. Maracle possess the requisite qualifications to express opinions regarding a parent’s intellect or how a lack of intellect may or may not impact upon their ability to parent a child. Moreover, there is evidence based on observations made by Society workers that these parents, working co-operatively, do indeed read signals and cues coming from the child, and address her needs accordingly.

[66] Ms. Hildebrand and Ms. Maracle further, erroneously opine that: “It would be possible for this child to outgrow both the maturity and the intellect of Ms. L. and Mr. M., which can lead to a multitude of problems for the child”. Again, the authors have no clinical expertise to express opinions regarding the parents’ intellect, or what might happen if a child outgrows a parents’ maturity and intellect. This is a clear example of individuals straying far outside their area of expertise, which is dangerous for many reasons, not the least of which is the weight placed on their conclusions by the Society and Dr. Rowe.

[67] In contrast, Ms. L. took the witness stand and articulated her evidence in a clear, concise and forthright manner. The court heard that, notwithstanding a difficult childhood, Ms. L. eventually graduated from Grade 12 and is now fully employed at the Flying J truck service centre in Napanee. Moreover, Ms. L. has enjoyed success working in the high paced food services sector as a manager, both at a Subway Restaurant and a Burger King, where she was sometimes required to close more than one store on any given day. Moreover, Ms. L. could have remained at home while unemployed, which would not have adversely impacted on Mr. M.’s disability income. However, Ms. L. chooses to work, and for every dollar that she earns, there is a corresponding deduction from Mr. M.’s disability income.

[68] The Court also heard that Mr. M. has been receiving disability income benefits for some time. Nonetheless, Mr. M. is able to operate, to some extent, his own landscaping business. Similarly, Mr. M. took the witness stand and gave his evidence in a clear, concise and forthright manner. Additionally, there is evidence that both of these parents have participated in parenting programs with the KNFC and Pathways, with success. There is evidence that these parents pick up on cues from the child and respond accordingly. There is evidence that these parents possess the requisite mental capacity to parent the child successfully. For these reasons, the conclusions reached by Ms. Hildebrand and Ms. Maracle, absent the fact they are unqualified to express such opinions, are without foundation.

[69] Contrast the letter of July 5, 2012, jointly authored by Ms. Hildebrand and Ms. Maracle with Ms. Hildebrand’s letter of September 12, 2011. The first letter was written prior to the child being placed with the resource family that Ms. Hildebrand identified on the Tyendinaga Mohawk Territory. Recall in the earlier letter Ms. Hildebrand says: “It is our opinion that [Ms. L.] and [Mr. M.], with respect to [the child] have been cooperative with staff of all agencies involved. They have been punctual with their visits and have been appropriate with the child. Both [Ms. L.] and [Mr. M.] have been attentive to the feeding, diapering, social and emotional needs of the child. They have also provided her with cultural experiences such as smudging and ceremonies. They are well supported by the Katarokwi Friendship Centre and the staff in the various departments at the centre have made a great commitment to helping this couple to be successful in their attempt to parent the child. Most of the visitations have been completely or periodically unsupervised, even though they have been held at the agency or at their house. I have witnessed both [Ms. L.] and [Mr. M.] feed, diaper and comfort the child appropriately. They are supportive of her head when they pick her up and they hold her and walk her appropriately. Both [Ms. L.] and (Mr. M) appear to be attuned to the needs of [the child]. [The child] calms when they speak to her, responds to their voices and is soothed by their attempts to calm her when she is upset. (Ms. L) and (Mr. M) appear to work as a team, prompting each other and reminding each other of safety concerns like making sure [the child] was not placed too near the edge of the couch during a diaper change. (Mr. M) is also there to distract [the child] when she is upset about her diaper being changed. (Mr. M) and [Ms. L.] speak to [the child] in a quiet and loving voice and call each other mom and dad.” (Emphasis added)

[70] Ms. Hildebrand further advised: “Mohawk family services have not witnessed any behaviour required to support an application for Crown Wardship with no access for [the child]. It appears that Lennox and Addington Family and Children’s Services has made the application to the Court based on prior history with regards to their previous children. Mohawk Family Services does not support the application for Crown Wardship with no access.”

[71] Based on all of the evidence presented at trial by the representatives from MFC, in my view there was no reasonable, rational explanation given for their vacillating and contradictory opinions expressed in the letters of September 12, 2011 and July 5, 2012.

