Catholic Children’s Aid Society v. J.-F.G. and N.S., 2013 ONSC 6434

COURT FILE NO.: C-1101/09

DATE: 2013-11-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society

Applicant

– and –

J.-F.G. and N.S.

Respondents

Ms. Toni Hammond-Grant, for the Applicant

Self-Represented

HEARD: June 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 26, 27, 28, 2013

the honourable mr. justice r. j. mazza

Introduction

[1] This is an application for Crown wardship with no access commenced by the Catholic Children’s Aid Society with respect to three children, A.J.S.-G., born […], 2007; R.J.S.-G., born […], 2008; and A.S.B., born […], 2011. The parents of the children as defined under the Child and Family Services Act are N.S., mother, and J.-F.G., father. N.S. chose not to participate in the trial. She was incarcerated at the time of trial and had been hospitalized because of what appeared to be mental health issues. Both A.J.S.-G. and R.J.S.-G. were apprehended on June 10, 2009 and remain in care and the child, A.S.B., has remained in care since birth. On March 5, 2010 Justice Lafrenière ordered that access be suspended with respect to the child, A.J.S.-G.

[2] The trial took place over some thirteen days and included the testimony of approximately twenty-five witnesses. Inasmuch as many of the observations made by the witnesses were similar, and although I have considered all of the evidence, I intend to focus on, what I consider to be, the most salient content of the evidence. J.-F.G. chose to represent himself and agreed that the trial proceed in English although the society consented to translate all relevant documentation into French. J.-F.G. did have access to a French interpreter during each day of trial.

Testimony of Ioana Carmazan

[3] Ms. Ioana Carmazan has been employed by the Catholic Children’s Aid Society as a protection worker and family services worker since 2004. She has been involved with the family, who moved from Quebec to Hamilton, from August 2008, up to and including August 2011.

[4] It was on or about April 2, 2007 that N.S. contacted the society indicating she was pregnant with her second child, R.J.S.-G., wanting to return to the Hamilton area. She also advised that she had been diagnosed with post-traumatic stress disorder but was taking medication and seeing a psychiatrist regularly. On or about December 6, 2007 N.S. found herself in the custody of the Halton Police.

[5] She then returned to Quebec and then back to Hamilton on or about July 1, 2008 when she contacted the society indicating her return to the Hamilton area with J.-F.G. and her two children at the time, A.J.S.-G. and R.J.S.-G. Ms. Carmazan recalls attending their home on several occasions and pointing out safety concerns such as exposed electrical cords, cigarette butts and ashes. She described the family’s living conditions as lacking cleanliness with dishes not being done; with foul odour of feces; and with the smell of smoke. The tables were sticky; there were garbage bags on the front and back yard; toilets were clogged; and there were doors off the hinges.

[6] Ms. Carmazan also became concerned over the parents’ care for the children. After speaking with the nurse practioner, Ms. Carter-Harrowsmith by telephone, she was advised that R.J.S.-G. had missed two months immunizations and A.J.S.-G. had suffered from a yeast infection on his penis. Although the couple was given oral and topical antibiotics for the child and asked to bring him back on April 20, 2009, they did not follow through with the appointment. As well, A.J.S.-G. still needed fifteen and eighteen month’s immunization. He was twenty months old at the time.

[7] Although it was pointed out to N.S. on or about March 31, 2009 that the children had head lice and was given a prescription, when Ms. Carmazan attended for her visit on May 22, 2009, the lice problem had not been treated as N.S. advised she did not have the money to pay for the treatment.

[8] It was on June 10, 2009 that Ms. Carmazan decided to have the children apprehended and, subsequently, attended the home with a warrant. The apprehension was based on immediate as well as culminating concerns, specifically, the family appeared to be in a chronic crisis with respect to their finances; they relied on the society and other community resources for food as well as clothing and to assist on paying unpaid bills; the children’s immunizations were still outstanding; and the parents had lacked comprehension of safety concerns in the home which would place the children at risk. There were such outstanding deficiencies as exposed electrical cords, garbage and debris and unsecure windows. The children’s cribs and blankets were filthy and could cause bacterial infection.

[9] On a personal level, N.S., who admitted to having post-traumatic stress disorder and O.C.D., did not follow through with appointments to attend to these medical issues; having come from Quebec the parties had not secured all their identification which prevented them from accessing services and securing employment; and the father’s hair strand tests were positive for cocaine and benzoylacgonine.

[10] Subsequent to the apprehension on June 2009, access visits as of October 15, 2009 were expanded from 1 ½ hours to 2 hours; and on or about October 26, 2009, it was decided that one of the access visits could be moved into the family home provided that certain safety measures were met. However, as of November 17, 2009, after Ms. Carmazan paid a visit and after meeting with several workers at the society, the parents were told that a home visit was still not possible because safety hazards, such as exposed electrical cords, for example, remained unaddressed.

[11] On or about September 24, 2010 Ms. Carmazan learned from J.-F.G. that N.S. had been smoking crack and prostituting herself. What was most concerning to Ms. Carmazan was that J.-F.G. knew that N.S. had been consuming cocaine during her pregnancy and, therefore, for some period of time, but he did not immediately share this information with Ms. Carmazan because of his concern of losing the children.

[12] On March 14, 2011, almost two years after apprehension, Ms. Carmazan arrived at the home once again finding it to be in a general state of uncleanliness. She noticed cigarette butts on the floor, no sheets on the mattress; dog excrement on the balcony; and garbage in various locations. There was also strong body odour, the floor was dirty and although J.-F.G. had indicated to Ms. Carmazan that he had mopped the floor at 1:00 p.m., her visit took place between the hours of 2:00 p.m. and 3:00 p.m. on that same date. All in all, Ms. Carmazan testified that there continued to be much chaos; the family was in constant crisis; there were very short periods of stability but there was no lasting change. Moreover, J.-F.G., prior to his separation from N.S., appeared to have no independent decision-making ability; and he required constant direction by either N.S. while the parties were together, a passive role which he continued to exhibit with his new partner, T.M. In Ms. Carmazan’s opinion, he had no ability to stand up for himself and he seemed to do things that made them happy.

Testimony of Ms. Terry Southern

[13] Ms. Terry Southern has been a family resource worker for the society since 1999 but was a parent support worker for J.-F.G. and N.S. She testified on her scheduled visit to the home on June 3, 2009 about which J.-F.G. and N.S. were given prior notice, she first noticed safety concerns such as a fire alarm being disconnected; a cigarette lighter being within reach of the children; A.J.S.-G. going into the garbage with the parents’ permission; dirty dishes in the kitchen; a knife sticking in the dishes with the blade exposed; broken glass on the floor at the front of the house which either J.-F.G. or N.S. refused to clean because a neighbour had broken a window.

[14] She also noticed that the home was dirty; she noticed clutter and garbage everywhere; she noticed feces on the rails of the crib and vomit in the crib in R.J.S.-G.’s room. She noticed A.J.S.-G. was sleeping in the playpen with no mattress. She noticed that both children as well as J.-F.G. and N.S had poor hygiene. Although the parents were home at the time and knew she was coming for a visit, the home was, nevertheless, in shambles on her arrival.

[15] She found J.-F.G. to be quite passive, very quiet and wringing his hands. He appeared nervous and always needing prompting from N.S. On the second visit on June 9, 2009, she described conditions of the house as “deplorable.” Again, she noticed feces on the rails of A.J.-S.G.’s crib and the children’s bedrooms were in shambles. She was also concerned about responses to her questions with respect to the children’s care. J.-F.G., for example, did not know when the children slept and presumed they slept when they were tired. Both parents would sometimes send the children to bed with a bottle and when the children woke earlier than expected, they would leave them in the crib for a few more hours rather than attend to them immediately. Once Ms. Southern reported her observations, the children were apprehended on the day of her second visit.

