ONTARIO

SUPERIOR COURT OF JUSTICE

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

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF A.V.D., born […], 2015

B E T W E E N:

Children's Aid Society of the United Counties of Stormont, Dundas and Glengarry

Ann M. Bellefeuille, counsel for the Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry

Applicant

A.D.

Penelope G. Gardner, counsel for the Respondent, A.D.

Respondent

G.L.

David Barnhart, counsel for the Respondent, G.L.

Respondent

HEARD: November 9, 10, 11, 16 and 17, 2015

REASONS FOR JUDGMENT

LALIBERTE, J.

INTRODUCTION

[1] The Society has initiated protection proceedings pursuant to Part III of the Child and Family Services Act. The child is A.V.D. who was born on […], 2015. She was apprehended by the Society at the hospital following her birth and has been in foster care since.

[2] The Respondents A.D. (mother) and G.L. (father) are the child’s biological parents.

[3] It is the Society’s position that A.V.D. is a child in need of protection and that the appropriate disposition is a Crown wardship with a view of adoption. This claim is based on a risk of both physical and emotional harm.

[4] The Respondent parents dispute the Society’s position. Their view is A.V.D. is not a child in need of protection. If she is, any such risk can be properly managed through supervision by the Society.

[5] Notwithstanding the terms of paragraph 50(2) of the C.F.S.A. which provides that evidence relating only to disposition is not admissible before a finding on need of protection, the parties agreed to proceed by way of blended hearing for the presentation of the evidence.

[6] The issues to be decided by the Court in this trial are as follows:

1. Is A.V.D. a child in need of protection?

2. If so, what is the most appropriate disposition for this child?

THE EVIDENCE

[7] A Statement of Agreed Facts signed by the parties was filed on consent and marked as an Exhibit to this trial.

[8] This Statement establishes that A.V.D. is the biological child of A.D. and G.L. She was born on […], 2015 and was apprehended at birth without a warrant. Her religion is Roman Catholic as is not of native status.

[9] It reveals that Child Family Worker, Cecilia Kyer, was appointed to the file to assist the family in addressing issues of prenatal care and the preparation required for the birth of the child.

[10] A.D. had the support of two SAM Workers (Support Assist Maintain) through Counselling and Support Services. SAM Worker, Annie Fontaine, assisted A.D. with life skills, nutrition, budgeting and social skills. SAM Worker Samantha Delhey assisted A.D. with couple conflict, relationships and communication. Combined, these two SAM Workers provided 15 hours of service per week. In addition thereto, A.D. had the assistance of Support Worker Melanie Williams, also an employee of Counselling and Support Services.

[11] CFW Kyer first met A.D. when she was 11-12 weeks pregnant. She was under the care of OBGYN Dr. Dekimbo.

[12] Ms. Kyer met with A.D. on July 11, 2014 for purposes of outlining the Society’s concerns which were identified as follows:

-Cleanliness of the home;

-Personal hygiene;

-Smoking;

-Lack of proper diet;

-Sleeping patterns;

-Poor prenatal care i.e.: refusing to take prenatal vitamins.

[13] The expectant mother appeared to understand the Society’s concerns.

[14] On December 11, 2014, A.D. was informed that the child would be apprehended at birth by the Society.

[15] Lastly, the Statement of Agreed Facts sets out the following additional events:

− The initial belief that S.S. was the child’s biological father has been ruled out through D.N.A. paternity testing; the biological parents are A.D. and G.L.;

− A.D. is currently pregnant with the couple’s second child;

− After being discharged from the hospital, A.D. was residing with her mother, A.L.; it was agreed that the supervised visits could take place at A.L.’s apartment;

− By February 2015, the visits were moved to A.D.’s apartment;

− By April 2015, the visits had to be moved to the Society;

− A.D. is supported of Counselling and Support Services with 15 hours of services per week.

[16] The Court was advised that for purposes of application for ODSP benefits, both Respondent parents were subject of a psychological assessment. Reports were filed on consent.

[17] Exhibit 2 is a Psychological Assessment Report authored by Registered Psychologist Doctor Janine M. Scott and relates to a May-June 2011 assessment of A.D.

