ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

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

BETWEEN:

FAMILY AND CHILDREN’S SERVICES OF FRONTENAC, LENNOX AND ADDINGTON [ Society]

Ayana Hutchinson, for the Applicant

Applicant

• and -

L. T. and R. S.

Jane E. Thurber, for the Respondent L.T.
[mother]

Stephen L. Zap, for the Respondent R.S. [father]

Respondents

Elizabeth French, for the foster parents, T.W. and G.W. [ T. and G.]

HEARD: July 29, 30,31,
August 1, 2, 6, 7,8, 9, 2013

ROBERTSON J.

REASONS FOR JUDGMENT

[1] By trial, 2 ½ year old A.M. spent 540 days in foster care, long past the statutory allowance.

[2] The Society seeks an Order for Crown wardship for purposes of adoption and a finding that the child is in need of protection pursuant to subsections 37(2)(f) and 37(2)(g.1) of the Child and Family Services Act .

[3] The plan is for the child be adopted by her foster parents who are her paternal aunt and uncle, T. and G.. They have cared for her full time for over two years since September, 2011, about six months prior to the technical apprehension of the child, February 6, 2012.They commit to some ongoing contact between the mother and child but not as much as the mother wanted. The father consents to the Crown wardship Order.

[4] The mother agrees T. and G. and their two children are a good family who love the child. The mother asks the Court to return her daughter to her full-time care and custody under terms of a Supervision Order.

The Child, A.M.

[5] The child is now two and a half years old. She has developmental delays, particularly for language, hearing, problem solving and motor skills. She had surgery in July, 2013 to have tubes inserted in her ears and has a hearing impairment. She is followed by the Child Development Centre and has been referred for genetic testing, speech and language assessment. She works with a variety of professionals including an Infant Development Worker, occupational therapist and physiotherapist.

[6] Experts anticipate she may fall within the Autism spectrum disorder scale, however, it is too early for a diagnosis. She requires high quality parenting, and caregivers who can advocate community resources on a long-term basis to maximize a positive life outcome.

Law

[7] The Child and Family Services Act, (CFSA) outlines a legislative path of requirements before the State permanently removes a child from the care of a parent. The dominant focus of the CFSA is the protection and well-being of children.[1] This includes recognition that some parents need help caring for their children. There is no statutory time limit on needing help. The time limits relate to duration in foster care. The law directs the Court to make the least restrictive Order consistent with the child’s best interests and to support the autonomy and integrity of the family unit. The burden of proof rests upon the Applicant Society. The standard of proof is balance of probabilities.

[8] Foster parents are not parties under the CFSA who file their own pleadings. Their participation is statutorily mandated and a mid-trial ruling rejected their request for leave to take a greater role in the hearing. They were represented by counsel.

[9] The legal test is not to craft an Order to maximize this child’s potential in a perfect world. Balancing the merits of the Society’s plan for adoption with the mother’s plan for returning the child under s 37 (3(8)) of the CFSA is more than just determining who offers more.

[10] The best life outcome for this child from a therapeutic social work perspective may be different than the result when properly tendered evidence is applied to the principles of the CFSA. This child would have a more stable childhood with less risk if she remained in her current long term home, had plenty of access with her mother while harmoniously accessing plentiful community resources to support her special needs. That, in effect, is the spirit of the clinical assessment.

[11] A custody/ access Order is not one of the available options at the conclusion of the trial upon application of the law. Although the father’s Answer requests an Order placing the child in the custody of T. and G. pursuant to s. 57.1 of CFSA,[2] by trial, that plan evaporated and the claim was abandoned. Custody Orders under the CFSA must made be on consent. There was no consent here. Section 57.1 prohibits the Court from G.ing a custody Order to foster parents. This presented a practical problem since T. and G. are foster parents, but I am certain that the “status” barrier could have been remedied easily by renouncing it if there was an agreement. To its credit, the Society offered mediation to find a solution but no party chose to pursue it.

[12] The Court must make the Order that is the least intrusive guided by the philosophy and purpose of the CFSA. The mother has demonstrated a strong capacity for change since the child has been in Society care. Her starting point was very bleak. I find on the evidence tendered that the mother’s commitment to community resources, her efforts to enrich her parental capacity, to stabilize her housing and personal circumstances are enough to supplement her parenting deficits above the minimum required safety standard to allow her to parent this baby. She has been generally compliant and co-operative. She has much more work to do. I also find she continues to lack insight and judgment in her personal relationships. She recognizes this issue and is committed to work on it. I am persuaded, at law, that on the balance of probabilities, she will follow sufficient direction to manage the protection risks for this child through a Supervision Order to meet the marginal requirements.

Background

[13] The parents are both 24 years old. This is their only child. The parents met in July, 2009 and within a year conceived the child, born […], 2011. Their relationship was rocky at best. I find the father had a bad temper. Both parents were immature, and self-absorbed. They attended pre-natal services, accessed community programs and engaged local aboriginal supports but were simply too selfish at the time to be able to absorb the necessary skills to safely parent a child. They neglected their baby.

[14] Both parents admit very poor choices around the time of the child’s birth and concede some level of cognitive disability. I reject their cognitive weaknesses as an excuse for their inferior parenting. I find that their families and the professional community accommodated their disabilities and offered auxiliary help but the couple failed to follow the guidance.