[16] On June 18, her first visit after the apprehension, she once again found J.-F.G. to be very passive and requiring much prompting. She always found N.S. to have taken a leadership role and J.-F.G. and to have taken the passive role. Problems which she pointed out to the parents did not appear to be rectified. For example, as late as November 19, 2009, there was still a smell of urine in the home and still clutter in the home. She also noted that N.S. and J.-F.G. did not take advantage of the resources with which she provided them. She noticed that even if they did make contact they never implemented the lessons which they had been taught nor were they able to consistently apply the lessons that they did learn. She found they were not able to set limits for the children and did not have age appropriate expectations. She even noticed at one point that when the children arrived for a visit at the society offices, they argued over whose turn it was to greet the children at the car.

[17] As for preparation for the visits, she found they did not bring toys, food or wipes. She noticed that A.J.S.-G. liked to search through garbage cans to look for food without the parents’ intervention. In her opinion, the parents demonstrated couch parenting and after her visits in which she was directly involved up to March 2010, she noted no significant change. While continuing to visit the home itself, she noticed the laundry was piling up and there was about twenty bags of garbage left on the back porch.

Testimony of Ms. Veronica Vincze

[18] Ms. Veronica Vincze, another employee of the Catholic Children’s Aid Society, was a family resource worker and began monitoring visits at the offices beginning July 27, 2009. She found that J.-F.G. was, once again, passive and was dominated by N.S. who appeared to be controlling and, at times, becoming impatient with J.-F.G. She noticed that J.-F.G. was having difficulty coping with simultaneous visits with both R.J.S.-G. and A.S.B. She also noticed that although he was affectionate toward the children, he appeared to lack understanding of their needs; he lacked planning; he did not initiate activities; did not follow through with any of her recommendations and was minimally engaging. She also noticed that he would resist her recommendations such as having a family dinner with both children recalling that he was only able to feed A.S.B. leaving R.J.S.-G. to feed himself. As well, he was so regimented to the time schedule for meals given to him by the foster mother that rather than adjust to R.J.S.-G.’s need to eat earlier than what was suggested, he chose not to feed him until the appointed time. He also seemed to have difficulty with the smallest of tasks such as not being able to take R.J.S.-G. to the washroom without looking for assistance from Ms. Vincze to take care of A.S.B.

Testimony of Ms. Cobi Gilmour

[19] Ms. Cobi Gilmour, a child services worker, has been employed by the society since August 10, 1998 and was assigned to this file from June 10, 2009 to July 16, 2010. Ms. Gilmour had attended the home on the date of the apprehension and observed the home to be in complete state of chaos. It was full of stench; there were exposed areas of wet and dry feces and, more notably, the child, A.J.S.-G. was covered in feces and wearing a soiled diaper which had been attached to him with duct tape. She observed him to be quite frightened and screaming on his way to the foster home. It was only with the assistance of the foster mother after a significant period of time, that he was able to calm down.

[20] Subsequent to a referral to CAAP and the order of Justice Lafrenière suspending access to A.J.S.-G., Ms. Gilmour noted that the child had made vast improvements in the foster home and was now back to normal. As well, R.J.S.-G. seemed to be doing well in foster care and, in her opinion, both children had met their levels of development for their age.

Testimony of Ms. Sandra Dickerson

[21] Ms. Sandra Dickerson, a family resource worker, began visits with the family on or about March of 2010. In general, the parents appeared to be quite passive during interaction with R.J.S.-G. showing no emotion, very little excitement and providing R.J.S.-G. with what she considered to be inappropriate books and toys until she instructed them otherwise. She observed the living quarters to include defective smoke detectors, mice, an unclean dog, feces on the porch, and a great deal of clutter with clothes strewn everywhere. As well, the parents also appeared to be unclean. She recalls an incident during which N.S. used a mop to clean dog feces and then put the mop in the sink. She also found the kitchen table to be unappetizing and very dirty and had to instruct the parents to cover the grungy looking table with a tablecloth. She continued to notice during her visits on March 25 and April 1, 2010 that the backyard was unusable because it was cluttered with dog feces. Upon leaving one of the visits, she noticed that the dog had defecated in the closet and urinated on the tiles. Moreover, although N.S. had indicated she had swept the front porch that week, she noted that, without explanation from either N.S. or J.-F.G., that the bottom landing and the steps were littered with garbage.

Testimony of Erica Gaylor

[22] Ms. Erica Gaylor took the stand. She is a student at the University of Guelph but has a B.S.W. from Waterloo University. She is a family services worker and has been employed in that capacity since November 8, 2010. She stated that subsequent to J.-F.G.’s separation from N.S. he was charged with assault against N.S. and was released on a surety, one of the conditions being that he had to live with his surety, Mr. Malcolm Jamieson. However, J.-F.G. advised Ms. Gaylor that he was moving in with his new girlfriend, T.M. which was contrary to the terms of his bail conditions. He told her, however, that he was attempting to have those bail conditions changed. It was around this time that Ms. Gaylor was informed by J.-F.G. of what he thought might be symptoms of ADHD. Ms. Gaylor provided him with some direction but testified that he did not follow through with her recommended method of obtaining a quick consult through St. Joseph’s Hospital with a psychiatrist to confirm the presence or non-existence of ADHD.

[23] Concerned about the possibility of the children being removed from his care, J.-F.G., during several discussions with Ms. Gaylor indicated to her that he wanted one, N.P., to be considered as a caregiver. However, in her investigation of N.P.’s background, she discovered that N.P. had been seeing a psychiatrist and had been involved with the Quebec Catholic Children’s Aid Society and upon N.P.’s refusal to allow Ms. Gaylor to seek information from N.P.’s psychiatrist, N.P. was not approved as a caregiver.

[24] On January 24, 2012 having obtained employment with a recycling plant, J.-F.G. advised Ms. Gaylor that he needed to change his access times because of his job commitments. Subsequently he was able to have access to A.S.B. and R.J.S.-G. on Mondays from 5:00 p.m. to 6:30 p.m. and with R.J.S.-G. on Thursdays only from 4:30 p.m. to 6:00 p.m.

[25] On February 3, 2012, Ms. Gaylor being aware that J.-F.G. was residing with T.M. contrary to his bail conditions, advised him that it was impossible for him to be properly assessed until he had obtained stable housing.

Testimony of Ms. Deborah Parisi

[26] Ms. Deborah Parisi, a children’s service worker, met with A.J.S.-G. and the foster mother on May 2, 2011. In her opinion, A.J.SJ.-G. appeared to be settling down under the foster mother’s care. She described him as having good self-care skills; developing a sense of humour; showing decreased aggression towards other children; and being very affectionate with his foster family.

[27] Ms. Parisi described R.J.S.-G. as an adorable two and a half year old boy who, having resided in the same foster home since coming in to care, appeared healthy and was meeting his developmental milestones. She observed him to be a happy, content boy who loved attention and enjoyed playing with his toys and looking at books. She also noted that both foster parents were open to facilitating visits between R.J.S.-G. and his brother, A.J.S.-G. However, because A.J.S.-G. experienced some anxiety when told he was visiting his brother in his brother’s foster home, the visit was cancelled.

[28] On or about April 12, 2012 she met with J.-F.G. who asked about A.J.S.-G.’s speech development and about his attendance at school but neither parent took any initiative to ask about the children’s overall well being.

[29] She stated that R.J.S.-G.’s visits with his mother ended on June 2011 at her request but visits with his father continued.

Testimony of Ms. Holly Thompson

[30] Ms. Holly Thompson is a worker who has been observing visits between J.-F.G., R.J.S.-G. and A.S.B. since February 9, 2012 to the present time. She stated that R.J.S.-G. generally enjoyed being with his father. J.-F.G. usually fed him by taking him to the mall and sometimes to the park where she had also seen him interact appropriate with the parents of other children. Her one criticism was that since his father did not bring any food contrary to her recommendation, the majority of the visit time was used for feeding R.J.S.-G. which meant that the time for play was significantly reduced. When asked about his parenting ability, she found him to be very affectionate and noticed that there was a father-son relationship with R.J.S.-G. who always referred to him as “dad or daddy.”

