NEWMARKET
COURT FILE NO.: FC-15-047421-00
DATE: 20150923
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Children and Family Services for York Region, Applicant
and
A.T. Respondent
H.M.Y.Y., Respondent in default
H.S., Respondent in default
Children’s Lawyer, Deborah Herriot-Howes
BEFORE: The Honourable Madam Justice H. McGee
COUNSEL: Amelia M. Daurio, for the Applicant
Respondents – self represented
HEARD: September 17, 2015
ruling on motion
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This Ruling complies with this restriction so that it can be published
Orders Sought by the Respondent Mother Unavailable on Motion
[1] The respondent mother seeks the return of her seven year old daughter to her care without conditions, and a dismissal of the Society’s protection application on a final basis. She does so within a motion dated September 2, 2015, which replaces her motion of August 14, 2015, which revises her motion of July 18, 2015; and, that substantively duplicates her three motions of August 25, all dismissed by Justice Kaufman on the same day.
[2] The motion offers five cascading alternatives.
(a) A temporary order to return E.T. to the mother’s care without conditions, pending the final order sought.
(b) A final order for unsupervised access, transitioned to a return to the mother’s care in one to two weeks, and a dismissal of the Society’s crown wardship application today.
(c) A final order for unsupervised access, transitioned to a return to the mother’s care in one to two weeks, pending a final order to dismiss the Society’s application on October 16, 2015.
(d) A final order to dismiss the Society’s application and return E.T. to her mother on the condition that she will permit the Society to voluntarily follow her family for three or six months.
(e) An order to grant any and all reliefs the mother may request from this court and all the mother and her children need to return to their normal family lives, in the best interests of her and her children.
[3] Final orders are not available on a motion, but for a motion for summary judgment.[^1] This is not a motion for summary judgment. The order sought in (e) is not discernable.
[4] The request in (a) does not include any term for supervision. For reasons that will be canvassed in this ruling, it is not an available order.
[5] On August 11, 2015 the mother breached a significant term of her supervised access. Access in the community was replaced with access at the Society’s centre. Access at the centre quickly deteriorated to a point at which the police had to be called.
[6] There is presently no access between the respondent and her daughter. The Society is committed to reinstating access upon the mother meeting with them to review a document titled “Acknowledgement of Visitation Expectations and Visit Plan.” The mother has refused. As a result, she has not seen her daughter for almost a month.
[7] This is a dreadful situation. It appears to be driven by the mother’s personal fear and distrust of the Society, rather than the best interests of her daughter.
[8] The Children’s Lawyer strongly supports a return of E.T. to her mother’s care, under terms of supervision. OCL counsel cogently argues that it is in E.T.’s best interests for her mother to be given another opportunity to parent. And there is a credible pattern of evidence supporting a view that E.T. can be adequately protected by an order under section 2 (b) of the Child and Family Services Act.[^2] At the same time, it appears that the mother is not prepared to accept supervision. She refuses to acknowledge any risks associated with her care of the children.
[9] I will deal with each of these three dynamics in further detail.
Children’s Lawyer
[10] The Children’s Lawyer has satisfied herself with respect to the consistency and independence of her child client’s views and preferences. She indicates that it is extremely important to E.T. to return home. E.T. misses the life that she had with her mother and brother. This is a noticeable change since February 2015, when she appeared somewhat ambivalent.
[11] E.T. wonders why her older brother has been able to return home, and has assumed it is because he is older. She enjoys her foster home, but wants to return to normalcy and to “be like other kids.” If she cannot return home, she wants “ten visits with her mother” every week.
[12] The OCL argues that the mother has made mistakes and exercised bad judgement in the litigation, but has done what she can do as a parent. Counsel feels that E.T. is a highly visible child in the community, and that with professional eyes watching, the risk of harm can be managed through terms of supervision.
Risk of Harm
[13] Prior rulings have set out in detail the history of Ms. A.T.’s seven year involvement with four different child protection societies across Ontario. Within these reasons, a very brief overview will focus on E.T.’s circumstances.
[14] E.T. was born in Ottawa in […] of 2008. Shortly after birth, Ms. A.T. was placed on a Form 1 under the Mental Health Act. The Ottawa Children’s Aid Society apprehended new born E.T and her older brother from the hospital. A lengthy protection proceeding culminated in the September 29, 2010 report of Dr. MacLean of the Ottawa Family Court Clinic.
[15] Dr. MacLean’s report is a detailed 36 page assessment that identifies the mother’s pre-existing mental health challenges and her ability to parent. E.T. is assessed as a “special needs child who shows evidence of a significant developmental delay as well as an insecure attachment to A.T. [the mother].” Recommendations are made for E.T. to be assessed to establish a baseline level of functioning and tracking of future progress.