[15] There were concerns of domestic violence and high conflict. The mother’s community adult protection worker discharged her because the mother did not take advice. The couple’s relationship spiraled downward.

[16] Despite considerable family and community resources, their planning and care for this child by the parents fell below any minimally adequate standard. The Society was correct to intervene. I find the examples of parental inadequacy include:

a) They were unable to plan and organize equipment for the baby.

b) They had chronic housing issues and led a somewhat chaotic, almost transient lifestyle. Accommodations were dirty and smelled of animal urine. An aboriginal services worker helped the mother apply for aboriginal housing but the mother failed to complete the paper work. The couple was couch surfing from place to place and they mismanaged good housing opportunities.

c) The parents were terrible financial managers and chronically showed bad judgment. The father stopped working and they lived off of the mother’s Ontario Disability Pension cheque . They ran up a hydro bill of about $2,000.00 along with other debts. They borrowed money to purchase a Skidoo, yet had no funds to buy baby necessities. They ran out of gas on the way to the hospital to deliver the child. They used the money allocated for the baby’s crib on truck repairs. In March, 2011 the father backed his vehicle into the house, smashing the living room window. They covered the window with some cardboard and a sheet, as the couple lacked the funds to fix the window. In a moment of anger, he broke a mirror off his truck.

d) To top it off, the couple decided to spend scarce money on a new puppy. They could not even adequately look after the dog. They were reported to police because they left the dog in the truck in the heat. The dog had to be thrown into a lake to revive it from heat exhaustion. Around this time, rather than purchase a crib for the baby, the couple bought a big screen television.

e) They did not correctly fasten the baby into her stroller and she fell onto the ground. Luckily, a nurse intervened and determined the child was not seriously harmed.

f) The child was lethargic and not flourishing. Officials from the Health Unit stepped up and tried to assist. They referred them to a feeding specialist who visited the home. They missed the child’s six-week appointment and her needle with their nurse practitioner.

g) Paternal grandmother I. helped in many ways. She undertook their laundry. She cried as she described in her testimony receiving not only clothes but piles of animal feces mixed in with the baby’s clothing. She had raised her son better than this. The couple was out of control.

h) In August of 2011, a family member reported additional concerns of improper parenting. She also noted that when the mother got angry at family members, she would simply choose not to speak with them. Community supports increased. The child participated in the high-risk infant program of the health unit.

[17] The father’s family, in particular his mother, I., did their best to supplement safety for the child. She rallied her friends and family to acquire everything needed for the child. She frequently bought groceries and baby items.

[18] The Society workers did a good job to help this family to organize a feeding specialist, Early Years program and access aboriginal community supports and other agencies but the protection risk to the child still increased. In consultation with the parents, their families, formal and informal supports including aboriginal leaders, it soon became apparent that a better plan was necessary or the baby would be apprehended and placed in foster care. The couple approached the father’s older sister T. and her husband G. for help. At the time, T. and G. were two working professionals, with two school-aged children, a stable marriage, busy lives, and a nice home. They are solid, upstanding citizens. I find T. and G. are excellent parents.

[19] The Society hosted a meeting of all involved. The plan by the parents provided a safe alternative to foster care and gave the mother an opportunity to acquire some parenting skills from them over a number of months. The result was that the mother and child would move in with T. and G. so the child could continue to be parented by the mother.

[20] This first-rate plan afforded the mother and the child an opportunity to be co-parented by people with the necessary skills and plenty of patience. At that time, T. and G. had not been overly involved with this young couple. They answered the parents’ plea and took on the intellectually compromised mother and the developmentally delayed child and worked hard to build parenting skills that in essence rescued them for the potential return of their child. They did so to the exclusion of the father, T.’s brother, who was banished to live with his own mother largely due to the couple’s chronic conflict.

[21] At the time, Grandmother I. was newly coping with widowhood and managing the family business. She also had the care of four of her other grandchildren, all of whom had some special needs. Her hands were full. Despite this, she took the father back to live under her protective umbrella. She contained and stabilized him. This worked well. The child was protected; the mother learned some new skills; the child was safe; the father was controlled.

[22] T. and G. were not looking for another baby at the time. If they had wanted another baby, they would have had one. They are young, healthy, fit and both very attractive. They were not in need of more income. If they wanted money, T. would have taken on an extra shift and G. would have worked a weekend. I find any suggestion that they wanted to steal the baby or to get money for her care is utter nonsense.

[23] T. and G. operate a highly organized, structured and energetic household. The mother brought a different world of friends, family, lifestyle and habits that were new and not welcomed by T. and G.. The mother felt they were overly critical of her. T. might have been tactless sometimes but the mother was overly sensitive. For instance, when the mother would change the baby, she would often leave the dirty diaper on the sofa or wherever she had changed the child. She would forget at times to then go and pick it up. This type of behavior was offensive to T. and conflict worsened. She testified T. called her retarded. This is disputed but likely, T. may have used some terminology that the mother disliked. The mother’s background was troubled and she struggled with routine. Unfortunately, the mother has no insight into the chaos that she brought to the family when she moved in with her infant. There was virtually no evidence about what they did to her to cause the breakdown of the relationship. Much of the problem related to the mother’s perception of how she was treated. She testified she did not like T.’s “tone” in her voice, and felt she could not do anything right and was treated like a child. Simply put, T. and the mother had a different communication style and some cultural conflicts.