[31] During cross-examination, she agreed that there was a high level of affection between R.J.S.-G. and his father. As for her criticism that he did not bring any toys with him for the visit, she agreed it would have been awkward for him to carry toys after work when he had to take a bus to reach the visitation site. She did agree that she may have heard R.J.S.-G. on one occasion say that he wanted to go home with his dad when he was being taken to the car to be returned to the foster home.

Testimony of Ms. Kayla Winters

[32] Kayla Winters is a child services worker who first became involved with the family on July 23, 2012 but spoke about her most recent visit with A.J.S.-G. on June 4, 2013. On that day she requested that A.J.S.-G. provide her with a picture of himself. Although initially he was enthusiastic, he ultimately refused, and left the room upset when he learned that it was a picture for his father. She also recalls him asking why he did not have the same last name as the foster family and on another occasion that A.J.S.-G. became upset when he learned that Christmas gifts he received were from his biological parents.

[33] Ms. Winters’ first visit with R.J.S.-G. was on May 28, 2013. She learned that his performance at school had been somewhat erratic after he began visits with his father which commenced on or about March 25, 2013. There were incidents of him sticking out his tongue, giving the teacher a fist, hitting a boy, and punching and kicking his foster father. However, those behaviours subsided in a few weeks and R.J.S.-G. even asked if he could visit with his father.

[34] In Ms. Winters’ opinion, R.J.S.-G. had a very outgoing personality. She also found A.S.B., who was twenty-one months of age to be doing well and to have met all her developmental milestones. Sibling visits also seemed to have gone well.

Testimony of Mr. Malcolm Jamieson

[35] Mr. Malcolm Jamieson is a minister and he first met J.-F.G. and N.S. through his church, Jesus Christ of the Latter Day Saints. They developed a friendship over the next five years and, ultimately, when J.-F.G. was faced with criminal charges, he agreed to be his surety. Mr. Jamieson, who resides in Dundas, nevertheless, admitted that although one of J.-F.G.’s conditions of bail was to reside with Mr. Jamieson at his home he permitted J.-F.G. to reside in Hamilton with T.M. although he realized that it was a breach of J.-F.G.’s bail conditions.

[36] Mr. Jamieson explained that since J.-F.G. was working for a company in Hamilton to at least until 11:00 p.m. each night, he thought it was more practical and easier for J.-F.G. to stay with his partner, T.M., rather than make the long trip home, on the understanding that J.-F.G. would contact him daily.

[37] In addressing J.-F.G.’s parenting skills, he observed A.J.S.-G. and R.J.S.-G. to be the “happiest children” he had seen and that, in his opinion, there appeared to be no problem with J.-F.G. raising the children in what he considered to be a clean home. He did admit that the church supplied the family with food and appliances and food on a bi-weekly basis.

Testimony of M.Z. (Foster Mother)

[38] M.Z. testified as the foster mother of A.J.S.-G. whom she first met on June 10, 2009 immediately after apprehension. He appeared to be very afraid and upon the first meeting she noticed that his diaper had been duct taped to his body. Consequently, she had to remove it very gradually because it was sticking to his skin and causing him pain. She found him to be a small child, appeared to be very sad and very afraid. She also noticed upon removal of the duct tape that the child emitted a strong odour of feces and required several bathings before the odour completely dissipated.

[39] She testified that for a period of time he was afraid to come out of the crib because it appeared to be a safe place. She stated that for about the first four to five months he was not sleeping well and often awoke in the middle of the night. Most notably, he had such a voracious appetite that he would not take the time to chew his food - a function which she needed to teach him. Also, for a period of time he was so obsessed with food that he would refuse to come out of his high chair, choosing instead to focus solely on eating. However, after several months his need for food dissipated.

[40] She noticed that when preparing him for visits with his parents which took place at the society offices, she had to change him twice because he had explosive diarrhea. His behaviour also became erratic as he attempted to bite her and pull her hair. She also noticed that when she brought him to the car, he showed his resistance to attend the visit by making his body rigid. And yet it had been her experience that most children were excited to go on visits with their parents. She also noticed that when he came back from the visits, he was dirty, angry and the diarrhea would return; his sleep would be interrupted; he would wake up screaming; and his blank stare which she thought had improved, returned.

[41] In 2010 when the visits were suspended, M.Z. noticed positive dramatic changes. A.J.S.-G. now wanted to spend some time outside; he lost stiffness to his body; there was not much diarrhea and he appeared calmer. She also noticed that when A.J.S.-G. and R.J.S.-G. visited, they interacted well with each other. She did notice that he was excited about visiting his brother provided that the visits did not take place away from his foster home. Otherwise, he would suffer anxiety and put up resistance to the visits. Generally speaking, she noticed that any time she referred to his biological parents, he became upset and wanted reassurance that M.Z. was his mother.

Testimony of P.B. (Foster Father)

[42] P.B. is the foster parent of R.J.S.-G. and A.S.B. He described R.J.S.-G., who first came in to care at the age of six months, as being very healthy. The child appeared to have a good disposition, took food very well and adapted to their home environment within three days. A.S.B. who was younger seemed to be developing within a normal range of children her age.

[43] He did admit that as R.J.S.-G. got older he became fussier after visits with his father, sometimes coming back hungry, occasionally smelling of smoke and, on occasion, his sleep would be disrupted.

[44] He testified that although R.S.J.S.-G. did not appear to be excited about visiting his father, he would ask P.B. the date of the next visit but he was always very excited about sibling visits and would return “happy, tired and exhausted.”

[45] On cross-examination, he admitted that R.J.S.-G. had no negative reaction visiting with his father and referred to J.-F.G. as his dad. He also admitted that sometimes A.S.B. and R.J.S.-G. came back wearing new clothing.

Testimony of Ms. Aghayeva

[46] Ms. Aghayeva, a public health nurse, was briefly involved with the family to provide guidance related to growth development and age appropriate activities for the children as well as to assure that immunization injections were up to date. Although she was able to achieve the latter, those visits were terminated on or about May of 2010 as a result of criminal charges being brought against N.S.

Testimony of Ms. Shelley Apros

[47] Ms. Shelley Apros, an employee of Hamilton Health Sciences, is a psychometrist who performed psychometric testing on A.J.S.-G. subsequent to his apprehension. She found him to have average ability in expressing himself, having appropriate math and reasoning skills, and to be able to name basic colours and numbers. He was also age appropriate for verbal and non-verbal memory and demonstrated an appropriate ability to self regulate. However, he was below average in problem-solving and had some difficulty in copying shapes.

[48] As well, he was mostly age appropriate with respect to his life skills including his social and emotional functioning but although he was sleeping well, he did exhibit some tendencies such as diarrhea, vomiting inexplicably and required things to be in place and organized for him. She also found him not to be able to cope well with change which provoked panic, quick mood changes and more than average whining for a child his age. He appeared to be upset and sometimes fearful when separated from his foster parents.

Testimony of Ms. Peggy Carter-Harrowsmith

[49] Ms. Peggy Carter-Harrowsmith was the primary health care nurse practitioner for N.S. and J.-F.G. She described N.S. as usually chaotic, always in a crisis and found J.-F.G. to be quite passive. She found the relationship to be filled with issues such as a lack of money, fighting with neighbours and landlord issues.

Testimony of Dr. Shobha Wahi

[50] Dr. Shobha Wahi is a private practitioner in the field of paediatrics and first saw A.J.S.-G. at the age of twenty nine months some nine months after he was apprehended. Although at the beginning, he appeared to be in the low third percentile, his height and weight improved significantly over a period of time and he gradually achieved the normal range for weight and low-normal range for height.

She felt that he was a little behind in his social skills; did not get along very well with other children; and had missed his immunizations at twelve, fifteen and eighteen months. Although he did have some speech delay at the very beginning and his fine motor skills were a little delayed, he seemed to have caught up and was now within the normal range of skills for a child of his age. As for R.J.S.-G., although initially his lungs were underdeveloped because his mother was diabetic, he appeared to be a very healthy baby.

Testimony of Dr. Elizabeth Canisius

[51] Dr. Elizabeth Canisius conducted the CAAP assessment on the child A.J.S.-G. having seen him first on October 22, 2009 and then again on January 7, 2010 in the accompaniment of his foster mother.