[18] The Court notes the following passages in the said report:

− “Her verbal skills are extremely low. Her perceptual reasoning is extremely low. Her working memory is extremely low. Her processing speed is extremely low. Her overall intelligence is extremely low.”

− “Her daily living skills are extremely low-mild deficit…does not always recognize dangerous situations and places herself at risk. She has difficulty telling time… She would need assistance in getting around the city.”

− “According to the Behaviour Checklists, A. exhibits statistically and clinically significant level of oppositional behavior as well as difficulties with attention, organizational problems, difficulty completing tasks and concentration problems.”

− “A’s intellectual ability is in the extremely low range of intelligence. Her verbal comprehension, perceptual reasoning, working memory and processing speed are extremely low.”

− “A. would benefit from a structured supportive environment that provides routine to assist her in meeting her potential… Her behavior difficulties may be linked to her ability to understand what is asked of her so individuals working with her must be cautious in assuming that she understands… It should not be assumed that since A. understood and followed instructions on one day that the next day she will remember what she did. Therefore she needs reminders, prompts, supervision and follow through in most of her activities.”

[19] Exhibit 3 is a Psychological Assessment Report prepared by Consulting Psychologist Doctor Raymond Proulx in October 2006 and relates to the Respondent, G.L.

[20] The Psychologist makes the following comments:

− “As can be seen in this table, G.’s adoptive skills are moderately to severely delayed in all areas.”

− The results of G’s functional skills indicate that he has significant delays in a number of areas: communication, social/interpersonal skills, work and leisure activities, and some academic skills. Because of the serious limitations observed in two or more functional areas and the Borderline results he obtained previously on a test of general intelligence, it is determined that he is developmentally challenged (Mental Retardation) and he meets the criteria for a diagnosis of a generalized developmental delay as defined in the DSM-IV. The functional levels provided by the mother and the aunt suggest that he will need to be closely monitored and likely experience significant problems in assessing the consequences of his actions and planning his daily activities.”

[21] Four witnesses were called by counsel for the Society, namely, Child and Family Worker Cecilia Kyer, Permanency Child Protection Worker Doris Hawkins, Child Protection Workers Robin Young and Kathy Kiverago.

[22] On consent of the parties, their evidence consisted of sworn affidavits on which they were cross-examined and re-examined. It was also agreed that their respective case notes, filed as exhibits, would form part of the evidentiary basis in this trial.

CHILD AND FAMILY WORKER CECILIA KYER

[23] Ms. Kyer is a Child and Family Worker with the Society. As such, she provides parents with teaching and guidance on parenting techniques, proper care, organization and hygiene. She also supervises child/parent visits.

[24] She has been involved with this family since the start.

[25] In June 2014, the Society received a number of calls from individuals who were concerned with the fact that A.D. was pregnant. The concerns revolved around her relationship with S.S. who was a registered sex offender and her ability to care for a child.

[26] Her first meeting with A.D. was on June 23, 2014. She is described as being very shy and child-like in her interaction and demeanor. She noted that A.D. had difficulty understanding instructions and required concrete “black and white” type teaching style.

[27] She confirms that A.D. has historically benefited from ongoing support from Workers provided by Counselling and Support Services through a program known as the SAM program (Support Assist Maintenance).

[28] Her evidence reveals that she identified a number of prenatal concerns in regards to A.D.’s ability to care for a child which were as follows:

− Domestic conflict with S.S. (who was believed to be the biological father);

− Her lack of self-care and hygiene;

− The cleanliness of her home (cat feces, exposed garbage on the floor, strong odour);

− She continued to smoke during pregnancy;

− Her eating and sleeping habits;

− The refusal to take prenatal vitamins;

− Concerns that she would allow S.S. to be alone with the child in contravention of his conditions as a sex offender;

− The fact that she moved on a number of occasions;

− The SAM Workers having to keep track of her medical appointment and ensure her attendance.

[29] As already noted, the initial belief was that S.S. was the biological father so that Ms. Kyer worked with both A.D. and S.S. D.N.A. paternity testing would later confirm that S.S. is not the biological father. This was confirmed on March 31, 2015.

[30] Ms. Kyer’s evidence is that several meetings were held with A.D., her mother A.L. and S.S. during which expectations and goals were identified, explained, discussed and repeatedly reinforced.