[24] Over the next few months, new stresses emerged. The mother required considerable direction and repetition of instructions. The mother engaged in power struggles with T. and G.’s children. One example is a dispute over the T.V. remote. The mother was childish at times. She should have been the adult in the conflict with the children but at times was a participant. I can appreciate T.’s frustration. Maybe the mother’s cognitive disability played a role in a childish frame of mind. Conflict escalated. None of the mother’s complaints about T. related to the care of the child. She had no complaints about G..

[25] By February, 2012, the mother decided she wanted to leave T. and G.’s home and move out on her own with the child. The Society hosted a family group conference as an alternative to court. The Society refused to allow the mother to take the child to be parented under her own plan. The mother moved on her own and the child has remained in the care of the T. and G. and their children. Since then, the mother has been making efforts to have her child returned to her.

[26] T. and G. now want to adopt the child. They love her. The child has bonded closely with their two children as siblings. Running and playing with their children has been an important factor in the developmental progress of the child.

Court Application/ Pleadings

[27] The Society’s Application for Crown wardship sets the menu of issues for the Court to determine. In this case, the brief statement of facts in the Application is inadequate and vague. The complete pleading is:

1. The Society has worked with the parents since L.T. was pregnant with A.M.

2. The Society has worked alongside family members and professional support persons to maintain A.M.’s placement with her parents.

3. The Society has arranged and attended two family group conferences to plan for A.M.’s care.

4. There are significant concerns with the parenting capacity of both L.T. and R.S.

5. A.M. has demonstrated significant delay in her development.

6. The parents have been consistently transient and dependent upon others to have their needs met as well as their daughter’s.

[28] The protection issues for the Court to determine are parenting capacity and the child’s developmental delay. The CFSA does not require a parent to remedy all of their issues before returning a child. In this case, the mother has made significant effort to fix the issues that the Society listed in the Application. I find the housing and budgeting issues have been remedied. The real challenge in the foreseeable future is invisible. Can the mother’s somewhat intangible parenting capacity be supplemented, coached or repaired to meet the uncertain future needs of her child? There is no doubt this child will have plenty of needs but today, there is no certainty how they will present themselves.

Plans of care/ General Law

[29] As required under the CFSA, the Society filed a Plan of Care. That was also vague and boilerplate. It should detail the services provided to the family, the criteria by which the Society will determine its intervention is no longer warranted, an estimate of the time required for intervention; a statement of why the child cannot be protected while in the parent’s care (if the child has been removed); the Society’s plan for access to the parent, if any; the Society’s plan for long-term placement of the child, where applicable; and the Society’s plan to preserve the child’s heritage, traditions and cultural identity (s. 56). On the other hand, the mother by her lawyer, Jane Thurber, filed a detailed, well organized and thoughtful Answer and Plan of Care.

Current Parenting

[30] The Society admits the mother has made significant improvement. She has engaged well with formal community supports and maintained stable, appropriate and clean housing, suitable for the child over the past 15 months. The significant issue for determination is whether the mother has sufficient parenting capacity to have the child returned to her care.

[31] A silent party in any protection application is time. This child has become an integral member of T., G. and their children’s family for over two years. This is a factor for consideration in determining her best interest. The child’s world consists of the mother, T., G., their two children, the father, the babysitter, Grandmother I., and the mother’s sister, D., who was invited into the child’s life by T. and G. to promote aboriginal heritage.

Findings

[32] I find the Child, A.M. born […], 2011 is in need of protection pursuant to subsections 37(2)(f) and 37(2)(g.1) of the Child and Family Services Act. I find the parents limited parenting capacity, pattern of poor decision making, inability to plan for the child, willful neglect, the child’s slow weight gain and developmental concerns support the finding.

[33] Before returning the child to any parent with a protection finding, the Court must be satisfied that sufficient progress has been made to provide the child care that is in her best interests. In determining the child’s best interests, the Court must assess the degree to which the risk concerns which existed at the time of the protection Application still exist today. The risks must be examined from the child’s perspective. Children’s Aid Society of Toronto v. C.M. 1994 83 (SCC), [1994] 2 S.C.R. 165. That is one reason why pleadings are important.

[34] The law is clear. Good intentions are not enough and there has to be some demonstrated basis for a determination that she is able to parent the child without endangering her safety. There is not to be experimentation with a child’s life with the result that in giving the parents another chance, the child would have one less chance. Children’s Aid Society of Winnipeg (City) v. R. (1980), 1980 3654 (MB CA), 19 R.F.L. (2d) 232 (Man.C.A.); Children’s Aid Society of Brockville, Leeds and Grenville v. C. [2001] 2001CarswellOnt 1504.