[52] Receiving information from the foster mother at the time of his apprehension, she noted that A.J.S.-G. was unable to communicate, would disassociate during a diaper change by demonstrating a blank stare and was not communicating with people. He had social impairments such as not knowing what to do or how to play with toys and he did not like to be touched or held. His speech was delayed and he had a preoccupation with food. In the words of his foster mother, he would “shovel food into his mouth, without swallowing. It seemed as though A.J.S.-G. had never eaten before.” The foster mother went on to say that most of A.J.S.-G.’s interactions with her centered around food, most of the conversations related to food, and the words he learned were food names. Although these unusual eating behaviours appeared to have improved over his four months in care, Dr. Canisius noted in her first assessment that he demonstrated failure to thrive because of nutritional depravation.

[53] A.J.S.-G. had also been observed by the foster mother to engage in fecal smearing which Dr. Canisius indicated was a result of neglect when a child is deprived and has lack of stimulation. The foster mother observed that the child had explosive bowel movements before, during and after access visits with his biological parents. As well, he experienced night terrors, waking up and screaming out the foster mother’s name. Based on those observations, Dr. Canisius suggested that the biological parents’ access to A.J.S.-G. be discontinued.

[54] On the second assessment he had gained .9 kilos and, therefore, no longer demonstrated a failure to thrive. He now appeared to be an engaged child, happy and smiling with a strong connection with his foster mother.

Parenting Capacity Assessment by Dr. Michelle Sala, April 28, 2011

[55] Dr. Michelle Sala conducted two parent capacity assessments under s. 54 of the Child and Family Services Act, the first dated April 28, 2011 and the second was dated November 30, 2012. The subjects of the first assessment were N.S. and J.-F.G. The ambit of her assessment was governed by certain preset questions, some of which have been highlighted below.

[56] In response to a question about J.-F.G.’s ability to appropriately parent either one or both children on a long term permanent basis, she commented as follows:

J.-F.G. “has much stronger parenting capacity but he is considered to be highly passive and almost polly-annish in his perceptions of situations and his ability to act on them. As with N.S., he too has been involved with child protection for almost as long as her and he has shown little gain or changes. The difference for J.-F.G. is that he has stronger raw skills such as an ability to place the needs of others above those of himself, he is gentler in his interactions and he seems more child-focussed. Unfortunately, he has not been a strong advocate on his children’s behalf and given he has chosen to remain in a relationship with N.S., the concern for him given this marital relationship increases the risk substantially for both children.”

[57] Further, in response to a second question as to the parents abilities both individually and as a couple to recognize and meet the children’s emotional, psychological, physical, educational and intellectual needs, she commented as follows:

“Both parents are limited in their abilities to meet their children’s emotional, physical, psychological, educational and intellectual needs given N.S.’s neediness and J.-F.G.’s passivity. Moreover, neither parent has been able to consistently manage their finances, their living arrangements, their home hygiene issues and even N.S.’s health concerns. As parents, they are so needy that there would be little resources left to meet the needs of their children. With regard to the children’s exposure to trauma, while it is not clear what they have been exposed to with regard to any family violence, what is clear is that there is much drama that passes through the S.-G. home. That is, police records have revealed a litany of conflicts with neighbours involving broken beer bottles, threats, physical altercations and all out shouting matches in the street. These kinds of incidents are in no way appropriate for a child to be exposed to and could cause significant trauma including high anxiety and mood volatility in the children.”

[58] Nevertheless, in spite of these observations, at page 58 of her report, Dr. Sala did not rule out J.-F.G.’s ultimate ability to raise one or both children providing the following issues were addressed:

4. “J.-F.G. should try to access ‘coaching’ for his diagnosis of ADHD and also to consult with his family doctor regarding the feasibility of treatment with medication.

5. J.-F.G. should enter into therapy in order to address his passivity in relationships and his choices regarding intimate partners.

6. With a new baby on the way, the recommendations of this assessment should be strongly considered in making decisions for this baby.

7. If your honour decides that it would be appropriate for either R.J.S.-G. or A.J.S.-G. to be returned to the care of their parents(s), there is a concern that a greater risk to their well-being will occur after the new baby is born. Thus, greater monitoring at that time will be crucial.

8. If one or both parents obtain custody of one or both children, they should be expected to undergo regular drug testing and close monitoring by the Society.

9. The undersigned could complete a review of this case in six months to one year is so requested.”

Testimony of Dr. Michelle Sala

[59] Dr. Sala then took the stand to testify on her second assessment which addressed J.-F.G.’s current circumstances including his relationship with T.M. and his and her ability to parent.

[60] Beginning with T.M.’s background, she testified that she was a victim of domestic violence at the hands of her mother. Later on in her adult years she was convicted and eventually incarcerated on a charge of assault with a weapon and, ultimately, developed an addiction to alcohol. As for her relationship with J.-F.G. and her ability to care for the children. T.M.’s own history revealed that she was the mother of four children, all of whom became Crown wards without access, in her absence, a consequence of T.M. failing to attend court on the day the order was made. Dr. Sala went on to say that T.M. did nothing to remedy her situation for a period of six years, leaving her children in care without contact. Although T.M. advised Dr. Sala that her children had been apprehended because she kept an unkempt house, Dr. Sala surmised that the apprehension was for reasons which were far more significant and serious than what T.M. had initially disclosed to her.

[61] T.M. advised Dr. Sala that she has a brother who resides in the United States and that he and his wife were alcoholics and lost their children to the equivalent of the Canadian Child and Family Services. T.M., however, does have a sister who is a mother of three children and who has never been involved with any child protection agency.

[62] In expressing her concerns with respect to the relationship between T.M. and J.-F.G. and their responsibility as caregivers of the children, Dr. Sala testified that she was first concerned about the unsettling circumstances caused by the presence of N.S. who appeared to have intimidated T.M. and had caused T.M. anxiety attacks which necessitated a prescription of lorazepam. As well, Dr. Sala testified that because T.M. appeared to have anger management issues, she attended anger management courses on more than one occasion.

[63] Dr. Sala went on to explain that T.M.’s need for several of these courses may have been the result of her having to go through a process of learning some things she did not absorb on previous occasions. Moreover, Dr. Sala stated that anger management may not be the problem and that the only reason T.M. may not have shown any improvement was because she may have been experiencing a “retraumatization” from an unaddressed issue which, in turn, would have triggered her failure to control her anger.

[64] As for her alcoholism, Dr. Sala testified that she saw herself as a victim when she was around her family who brought with them instability and what T.M. described as “a lot of drama.” Her involvement with them could be a precursor to a resumption of alcohol consumption.

[65] Dr. Sala went on to say that if she connected with her family, particularly her mother, and was drawn into the middle of the drama, she had no ability to set limits and boundaries which could lead to stress which, in turn, could lead to a relapse.

[66] Dr. Sala went on to say that T.M. discussed with her the plan to raise J.-F.G.’s children which called for J.-F.G. being the primary caregiver and T.M. providing secondary support. However, Dr. Sala expressed the following concerns should there be the very likelihood of a role reversal. First, it could impact on T.M.’s sobriety depending on what treatment she had received and depending on her own awareness of her limitations. Second, she would be concerned that T.M. would set aside her own needs, such as, improving her education for J.-F.G.’s children and, once again, would develop this feeling of being victimized which, in turn, could also lead to a relapse. Third, if T.M. took on the primary role of a primary parent, it may affect her sobriety and, in turn, the stability of the relationship. This could lead to turbulence which would include arguments, disagreements and frustrations and because T.M. is the kind of person who may take on quite a bit of responsibility, she may find herself “being brought down by what is around her.” If this were to take place in the presence of the children, Dr. Sala concluded it would not be “a good thing.”

