ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 536/13
DATE: 2015/08/28
BETWEEN:
Valoris for Children and Adults of Prescott-Russell
Applicant
and –
C.-A. T.
Respondent
Me Sophie Coté Langlois, for Applicant
Cedric Y.L. Nahum, Barrister,
for Respondent
HEARD: August 20, 2015
REASONS FOR RULING
LALIBERTE, J.
INTRODUCTION
[1] The Society has brought a motion seeking the termination of access set out in a temporary order by the Respondent mother to the young child subject of these protection proceedings.
[2] The child V.T. was born on […], 2013 and was apprehended by the Society within four days of his birth.
[3] V.T.’s mother is the Respondent C.-A.T. There is confusing information from the Respondent as to the father but in the end, he remains unknown. There is a suggestion that the child was conceived through a sexual assault while she was sleeping at the hospital.
[4] The Society’s involvement stems from a report made by a nurse at the hospital where the child was born. A number of concerns were raised in regards to the Respondent’s ability to care of the child. She had suffered a stroke leaving her paralyzed on the left side resulting in physical limitations such as changing the child’s diaper. She did not have any outside support. She had consumed medicinal marijuana up to three months of the child’s birth. Finally, she was renting a home which had no water or electricity.
[5] In the course of these proceedings, the Society was granted orders which allowed for access to the Respondent’s medical records from seven hospitals including mental health facilities. Access was also granted to police records.
[6] These records reveal a significant history of mental health issues. They refer to delusions, personality disorder, suicidal thoughts, paranoia, schizophrenia, psychosis and others.
[7] Such findings are, for the most part, denied by the Respondent. She explains that while she did attend Douglas Hospital (which is a mental health facility in the Province of Quebec), the records refer to another woman with the same name and date of birth.
[8] On the first court date of July 25, 2013, Justice Maranger issued a without prejudice temporary order placing V.T. in the care and custody of the Society. The Respondent was granted supervised access, three times per week.
[9] The Society’s initial position was for an order of Society wardship. On August 20, 2014, the Society filed an amended application and sought a Crown wardship.
[10] On September 9, 2014, V.T. was found to be in need of protection and made a Crown ward in the context of a trial management conference. The trial was set to proceed later in September 2014.
[11] On June 10, 2015, the Divisional Court granted the Respondent’s appeal, quashed the Crown wardship and remitted the matter for trial.
[12] The evidence is that the Respondent exercised access to V.T. from July 25, 2013 to October 17, 2014, which is the last visit.
[13] V.T. has been living in foster care since his apprehension on July 22, 2013.
[14] He is presently living in a foster home in view of his adoption.
[15] Following the said Divisional Court’s ruling, the Respondent requested access to V.T. per the initial temporary order.
[16] It is in this context that the Society brings this motion seeking a temporary order granting no access until the issuance of a final order.
[17] The issue for the Court is therefore whether the temporary order made by Justice Maranger on July 25, 2013 which provided for supervised access, three times per week, to the child by the Respondent should be varied until the completion of this matter.
THE LAW
[18] In deciding this issue, the Court is guided by the following relevant legal principles:
i - the Court may at any time vary or terminate a temporary order which provides for a person’s access to a child;
- sections 51(5) and 58 (1) Child and Family Services Act.
ii - while the Child and Family Services Act does not provide that the moving party on a motion to vary access must demonstrate a material change in circumstances, it is appropriate to impose a threshold test of material change in circumstances to give effect to the statutory scheme and recognize that stability and continuity for children is desirable;
- C.A.S. v. E.L. [2003] O.J. No. 3281.
iii - to burden which rests on the moving party is to establish, on a balance of probabilities, a change which is significant and bears on the reason why the order sought to be varied was made; it should represent a distinct departure from what the Court could reasonably have anticipated in making the previous order;
- Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27.
iv - if a material change is established, the Court will consider a number of factors, including the significance of the alleged increase in risk, in relation to the likely time for trial, whether the order requested is proportionate to the change in circumstances and the child’s best interests;
C.A.S. of Toronto v. M.R. [2015] O.J. No. 1904.
C.A.S. of Toronto v. K.D. [2011] No. 724.
C.A.S. of County of Simcoe v. B.J.B. 2005 33293 (ON SC), [2005] O.J. No. 3907.
C.A.S. v. E.L. [2003] O.J. No. 3281.
v- in determining a child’s best interests, the Court shall consider the circumstances set out
in section 37 (3) of the Child and Family Services Act which include the following:
the child’s physical, mental and emotional needs and the appropriate care to meet those needs;
the child’s physical, mental and emotional level of development;
the child’s cultural background;
the religious faith in which the child is being raised;
the importance for the 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;
the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;
the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
POSITION OF THE PARTIES
SOCIETY
[19] The Society is of the view that there has been a material change in circumstances since
the temporary order of July 25, 2013.