[35] Since the child’s apprehension, the mother has worked very hard to remedy the concerns of the Society. Her improvements include:

a) She found safe, affordable housing in a good area and has maintained appropriate, clean housing for 15 months. She lives across from the police station and Children’s Aid Society. It is on a bus route and walking distance to the Native Friendship Centre where she is an active participant. Her home was described by professional witnesses as cozy. She lives near a park and frequents a nearby library. She learned use the bus schedules and often took “dry runs” to appointments in advance to make sure she understood how to get there and how long it would take.

b) Her access to the child was successful. She attended regularly and timely. The Society has promoted her access from supervised to semi- supervised and now some unsupervised times including overnight and it has gone well.

c) She has found space in a licensed daycare where the child can access special services, including speech therapy and has a plan to pay for it.

d) She has separated from the father and they have had very little contact or conflict.

e) Most importantly she has worked cooperatively with the Society and community service providers to acquire basic skills to meet the child’s needs. She continues to go to counseling and has positive reports.

f) She is taking a CPR course and has taken parenting courses.

g) The mother has been able to use service providers to supplement her advocacy deficits on behalf of the child.

h) She would enroll her child in appropriate activities and has a plan to pay for it. She found and organized a doctor and dentist although now would continue with the child’s current doctor because she recognizes the value of continuity of care.

i) She remedied her financial problems and now lives on a balanced, though meager budget. She meets regularly with her community living worker for financial planning. Upon apprehension, her income dropped significantly because the child was out of her care. Her expenses, such as housing as required by the Society for the two of them remained the same. Despite this, she provided her own transportation, food, toys, some clothing and gifts at access and appointments.

j) She is extremely organized and arrives timely to appointments and keeps all of her child’s medical records in a file and asks for clarification.

k) A parenting capacity assessment was undertaken through the Family Court Clinic and concluded she is child focused, and she and the child have a positive connection.

l) She is committed to nurture a relationship with her child’s “family” members, namely T., G., their children, Grandmother I., and the father. She has a plan to reconcile with her sister D.

[36] Many of the community supports of the mother are client oriented and therefore their input has been filtered through the needs of the client, in this case the mother. Several of the community supports conceded they were unfamiliar with the child, the consequences from the early months of neglect, or problems arising from the mother’s poor maintenance of relationships. Witnesses included representatives from many of these resources. I find they were all aware of the mother’s limitations and although they hoped she would succeed, they were realistic about the safety risks to the child.

[37] The Society workers testified that community groups focus on the mother, not the protection of the child. I agree however the impression was of limited co-operation between the Society and some of these community groups. One witness complained the worker did not return her call for 2 months. I believed her. Some of the Society’s rules imposed on the mother were seen as barriers to assistance. I agree. For example, the mother was not allowed to use taxis or accept rides to appointments by service providers. Early on, the mother improperly buckled the car seat in a taxi. While I understand they wished the mother to prove she could make and effect plans, their rule interfered with other community agency help. Once, during a blizzard, the mother declined a taxi ride home from the Native Friendship Center when the entire city was closing down. She walked home with her child so as not to disobey the worker’s instructions.

[38] They missed opportunities to fill in blanks to her trusted community advisors who could properly filter information to counsel her. For example, the mother was upset because T. withheld baby pictures. T. testified she was in an awkward position having to follow Society protocol. She might have handled it better. The evidence at trial is that the Society worker in the PRIDE pre adoption program generally indicated not to provide it. I have no doubt that the worked followed proper procedure. That issue could have been dissipated.

[39] At the end of a lengthy report, the assessor recommended Crown wardship with access. He found the mother to be of good temper and to have now made appropriate safety choices. He found T. and G. were good mentors to the mother and to the child. He described the mother as “border line” and, given her limitations, felt she had done very well especially considering the child’s global developmental delay and potential Autism. The conclusion reached by the assessor is that the mother is now in a position to meet the child’s basic needs. The problem is that the child has high needs.

[40] He predicted the mother and the child will each require much support for this child to have a safe outcome. He noted the mother has a history of difficulty with relationships and how this could negatively impact the child’s progress.

[41] He reviewed psychometric testing conclusions that had been provided by clinical psychologist, Doctor Robert Rowe. Many of the barriers to the return of the child in his view related to potential complications arising out of the child’s evolving special needs. He conceded that there are no significant behavioural management issues currently, but was of the view that this could be problematic in the future. He also was concerned about a potential for neglect given the number of appointments that would be necessary for this child to engage in community services.

[42] I find over the lengthy time that the child has been in care, the mother has sought out and connected with appropriate community resources. She attended access faithfully and the reports are positive. The assessor observed she had a good connection with the child and addressed numerous issues that had been raised by the Society. Most witnesses agreed she was a pleasant individual who behaved cooperatively, signed consents, and was sincere and committed in her desire to improve her parenting skill. She participated in community groups and on one occasion she even voluntarily took a parenting course a second time so that she could consolidate the information she had learned.

[43] She followed through on strategies, tools and recommendations of professionals and was generally compliant with their recommendations to the best of her ability. She was receptive to feedback although some witnesses were not convinced that the mother understood it all. She was concerned for the child’s emotional and physical well-being and devoted to her care.

[44] The assessor concluded there was attachment. He noted positive displays of affection between the mother and the child. He concluded she was dealing with stress appropriately and had undertaken continued counseling on an individual basis as well as through her Community Living worker and the Native Friendship Centre of Kingston.

[45] Psychologist Robert Rowe testified. There were no concerns about his credentials or methodology. He administered testing. He acknowledged that errors are built into the test and the results must be considered with other sources of data such as interviews and collateral sources. He agreed that cognitive deficient parents can be caring, competent parents. He described the mother at the high end of border line with an IQ of 78.

[46] The assessor agreed in cross-examination that the mother had organized her life effectively over the past 15 months and conceded that she had been successful in implementing some good parent strategies.