[31] Her case notes for the period leading to the child’s birth, which were filed on consent, reveal the concerns she shared with other workers as to A.D.’s ability to care for a child. Her evidence is that some of the concerns were raised by the SAM Workers who had been assisting A.D. for over a year. They qualified her ability to do so as being “very low”.

[32] It is noted that the prenatal period was marked by the uncertainty as to whether S.S. was the biological father. He changed his position on this on a number of occasions. A.D. was adamant that he was the father.

[33] A.D. identified her mother A.L., her brother B.D., a family friend S.I. and her aunt S.P. as potential Kin options. Her mother A.L. was excluded by the Society as a potential Kin.

[34] On a positive note, she is reported as participating in the Baby Real Program. She was described as slowly progressing in this program but in positive terms when she was able to focus.

[35] The prenatal period is also marked by two troubling events which were verified by A.D. when she spoke to Ms. Kyer.

[36] The first incident occurred on November 1, 2014 and involves K.L. This individual is identified as:

− Her uncle;

− Her mother’s ex-partner;

− The Respondent G.L.’s father;

− Her proposed Kin S.P,’s brother.

[37] She reports that K.L. attended her apartment late at night intoxicated and passed out on her couch. She states that K.L. had made comments in the past to the effect that “well I have had the mother, I should be able to have the daughter.” A.D. indicates that she didn’t feel comfortable staying in her bedroom so she laid on the floor next to the couch. K.L. would have touched her inappropriately and without consent. She states having let it happen as she wanted to catch him in the act. The police were called and K.L. was charged with sexual assault.

[38] This incident is raised by Ms. Kyer and other workers as an example of A.D. not making appropriate choices and decisions which raises safety issues for the baby.

[39] The second incident is on November 20, 2014. A.D.’s girlfriend reports that she observed her rolling around on the floor wanting to be stabbed in the stomach and stating that she didn’t want to live anymore and wanted to get “this baby out me”. The following day, she told Ms. Kyer “feeling like that”.

[40] The end result was that on December 8, 2014, a decision was made by the Workers that the child would be apprehended by the Society at birth. This decision was conveyed to A.D. and S.S. on December 12, 2014.

[41] The Child A.V.D. was born on […], 2015 and apprehended at the hospital following her birth.

[42] The bulk of Ms. Kyer’s evidence following the child’s birth revolves around her observations during access visits. She provides an account of both joint and separate visits by the Respondents.

[43] The history of the access visits can be summarized as follows:

− From child’s birth on […], 2015 to April 29, 2015, only A.D. had visits as G.L. was not known to be the father;

− Up to the beginning of March 2015, visits were set at one hour per day, three times per week;

− As of March 2015, visits were increased to 1.5 hours, three times per week;

− On March 26, 2015, visits were increased to 2.5 hours, two times per week;

− As of April 29, 2015, G.L. is involved in joint visits;

− Over the summer of 2015, visits increased to 3 hours, two times per week;

− In mid-September 2015, each Respondent gets separate visits of two hours each once weekly; this was in response to A.D.’s request.

[44] Through her affidavit, case notes and testimony, Ms. Kyer provides a fairly comprehensive account of her observations. The Court will briefly review her evidence in relation to each Respondent.

[45] As discussed during the trial, Ms. Kyer concludes her affidavit, which was filed on consent as her examination in-chief, by providing opinion evidence on the core issues in this trial. While very experienced, Ms. Kyer was not qualified as an expert witness. The record should be clear that any reference to her opinion in this decision is strictly for the purpose of structuring her observations and placing same in context.

A.D. (individually)

[46] Ms. Kyer raises a number of concerns in regards to A.D.’s ability to care for a child, with or without supports. Her view is that she cannot safely care for A.V.D. Nor is she capable of adequately caring for her on a day-to-day basis or meeting her basic needs.

[47] She notes that access visits have frequently required support and assistance as A.D. has a difficult time recognizing her daughter’s needs, remembering when to support the child’s head, having her latch onto the bottle as well as ensuring good personal hygiene.

[48] A.D. required frequent reminders on basic care such as wiping from top to bottom when changing her diaper and not giving up on feeding when the child was slow to feed or not latching quickly.

[49] She describes A.D. as enjoying taking pictures of her daughter but quickly getting bored and playing with her phone, and ignoring her child. Once A.D. touches her phone, she becomes distracted and disengaged from her surroundings.