[16] In the final page, the report states that should E.T. be returned to her mother’s care, it is imperative that the mother take steps to ensure her own mental health stability, as E.T. will experience more emotional scarring and insecurity each time she has to return to Society care. It was recommended that E.T. be allowed to remain in A.T.’s care under the conditions of a supervision order which required the mother to:
(a) maintain regular follow-up for her mental health issues;
(b) be compliant with medication;
(c) sign releases to the Society to permit them to monitor compliance;
(d) place E.T. in daycare and take steps to ensure that she is visible in the community;
(e) make certain there is access between E.T.’s older brother and his father, Mr. H.M.Y.Y.
[17] On the strength of that report, and Ms. A.T.’s agreement to abide by terms of supervision, E.T. and her brother were returned to her care under a supervision order in August of 2010. However, the report predicted that,
Should A.T. not remain compliant with treatment, or should she have recurrent decompensations even with appropriate treatment regime, we would suggest that the Courts would need to look at E.T.’s coming into care on a Crown Wardship basis that would allow her to be placed in an adoptive home.
[18] We now know that there have been at least three further significant decompensations. The lengthy and thorough reasons of Justice Kane, attached to my decision of March 18, 2015 set out the chronology of events around the Guelph apprehension of 2012, the criminal charges arising from the harassment of a priest, and the July 2012 Community Treatment Order and Plan. The children were placed in foster care back in Ottawa, and Ms. A.T. moved to London, Ontario to pursue studies.
[19] The children were returned to her care in December 2012 and the file was transferred to London. The reader is referred to the timeline attached to my prior reasons for a chronology of events then leading to the December 23, 2014 apprehension. The matter was transferred to York Region the following month.
[20] The mother brought a series of motion in early 2015. The final motion in that series was decided by me in reasons released March 18, 2015. Those reasons documented E.T.’s placement into care five times, in four different jurisdictions over seven years, that E.T.’s mother had a troubling criminal record for harassment,[^3] and that Ms. A.T. seemed to move through various treatments and assessments amongst a bewildering array of physicians, psychologists, psychiatrists, and social service providers across Ottawa, London, Guelph and the Greater Toronto Area.
[21] It was decided in that ruling that E.T. and her older brother; A.Y. would remain in Society care, with access in the Society’s discretion.
[22] Within a few months A.Y. returned to his mother’s care given his age, insights and demonstrated ability to self-protect. Access to E.T. went very well until August.
[23] In July of 2015 the Society brought a motion for disclosure after the mother refused to consent to the release of certain medical and police records.
[24] The cyclical pattern of decompensations has not been easy to discover. Ms. A.T. accesses services as she needs them, but she does so in a manner that the services do not always know about each other. They are often in different jurisdictions. As demonstrated in this proceeding, she refuses to give consent for the production of certain records. Rather, she will deliver only the positive reports, or if the report is mixed, highlight the positive and discredit or wholly ignore the negative.
[25] Significant reports came available as a result of the order for disclosure. Of note, is the May 22, 2015 report of Dr. Flak. Dr. Flak is an associate professor of Psychiatry at the University of Toronto who reviewed 36 reports on Ms. A.T. since 2008, from 18 different treating physicians, psychologists, and psychiatrists. He summarizes those reports, and his own observations as follows:
Overall, my impression is that Ms. A.T. suffers from a mental disorder which includes elements of pathological attachment, perseveration, vulnerability to psychotic decompensation when under stress, and impaired ability to mentalize (i.e. to understand her own thoughts, feelings, motivations, and intentions, and the thoughts, feelings, motivations and intentions of other people) in relationships with authority figures. Flashbacks and nightmares related to her negative experiences with attachment figures and authorities have result in a posttraumatic stress disorder, a diagnosis that is quite clear. As with other consultants, I am not certain of other diagnosis that might apply, except that it is clear that obsessional rigidity is a significant characteristic of her personality. …. If schizophrenia is present, this is a mild form, as there are no bizarre delusions, no significant hallucinations, well-preserved emotional responsiveness and expression, and no gross disorder of thought process……
I do not see any basis for concluding that at this point Ms. A.T.’s daughter E.T. requires protection from Ms. A.T. The documentation and clinical evidence available to me does not warrant a conclusion that Ms. A.T. presents a danger to her children, herself, or anyone else.
[26] Dr. Flak goes on to list his recommendations for protecting Ms. A.T. against future risk. He reiterates that should Ms. A.T. follow a prescribed regiment of self-care and medication, and if she makes certain that there is someone who can look after the children should she become unable to function, there is in his view, no clinical basis for E.T. not to be returned.
[27] Neither Dr. Flak, nor any of the reports of 18 service providers conducted an independent assessment of the children, but for Dr. MacLean. And none of the reports have been admitted per Rule 20.1 of the Family Law Rules, or been subject to cross-examination. There are also a number of other salient reports which I will not reference in this ruling as they do not touch on the children.