[47] The assessor found her to be child focused. He conceded that the psychometric testing results are simply one tool and agreed that many of the expectations one would conclude from the results did not match the observations. Despite significant tension between the mother and T. and G., the assessor concluded that the mother was able to remain child focused. He did not assess the father, T. or G. and was not asked to.

[48] By the time of the trial the Society was not supervising the visits. The assessor conceded in cross-examination the mother should have liberal access to the child and had made significant progress and was capable of making change. He conceded that his recommendation for Crown wardship was influenced by the child’s disability and the child’s future needs which were uncertain.

[49] No party pursued Crown wardship with access as a disposition in evidence or submissions although it was the assessor’s recommendation. Adoption with access is not a feasible selection on the legislative menu. I find Crown wardship with access would impair the child’s chance at adoption. Long term foster care is not a viable option.

[50] Infant development worker Sandra Hassler gave credible evidence. She is experienced, no-nonsense and had met with the child more than 35 times in the care of both the mother and T. in home visits to both homes. Over the course of her involvement, the child made good progress. She learned to walk and has now learned a few words.

[51] I find Ms. Hassler to be balanced in her evidence and motivated only by helping this child. She reported that the mother was able to acquire appropriate toys and use various service providers to help her advocate for the child. She confirmed that the mother was on time for all of the appointments and attentive. She described her as cooperative and asking appropriate questions and, in her view, the mother was able to accept and implement feedback. She had been to the mother’s home on many occasions and found it to be clean and suitable with no noticeable safety hazards. She agreed that the mother was open-minded to suggestions for change and that the mother had done everything that she asked her to do. She testified the child had improved greatly in her developmental progress and needed a parent who can advocate for her and support community intervention. She confirmed her commitment to work with the child regardless of the outcome of the trial.

[52] Ms. Hassler recommended a hearing assessment due to the child's poor communication and also speech therapy. Ms. Hassler testified that she had recommended an enhanced support program available through a licensed daycare through the Community Living Program. The child was in an unlicensed daycare. There were no concerns by anyone about the current daycare provider except that this enhanced program was only available through a government licensed daycare. The mother had tried to arrange this, however, was unable to do so without the child in her primary care.

[53] Ms. Hassler recommended speech therapy for the child. I find the Society did not adequately pursue it. When asked, a worker acknowledged that it had been discussed at the Agency, however, because the child was on a wait list for public speech therapy, a private arrangement was not implemented. I find the mother’s plan for the improvement of the child’s speech was better than either the foster parents’ or the Society’s. The mother’s plan, upon return of the child, is to enroll the child in the licensed daycare conveniently located in the CAS building by the mother’s home. I require the Children’s Aid Society to help this mother to arrange it. The child has waited long enough for speech pathology.

Disposition

LEGISLATION:

[54] The statutory path upon finding a child is in need of protection is outlined clearly in case law and in the statute itself. I have considered the options for disposition in s. 57 of the CFSA and the criteria for child’s best interests[3] in s. 37 (3). I have listened to numerous witnesses over nine days and reviewed volumes of written evidence.

[55] I find that an Order for Crown wardship is premature. The statutory path requires the Court to stop at various exit ramps and not to proceed beyond checkpoints without satisfaction of the legislative steps. I am satisfied on the balance of probabilities that the Society has not met the requirement to go further at this time.

[56] I am satisfied that there continues to be a risk to the child. I considered the efforts made by the Society and other agencies to help the mother before and since intervention (s. 57(2)) and the help available going forward and the progress made. On the balance of probabilities a Supervision Order is adequate at law to manage the risks for this child to be safely parented by the mother. The terms of the order must be drafted to reflect each individual case. There are no standard order terms or schedule appended to the CFSA. The Society declined to suggest terms, presumably because the application sought crown wardship.

[57] The improvement and change in the mother’s parenting skills from the time this child was placed in the home of T. and G. is significant. Having regard to the evidence at the time of placement and later at the time of apprehension, I would not have foreseen on the balance of probabilities that the mother would make the required changes and maintain her focus and commitment to the child. She did. Counsel provided the Court with two different decisions involving the same child written by Justice Alex Pazaratz. The first decision, Catholic Children’s Aid Society of Hamilton v. L.H and P.M 2008(2008), 2008 474 (ON SC), 48 R.F.L. (6th) 298 at para.1 (Ont. S.C. (Fam. Div.) asked the question:

“Is “trying your hardest” good enough for intellectually limited parents fighting to prevent their developmentally delayed daughter from becoming a Crown ward? And even if they’re doing a barely adequate job now, do we still take their child away based upon experts who warn that the parents likely won’t be able to meet their 2 ½ year old daughter’s future needs?”

[58] Justice Pazaratz wrote a lengthy Decision addressing evidence and legal issues and concluded that a Supervision Order would be sufficient. Unfortunately that family did not meet the requirements to provide the child with a clean, safe, and minimally adequate home environment and ultimately the same child became a Crown ward in Catholic Children's Aid Society of Hamilton v. L.H. (2008), 170 A.C.W.S. (3d) 785.

[59] Those decisions by Justice Pazaratz are cited in one secondary source: Halsbury’s Laws of Canada. Below is an excerpt of the reference. C.C.A.S. v. L.H. is cited at footnote 6.