[50] Ms. Kyer provides examples of A.D.’s inability to adjust to the child’s stages of development such as how to talk, to play and hold the child. She is described as requiring constant guidance. She is unable to plan or anticipate what is coming next without prompting.

[51] The worker states that while opened to teachings during the first few months, as time passed, A.D. withdrew from teaching moments. She appeared bored of having to wait for A.V.D. to settle and would begin playing on her phone.

[52] Reference is made to A.D.’s lack of energy or stamina. Even with frequent encouragement and teachings to keep walking or bouncing with the child, she would give up shortly to sit even if the child is still crying. She refuses to sing or hum as a means of soothing the child.

[53] Concerns are raised with the number of times A.D. has moved since June 2014. She has moved on 6 occasions.

[54] The need for A.V.D.’s environment to be smoke free is identified as an ongoing struggle. The child’s breathing worsened over the month of March 2015. The visit locations were changed to the Agency from March 31, 2015 to June 1, 2015 in an attempt to provide a smoke-free environment. Ms. Kyer’s evidence is that she reviewed with A.D., her mother and brother the expectations of attending the visits with specific instructions on how to arrive smoke-free. A.D. is said to have followed the instructions for the first visit but then failed to do so notwithstanding repeated reminders and instructions. She stated that she understood but continued to arrive at visits having had a cigarette or bringing a diaper bag which smelled strongly of smoke. She is described as not appearing to understand the severity of her actions and the effects of second-hand smoke on her child.

[55] Following a visit on April 9, 2015, A.V.D. suffered a severe breathing attack resulting in her hospitalization at CHEO. Her lungs required suctioning on three occasions. She also received multiple doses of epinephrine.

[56] Ms. Kyer reports that on April 16, 2015, she explained the significance of the child’s breathing problems and the effects of smoke. She again reviewed the issues around smoking, personal hygiene and hand washing. She was also asked to purchase “HydraSense” for infants which is used to extract congestion every three hours as recommended. While she agreed to purchase same, she hadn’t done so for the next visit which was April 22, 2015 stating “…well if I don’t buy it this month, it will be next month.”

[57] The worker’s evidence is that while A.D. expressed that she did not want a repeat of A.V.D.’s health concerns, she did not demonstrate any commitment to ensure a clean, smoke-free home or smoke-free clothing. Nor did she ensure that family members follow the hygiene requirements.

[58] Ms. Kyer describes an incident on October 5, 2015 when A.D. placed Cheerios on A.V.D.’s platter. She was asked to reduce the amount as she may try to put all of the cereals in her mouth, which could result in choking. She removed a few pieces and then went off to make lunch for herself. Shortly thereafter, A.V.D. breathed in sharply and began to choke on the Cheerios in her mouth. A.D. did not recognize that the child was choking, requiring intervention. She did not appear to grasp the risk to A.V.D. if she was unable to cough out the Cheerios.

[59] Changing diapers is identified as an ongoing problem notwithstanding repeated instructions.

[60] A.D. is currently pregnant with her second child. Her expected date of delivery is December 24, 2015. Ms. Kyer is of the view that the current pregnancy raises the same concerns as the first one namely:

− Lack of choice of healthier food;

− Limited to no prenatal supplements as her diet is poor;

− Poor hygiene;

− Inability to keep her home clean;

− Continued smoking habit.

[61] Ms. Kyer states that she had hoped that through constant support, teaching, reminders and encouragement, A.D. would have gained the skills and knowledge acquired to have A.V.D. returned to her care. However, she states having witnessed A.D.’s continued limitations in understanding the child’s needs. She consistently fails to recognize cues therefore she is unable to grow in the child’s developmental stages. She does not believe, based on her observations, that A.D. would be able to overcome the challenge of anticipating A.V.D.’s developmental growth and her change in routine and behavior to accommodate those changes.

[62] When cross-examined by counsel for A.D., Ms. Kyer states that while there was some improvement with A.D., it would disappear. There was no consistency. She always appeared tired. She has very little energy. She refuses to sing or hum to sooth A.V.D.

[63] She finds that A.D.’s poor hygiene is a constant problem.

[64] She testified that she has never stopped trying to motivate A.D.