[28] What I do take from the reports - for the purposes of this motion - is that there have been five years of similarly documented conclusions: Ms. A.T. does not pose a danger to her children or herself, provided that she is compliant with treatment and there are supports in place for her children when she decompensates. Importantly, none of the reports suggest that Ms. A.T. will not suffer further decompensations. She is often described as an emotionally frail individual who responds disproportionately to life’s usual setbacks.[^4]
[29] This is not a conclusion opposed by the Society. They acknowledge Ms. A. T.’s strong parenting skills and commitment to her children when all is going well and she is in treatment compliance.
[30] The Society is rightly concerned with the fate of the children when Ms. A.T. falls into distress, a pattern that is now firmly established over the past seven years. A child protection Society is compelled by statute to act when children are in need of protection. The Ottawa Society acted in December 2014 to once again apprehend the children following on their mother’s decompensation at the Ottawa Hospital.
How can the Children be Protected? What is the Specific Risk to E.T.?
[31] It has become clear within this proceeding, as was echoed in prior proceedings, that the mother does not accept that her children are affected by her mental health relapses. In my view, this is the root cause of her constant struggle against the various Societies. She genuinely believes that it is the apprehensions that hurt her children, not the events that statutorily require the various child protection societies to intervene.
[32] The diagnosis of Dr. Flak provides empathetic context for the mother’s disproportionate responses to the Society and the court as authority figures. That said, her litigation profile is troubling. Her conduct in many respects approaches that of a vexatious litigant.
[33] How then can the children be returned to her care and in the long run, be protected during the inevitable periods of decompensations?
[34] One option is for the children to learn to self-protect. This appears to be the situation with E.T.’s older brother A.Y. Over time, he has taken on the role of a support to his mother and a parental figure for his sister. It is a heavy burden for a teen, and is not without its own set of concerns. The Society advises that they presently have limited access to the brother. His age, and the strength of his views and preferences may limit their ability to provide him with further assistance.
[35] E.T. is too young to self-protect. It remains absolutely necessary that a family service worker monitor the family in the same manner that was put in place five years ago in Ottawa.
[36] None of the support persons proposed by the mother are an adequate alternative, particularly A.Y.’s father, Mr. H.M.Y.Y. Mr. H.M.Y.Y. has often been absent in his young son’s life, and has not been a protective factor in any of the three apprehensions since 2010. He is noted in default in this proceeding, and attends court as a support to Ms. A.T.
[37] Mr. H.M.Y.Y., and each of the four other persons proposed by the mother appear to have only a superficial understanding of the mother’s long term mental health issues. None have demonstrated, or even indicated a willingness to confront her should it be necessary to protect the children.
[38] E.T was psychologically assessed by Dr. Olga Henderson on June 16, 2015. Within a very detailed analysis Dr. Henderson states that,
Her attachment to her mother is probably very anxious and insecure. Nevertheless, she indicated clearly that she wants to live with her mother forever and to always have her “kitty.” She was concerned that her brother would send her kitty away, just as she has been sent away by her mother. She is anxious about this.
[39] Dr. Henderson explains that insecure attachments make for indiscriminate dependencies. Adults “can be interchangeable for her as long as they are able to meet her needs.”
[40] In the long term, there are serious implications for a child with an insecure attachment. Dr. Henderson concludes that E.T. “needs a lot of support and in particular, stability in her life,” and that whether or not her mother is able to achieve a stable level of functioning is something which needs to be determined. Play therapy is recommended by Dr. Henderson whether or not E.T. returns to her mother’s care.[^5]
[41] Read with Dr. MacLean’s report, it is clear that Dr. Henderson is seeing the consequences of the mother’s inability to maintain long term stability.
Legal Basis for a Motion to Return a Child per Section 51 CFSA
[42] In my earlier ruling I referenced the relentless quality of Ms. A.T.’s litigation. In this ruling, I turn to the tragic misadventure of her self-representation.
[43] Ms. A.T. has brought a motion with terms that are not amenable to an order. At best, this is a motion pursuant to Section 51 (6) of the Child and Family Services Act.
POWER TO VARY – The court may at any time vary or terminate an order made under subsection (2).
[44] The order that she seeks to vary is the original order of December 23, 2014.[^6] There is a two stage test when employing Section 51 (6). First, has there been a material change in circumstances? Absent a change, the motion need not be considered further. The material change must relate to the child.
[45] If there has been no material change, then the present order of December 23, 2014 stands, and E.T. remains in the care of the Society, with access in the Society’s discretion. Access awaits Ms. A.T.’s attendance at the Society to review the Acknowledgement of Visitation Expectations and Visit Plan.