[67] Another concern of Dr. Sala was the fact that T.M. appeared to not accept the fact that she was an alcoholic. This meant that erratic behaviours described by T.M. would suggest that, barring alcoholism as the cause, T.M.’s “manic crazy behaviour, was even more concerning.” To elaborate, Dr. Sala testified when a person indicates that they are not an alcoholic but demonstrates the kind of erratic behaviour demonstrated by T.M., this simply emphasizes the negativity of that kind of behaviour if it is not due to alcoholism. However, Dr. Sala concluded that since she found T.M. to be quite calm when she was not drinking, the drinking, in fact, triggers this behaviour. Otherwise, there is a huge inconsistency in the way she presents herself when she is not drinking.

[68] Dr. Sala stated a further concern would be that since T.M. is now trying to reconnect with her own children, those efforts, along with her responsibilities to J.F.G.’s children would, in fact, spread her resources very thin, especially since she works full time which could lead to T.M. being presented with overwhelming responsibilities which, once again, could lead to an alcoholic relapse.

[69] Turning to J.-F.G. and beginning with observations of J.-F.G.’s visits with R.J.S-G. and A.S.B., she noticed that he had some difficulty with problem solving. He interpreted instructions from the foster mother regarding the feeding of R.J.S.-G. and A.S.B. too literally. He lacked the intuitiveness to understand the children’s needs. Quoting as an example, that although he was told to feed A.S.B. at a specific time, despite the fact that A.S.B. appeared to be hungry prior to that time, J.-F.G. would not, in fact, feed her until the appointed time. However, when he then turned his attention to feeding R.J.S.-G., it would be at A.S.B.’s expense because her appointed time for feeding would pass and he would not turn his attention to A.S.B. until approximately one half hour past her feeding time. And although A.S.B. had been fussy through that period, he did nothing to address her restlessness.

[70] Dr. Sala stated that J.-F.G. was unable to demonstrate a “second nature around A.S.B.”, an instinct which should have become habitual over a period of time. She contrasted the behaviour demonstrated by A.S.B. in J.-F.G.’s presence with the behaviour expressed to her by the foster parents who had described her as a child who is “a very easy going baby” and “never fussy.” J.-F.G. did not appear to be able to multi-task and, therefore, was unable to create a balance to address the needs of both children.

[71] In considering the home itself and the children’s potential surroundings, she stated that the couple used bleach excessively to clean the home but at the same time she noticed there were still broken tiles on the floor and grime in the bathroom and cigarette butts near the bathtub. Although it was an improvement from what had happened in the previous assessment, she was left with the impression that the home was cleaned quickly just prior to her scheduled visit.

[72] In explaining why she recommended Crown wardship without access, in her second assessment, she stated that in her first assessment, J.-F.G. left her with the impression that he had raw parenting skills which she thought, over a period of time, would improve and become more refined provided that he comply with her recommendations. However, by the second assessment, he had failed to both seek out counselling around his healthy relationships and to follow through with a diagnosis with respect to his possible ADHD. In her opinion, these were two significant recommendations which he failed to address.

[73] As for his parenting skills, she really saw no discernable change by the second assessment. He appeared to lack initial motivation. For example, his ability to obtain employment was only as a result of T.M.’s persistence and her threat to leave him if he did not find a job. As well, he still appeared to be passive citing as an example, his failure to address R.J.S.-G.’s need to be fed who, consequently, according to the foster parents, would sometimes come home hungry. His passivity creeped into his ability to care for the children and, therefore, Dr. Sala expressed concern about future possible negligence of the children’s needs.

[74] Once again, she thought his passivity was related to the likelihood of him having the kind of ADHD which leads to lethargy and, therefore, presenting him with difficulty to become mobilized. In her opinion, J.-F.G.’s passivity was a significant problem and without coaching and the ability to control that passivity, her concern was that he would not be able to follow through with tasks as they pertained to his children.

Testimony of J.-F.G.

[75] J.-F.G. began his evidence by saying he met N.S. in Quebec and after she lost a custody trial to her former husband wherein he obtained custody and she was denied access, they moved to Ontario on or about June of 2008.

[76] He recalls that on the day of apprehension, approximately one year later, he was stunned and devastated and felt that his life had “toppled down around him.” Upon contacting the CCAS and learning that A.J.S.-G. had been covered in feces and that a diaper had been duct taped to his body, he was shocked and surprised because when A.J.S.-G. was under his care, he would change him, wash him and clean up the crib. Consequently, he was angry to learn that N.S. had left the crib in the same condition in which he had found it prior to cleaning it.

[77] He described N.S. as “not much of a mother” blaming it on her mental illness. Consequently, he chose to be quite passive because he was concerned about provoking her and exposing the children to her anger. In further describing N.S.’ behaviour, he stated that once he discovered that she had cheated on him, was involved in prostitution and was consuming crack cocaine, he chose to separate.

[78] In referring to his children specifically, beginning with A.J.S.-G., he stated that although he had not seen A.J.S.-G. for a very long time, he does recall an incident where his son told him that he wanted to return home with him. He also stated that A.J.S.-G. had become aggressive and misbehaved only after he was apprehended. Prior to that, he described him as a child “with a gentle soul.”

[79] Concerning his son R.J.S.-G., he referred to him as a young happy boy who enjoyed time with him and T.M., his current partner. Each time he met R.J.S.-G., he would give him a big smile and did not want to leave him once the visit had come to an end. As far as R.J.S.-G.’s schooling, he testified that he had worked on R.J.S.-G.’s workbook four or five times during the visits and said he learned his words quite well.

[80] Concerning A.S.B., he said that the two of them would visit with each other on the Monday and in his efforts to feed her, which was his main focus, he would, nevertheless, keep R.J.S.-G. close to him and allow R.J.S.-G. to eat his own meal.

[81] He talked about providing the children with as much love and affection he could possibly give them and when asked about his plan of care, he intended R.J.S.-G. to be in school and A.S.B. to be in daycare.

[82] When asked about the lack of cleanliness of the home as described by Ms. Southern, he stated that he was in charge of the state of the home, tried to keep it clean and maintain it in a reasonably clean state; but inasmuch as N.S. would change her clothes three to four times a day, she could make the house very, very messy and he was not able to keep up with the cleanliness. As for the garbage that had been strewn on the porch, he blamed the landlord for this lack of cleanliness stating that the landlord refused to take the garbage bags down to the curb and that he, himself, could not take them directly to the garbage dump because he could not afford the service charge.

[83] Although he claimed N.S. was not an adequate mother and had been warned by the CCAS of Quebec not to leave her alone with the children when they came to Ontario, he, nevertheless, married her ten months after apprehension.

[84] Upon their move to Ontario, he stated that initially he was unsuccessful in his efforts to look for employment as a welder, but ultimately obtained employment with C.L.P., a recycling company. He said that prior to his employment he decided to stay at home and take care of the children because he did not trust N.S. to be a proper caregiver.

[85] He further admitted that he did not want to report N.S.’ criminal activity to the society which included her use of crack cocaine and alcohol because of fear of losing the children. As well, he went on to say that prior to the marriage, because of N.S.’ physical size combined with her mental health condition, he was afraid to break up with her because he was concerned that she would physically abuse him and harm the children. In his words, he felt “alone, helpless and very afraid of her.”

[86] When asked why he did not follow through to ascertain whether or not he had ADHD, he believed that if he was officially diagnosed with this ailment, it would reduce his chances of having the children returned to his care. He also did not have any answer as to why he did not follow through with the recommendations in the first Parent Capacity Assessment prepared by Dr. Sala to solve his tendency to become involved in unhealthy relationships even though he admitted that N.S. had been violent to him on several occasions just prior to the children being apprehended.

[87] Although he had no answer as to why A.J.S.-G. was underweight and short in stature, he stated that A.J.S.-G.’s behaviour changed when he went into care. However, he could not disagree with the fact that after A.J.S.-G. was in care from six to nine months, he started gaining weight and was in a normal range of development for a child his age. As for breaking his bail conditions and not staying in Mr. Jamieson’s home, he also stated that in addition to him having to work in Hamilton and it being a shorter distance to stay with T.M., he felt uncomfortable residing in an affluent neighbourhood.