[72] A parenting capacity assessment was completed by Dr. Robert C. Rowe dated August 3, 2012. Under the “Sources of Information” section Dr. Rowe lists Dr. C. Coopers “Parenting Capacity Assessment”, dated July 16, 2008, which he read as part of the FCC file review. It is notable that Dr. Rowe accepted Dr. Cooper’s report as a parenting capacity assessment, which Mr. Brzezicki attempted to undermine when he took the witness stand. Dr. Rowe unequivocally accepted Dr. Cooper’s report for what it was, a parenting capacity assessment, produced for purposes of a settlement conference, at the material time.

[73] What is remarkable, however, is that although Dr. Rowe reviewed Dr. Cooper’s report, he does not refer to it in any meaningful way. Nowhere in his 2012 assessment does he reference Dr. Cooper’s findings. Curiously, Dr. Rowe does acknowledge the Hildebrand/Maracle letter dated July 5, 2012, which he refers to as a “Progress Summary”. Remarkably, while Dr. Rowe never mentions Dr. Coopers report again, he seems to adopt the language used by Hildebrand and Maracle, where he says:

“A persistent theme over the years has been the parents’ inability to apply the skills they learn on a daily basis. Further, they have not shown they are capable of adapting to novel circumstances, or more specifically, to modifying their approach to the needs of the child. Barriers to the potential effectiveness of future interventions include a lack of social supports, few community supports, lack of intrinsic motivation, literacy, superficiality and logistics.”

“Perhaps the most significant factor is cognitive impairment. This continues to be a risk factor for multiple reasons. Most importantly, the lack of ability to learn and adapt from previous experiences that have been repeatedly documented, despite numerous attempts to develop skills, both parents continue to have difficulty applying these skills in an independent fashion.”

[74] Firstly, the theme that the parents seem unable to pick up on the child’s “cues” is repeated often[^7], however, evidence to the contrary is found in the Society’s own materials, most notably the Affidavits of Ms. Castell and Ms. Farrar. Secondly, Dr. Rowe does not acknowledge receiving a copy of Ms. Hildebrand’s letter, dated September 12, 2011, wherein she attested to the very opposite, where she said: “Both [Ms. L.] and [Mr. M] had been attentive to the feeding, diapering, social and emotional needs of [the child]…They are well supported by the Katarokwi Native Friendship Centre and the staff and the various department at the centre have made a great commitment to making this couple be successful in their attempt to parent [the child]….I have witnessed both [Ms. L.] and [Mr. M.] feed, diaper and comfort [the child] appropriately… Both [Ms. L.] and [Mr. M.] appear to be attuned to the needs of [the child]. The child calms when they speak to her, responds to their voices and is soothed by their attempts to calm her when she is upset. [Ms. L.] and [Mr. M.] appear to work as a team, prompting each other and reminding each other of safety concerns like making sure that [the child] is not placed near the edge of the couch during a diaper change. [Mr. M.] is also there to distract [the child] when she is upset about her diaper being changed. [Mr. M.] and [Ms. L.] speak to [the child] in a quiet and loving voice and call each other mom and dad.” (Emphasis added)

[75] Accordingly, there is no evidence of a lack of social supports, few community supports, lack of intrinsic motivation, literacy, superficiality and logistics. Rather, there is evidence that the parents are well supported by the KFNC and the staff and the various departments of the centre have made a great commitment to helping this couple be successful in their attempt to parent the child. Moreover, there is evidence that the parents work together to feed, diaper and comfort the child appropriately. Further, there is evidence that the parents are attuned to the needs of the child. They understand what is required to calm her when she is upset. The child is soothed by their attempts to calm her. The parents prompt each other and remind each other of safety concerns.

[76] More importantly, what Dr. Rowe did confirm is that:

• Ms. L. and Mr. M. have been in a common law relationship for almost ten years, which is a material change of circumstances in respect of their past attempts to parent children;[^8]
• There have been no references to violent or chaotic households since they have been together. Moreover, no deliberate physical or sexual harm has ever been alleged to be perpetrated by them, on their children;
• At no time were they acting inappropriately with their daughter; and
• He spent approximately an hour on one occasions at Barrett House in preparation to complete this report, which consisted of approximately 30 minutes that he observed the parents engage with the child. This stands in marked contrast to the many occasions that Dr. Cooper met with the parents in 2008, over a number of months; and
• Finally, it is notable that Dr. Rowe did not recommend Crown Wardship, with no access. Rather, Dr. Rowe recommended:

“Should the Court see fit to return the child to her parents care, it is recommended they pursue a more comprehensive intervention approach, where services are offered and targeting multiple need areas from both parents as well as the child and the family unit as a whole. Specifically, the parents need to continue to develop an adequate support system. They have limited parental support and few positive parenting models to draw upon[^9]. Participation in parenting groups or facilitated children’s playgroups expose them to more adept parents and proper parenting skills. It is also recommended that both parents retake parenting courses, but that this course would be adapted and presented in a more effective manner.”… “It will also be important to continually have the child monitored by appropriate service providers. She should be considered part of an “at-risk population”. The provision of in-home services can be offered so that she always has a stimulating and enriched environment. Family counseling is recommended.” (Emphasis added).