[20] The Society’s main concerns are noted as follows in its Factum:
the mother’s mental health;
her lengthy history of medical files at various hospitals especially for mental health problems;
her physical limitations;
her limited support from her family and friends;
her inability to properly fulfil her son’s needs during her visits;
her history with the police services.
[21] The Society also relies on the fact that there has been no access for 10 months as a result of the final Crown wardship order as a basis of a material change in circumstances.
[22] If the Court finds that there has been the required change, the Society argues that it would not be in the child’s best interests to reinstate access. The following factors are raised in support of this position:
the child has been living in a foster care since July 22,2013; he is living with the foster parents who wish to adopt him; the placement is going very well and no concerns are noted;
the mother has not seen the child since October 17, 2014;
the child does not ask about his mother in foster care;
it is not in the child’s best interests to resume visits with his mother and to have them terminated in a few months, if the Society is successful on its Crown wardship application;
while the visits were occurring, the Society had many concerns which imported on the child’s well-being; for example, she would constantly talk to the child about various adult subjects; she left the child unattended; she would often ask for her child to breastfeed; she would ignore his cries and needs; she would sometimes speak of death; she told him that Krishna would take his life.
RESPONDENT
[23] The Respondent’s position is that the Society’s motion should be dismissed and access reinstated. Her view is that there is no change in circumstances warranting a review of access. The circumstances relied on by the Society are not novel. These allegations have been known throughout the proceedings and yet, the Society has never sought any changes.
[24] Counsel for the Respondent argues that there is no evidence to suggest that the resumption of access after 10 months would harm the child.
[25] In fact, precluding visits would impact on the Court’s ability to properly decide this matter on merit. It would not be fair to both the child and his mother. It amounts to setting up an artificial wall. He states that this may be the child’s only change at having a family. There is a need to see if the Respondent is able to care for the child.
[26] He notes that access was stopped because of an error by the Court.
[27] Reference is made to the child’s cultural background and being placed in a francophone home.
[28] The suggestion is that the Respondent has shown to be stable for the last 2 years. Reliance is made on Dr. Lisa Carswell’s report ( a neuropsychologist) dated February 19, 2015. The Court notes the following conclusion found at page 7 of the said report:
- “The current findings showed no evidence of any cognitive impairment on any measures across multiple cognitive domains. These findings are extremely positive from a cognitive perspective and do not suggest that any neurological or psychiatric history is currently impacting her cognitive functioning. From a functional perspective, there is no evidence of any cognitive limitations that would interfere with her ability to independently manage activities of daily living or instrumental activities of daily living. There is also no evidence of any cognitive limitations that would interfere with her ability to maintain employment or manage responsibilities associated with child-rearing. It is noted that this determination only speaks to her cognitive functioning as compared to an age-normed sample and does not address her parenting skills/capacity.”
DISCUSSION
[29] This motion presents with a number of difficulties.
[30] The Court is asked to re-visit the terms of a without prejudice temporary order issued on the first court date some 2 years ago. The record shows that there was limited information available to the court at that time to assess the risk associated with access by the Respondent to the child.
[31] There is now a substantial body of evidence available to the Court gathered since the initial order.
[32] The Court finds that the most significant information bearing on the risk associated with access by the Respondent to the child is found in the Court ordered assessment prepared by clinical psychologist, Dr. Abe Worenklein. This report is dated August 28, 2014.
[33] The conclusion on the issue of access is found at page 43:
“Access would be allowed if and only if Mrs. T. could demonstrate that in fact, she can follow the conditions of the supervised access and understand the rationale thereof and follow the recommendations of the professionals that she would be asked to see to ensure that V.T. is not exposed to problematic behaviour”.