Parental ability and assistance. Low parental intelligence should not be taken as determinative in itself of a child's need of protection under this section. The courts determine whether, in light of their individual capabilities, the parents are able to meet their parental responsibilities. Even if the answer to that question is no, then the court must decide whether, given the proper assistance and intervention, the parents can be provided with the tools necessary to care adequately for their child.⁶ A state of poverty in itself should not be the basis for removing a child...

[60] The mother voluntarily placed the child with T. and G. in order to avoid the child being apprehended and placed in the care of strangers. The initial purpose was not only to provide a place of safety for the child but to provide an opportunity for mentoring the mother. She acknowledged her problems and looked for tools. This was effective and in the child’s best interest. Over the period of time that the child remained with T. and G., their status increased from place of safety to kin family placement to foster parents and now to potential adoptive home. From the child’s perspective they are her parents. T. and G. did everything right yet I must tell them to return this child and they must tell their children.

[61] The mother in her testimony confirmed that she had no intention of ending the relationship between her child and the child’s present family constellation.. I hold her to it. She has pledged to continue to involve T., G., the father and Grandmother I. in the life of her child. They committed to participate in mediation during their testimony. The mother’s commitment was couched by her own hurt feelings. She needs to move on from this and focus some energy on repairing these family relationships, precious to her child. For example, much ado was made in the mother’s evidence about how she would handle various medical emergencies such as the temperature for a worrisome fever. The mother had some good answers including accessing an afterhours clinic or calling Tele-health. The correct answer was to call Aunt T. and Grandma I.. They would have helped this child in a heartbeat and know what to do. T. is a health professional. The mother got the fever question wrong. The mother’s pride is not a choice this child can afford.

Terms of Supervision Order

[62] It might be necessary to make successive 12 month supervision Orders at annual status review hearings as the future unfolds. It is possible under s. 65(1)(c) to make subsequent s. 57(1) supervision Orders so long as no one individual supervision Order exceeds the 12 month limit.

[63] While the mother’s efforts are commendable, I find she has great work to do. She must plan her life to accommodate not only the child’s current needs but build up resources to deal with expected changing needs. To be direct, I find her present resources are not sufficient for her to care for more than one child, to take on responsibilities for pets, to engage in a high conflict relationship or add any unnecessary upheaval. She must take great care not to make choices that might destabilize her progress. If a major element of the child’s plan for care is not being carried out, the Society may bring the matter back to court. If the mother’s circumstances deteriorate, the Society is free to ask for a status review under CFSA s. 64.

[64] This mother recognizes that she has trouble maintaining healthy relationships and vows to work on this shortcoming through counselling. She described trying to “find her voice” and being aware of “red flags” in relationships. The terms of the Order are intended to encourage her to do so.

[65] The Society appropriately identified concern that the mother was unable to connect with informal supports, presumably family and friends. I reject the mother’s evidence that a worker from the Native Friendship Center instigated some problems for her. I hold the mother accountable for the people she brings into her child’s life. That includes her choice of professional alliances. She needs help deciding who to trust.

[66] Unfortunately, the mother’s inventory of appropriate friends and family resources is limited. There was much concern but little evidence about many of the mother’s supports. She described her family constellation as four whole siblings, five half siblings, her mom coming from three siblings and her dad of fifteen siblings. None of her family or friends testified on her behalf. It was unclear if they did not support her Application or simply had their own problems.

[67] Here are three examples:

1. The maternal grandmother came to court to provide support but did not testify. The mother’s evidence was she sees her mom alternate weekends for a visit. She denied any knowledge her mom and step father sell prescription drugs out of their home although did not seem at all surprised by the allegation. While she was a teen, her mom chose to cohabit with the step father who had been previously convicted of “child molesting”. [The particulars of the conviction were never clarified in court.] The mother described in an emotional manner that while he was drunk, he told her she didn’t need her mother’s support any longer so in effect sent her out into the world. The maternal grandmother allowed this to happen and she is still together with him. The mother limits contact with this man but commented about the long passage of time since his charges. I conclude she was minimizing the risk he and the maternal grandmother pose in the child’s life.

2. The mother’s cousin also attended court. She did not testify or enter the courtroom. That cousin, the Court heard, was convicted of sexually assaulting a child. There were no particulars given. The mother chose to bring her for personal support.

3. The mother has an unclear relationship with a man named C.T. He did not testify. She denied he is her boyfriend but there was an undercurrent of concern about him as if everyone in the room knew why but me. He is 20 years older than her and a friend of her mother. She described a two week “period of intimacy” with him which she did not define. His five children were out of his care for ten years and she testified she did not know why. He refused to consent to the release of information for disclosure of his involvement with Children’s Aid Society, yet the mother has no idea about the nature of their protection concerns. He telephoned the Society to inquire if the mother could get the child returned if he lived with her and has tried to act as an “advocate” on her behalf. The mother organized her child’s birthday party around his convenience. He prearranged her cell phone due to her bad credit so she sees him monthly to pay the bill.

[68] These are not “red flags” as she phrased it but three alarm fires. Passage of time is irrelevant to the risk the step grandfather might present to this child. It was clear in her evidence that the mother is still wounded by her mother’s callous actions. As long as she is with this man, the maternal grandmother continues to reject the mother and prioritize him. While the mother may forgive her mother, she ought not to forget it. The maternal grandmother abdicated her parental responsibilities to the mother long ago. Despite this, the mother is willing to pardon and engage in a relationship with them yet has very limited contact except through communication book with T. and G. whose only offence was T.’s tone, routine and that the family fell in love with the baby.