SUMMARY

[77] Absent a comprehensive and lengthy supervision Order, I would agree with the Society that there is a risk that the child would likely suffer harm of the kind described in s. 37(2)(g) of the CFSA. Based on the parents’ past history of child protection concerns, it was not unreasonable for the Society to take this position during the initial stages of its investigation. For that reason, there is a finding that the child is in need of protection pursuant to s. 37(2)(g) of the CFSA. However, at that juncture there is a marked departure in the Court’s analysis of the evidence and the law versus that of the Society.

[78] Ms. McColl was wrong to conclude, as she did, that Ms. L. had not sought out and obtained appropriate prenatal care, as the basis for her decision to apprehend the child and pursue an Order for Crown Wardship, with no access.

[79] Based on Ms. McColl’s decision, the Society’s view thereafter was monofocal and precipitous. To that end, Ms. McColl’s statement to Mr. Brzezicki is telling: That if the parents had remained living in the jurisdiction of the Kingston CAS, her agency would proceed to apply for Crown Wardship, without access, by means of Summary Judgment.

[80] Moreover, Mr. Baroche’s assertion at the case conference held on November 9, 2011, that any attempt by the parents to contest the matter would, in effect, be futile, is equally telling.

[81] Ms. Hildebrand was correct to conclude, as she did initially, that the Society’s Application for Crown Wardship, with no access, was essentially based on the parents’ prior history alone, without regard to material changes in their particular circumstances.

[82] There is evidence that the parents, working co-operatively, do indeed read signals and cues coming from the child, and address her needs accordingly.

[83] There is insufficient or no evidence to support the Society’s contention that the child may possibly outgrow both the maturity and the intellect of Ms. L. and Mr. M.

[84] There is evidence that the parents possess the requisite mental capacity to parent the child successfully. To that end, Dr. Cooper’s assessment is to be preferred. Firstly, it is more current than the 2003 assessment. Secondly, Dr. Rowe’s testing in respect of the parents was inconclusive. Thirdly, Dr. Rowe’s assessment was based on a one time, thirty minute exposure to the parents, versus Dr. Cooper’s assessment than ran over a number of months and multiple office attendances. Fourthly, Dr. Rowe’s assessment was improperly founded on unqualified opinions expressed by Ms. Hildebrand and Ms. Maracle. Fifthly, absent the fact that they were unqualified to express the opinion that they did, there is evidence to the contrary from Society workers that the parents possess the requisite mental capacity, which results in them picking up on cues from the child and responding accordingly.

[85] Contrary to Dr. Rowe’s assessment, there is evidence that the parents have appropriate social supports and appropriate community supports. They possess intrinsic motivation, literacy and logistics. They are well supported by the KFNC and the staff who have made a great commitment to helping them be successful in their efforts to parent the child.

[86] Ms. L. and Mr. M. have been in a common law relationship for ten years, which is a significant material change in their circumstances.

[87] Finally, in all of the circumstances, Dr. Rowe did not recommend Crown Wardship, with no access. Rather, Dr. Rowe recommended, in essence, that greater supports be provided to this family to ensure that the child grows up in a stimulating environment. Based on Dr. Cooper’s assessment, he would not disagree with that finding.

[88] For all of the reasons set out above, the following order shall issue:

HELD

[89] The child is in need of protection pursuant to s. 37(2)(g) of the Child and Family Services Act, ("CFSA").

[90] The child shall be placed in the care and custody of the parents, B.L. and A.M. ("the parents"), subject to the supervision of the Family and Children's Services of Frontenac, Lennox and Addington ("The Society") for a period of 12 months, pursuant to ss. 57(1)(3) and 37(3)(4) of the CFSA, as the least intrusive Order that is in the child's interests.

[91] Commencing November 7, 2012 until November 11, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society’s discretion, from 12:00 noon until 4:00 p.m. (4 hour minimum), or between such other times as arranged by the parties.