[34] The report notes the following:
“The observations of the interaction on three different days provided the undersigned additional information regarding the relationship between Mrs. T. and V.T.. Many of the behaviours that raised concerns voiced in the observations that took place previously were noted by the undersigned as well”. Page 23
“The undersigned did find that Mrs. T. focussed on her needs more than on her son’s needs”. Page 25
“Mrs. T. was quite preoccupied with Hare Krishna. While I do understand the importance of religion, I was struck by the amount of time that was devoted to the mantras in view of the limited time that Mrs. T. spends with her son. At times, questions were posed to the child or topics discussed which were not appropriate for a child of one-year old”. Page 25
“There are numerous other incidents in the interactions observed and documented that are of concern but the basic underlying problem with such incidents is that Mrs. T.’s statements to V.T. reflect the mother’s needs as opposed to the child’s needs. Such statements can impact on the child’s play, eating, and even taking a nap. A parent needs to prioritize the needs of the child over her own needs”. Page 36
“The undersigned does not doubt the love that Mrs. T. has for her son nor does he doubt that she is well-intentional in terms of caring for her son in a positive manner. However, one needs to be realistic and to consider that even though Mrs. T. had been told on repeated occasions what the behavioral expectations were of her during her interactions with V.T., she frequently violated the guidelines. She clearly is a bright and articulate young woman who is talented in different areas but who has difficulty in inhibiting certain behaviours that she should be able to recognise as potentially having negative consequences on a child. The detailed case notes demonstrate clear evidence of the difficulty in adhering to rules that emanate from common sense. One needs to be able to control oneself and to anticipate consequences not only for oneself but for one’s child”. Page 40
[35] Dr. Worenklein’s report refers to the problematic behaviour exhibited by the Respondent during the supervised visits. These were noted by Society workers.
[36] It is reported that she uttered the following words to the child during visits:
she is the only one who loves him and everyone else is trying to kill him;
she will kill herself if he does not come home;
the good news is that she was going to die soon;
if he never comes home, he would be miserable his whole life;
read a story about Crown wards and about septic tank filled with children in Ireland in an orphanage; that the children were underfed and this was caused by their mothers’ not being allowed to nurse their children;
that she did everything for him and that if he does not come home to Krishna, then he will probably take his life and then he will be able to be with him;
that people are pathetic pieces of garbage…”we need to get you away from all these ignorant people”…she needs to take him away from them since they were trying to kill him;
telling him that he was a “traitor”.
[37] It is also reported that on several occasions, the Respondent handled the child in a “rough manner”, displayed a “negative mood”, would speak in a “very serious tone” and did not console the child who was crying.
[38] The Court has read the Respondent’s affidavit of August 14, 2015 which in essence, responds to the facts presented by the Society. The Court notes the following salient points:
she denies having threatened the workers during visits;
while she did criticize the care given to the child, her comments did not affect the age as he is too young to understand;
there were issues of communication with the workers because she spoke English and the workers are Francophone;
she has been cooperative with the Society throughout this process;
she has always spoken to the child in quiet tones, in a friendly and happy manner;
the Society’s criticisms of her signing and mantras are based on ignorance and prejudice;
she is extremely affectionate toward her son but there is a huge cultural and ideological difference between an English Hare Krishna mother of European-Filipino descent and atheistic French Canadian CAS workers;
she denies having handled the child in a “rough manner” nor as she ever raised her voice;
what she said to the child in relation to the Society was meant for the workers to hear; the child was too young to understand the words spoken; it was said in a soft and caring tone to provide him with positive stimulation while expressing to the workers her feelings towards their treatment of her;
she was treated with disrespect and intolerance;
visits are not for her to praise the people who work for the Society or the foster family but for her son to get to know her and learn his culture;
the reference to “take his life” does not mean to kill the child but to put him in Krishna’s service; this was a misunderstanding due to language and cultural biases;
she has been stable for the last 2 years and her home is safe, clean and well organized; she has all of the amenities for the child’s care;
it would be unfair not to allow access pending the new trial.
[39] Having considered all of the circumstances the Court finds, on a balance of probabilities, that the child has been exposed to problematic behaviour exhibited by the Respondent during access. This conclusion is based on the following considerations:
many of the behaviours noted by the Society workers were observed by Dr. Worenklein on the three different days he observed the interaction between the child and the Respondent in July 2014;
the information provided by the Society is well documented, consistent and confirmed by different workers;
it is difficult for the Court to accept the Respondent’s version as credible and reliable in light of long standing mental health issues which have resulted in her being described as “ extremely delusional”, “floridly psychotic”, “incoherent with stories”, “acute psychosis and decompensation from chronic schizophrenia”, “psychosis, NOS”, “very disturbed with loose associations and speaking in code”, “delusions of thought control, mystical and paranoid delusions”, “auditory hallucinations which she responds to”;
the allegation that she threatened the Society workers is supported by the comprehensive e-mail sent by the Respondent to a worker in August 2013 wherein she reports being associated with the Mafia and in no uncertain terms conveys the message that the workers and their families as well as the foster family were at risk;
while the Respondent denies having told Dr. Morissette on April 3, 2014 that she intended to commit suicide and that her words were misinterpreted by this psychiatrist, the doctor’s notes indicated that the Respondent is threatening to commit suicide if she looses custody of her child; that the Society and her lawyer have knowledge of her intent to do so and if she does, it will be the Society’s fault; this is significant in light of the Respondent’s suggestion that she has been stable for the last 2 years;
Dr. Lisa Carswell’s report certainly confirms that the Respondent’s cognitive functioning is not impacted by any neurological or psychiatric history; there is no question that she is a bright and intelligent person as noted in the various reports; however, such a finding does not address the long standing issues raised in the materials filed with the Court.