G.L. (individually)

[65] Ms. Kyer paints a similar picture in regards to G.L. She describes his involvement with A.V.D. as ‘animated, playful and engaging”. However, Ms. Kyer is of the view that G.L. has been unable to develop to a point where he can care for A.V.D. safely. Nor would he be able to adequately care for the child on a daily basis or meet her basic needs.

[66] To G.L.’s credit, Ms. Kyer identifies a number of positive points in describing her observations. She notes the following:

− He is generally open to suggestions and will ask questions which facilitates teaching; there were times where he felt insulted by the information conveyed as he felt he knew from visits with his eldest daughter;

− He appears to demonstrate that he understands A.V.D.’s developmental growth and engages in learning about her newest ability; he does not appear however to know when to initiate playtime without direction;

− There is no question that he loves his daughter; he is quick to take her when she is fussing; he is playful and engaged with her; however, it was noted that he has begun to disengage and grow distant from A.V.D. since he has started his own visits at his grandmother’s home;

− He has no problems humming to her and will walk with her until she is asleep.

[67] The most significant concerns raised by Ms. Kyer are as follows:

− His low energy level which resulted in him falling asleep during a significant number of visits; he was noted as snoring during some visits;

− The fact that he is also a smoker and did not follow directives in regards to the child’s exposure to smoke from clothing;

− He struggles to change the child’s diaper quickly; he requires constant reminders to use toys or to talk to keep her attention during a diaper change; on a few occasions, he was observed becoming irritated with A.V.D. moving around during the diaper change to the extent that A.D. cautioned him by saying “…don’t get mad at her.”

− He struggles with maintaining a clean, smoke-free and safe home for the child;

− He needs to be repeatedly reminded and prompted about basic routine and safety;

− He is described as having a hard time managing his anger; there were several visits in which he was unable to cope with external stresses; on a number of occasions he vented against the Society during visits; he was upset when A.D. introduced her new boyfriend on August 31, 2015.

[68] She agrees with G.L.’s counsel during cross-examination that many “positives” were noted on how he cares for his daughter.

[69] He is very playful and able to calm her. There is no question that he loves her. He is very passionate about being a father.

[70] She describes July 2015 as having been a very good month. There were lots of growth and she, in turn, was very hopeful.

[71] However, she responds to counsel that things did not subsequently progress for the better. He is unable to sustain. There is no progression. He cannot go beyond the child’s basic needs. He requires constant reminding and coaching.

[72] In her evidence, she provides the example of July 15, 2015 when she explained to G.L. the need to “baby-proof” their home as she noted that some items could fall on A.V.D. She also noted the presence of items which the child could place in her mouth. G.L. stated he understood. Yet, Ms. Kyer noted that the items were still present at the next visit.

[73] So that while this witness agrees with the suggestion that there are positive aspects, her view is that, looking at the big picture, the concerns remain. Her sense is that G.L. is capable of repeating what he is instructed and appears to understand and yet, he does not follow through.

A.D. and G.L. (as co-parents)

[74] Ms. Kyer raised a number of concerns with the Respondents’ ability to co-parent.

[75] She notes that their relationship has historically been volatile and unstable. They separated in July 2015. They are not presently residing together but express the intention of doing so. A.D. introduced a new boyfriend in the mix in August 2015.

[76] She describes their interactions with A.V.D. as appearing to be a competition with who can do it better resulting in little attention to the child as they begin to bicker about who reads her cues properly.

[77] Her view is that they have very blurred boundaries in their relationship. Their relationship has the potential for A.V.D. being left in an unsafe environment when they are in a disagreement as they are only able to focus on their conversation and become unaware of their surroundings.

[78] The Court was made aware that on November 5, 2015, the child A.V.D. was diagnosed with a number of significant allergies. She is allergic to cats, eggs, peanuts and dogs. It is said that these allergies require extreme diligence. This condition requires access to an EpiPen injection at all times in case of exposure. Ms. Kyer’s view is that the Respondents are unable to manage this risk.

[79] In re-examination, Ms. Kyer raises the issue of how the Respondents were unable to care for a dog they had taken in around June 18, 2015. She noted that they were yelling at the dog and had no food to feed this animal. She felt there was no planning on how they would care for the dog.

