ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-13-2129
DATE: 2014-12-15

BETWEEN:

CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

RS

Respondent

Mark Hecht, for the Applicant

Joan Rothwell, for the Respondent

HEARD: December 10 – 12, 2014

T.D. RAY, J

[1] The applicant seeks an order that the child, WS (born […], 2013) is a child in need of protection; and for an order that WS be made a ward of the Crown and placed in the care of the applicant for adoption. The applicant seeks this order in an Amended Application dated […], 2014.

[2] The applicant had commenced the original application […], 2013 following the birth of WS on […], 2013 and had apprehended WS. It claimed a three month Crown Wardship. Since then, a number of Temporary Care and Control orders were made granting access to the respondent mother, RS, increasing access to the respondent, RS, ordering a family court clinic assessment, and finally an order varying RS’s access ([…], 2014). After the applicant received the family court assessment (Dr. McLean, July 16, 2014), it filed an Amended Application seeking Crown Wardship - no access.

[3] The assessment conducted by Dr. McLean dated July 16, 2014, recommended Crown Wardship with a view to adoption in light of RS’s constellation of intellectual, relational and mental issues preventing her from playing any useful role in the life of WS. His recommendation assumed the unsuitability of RS’s mother and the unavailability of any other kinship options.

[4] The respondent, RS, opposes the order sought by the applicant and seeks an order that WS be returned to her care with supervision; or alternatively, if Crown Wardship is ordered, then access. She did not file a plan of care.

[5] The issues are as follows:

• Whether WS is a child in need of protection,

• If so, what dispositive order should be made?

• Return of WS to the respondent, RS, (with supervision) in the event the applicant is unsuccessful.

• Crown Wardship with or without access to the respondent, RS, in the event the applicant is successful.

-Alternatively an extension of 3 months, for the purpose of re-assessing the applicant’s application.

[6] The applicant called four of their workers plus Dr. McLean.

[7] Sharon Moran:

• Child protection worker since 1986. Now Intake worker. She became aware the respondent was expecting, and also became aware of some concerns about her marijuana use. She telephoned RS July 22, 2013, told her about her concerns, and asked if she could make a home visit. She would not agree to meet before the birth, but that she would after the birth. Then hung up. She placed an alert in the local hospitals, and on […], 2013, received advice that RS had given birth to WS. She went to meet with RS and learned from her that she was smoking marijuana on a daily basis, had smoked the day of WS birth, and that WS had tested positive for marijuana.

• She learned at the hospital that RS was not being cooperative with the nursing staff, was not following direction, and was aggressive and rude to staff. As a result, she felt concerns for WS’s safety, and told RS that the applicant would be staying involved. She proposed a voluntary care agreement to RS, who refused. After talking to the nursing staff, reviewing the hospital chart, speaking with RS’s worker, and speaking to her own supervisor, the apprehension took place. WS was placed in foster care. Before leaving the hospital RS continued to be uncooperative and eventually the police were called to have her removed.

• The application sought a 3 month Wardship. […], 2013, Temporary Care and Custody order was made with access to RS 3 times per week. She tried to interest RS in St. Mary’s, a facility for young mothers and their infants which offered addictions counselling, anger management and parenting courses. RS refused since she said she wanted to live with her mother. Because she was only the intake worker, she arranged to transfer the file to another worker.

[8] Michelle Tyrrell

• Was a child protection worker for 13 years after working as a coordinator at the Boys and Girls Club. She had experience with over a hundred families and numerous new mothers with new babies.

• Her first meeting with RS was a transfer meeting which included Ms. Moran. Concerns at the time were anger issues, addictions, and the events at the hospital. She raised St. Mary’s with RS but she reiterated she wanted to live with her mother. The plan included St. Mary’s (actually proposed by RS), but she insisted she wanted to live with her mother.

• She said she has gone over the applicant’s plan of care with RS many times – which included a number of conditions. Some things were done, others were not. She said that while her access was consistent, and she had completed an anger management course, she had not demonstrated that she had put the course into practice. She had started addictions counselling but had not completed it. The last screen she had was in January and that was positive. However her level of cooperation with the applicant was ‘challenging’. Also, while initially proposing St Mary’s, she really wanted to live with her mother and didn’t take St. Mary’s seriously.

• Because of the failed plan for St. Mary’s and the concerns about mental health issues, the applicant obtained an order for a family court assessment. Following the recommendations of Dr. McLean concerning Crown Wardship-No Access, the applicant amended its plan. By then, WS had been in care for approximately 11 months. She discussed Dr. McLean’s report with RS. Her response was simply to disagree.

• RS admitted to her that she was still smoking marijuana. While she was prompt in attending her access visits, these visits were marked with arguments and hostility from RS. She seemed consumed with arguing about the court orders instead of focussing on her parenting, and WS.

• RS made allegations of abuse against the foster parents, and reported these allegations to the police. They were unfounded. RS did not follow care instructions without constantly questioning them. The issues included treatment for WS‘s eczema and the medical advice to take care not to rub him with a towel, and to wear long sleeves so he would not scratch himself. RS put him in short sleeves because she thought WS was too hot. The new goals no longer included integration with WS but did include improvements in RS dealing with WS, with herself, and the applicant.