[40] The problematic behaviour found by the Court is seen as a significant change in circumstances which increases the risks for this child. It is contrary to his best interests, protection and wellbeing. Exposure to such conduct is not consistent with the child’s mental and emotional needs. This is not speculation. It is based on common sense, reason and life experience. It is not conducive to the development of a positive relationship between the child and the Respondent.
[41] The Court is mindful of the child’s age at the time of the visits. As stated by Dr. Worenklein, “The undersigned recognizes that at one-year-old, a child may not be able to understand everything that is being said…”. However, the Court notes the following:
the Court rejects the Respondent’s suggestion that the words were spoken in a soft tone;
the evidence which is accepted by the Court in this motion is that she, on occasion, used “a very serious tone”, displayed a “negative mood” and handled the child in a “rough manner”,
it is very significant that the child is now 2 years old and better able to understand by reason of age.
[42] As already noted, Dr. Worenklein provided an opinion on the issue of whether or not there should be access in this matter. His view is that it should be allowed if and only if the Respondent can follow the conditions of the supervised access and understand the rationale thereof and follow the recommendations of professionals. His opinion is that this is necessary to avoid exposing the child to problematic behaviour.
[43] The Court finds that the evidence establishes, on balance, that the Respondent is unable to follow the conditions of supervised access and understand the rationale thereof. Nor does she follow recommendations. This conclusion is based on the following considerations:
she behaved as she did knowing that she was being supervised;
she displayed such conduct knowing that she was being assessed by a Court appointed expert;
she was warned on many occasions;
her conduct resulted in some of her visits being shortened;
the workers explained to her why some of her behaviour was inappropriate;
the Court finds that some of the comments made by the Respondent in her August 14, 2015 affidavit are troubling when one considers her ability to understand the rationale discussed by Dr. Worenklein; at paragraph 69, she states:
“What I said to V.T. in relation to the Society was meant for the workers to hear. I know that V.T. was not at a stage in his language development where he would understand the words I was saying and I spoke in a soft caring tone to him to provide him with positive stimulation, while expressing to the workers my feelings towards their treatment of me”.
[44] Therefore, the Court finds that the risks associated with access support the Society’s position in seeking to suspend access before the trial.
[45] These concerns are compounded by the fact that there has been no contact between the child and his mother since October 2014. This is also seen as a significant change in circumstances which impacts on access.
[46] The Court is very mindful of the circumstances which led to the access being terminated. The Court is also aware of the probable consequences that the suspension of the visits will have on building the child’s relationship to his mother.
[47] It is also noted that the trial, if any, may not proceed before February 2016 as counsel for the Respondent is not available for the September 2015 trial blitz. The Court has spoken to the trial coordinator to try and find earlier dates for trial.
[48] However, the Court’s primary concerns are the child’s best interests, protection and wellbeing.
[49] The reality is that this child has been subject of the uncertainties attached to any child protection proceedings since his birth.
[50] Through his apprehension, he was placed in a framework where the preferred objective is to return the child to the person who cared for him or her before the state intervention.
[51] Through the Crown wardship, he was placed in a framework where the objective is adoption.
[52] Through the quashing of the Crown wardship, he is returned to the initial framework. Within the next 6 months, he may again be placed for adoption if the Society is successful at trial.
[53] The Court rejects the suggestion that the re-introduction of the Respondent in the child’s life followed by her removal if the Society is successful will not have any impact on the child.
[54] Common sense, life experience and reason suggest that a 2 year old child is not oblivious to his or her environment and the people who are part of this environment. As stated by Dr. Worenklein in his report:
“Researchers in the field of attachment have found that children without proper care in the first few years of life have high levels of stress hormones which negatively impacts upon brain and body development. Conscience development does depend on brain development and follows attachment.
CONCLUSION
[55] Therefore, the Court grants the Society’s motion and suspends the Respondent’s access to the child.
[56] The Court directs the trial coordinator to make reasonable efforts to set this matter for trial as soon as reasonably possible.
Justice R. Laliberté,
Released: August 28, 2015
COURT FILE NO.: 536/13
ONTARIO
SUPERIOR COURT OF JUSTICE
Valoris for Children and Adults of Prescott-Russell
Applicant
and –
C.-A. T.
Respondent
REASONS FOR RULING
Laliberté, Judge
Released: August 28, 2015