[80] In the end, based on her observations, Ms. Kyer concludes that her concerns remain. She did not see the Respondents progress in their ability to care for A.V.D. She explains that there is a learning curve when one becomes a parent. She did not observe the progression which is expected from new parents. She believes that she has done everything she could.

PERMANENCY CHILD PROTECTION WORKER DORIS HAWKINS

[81] Doris Hawkins is the Permanency Child Protection Worker assigned to A.V.D. since birth. As such, she monitors the child in the foster home and during some of the access visits with the Respondents. Her focus is on the child.

[82] She describes A.V.D. as a healthy infant female. On occasion, she presented difficulty breathing following visits with the Respondents and exposure to second-hand smoke. Reference is made to having to attend CHEO in April 2015 where she was diagnosed with Respiratory Syncytial Virus which is the most common germ that causes lung and airway infections in young children. The attending physician had stated that A.V.D. had to be protected from exposure to second-hand smoke.

[83] Ms. Hawkins presents a very positive picture of the child in the foster home. She appears comfortable and content. There is a clear and strengthening bond with the foster parents. She is reported as being a typically happy and content child. She is easily calmed when irritable and difficult to settle.

[84] Ms. Hawkins has supervised a number of visits with A.V.D. and the Respondents. Her evidence is that she has a number of concerns with their ability to care for the child. These have led her to believe that neither Respondents would be able to meet A.V.D.’s basic needs and requirements on a day-to-day basis without full-time, ongoing support.

[85] Again, the Court is mindful that this is opinion evidence. It is noted by the Court for the purpose noted when Ms. Kyer’s evidence was reviewed.

[86] The Court is provided with a detailed account of Ms. Hawkins’ observations during access visits and case conferences. She identifies the following specific issues:

− Lack of parental skills;

− Lack of insight regarding C.A.S.’s concerns;

− Difficulty processing medical information;

− Difficulty filling idle time productively;

− Lack of good judgment;

− Hygiene.

[87] As already noted, Ms. Hawkins provides a detailed account of her observations in support of these concerns. The Court will briefly identify some of these observations.

i) Lack of Parental Skills

-A.D. had trouble burping the child;

-A.D. was noted as being impatient and not allowing time to eat; lack of understanding that a newborn takes many minutes to eat;

-A.D. is unable to understand cues as to when to change diaper;

-A.D. doesn’t allow child time to sleep;

-G.L. and A.D. developed a ritualistic routine with the child and are unable to deviate;

-A.D. failed to support the child’s head safely;

-Difficulty in settling child when she is crying;

-G.L. is not able to understand cues such as trying to play or feed her when she is tired;

-They struggle to change diapers.

[88] In re-examination by counsel for the Society, Ms. Hawkins states that for the most part, the Respondents are eager to learn. The issue is with their inability to follow through with the instructions. They are concrete learners and they can’t deviate from directions. They do not have intuition on how to care for a child.

[89] As a child progresses, parents are required to know their child. The ability to read the child and respond to needs is required. It is necessary to plan ahead. Ms. Hawkins states that she hasn’t seen this with the Respondents. They require constant reminding and prompting.

ii) Lack of Insight Regarding C.A.S.’s Concerns

-On June 3, 2015, G.L. argued that the only thing that he is required to prove is that he is capable of feeding A.V.D. solid foods; he became upset and argumentative when attempts were made to explain how he was being assessed;

-Ms. Hawkins’ evidence is that the Society’s concerns and expectations were clearly and frequently explained to the Respondents; they were reviewed during access visits and case conferences; the 3 Columns Exercise is such an example; she indicates that she is aware of their cognitive delays and explains accordingly; while they are able to repeat the concerns and expectations following a review, they will later suggest that the Society is adding new items and tasks; their belief is that the Society is tricking them so to prevent them from getting the child in their care; G.L. gets upset and frustrated;

-They were unable to understand examples of when they do not grasp cues from the child and deviate from the routine so as to respond to her needs;

-She describes a number of incidents where the Respondents became upset and angry; on one occasion, they raised their voices while caring for the child; A.D. is described as vigorously bouncing A.V.D. on her knee in an effort to settle her; Ms. Kyer told her to stop; they were told to lower their voices as it was upsetting the child; they refused to calm down;