• Whenever a new counsellor was supervising RS’s access, RS would resort to doing things she had been told were not good for WS.

• If the court were to return WS to RS, the applicant would want announced and unannounced visits, drug and alcohol screens, RS’s cooperation with the applicant, a further parenting program because of WS’s changed development state, and Public Health involvement. She said she would probably not want to continue as a worker with RS because of her safety concerns.

[9] Sandra Lemieux

• She is an access facilitator for the applicant. Her role is to handle the day to day arrangements for access, be aware of all visitations, special needs, special support if necessary, and on occasion supervises access herself. She has been manager and supervisor for this file.

• RS is a difficult client. There have been 18 different CYC’s involved in her file, most asked to be moved because of the challenges of dealing with RS. RS is confrontational, intimidational, and exhibits mental health issues. She assigned different combinations of workers, younger, older, male, and female to see if there would be a better fit, but nothing worked. Whenever the visits were terminated, security was present because of safety concerns. Whenever written or verbal guidelines were reviewed with RS she did not seem to retain the information and had to have it repeated several times. WS needs to be in a home where he can grow normally.

[10] Dr. McLean

• Retired Director and now staff psychiatrist of the Family Court Clinic. He is also Assistant Professor at the University of Ottawa. He has been appearing in court as an expert since 1981, has done approximately 2000 assessments including 12 child protection cases, and has appeared in court approximately 100 times to give expert evidence. He was permitted to give an opinion concerning parenting capacity.

• WS is a special needs child. RS does not have the parenting ability to meet his needs. By reason of abuse at the hands of her mother and sexual assaults during her youth, RS experienced significant issues, missed school, ran away, and at age 14 was diagnosed with conduct disorder because of antisocial conduct in the form of oppositional and aggressive behaviour.

• RS showed a positive drug screen for marijuana in January, 2014; at the time of his review RS continued to use marijuana.

• She coped with the sexual assaults as a youth through denial, and appears to use the same tactic in dealing with current problems. By way of example of her difficulty in dealing with professionals, when she was hospitalized for a medical procedure, she checked herself out contrary to medical advice on four occasions; but then had to return because of the problem created by leaving when she did.

• While she took the anger management course that was recommended, she attended 6 times, failed to show up on 5 occasions, and cancelled 2 other times.

• The testing done as part of the assessment was invalid because RS answered the questions by consistently showing herself in a good light, rather that answering the questions with insight and candour.

• In order to change, RS would need intense addictions counselling, personal counselling, and parental training for upwards of two years.

• RS would be unlikely to support placement. Recommends Crown Wardship for adoption – no access. Periodic information would be ok, but no direct contact between RS and WS.

[11] Amanda Beatch

• Has been residential director of St Mary’s for about 14 years and associate director of the agency for 23 years. The agency runs outreach programs and residential programs for mothers and their babies dealing with parenting, direct services, health services, mental health services, life skills including school support, and personal growth. While the outreach programs are voluntary, the residential programs are for mothers who have been told they will lose their children if they do not attend.

• Met RS in December, 2013. RS came across as very personable and likeable who very badly wanted to get into the program. She recommended to RS that a trial period would determine whether she would be a good candidate. RS was unhappy about the delay, but she decided to move to full time residence in the home. WS was 3 months old at the time.

• The program failed after 2 days and RS was asked to leave. RS became confrontational with staff and other residents. There were 11 incidents that were concerning. This included 2 incidents of her wanting to report staff, an altercation with another client, RS misunderstanding an instruction from staff causing her to believe that she had been accused of endangering WS – when in fact it was a discussion of safe sleeping practices, constant and continuous arguing. It was the complete burden that she brought to the program that caused her to be asked to leave as being unsuitable.

• While there, the relationship with RS was so intense, it was as if she were the only client. In 23 years, she had never had a problem client like that.

[12] The respondent gave evidence. One access worker for the applicant was also called by the respondent:

[13] RS:

• 21 years old and the mother of WS. Finished Grade 10 high school and lives with her mother in Ottawa. When she is with WS, she has no worries and just wants to get WS back so she can live a life ‘the right way’. Still smokes marijuana. Was off it for a while but took up smoking again because of the applicant. Could quit if she wanted to.

• The St Mary’s program was not a success. When she was discharged, she was given no reason. She did not like being there. Tried to cooperate with the applicant but the applicant does not cooperate with her.

• Plan is to live at a shelter with WS, to return to school and put WS into daycare. Would attend St Nicholas where they have a day care for mothers and baby, 9 to 4. Just wants peace and to get along with everyone. She is Jamaican and French-Canadian and wants WS to be exposed to both cultures. If she had WS, she would agree to the conditions except for unannounced visits. She agreed no drugs.

[14] Tarrah Pugh

• Was called by the respondent as a witness. She was CYC or access supervisor from the fall of 2013 to the late summer of 2014; and during her access, she was able to correct RS through the use of cues. For example if RS became preoccupied with other people or other issues during the access, she was able to redirect her attention to WS. Her tactic of dealing with RS was to not engage. That allowed RS to move on. While there were some interpersonal issues caused by the respondent, as documented in her notes, she never felt it necessary to terminate an access visit. RS was always prompt, and appropriate in dealing with WS. The visits she supervised were the 45 minute visits not the 1 or 2 hour visits.