[46] If there has been a change, the court is to consider within a broad and discretionary assessment of the best interests of the child whether there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm if returned, and if so, whether the child can be protected adequately by a supervision order.[^7]
Decision
[47] The Society agrees that Ms. A.T. has diligently engaged with health, medical, counselling and psychological services. She appears to be well supported in her present plan of treatment and medication. Her commitment to a plan of treatment is not in question.
[48] Within the first stage of the two stage test under section 51 (6) of the Act, I am persuaded that there has been a material change in circumstances since December 23, 2014 sufficient to find that Ms. A.T.’s present state of mental health is now sufficient to consider a return of E.T. to her care, under terms of supervision.
[49] Within the second stage of the test, I find that there are reasonable grounds to believe that E.T. is at risk of harm should she be returned to the care of her mother. At the same time, I am persuaded by the Children’s Lawyer that E.T. can be adequately protected by a supervision order.
[50] Whether Ms. A.T. is prepared to enter into, and comply with a supervision order is unknown. Ms. A.T.’s motion does not provide the court with an option to return E.T. to her care under terms. Her affidavits of August 24, 2015 and September 11, 2015 call for nothing less than a complete end of the Society’s action. She states specifically at paragraph 6 of her August 24, 2015 affidavit that,
As a result of all the unpleasant events, I felt extremely uncomfortable with the Society. Dr. Berber, Dr. Flak and Dr. Hussain have also spoken to me on August 24, 2015. They are very concerned about the detrimental effects of the Society’s actions on all of us and feel that the Court must put an end to this proceeding now.
[51] Her affidavit of September 9, 2015 sets out further reasons for the action to be dismissed: that her mental health issues are adequately addressed, there is “no health or safety concern for me or protection need for my children” the proceeding is unfair, it is a source of significant stress which is affecting her health, and the ongoing proceeding “will delay or impede the proper investigation by the Human Rights Tribunal.”
[52] Despite seven years of child protection involvement, and consistent conclusions within a vast array of medical and psychiatric reports, Ms. A.T. continues to assert an unqualified belief that there is no reason for her children to be protected from her pattern of mental health decompensations.
[53] This is significant. Dr. Henderson’s report, read in conjunction with the 2010 report of Dr. MacLean provides a very real basis for a court to find that E.T. is in need of protection from emotional harm.
[54] Were Ms. A.T. to accept the concerns regarding her daughter, she might put a plan forward to place E.T. into play therapy, and to work with the Society to create a plan that best provides for a secure and stable home with meaningful supports during inevitable and understandable periods of relapse.
[55] Having carefully considered the events leading to this decision, the potential for a better future; and consciously choosing to focus on E.T.’s best interests rather than the mother’s terrible litigation decisions; I will provide her with an opportunity to enter into terms of supervision that would permit a scheduled return of E.T. to her care. I make the following order:
Upon release of these reasons, Ms. A.T. is to immediately advise the Society in writing whether she is prepared to abide by terms of supervision for both E.T. and A.Y., should E.T. be returned to her care.
If so, then the Society is to prepare a list of proposed supervision terms, and a schedule for E.T. to be returned to the care of her mother. Within those terms, the court wishes to see a provision for counselling for A.Y., and play therapy for E.T.
The parties will meet Friday, September 24, 2015 at 9:30 a.m. to review the proposed terms.
If the parties cannot agree, the court will determine the terms of supervision.
If the mother is not prepared to enter into terms of a supervision order, this motion is dismissed.
The next steps in the proceeding will be determined at the return of the motion.
Justice H. McGee
Date Released: September 23, 2015
[^1]: There is a motion scheduled for summary judgment on October 16, 2015.
[^2]: Section 2 (b) provides for an order of temporary care and custody subject to the Society’s supervision on reasonable terms and conditions.
[^3]: There were three known periods of obsessive stalking. One predated E.T.’s birth, the harassment of the priest in Guelph triggered the 2012 apprehension, and the relentless pursuit of Dr. Moise in Ottawa resulted in the present apprehension. There was a further period of obsessive pursuit over the summer of 2015.
[^4]: Such as her car troubles in the fall of 2014
[^5]: With respect to E.T.’s well-being, I discount entirely the August 12, 2015 letter of Dr. Hussain. Ms. A.T.’s attendance at his office on August 11, 2015 as a walk-in patient with E.T. during access was the reason for the August 13 adjournment of her earlier motion. Dr. Hussain did not have the benefit of seeing Dr. MacLean or Dr. Henderson’s report, nor does he share their expertise or independence. In the short time available to him, he was not in a position to report anything but his observations – which were equally consistent with E.T. being happy in foster care.
[^6]: My order of March 18, 2015 simply dismisses Ms. A.T.’s five prior motions.
[^7]: Children’s Aid Society of the County of Simcoe v B. (B.J.) 2005 33293 (ON SC), [2005] O.J. No. 3907 (OSJ).