-On August 12, 2015, they left a case conference out of anger.

iii) Difficulty Processing Medical Information

-A.D. had a difficult time understanding the effects of second-hand smoke on the child; on March 25, 2015, she was explained that the child had two asthma attacks following her last visit with her; she was advised A.V.D. had problems breathing for 45 minutes; her response was “…I always have asthma attacks. I have five puffers.”;

-A.D. did not appear to understand what the child’s doctor was saying during a medical visit on April 1, 2015 in regards to preventive measures and the spread of virus; the doctor’s recommendation included frequent hand washing and hand sanitizing prior to handling the child;

-On June 22, 2015, the child’s doctor advised that A.V.D. had a form of yeast infection on her skin caused by insufficient hand washing and unsanitary environments; when advised, A.D. responded that the child protection worker had just visited her home and had not identified any concerns with the cleanliness of the home; she was reminded of the importance of washing hands and ensuring that their clothes is clean.

iv) Difficulty Filling Idle Time Productively

-A.D. is described as having a difficult time being alone with A.V.D.; when she is caring for her, she is distracted by her phone or other individuals who may be present such as her brother or mother;

-G.L. was observed having a hard time staying awake; he appeared “zoned out”, being very still and staring blankly in one direction; A.D. admitted to her that she had fallen asleep during a visit;

-She noted that G.L. fell asleep on the couch on May 6, 2015 during an access visit.

v) Lack of Good Judgment

-The Respondents seek medical and child care advice from people who do not provide reliable information;

-On June 18, 2015, A.D. posted pictures of spoiled formula on Facebook alleging that the foster parents had deliberately placed this bottle in the diaper bag; the bottle had been left by mistake; Ms. Hawkins later spoke to A.D. about her choice to post the pictures and make allegations and that these actions were hurtful for the foster parents; she is reported as defending her actions and said that she had pressure from family to post the pictures to prove her allegations;

-During a case conference held on August 12, 2015, A.D. stated that she had suffered from a heart stroke and she was sure that she had a heart attack a few weeks prior; she denied going to the hospital or seek medical attention stating that she refuses to see a doctor in Cornwall as she does not trust them; she said she spoke to a friend who had almost graduated nursing school and that was the one who diagnosed her weakness and chest pains as a heart attack;

-During the same case conference, the issue of smoking in their apartment was discussed; they initially denied but then explained that they smoke in the patio area when it rains; this patio is attached to A.V.D.’s room and cannot be accessed without walking through her room; A.D. explained that she kept A.V.D.’s door open because she was blowing cigarette smoke out the open window; G.L. stated that he felt that cigarette smoke was not something to worry about since the child had not had any difficulty breathing while on her visits with them lately;

-A.D. is unable to do math so as to prepare a 6 oz. bottle;

-On June 22, 2015, Ms. Hawkins called A.D. to inform her of the results of the medical appointment that child had with her doctor; she had Ms. Hawkins on speaker phone; at the end of the conversation, A.D. was unable to relay back what had been discussed.

vi) Hygiene

-When she supervised the three visits in the week of February 7, 2015, A.D. wore the same clothes for all three visits; A.D. emanated body odour by the end of the third visit;

-On March 25, 2015, there was a strong stench of body odour, cat urine, cat litter and cigarette emanating from the apartment occupied by A.D.’s mother;

-On April 30, 2015, a strong smell of cigarette smoke was emanating off A.D.’s sweatshirt; both Respondents admitted not having showered before the visit.

[90] When cross-examined by counsel for G.L., Ms. Hawkins agrees that there are positive points with G.L. He is able to identify some cues. Rubbing her back as a means to sooth her is an appropriate technique.

[91] He understands how to warm up a bottle in hot water. He is also capable of preparing cereals. He is also described as very good at having A.V.D. fall asleep.

[92] She rejects the notion that child care can be methodical. In her mind, it is not enough to go through a list. A parent must be able to anticipate, identify and plan.

[93] Counsel for A.D. questions Ms. Hawkins as to why the access was not increased. She explains that the progress was never sustained. There was no progression.

[94] She describes A.D. as being distracted and not focused on the child.

[95] The parents were told that they would continue to support them with the hope that things would get better.