• There were challenges. For example on WS’s birthday, RS brought Thai food, which she had been told was not appropriate for WS. Instead of letting WS have the food that the foster parents had prepared, she only let WS eat ‘cheesies’. A good deal of the issues RS raised were related needing evidence for court.

Analysis

[15] For the reasons that follow, I am satisfied that the applicant has demonstrated WS to have been, and to continue to be a child in need of protection.

[16] RS’s marijuana daily consumption alone was sufficient to place WS at risk, and in need of protection. Her daily use, even on the day of WS’s birth, plus WS testing positive for marijuana is concerning. Yet except for a brief period, she continues to consume marijuana on a frequent basis, while knowing that abstention was a condition of her having WS. While this was not the most serious problem it is representative of RS’s approach to this case. The evidence is overwhelming that she constantly and persistently undermined the efforts of the applicant and the foster parents instead of concentrating on WS’s exceptional needs. There is no reason to believe that this conduct would cease so as to allow her play an access role in WS’s life. Dr. McLean came to the same conclusion in his assessment.

[17] I am further satisfied that it is in WS’s best interests that he be made a Crown Ward with no access for the purpose of adoption. Should RS want to receive information about WS’s progress, it may be provided to her in the form of periodic reports and pictures, if desired.

[18] Crown Wardship with no access for the purpose of adoption is the most intrusive of the dispositional orders and has been described as the capital punishment of family law (Children and Family Services for York Region v. S.S. 2003 2408 (ON SC), [2003] O.J. No. 2284 (SCJ))

[19] As such, careful scrutiny of the evidence must justify such a result with a high degree of probability (Children’s Aid Society of Niagara Region v. P. (D.) 2003 1932 (ON SC), [2003] 36 R.F.L. (5th) 265 (SCJ)). Great caution must be exercised. The evidence must be compelling, and an order may be made only after a careful examination of possible alternative remedies (Catholic Children’s Aid Society of Hamilton v. M. (M.A.), [2003] O.J. No. 1274 (SCJ)).

[20] The tests to be met are firstly a finding that the best interests of the child cannot be met by placement with a parent or other person. Secondly, if the first test is met, the question is, can Crown Wardship with no access, satisfy the child’s need for stability and permanency?

[21] I am required to decide this application in the child’s best interests, and to that end must consider the factors set out in s. 37(3) of the CFSA, as follows:

• The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

• The child’s physical, mental and emotional level of development.

• The child’s cultural background.

• The child’s religious faith, if any, in which the child is being raised.

• The importance for child’s development of a positive relationship with a parent and a secure place as a member of a family.

• The child’s relationships and emotional ties to a parent, sibling, relative other member of the child’s extended family or member of the child’s community.

• The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

• The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

• The child’s views and wishes, if they can be reasonably ascertained.

• The effects on the child of delay in disposition of the case.

• The risk that the child may suffer harm through being moved from, kept away from, returned to or allowed to remain in the care of a parent.

• The degree of risk, if any, that justified the finding that the child in need of protection.

• Any other relevant circumstance.

[22] The evidence is overwhelming that RS lacks the resources to parent WS properly and in a way to which he is entitled in order to meet his needs. RS has her own demons which prevent her from addressing her son’s needs. She needs to focus on her demons before attempting the parenting of a special needs child like WS. I was struck that virtually all her evidence was about her, thereby confirming her lack of insight into the obstacles that she has thrown down in her own path that she believes is the path to her regaining her son. Significant resources were made available to assist RS, yet she persisted in seeing these resources as impeding her right to have her son, rather than seeing them as opportunities to seize so she could acquire the requisite parenting skills.

[23] The respondent’s pleas that she be given another chance are simply that. There was no evidence before me to cause me to conclude that the respondent has taken any steps to address the crucial issues facing her. I am sure she has the best of intentions, but I have no confidence that she can or will follow through. Had that been the case, some progress would have been seen in evidence.

[24] In considering each of the factors above in the context of all of the evidence, I find I am inexorably led to the conclusion that WS.’s best interests cannot be met with a supervision order to the respondent, but are met by granting an order for Crown Wardship, no access, for the purpose of adoption. An extension is not appropriate. In fact an extension would unduly prolong the decision so that WS can move on. Again I note Dr. McLean’s comments in this respect.

[25] In considering adoption opportunities, attention should be given to WS’s cultural and religious heritage.

[26] Accordingly, Crown Wardship of WS., born […], 2013, for the purpose of adoption is ordered. All access orders are terminated. The respondent is to be kept fully informed about WS.’s care until adoption. The respondent will be entitled to a final supervised visit with WS. before adoption; and will be entitled to continued information if she wishes.

Honourable Justice Timothy Ray

Released: December 15, 2014

COURT FILE NO.: FC-13-2129
DATE: 2014-12-15

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

RS

Respondent

REASONS FOR JUDGMENT

Honourable Justice Timothy Ray

Released: December 15, 2014