[88] In addressing his plan of care, he stated that he and T.M. were going to raise the three children together. He would send R.J.S.-G. to school and A.S.B. to daycare. He stated that he would have family support from T.M.’s sister and from the people in his church. As well, even if relationship ended with T.M., he would raise the children himself. When asked what he would do if T.M., a recovering alcoholic, began drinking again, he stated that he would leave her but in describing her current status with respect to her alcoholism, he had noticed that she had gone to functions where people had been drinking and that she had abstained from alcohol consumption. He explained that he did not call her to testify because she was recently employed, was on probation and she did not want to jeopardize her job.

[89] He admitted without explanation that he did not comply with the probation order, did not follow through with affirming or not affirming a diagnosis of ADHD and did not follow through with the recommendation that he look into any therapy of these unhealthy relationships which he appeared to have become involved.

Submissions of Ms. Hammond-Grant

[90] Ms. Hammond-Grant began her submissions by stating that the society is asking the court to make a finding of protection for all three children under s.37(2)(b), ss. (i) or (ii) or both. The sections read as follows:

2. A child is in need of protection where...

(b) there is a risk the child is likely to suffer physical harm inflicted harm by the person having charge of the child or caused by or resulted from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, or supervising or protecting the child.

[91] As for the disposition, given the fact that the children will have been in care for approximately four years since the inception of this application, the court has one of two choices in this case: either return the children to the care of their father with or without supervision, or make an order for Crown wardship with or without access. Ms. Hammond-Grant submits that the society is seeking an order for Crown wardship without access since it is the society’s intention and hope to have all three children adopted by one family. Moreover, any ordered access in the circumstances of this case would, to quote in part from s.59(2.1) and (2.1)(b) would “impair the [children’s] opportunity for adoption.”

[92] In support of her position, she made reference to the case of the Children’s aid Society of Hamilton v A.M./T.L. 2012 ONSC 6828, [2012] O.J. No. 5700, a decision of Justice Pazaratz in which he ultimately concluded that any access on a Crown wardship order where adoption is possible would be detrimental to the completion of the process unless the court could find that access would be “beneficial and meaningful to the child who is the subject of the Crown wardship order.”

[93] In turning to the evidence and beginning with N.S. and her ability to parent the children, she submits that N.S. should not be considered, firstly because she did not attend court and participate at trial and, therefore, for that reason alone she must eliminated as a possible caregiver. But, secondly, and in any event, the evidence against N.S. being an adequate caregiver is overwhelming.

[94] Then turning to T.M., she stated that she had anger management issues and an addiction to alcohol as well as a significant history with the child welfare authorities. Ms. Hammond-Grant reminds the court of the chaotic family life from which T.M. came which included substance abuse and domestic violence.

[95] With respect to J.-F.G., she submits that other than J.-F.G. being able to sustain full-time employment and having established a relationship with a new partner, on the whole, the evidence outlines the many deficiencies which he has demonstrated to be considered a responsible caregiver.

[96] Beginning with the first assessment of Dr. Sala and referring to his passivity where he would allow his partner to take the lion’s share of parental care whether it was N.S. or T.M., Dr. Sala is quoted as saying at pages 36 and 37 of the first assessment of April 28, 2011:

“this may be why, on his part, there has been little change over the course of his involvement with the CCAS. This may be why he continues to be in a relationship with N.S. in spite of telling the examiner and workers on the case that he would leave her if this was the directive provided by this assessment. This last statement is actually very concerning as it reveals his great passivity.”

[97] Moreover, where J.-F.G. has demonstrated deficiency, he would blame it either on N.S. at the time he was residing with her or what he considered to be the inadequate instructions from the workers which he found to be difficult or unnecessary. Consequently, he refused to follow through with any directives given to him as it pertained to caring for the children.

[98] As well, in making reference to the specific state of the homes which at least one worker had described as “deplorable”, she cited examples of uncleanliness and lack of safety measures such as the evidence of cigarette butts, the state of grime, broken glass, and laundry scattered throughout the home. These were homes, Ms. Hammond-Grant submitted, that appeared to be clean at the beginning but would ultimately deteriorate. His lack of commitment and focus was demonstrated by failing to perform a simple task such as putting up a safety gate for the youngest child, a task that was not completed for a five month period. Again, quoting from Dr. Sala’s assessment at page 41 she states:

“J.-F.G. appeared to be more compliant with expectations and more willing to follow through but he also appeared to be quite passive and maintain the status quo. For instance, he did not seem overly concerned about the lack of cleanliness of their homes.”

She further submitted that he could not consistently follow through with the simplest task, such engaging in play with the children, failing to bring toys for them.

[99] As well, on a personal basis he failed to follow through with a possible diagnosis of ADHD and failed to seek professional help for his tendency to become involved in unhealthy relationships.

[100] Ms. Hammond-Grant submitted this was simply another example of J-F.G.’s lack of commitment and lack of proactive involvement as observed by Dr. Sala in the following comment at page 50:

“J.-F.G. tries to appease and follow instructions provided by others but it seems that the basic demands of cleaning the home, talking with his child and being more proactive and visits are just too much for him to be able to follow through on, in spite of much repeated instructions from society staff and in his own words, he admitted he was lazy.”

[101] In reference to J.-F.G.’s choice of partners, they all seem to have child welfare involvement and, therefore, do not speak to the success of the future family’s constellation. Beginning with N.S., she reminds the court of her involvement with prostitution, drug consumption, her intimidation of J.-F.G., and the fact that she is prone to violence. In referring to a disturbing example and quoting from Dr. Sala’s first assessment, she quotes as follows at page 10:

“J.-F.G. had informed the worker that N.S. had burned the face of their cat on the stove burner after the cat had urinated on the floor. When J.-F.G. tried to stop her, she hit him. At that time he also informed the worker that she had in the past threatened him with a knife when she was afraid that he would leave her.”

This, Ms. Hammond-Grant submitted was even before the children were born.

[102] Ms. Hammond-Grant also submitted that J.-F.G. is untrustworthy having breached his bail conditions, having not advised the society of T.M.’s mother potentially moving in with them, not indicating to the society N.S.’ inappropriate behaviour, her tendency to violence, her involvement with prostitution, and her addiction to drugs. He was forthcoming on none of these very concerning circumstances.

[103] Furthermore, when the court considers what J.-F.G. was asked to do, compared to what he actually did, he has not reached, by any stretch of the imagination, the level of competence that would qualify him to care for these children on a permanent basis.

[104] As well, Ms. Hammond-Grant submits that during the visits which were observed by Dr. Sala, it was clear that J.-F.G. was unable to provide adequate care for both R.J.S.-G. and A.S.B. at the same time. It was only after T.M. became involved that visits appeared to be more organized but it was T.M. who brought the food and T.M. who gave him directions. J.-F.G. sometimes simply sat on the sofa and did what she told him to do. This was also evident from Ms. Mutton’s observation in her testimony.

[105] She further submits if the court were to consider J.-F.G. as being the primary caregiver, Ms. Hammond-Grant submits that he has failed to act responsibly such as selecting a school, arranging for daycare for the children and not establishing whether his work hours will allow him to take care of the children if they absent from school due to illness. In her opinion, J.-F.G. is not prepared to take on the role of 24/7 parenting of the two younger children. She reminded the court of his own words, “I’d give my life for my kids, I’d do anything, I know if it doesn’t work out that the kids would come back into care.” Ms. Hammond-Grant also states the court should be very concerned of J.-F.G.’s inability to determine whether a child is displaying symptoms of illness. For example, she reminds the court of the society’s observation which was confirmed by Dr. Canisius and Dr. Wahi of A.J.S.-G.’s failure to thrive at the age of twenty months. This was a condition that J.-F.-G. failed to detect.

[106] In addition, he has failed to demonstrate his ability to protect the children. For example, J.-F.G. knowing full well of N.S.’ bi-polar condition and her fits of anger, he kept the children in this unsafe environment rather than moving them from such an unpredictable, threatening situation. As stated in the assessment at page 51 he was:

“...fully aware of N.S.’ relapse in the fall and yet he did not say anything in the spirit of protecting his children, he did not report her relapse to the society or the examiner, clearly putting N.S.’ needs above those of his children.”