[69] Counseling or perhaps a life coach is very important for the mother to get some perspective. Although the mother has been able to upgrade parenting tasks, housing, hygiene, housekeeping and money management, I find that she continues to have poor judgment about relationships and compromised executive functioning. She wants to do the right thing but does not seem to comprehend how her actions and presentation affect other people. It will be important that she select caregivers and partners prudently and that she limit contact between the child and her own mother and forbid contact between the child and her mother’s husband. CT may be a nice man but he seems to be a common theme in her troubles. Accordingly, because of her lack of insight, I order that she not have anyone stay overnight at her apartment without approval of the Society. She is being entrusted with a vulnerable, essentially non-verbal child.

[70] The child cannot afford for the mother to make a bad relationship choice. Her resources cannot be diluted by other commitments or responsibilities to other children or someone with significant troubles. Turmoil must be minimized for the child’s protection. This Order does not prevent her from having a boyfriend. To be clear, it means that people she invites into the life of her child must disclose to the mother and to the Society their criminal records, and previous child protection involvement. If they are unprepared to do so, the mother must not clutter her child’s life with uncertain risk. This child has suffered considerable upheaval in her young life and can ill-afford to risk the loss of her mother as collateral damage to an inappropriate relationship. I lack confidence that she will be able to distinguish healthy relationships from those which expose the child to additional risk of harm.

[71] Similarly, the mother needs to be able to work on her own presentation and skills in order to effectively advocate for her child. The mother’s expectations for “customer service” are unrealistic at times. For instance, on one occasion the mother was unhappy with the “attitude” of a volunteer driver so demanded a change. The breakdown of the relationship between T., G. and the mother was largely due to the mother. I am sure she found T.’s high household standards and structure hard. No single event can be looked to for a cause. These parties are civil and have been able to work cooperatively for the sake of the child. As the future unfolds, she must be ready with informal resources that can help her to meet her child’s development needs. She will require respite help. This will best be enhanced if the mother is able to repair and resume her relationship with T., G. and I.. Because of their good judgment as parents and in particular, T.’s professional medical background, emergency situations that may arise can easily be resolved if she calls them for advice and help. In her evidence, T. said, while crying: “at the end of the day, she’s [the mother] her mom”. I found this heartfelt and genuine. Community services cannot replace competent parenting or extended family support. The mother has the option of rekindling the good relationship she had with them to help her raise the chid.

[72] The mother has demonstrated her motivation to make effective change and address the issues raised by the Society. The practical, easily measured issues have been remedied. What is left are less tangible concerns about parenting capacity and response to the child’s changing needs. As those needs crystallize, the mother will have to react and the Society will have to remain actively involved to monitor an appropriate response.

[73] The mother’s right not to feel offended and to walk away from conflict within her working set of informal supports and family must not supersede her child’s right for the best life outcome. She gave up that right to when she discarded responsibility to her infant and then invited T. and G. into her child’s life as an alternative to foster care. The child needs her to fix things with I., T. and G..

[74] At the conclusion of this 12 month Supervision Order, the Society will be able to assess the protection concerns in the context of the mother’s progress and the child’s needs. I find that the Society has made considerable efforts to assist this family. It is with their help, the generosity of T., G. and I. and the connection the mother has made with other community resources that I am able to conclude that the protection risk to this child can be sufficiently managed through a supervision order returning the child to the mother’s care.

Credibility:

[75] Credibility is the function of truthfulness, reliability, accuracy and objectivity. I found that the bulk of the witnesses to be credible and there were a few challenges by counsel. I found the evidence of Jolie Brant, Sherry Jarvis, Cathy Seguin and Sandra Hassler to be very credible and helpful. They are solid supports to the family and I was impressed by their professional skills.

[76] As it related to the care of the child, I found the mother to be credible. I find she lied, however, when asked about how she arrived at a medical appointment July 22, 2013 and I accept T.’s version of the incident. She knew C.T.’s car because he had been driving by parking on a road near her rural home. T. had complained to the Society that she felt she was being watched by him and sometimes the mother was in the car. I find that C.T. drove the mother contrary to the Society’s instruction. The worrisome part of this lie is the mother chose to prioritize the protection of this man over the plan that was set to help her secure the return of her child. This is the second time the mother has prioritized the protection of a man over the protection of the child. The first example occurred when the mother prioritized the father’s wants for T.V. and other goods over the basic essentials for the child. I find this is a pattern. The mother knows from her own childhood how harmful and debilitating that is. Her own mother did it to her. She must be vigilant not to follow in that foot step.

Aboriginal issues:

[77] When making any best interests Order regarding a child who is an Indian or native person, including final Orders under s.57, the CFSA requires the Court to “take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity.” CFSA, s. 37(4). The mother is a member of the Shabot Obaadjiwan First Nation with strong ties to her aboriginal community. The father was adopted as a child and has recently learned that he is of Métis background.

[78] Both parents have an investment in ensuring the child’s native heritage is supported. The return to the mother solves this issue. The issue consumed considerable trial time so I will address it. I find the Society, T. and G. met the obligation. The parents knew T. and G. were not of native heritage when they approached them for rescue. In the event of an appeal and a need to further address this section, I find that T. and G.’s plan to invite Aunt D. to promote native culture reasonable. Aunt D is very active in the Band. The trial had an undercurrent that T. and G. were unsupportive of the child’s native culture. I find this to be false.