[92] Commencing November 12, 2012 until November 18, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society’s discretion, from 10:00 a.m. until 4:00 p.m. (6 hour minimum), or between such other times as arranged by the parties.

[93] Commencing November 19, 2012, until November 30, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society’s discretion , from 9:00 a.m. until 5:00 p.m. (8 hour minimum), or between such other times as arranged by the parties.

[94] Commencing December 1, 2012, until December 11, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society's discretion, from 9:00 a.m. until 7:00 p.m. (10 hour minimum), or between such other times as arranged by the parties.

[95] On December 12, 2012, until December 13, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society's discretion, for an overnight visit from 5:00 p.m. on the 12^th until 10:00 a.m. on the 13^th, or between such other times as arranged by the parties.

[96] Commencing December 14, 2012, until December 18^th, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society's discretion, from 9:00 a.m. until 7:00 p.m. (minimum 10 hours), or between such other times as arranged by the parties.

[97] On December 19, 2012 until December 20, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society's discretion, for a minimum twenty four hour visit from 9:00 a.m. to 9:00 a.m., or between such other times as arranged by the parties.

[98] Commencing December 21, 2012, until December 23, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society's discretion, from 5:00 p.m., on the 21^st until 9:00 a.m. on the 23^rd, or between such other times as arranged by the parties.

[99] Commencing December 24, 2012, until December 27, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society's discretion, from 9:00 a.m. on the 24^th until 9:00 a.m. on the 27^th, or between such other times as arranged by the parties.

[100] Commencing December 28, 2012 until December 30, 2012, the child shall be in the care and custody of the parents, in their home, subject to supervision at the Society’s discretion, from 9:00 a.m. on the 28^th until 9:00 a.m. on the 30^th, or between such other times as arranged by the parties.

[101] Commencing December 31, 2012, at 9:00 a.m. the child shall be in the care and custody of the parents under the supervision of the Society for the duration of the 12 month supervision order or pending further order of this Court.

[102] Both parents shall allow the Society worker scheduled and unscheduled access to their home and the child.

[103] Both parents shall sign any and all releases of information forms reasonably necessary to monitor the terms of the supervision order.

[104] Both parents shall ensure that the Society is provided with an up-to-date address and telephone number where they can be reached at all times and shall notify the Society at least 14 days prior to any change of address or telephone number.

[105] Both parents shall ensure that the child attends any and all medical appointments and shall ensure that the child is scheduled for a medical check-up every 90 days or at such other times as recommended by the Society.

[106] The parents shall seek Society approval confirmed in writing for alternate child care arrangements, if neither parent is available to care for the child.

[107] Within 30 days, the parents shall register and take part in any parenting programs as may be recommended by and through the Society, which the parents shall complete in addition to any other parenting courses that may be available to them through Katarokwi Native Friendship Centre.

January 25, 2013 ______________________________

Abrams, J.

Lennox and Addington v. B.L. and A.M. 2013 ONSC642

COURT FILE NO.: 333/11

DATE HEARD: September 27, 2012

DATE: January 25, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Family and Children’s Services of Frontenac, Lennox and Addington Applicant

• and –

B.L. and A.M. Respondents

BEFORE: JUSTICE BRIAN W. ABRAMS

HEARD: September 27, 2012

REASONS FOR DECISION

Abrams J.

Released: January 25, 2013

[^1]: Consider that Dr. Rowe met with the parents on one occasion, for no more than 30 minutes in direct contact with them. [^2]: Again, Dr. Rowe met with the parents on one occasion. [^3]: Nowhere in Ms. Willetts testimony or in respect of the Society’s case is any credit given to Ms. L. for this material change in circumstance. [^4]: The very same conclusion the Court came to after observing them throughout the trial. [^5]: Which is in keeping with the insight the parents had with respect to the adoption of O.M., who had bonded with his foster parents after four years in their care. In those, no doubt very difficult, circumstances the parents acceded to what appeared to them to be in O.M.’s best interests. Query how the parents can be labelled by the Society as lacking insight or foresight? [^6]: There was no evidence proffered to support the Society’s decision to reject Dr. Cooper’s assessment. Therefore, the reasonable inference is that Dr. Cooper’s updated view of the parents simply did not fit within the Society’s monofocal view of this case. The Society preferred to view the parents’ circumstances as static. [^7]: Indeed, it became an unsubstantiated “mantra” throughout the Society’s case. [^8]: Nowhere in the Society’s materials is this material change in circumstances acknowledged. [^9]: This conclusion is unsupported by the evidence.