In pointing out Dr. Sala’s concern about whether he could care for his children, she quotes again from page 109 in the second assessment of November 30, 2012:

“It’s concerning that were he to have the children in his care there would likely be very little structure in the home for the children, eating how and when they wanted and probably the older children taking care of the younger ones.”

Further down on that page in the same assessment, Ms. Hammond-Grand makes reference to another quote as follows at page 110:

“In his decision-making around his relationship with T.M., J.-F.G. has actually reinforced the assessor’s argument that he, in fact, does not understand about healthy relationships and he needs help to develop his judgment in this area. He has actually brought to bear the concerns the assessor had in the last evaluation about his ability to think for and protect his children.”

[107] As for whether J.-F.G. and T.M. can make an equal contribution to parenting the children, she submitted the evidence clearly shows that T.M., in spite of the parties’ intention to make J.-F.G. the primary caregiver, in fact, would likely play the dominant role, not only in her personal care of the children but in directing J.-F.G. on how to care for and interact with the children. She submits that the circumstances can be quite problematic in view of the fact that T.M.’s efforts of trying to become reacquainted with her own children, which is another added responsibility along with her long hours of work, can lead to a situation in which J.-F.G.’s children may likely be neglected because, as Dr. Sala had said in so many words, T.M. would be “spread too thin.” In quoting from the second assessment at page 111 regarding to the shared parenting arrangement between T.M. and J.-F.G., she states as follows:

“Moreover, she has not been with J.-F.G. in a natural common law relationship in order to explore how the two would manage household tasks, budgeting, meeting personal needs. Certainly, based on an overview of her psychological profile, she is one who is likely to over compensate, attempt to please everyone and then suffer the consequences when she eventually burns out or feels hurt in some way.”

“At that time she would be at a high risk for relapse. Given J.-F.G.’s passivity and his record even in this relationship of not taking the lead and finding a job, there is great concern that his passivity will eventually burn out T.M. and she will leave him or worse, relapse.”

Submissions by J.-F.G.

[108] J.-F.G. submitted that although he, in fact, has made mistakes, he has learned from those mistakes and is now prepared to take care of his children. In his words, he wants to work “with the society to make sure that apprehension doesn’t happen again.” He submitted he has a new partner in T.M. whom he described as “wonderful with the kids.” In return, the children love her and according to his observation, she does not “do drugs, she doesn’t drink” and she does not go to parties. She is making her best efforts to make her life better. She has decided to work less at her place of employment and stay home with the children. In his opinion, she interacts very well with the children and he believes her when she says she will not go back to drinking. He submitted he has no choice but to believe it.

[109] As for himself, he does not have a criminal record and although he breached his bail condition he submitted that he worked hard with his lawyer to change that condition so that he could have more freedom, but was not successful.

[110] As for his residence, he now has what he referred to as a bigger, better and safer place and given the fact that in his own job he has been appointed the federal government representative regarding safety issues, he is now able to identify safety issues in the home. He further submitted that he has done what the society has asked him to do, namely, to stabilize his finances and his employment.

[111] He has a bright future and is now able to take care of both R.J.S.-G. and A.S.B. He is certain he can keep the children away from N.S. and that should he require any support or assistance, he has the support of Mr. Jamieson, Mr. Theriault and T.M.’s sister.

[112] He promised to never allow N.S. near his children and he will defend them against her vigorously, especially if she asks for any access. If necessary, he will call the police and ask for a restraining order against her.

[113] As for A.J.S.-G., he asks that A.J.S.-G. be a Crown ward with access to him but, if necessary, he is willing to stop seeing A.J.S.-G. because he loves him.

[114] As for R.J.S.-G. and A.S.B., he stated that the best thing for R.J.S.-G. and A.S.B. is to be with their father, “mentally, physically, emotionally and spiritually.” He recalls R.J.S.-G. said to him on a number of occasions that he always wants to be with him, that he wants to “keep him forever.” If the court were to entertain the fact that R.J.S.-G. should be placed for adoption, he submitted that R.J.S.-G.’s age would be a barrier to adoption.

[115] In response to my questions with respect to A.J.S.-G. being undernourished, he stated that when A.J.S.-G. was in his care, he gave him three meals a day, it was only when they changed him that he noticed that his arms and legs were smaller. In his words, “I remember that we took off his pants to change his diaper and that’s when we seen that his legs were smaller after he had been apprehended but not while they were with him.” As for explaining the unsatisfactory condition of his residence, the broken glass, the grime, and the garbage, his response was he knew he made mistakes and that he “was not the perfect dad” but he “is a good dad.”

[116] In closing, he stated the children will now be in a better environment, that they will have a better place to live and that the society has endorsed it as being a clean and safe home. He submitted he will use his maximum efforts to continue to maintain the home as an appropriate residence for the children.

Analysis and Conclusion

[117] The duty of the court in child protection proceedings is to determine the appropriate disposition consistent with the best interests of the child. In the case before me, my obligation is to determine first, whether the children are in need of protection and; secondly, if I should make such a finding, the appropriate disposition consistent with a permanent plan that will afford the child the best opportunity of growing and developing emotionally, socially, physically, psychologically and intellectually.

[118] In this case, I have heard a myriad of testimony regarding J.-F.G., N.S. and T.M. and their collective efforts to care for these three children, A.J.S.-G., R.J.S.-G. and A.S.B.

[119] For the most part, in my review of not only the observations of the various workers involved with the family but my consideration of the expert opinions of Dr. Sala, Dr. Canasius and Dr. Wahi, I find that there has been a very limited amount of positive and encouraging observations and opinions concerning this family constellation.

[120] Beginning with N.S., who appears to suffer from bipolar disorder and who chose not to attend trial and provide the court with her own testimony, I find from the evidence that her life was one that included prostitution, alcoholism, drug addiction, a criminal record, alarming tendency to violence and that she is currently facing a charge of procuring young children for the purposes of prostitution.

[121] Her troubling background combined with her decision not to participate in trial, leads this court to conclude that to return the children to her care would clearly place them risk of both physical and emotional harm.

[122] In my consideration of T.M., I note from Dr. Sala’s assessment, that she described her as having a childhood in which she was a victim of domestic violence at the hands of her mother. She, herself, has had four children who were made Crown wards without access. She was convicted and incarcerated on the charge of assault with a weapon and she appears to be an alcoholic. In spite of her efforts to absolutely abstain from the consumption of alcohol, I have concerns about Dr. Sala’s comment that T.M. does not appear to accept the fact that she is an alcoholic and that that denial could lead to some instability.

[123] Moreover, in her efforts to be a significant caregiver of J.-F.G.’s children, she appears to take the leadership role and provide J.-F.G. with directions on how to engage with the children. Although she appears to want J.-F.G. to be the primary caregiver, Dr. Sala expressed her real concern about the likelihood of the roles being reversed and the overwhelming challenge she would have in balancing her obligations to J.-F.G.’s children, her long hours at work, and her efforts now to reunite with her own family.

[124] With a family background which includes an alcoholic brother who lost his children to the Child and Family Services in the United States, a mother who is also an alcoholic, T.M. being around this kind of chaotic family dynamics could, from Dr. Sala’s perspective, alcoholic relapse and thus place at risk the needs of J.-F.B.’s children. As well, since T.M.’s own children have now become a focus in her life, I find from Dr. Sala’s observations and in my review of the evidence that to ask her to be a caregiver of J.-F.G.’s children, would likely be beyond her capacity since, as Dr. Sala indicated, she would be “spread too thin.” Moreover, what is prominent by its absence is T.M.’s testimony to answer the court’s concerns. Therefore, this court has been deprived of the opportunity of assessing T.M. as a possible caregiver and can only rely on the evidence of the other witnesses.

[125] Consequently, based on that evidence, I find that in T.M.’s efforts to care for the children on a daily basis, there could likely be a significant breakdown in her ability to maintain the children’s needs in all significant aspects of their lives. On the balance of probabilities, I find, therefore, that the children would likely be at risk of emotional and physical harm if placed in her care.