[79] I accept the uncontradicted evidence from all parties and the witnesses that at a Society conference, a worker from the Native Friendship Center lashed out at T., accusing her of being a Baby Stealer. The Society social worker, mother and T. handled it appropriately. That same Native Friendship worker initiated the mother to contact police seeking a Restraining Order against her sister, D when they had a disagreement. D was a Board member of this worker’s employer. That issue morphed into an urban legend that the Society was against the band and Society Management had to intervene to sort it out. There was no Restraining Order. That worker also inappropriately used the communication book to express her unfounded opinion to T. about resolution of this case. That worker’s husband, a teacher at the school of T.’s children, asked them about matter. T. is a busy working mother coping with a lot of drama, a challenging baby and a challenging mother. She was intimidated, nervous, fed up and in the midst of nasty litigation. I accept her evidence that she wished to avoid confrontation by not participating in some cultural events. I do not find her reaction racially motivated.

The Father

[80] The father remains living with his mother, I.. He does not work and has limited involvement in various therapies or work of the child. I do not interpret his acquiescence and co-operation to the plan as weakness or disinterest. I applaud his co-operation throughout.

[81] The father can choose to be an important asset to this child. I encourage him to step up. There is very little information about any change the father may have made. He attended a couple of professional appointments with the child. Although he met with the assessor as a collateral contact, he was not assessed. There is no evidence of any insight and his capacity to play a larger role in this child’s life is a guess I am unwilling to take. He may be a pleasant visitor in the child’s life but he has not assumed parental responsibilities. Absence of harm is not enough. His access to the child should be supervised. Grandmother I. is doing an excellent job of managing him and I doubt her task is easy. I urge the father to obtain employment. He has many skills.

[82] The mother will need to develop some rapport with the biological father but the mother does not have the capacity at this time to cope with access to the father issues along with the other tasks. The Society increased his access in a parallel way to the mother but they did not require him undertake the work she did. There was no explanation for this. He merely went along because the protection concerns were minimized while the child was in the care of T. and I.. If he wants to have independent access to the child, he needs to participate in the parental duties, take a parenting course, first aid course, learn how to support the child in her various therapies and address the original protection issues. The Society should observe supervised access to him independently of his family. Passage of time without an incident of poor judgment or impulse is insufficient.

[83] For purposes of securing a daycare space and accessing funding through ODSP, the return to the mother is effective October 15, 2013. The parties are encouraged to plan a gradual transition for the care of the child.

Held:

[84] The child is found to be in need of protection pursuant to the Child and Family Services Act ss. 37.2(f) and (g)(1). The child shall be returned to the care of her mother subject to the supervision of the Society for a period of 12 months upon the following terms:

(a) Mother will Maintain a clean and safe residence for the child within the City of Kingston;

(b) If the mother wishes to change her residence from the City limits of Kingston , even with the consent of the Society, a court order is required.

(c) Cooperate with the Society, in their efforts to assess the family's needs and abilities including unrestricted access to the child, scheduled and unscheduled visits at the home during the day or at night;

(d) Maintain regular contact with the Community Living Worker;

(e) Execute releases to allow the Society access to all records and information pertaining to medical, recreational, social or developmental agencies serving either the mother or the child;

(f) Ensure that the child attends regularly for all medical and therapeutic appointments as may be directed or recommended by the Society;

(g) Ensure compliance with the recommendations or instructions provided by medical personal, counselors, therapists, social workers and Society employees;

(h) Enroll the child in a full time, licensed day care;

(i) Refrain from owning a pet or having a pet reside in her residence;

(j) Not introduce the child to any new partner without having obtained a signed release from that person to disclose to the Society and to the mother particulars of any previous involvement with Children’s Aid Society, criminal record, police contact and substance abuse;

(k) Not to allow any other adult or child to reside or remain overnight at the child’s residence without the prior approval of the Society;

(l) The Society to conduct a risk assessment on any person with whom the mother wishes to cohabit;

(m) The Society shall conduct a risk assessment on the maternal grandmother and cousin supporting the mother before they have contact with the child;

(n) Both parents shall advise the Society with full particulars of address, phone number, email or other social media contact and to communicate any changes in relation to that information within 48 hours to the Society;

(o) Participate in parent training or support as recommended by the Society;

(p) Complete a first aid course;

(q) Ensure the child is appropriately and directly supervised at all times;

(r) Society shall assist the mother to develop a plan for her to pay monthly cell phone bill to C.T. that does not require her to have face to face contact with him;

(s) Society to assist the mother to develop a written emergency protocol for medical issues;

(t) Society to attend the mother’s residence weekly until January10, 2014 and in their discretion thereafter to ensure adequate safety, hygiene and housekeeping standards;

(u) Society shall assist the mother in organizing and enrolling the child in the appropriate licensed daycare and ensure that the child has speech therapy as recommended by the Infant Development Program. If speech therapy is not available through the licensed daycare, the Society shall arrange to provide it through the community or privately at the expense of the Society.

[85] The mother is encouraged to attend mediation and to invite T. and G. to develop a time-share arrangement.

[86] The father’s access to the child shall be supervised in the discretion of the Society.

MADAM JUSTICE CHERYL ROBERTSON

Released: October 18, 2013