[126] Turning to my observations of J.-F.G., firstly, I have no doubt that J.-F.G. loves his children having expressed that love frequently during the trial. However, I am troubled by what I find to be his poor judgment and inconsistent parenting skills.

[127] Beginning with his judgment, I find that he was aware either by direct observation or by knowledge passed on to him of N.S.’s violent tendencies. He knew of the incident of her trying to burn the face of a cat on the stove prior to the marriage. In spite of such troubling behaviour, he married her more, I find, to be likely out of fear of being the victim of her violent tendencies.

[128] He later became aware of her involvement in prostitution and her consumption of illicit drugs and alcohol while the children were in her care, but rather than considering the necessity of the children’s safety, he chose not to report this behaviour to the society because he was afraid to lose the children. Clearly he did not appreciate the importance of protecting them in such a precarious environment.

[129] I also find that J.-F.G. is a man who did not appear to appreciate what I can only describe as the catastrophic physical state of his various residences. No matter where he and N.S. lived, there were consistent observations of the workers who described the homes as dirty and cluttered with garbage. There was also a noticeable permeating odour of urine, vomit, body odour and there was feces discovered on the rails of the crib. In addition, there were safety concerns such as cigarette lighters being within the reach of the children; one of the children going into the garbage with the parents’ permission; dirty dishes in the kitchen; a knife sticking in the dishes with the blade exposed; and broken glass on the floor at the front of the house which either parent refused to clean because it was done by a neighbour who broke the window.

[130] Even more telling was that from the date of apprehension in 2009 right through to at least 2012, the state of the cleanliness of the residences continued to be a serious issue. I am mindful of Dr. Sala’s observations that when she visited the home, the smell of bleach was so prominent that she could only conclude that they appeared to clean the home just prior to her visit. One wonders of the actual state of the home prior to that visit.

[131] What I find troubling is that J.-F.G., rather than ensure the safety of the children, chose to leave them in an unsafe environment, thereby, risking potential physical harm to them in the future.

[132] Notable and revealing observations of Dr. Sala in her second assessment are as follows:

“J.-F.G. tries to appease and follow instruction provided by others but it seems that the basic demands of cleaning the home, talking with his child and being more proactive in visits are just too much for him to be able to follow through on in spite of much repeated instruction from society staff. In his own words, he admitted he was lazy.”

[133] A further concern is J.-F.G.’s inability, based on the evidence, to be able to attend to a child’s basic necessities. He failed to notice that his oldest child, A.J.S-G., who was in his care and the care of N.S. for a period of twenty months was critically undernourished. As described by the foster mother , the gorged himself with food to such an extent that he appeared to “have never seen food or eaten food before.” From her observation, she found him hoarding the food. From a psychological perspective while she was changing him, “he tuned out” and did not demonstrate any affect.

[134] What I find particularly alarming is that the child’s unhealthy, physical state came to light only when they removed his clothing and noticed his thin arms and legs. I find his explanation to be implausible given the significant amount of time the child was in his care. What is more likely is that he exhibited what appears to be an unintentional indifference to a serious condition.

[135] I find that J.-F.G.’s inability to observe the state of his child suggests he is not capable of being dependable and not capable of protecting his child. I find he lacks intuitiveness to the children’s needs. This court is further concerned that if the child were contract a serious illness, J.-F.G. would not be reliable in noticing, let alone appropriately addressing that illness.

[136] As for his current relationship with R.J.S.-G. and A.S.B., although I find he appears to give them more attention and focus than he did A.J.S.-G., I find that it was only the case because he was in a controlled environment which was supervised by employees of the society. Given his failure to show a significant improvement as concluded by Dr. Sala, this court cannot imagine that once that controlled environment is removed, J.-F.G. would be able to care for the children on his own.

[137] I, therefore, find in my consideration of the entirety of the evidence, that all three children are in need of protection under s. 37(2)(b) and ss. (i) and (ii) of the Child and Family Services Act.

[138] As for the disposition, given the children have now been in care for approximately four and one half years, the court accepts Ms. Hammond-Grant’s submissions that there were only two options available, namely, to return the children to J.-F.G.’s care under supervision or to make an order for Crown wardship.

[139] For reasons already given in this decision and having pointed out this court’s concerns in concluding that J.-F.G. has demonstrated inefficient parenting skills as well as what I consider to be insurmountable challenges faced by J.-F.G. and T.M. as a couple, I find it would not be in the children’s best interests to make an order of supervision and, therefore, I find that the appropriate disposition in this case is for an order of Crown wardship.

[140] Section 59(2.1) creates a presumption against access, in particular where the children, as in this case, will be placed for adoption. Section 59(2.1) reads as follows:

(2.1) A court should not or vary an access order with respect to a Crown ward under s. 15 unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child;

(b) the ordered access will not impair the child’s future opportunities for adoption.

[141] Because of the society’s intention to have these children placed for adoption, the court must now ask itself, nevertheless, whether it should allow access between J.-F.G. and the children on the basis of whether it would be “beneficial” or “meaningful.” In the case of the Children’s Aid Society of Hamilton v A.M. [2012] O.J. No. 5141, Justice Pazaratz stated as follows:

...The first step is to consider whether or not the access to the respondent would be “beneficial and meaningful” it must be shown a beneficial and meaningful from the child’s perspective – not that it would be beneficial to a parent or family member.

Justice Pazaratz then goes on to consider the case law and, specifically quotes Justice J. W. Quinn in the case of the Children’s Aid Society of Niagara Region v. M.J.,K.S. /N.S.S., [2004] O.J. 2872. Justice Quinn stated as follows:

What is a “beneficial and meaningful” relationship in clause 59(2)(a)? Using standard dictionary sources, a “beneficial” relationship is one that is “advantageous.” A “meaningful” relationship is one that is “significant.” Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child.

I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[142] J.-F.G. has had ample time to demonstrate that, with respect to long term planning for these children that he now is, and will continue to be, a responsible parent. I find, based on the entirety of the evidence, that in spite of his well-meaning intentions, he has fallen short of meeting that standard. Therefore, beginning with the child, A.J.S.-G., J.-F.G. has had no contact with the child since Justice Lafrenière’s order of March 5, 2010 suspending access. Because a significant period of time has passed, that fact combined with the concerning and negative behaviour exhibited by the child at the mere mention of his father, I find that any access between the child and his father would not be beneficial and meaningful to the child. Therefore, with respect to A.J.S.-G., there will be an order for Crown wardship with no access.

[143] With respect to the child, A.S.B., the child has been in care since birth. I note from the workers’ observations with respect to interaction between her and her father, that there is very little in the way of a relationship. To allow J.-F.G. access to her could be a significant impediment to her opportunity for adoption and, therefore, would not be beneficial and meaningful and, therefore, I also make an order for Crown wardship without access.

[144] With respect to the child R.J.S.-G., although there appears to be some relationship between him and his father and that he has enjoyed visits with his father, I note that those visits have been limited in their time and, for the most part, have been supervised by society workers in a controlled environment. When I weigh the benefits to his child should he be adopted against the partial benefits he is receiving with visits with his father, I find that on the basis of permanency planning, it is more important that his efforts for adoption be maximized. Therefore, I find that a continuous relationship with his father compared to the opportunities he will have of being adopted by a caring and loving family, would not be meaningful and beneficial to him and, therefore, regrettably, I make an order for Crown wardship with no access for this child as well.

[145] In arriving at this decision, I have considered the provisions under the Child and Family Services Act, including but not limited to s.37(3) which speaks to the best interests of the child, the options available under s. 57, the provisions under s. 58 and s. 59 and the time limits for society wardship under s. 70.

[146] If J.-F.G. requests that this decision be translated into French, the society is to make the proper arrangements.

Mazza, J.

Released: November 7, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society

Applicant

– and –

J.-F.G. and N.S.

Respondents

REASONS FOR JUDGMENT

Mazza, J.

Released: November 7, 2013