[96] She is cross-examined on the Respondents taking on a dog. Ms. Hawkins felt that the timing wasn’t right. They should have focused on their child.

[97] She notes that the dog was kept in a cage. They would hit the cage. They didn’t have food for the dog so they fed him spoiled food from the fridge. She felt the dog was being neglected. A.D.’s brother B.D. would have threatened and yelled at the dog. Ms. Hawkins expressed the thought that the handling of the dog was indicative of how they would possibly care for their child.

CHILD PROTECTION WORKER, ROBIN YOUNG

[98] Robin Young is a Child Protection Worker. Her involvement with this family was initiated in November 2014. She was assigned to the Child Protection file on […], 2015 following A.V.D.’s birth.

[99] Her first meeting with A.D. was on November 21, 2014 in the context of a case conference with a number of workers. A.D. is described as making very little eye contact and “childlike” in her comments and statements.

[100] Ms. Young states that the following concerns were raised prior to the child’s birth:

-S.S. not wishing to be involved in any planning for the baby and “resigned” his rights as a father;

-Cleanliness of the home;

-A.D.’s prenatal care, lack of healthy diet, lack of sleep and self-care;

-A.D.’s inability to filter opposing information given by her mother A.L.

-While she had demonstrated the ability to retain information around safe sleeping and preparing for the baby, she had shown very little follow through with taking care of herself, cleaning her apartment, taking care of her cats and risk factors of smoking.

[101] Three individuals had been named by A.D. as potential supports, namely S.I. (described as a family friend and “step-mother”), her aunt S.P. and her brother B.D.

[102] Ms. Young indicates that the involved Workers’ belief, including the SAM Workers, was that there was little confidence that A.D. could look after a young child. This is what came out of a Case Planning Meeting held on December 8, 2014. A.D. was collectively noted at a level of 1 to 2, 10 being completely confident.

[103] The Court is mindful that this is hearsay evidence and the expression of opinions. It is however seen as part of the narrative.

[104] The Court notes, on the question of “opinion evidence”, that some of the opinions provided by Ms. Young were in response to suggestions raised during cross-examination. When cross-examined by counsel for G.L., Ms. Young expresses the view that while she agrees that the Respondents have acquired some basic parenting skills, these are very basic skills and not enough for them to care for a child on their own. She doesn’t agree with counsel’s suggestion that they have progressed with the child’s development.

[105] In essence, this echoes the view expressed in paragraph 22 of her affidavit wherein she states:

“…neither parent has the ability to replicate or provide the parenting skills which were role modelled and repeatedly demonstrated to them… A.V.D.’s needs would not be met in the care of either A.D. or G.L….”

[106] Again, the Court is mindful that this amounts to opinion evidence given by a witness who was not qualified as an expert in this trial. The Court’s focus is on the observations made by Ms. Young which led her to her stated belief in regards to the Respondents’ abilities as parents.

[107] Ms. Young supervised two access visits. On January 29, 2015, the visit took place at A.L.’s (A.D.’s mother) home. She states that the visit was positive and there were no difficulties.

[108] The second visit was on March 15, 2015 and was held at C.A.S. A.D.’s mother and brother were also present. Ms. Young’s concern with this visit revolves around A.V.D.’s head not being properly supported. She noted the following:

-A.D. was observed, on several occasions, not supporting the child’s head;

-A.L. (A.D.’s mother) was seen picking up the child from a blanket on the floor with no neck support; the child’s head bent back; this was repeated while she was standing up with the child;

-This prompted a Worker to intervene and demonstrate how to hold the child; A.D. was asked to look at the demonstration; she responded “I know how to do this” as her back was to the Worker as she played on her phone; Ms. Young asked to look at the demonstration and she again stated “…I know how to do this.”

[109] In regards to the issues of hygiene and cleanliness, Ms. Young stated having attended A.L.’s apartment on November 24, 2014 to meet with Ms. Delhey (SAM Worker) and Ms. Kyer (Child Family Worker).

[110] A.L. was moving the following week. She describes that every surface was covered with items and garbage. There was barely room to move in the kitchen. The home smelled strongly of garbage and body odour. The floors were messy and cluttered and in several areas there was cat urine and feces on the floor.

[111] Ms. Young requested to review A.D.’s apartment which was located across the hall. A.L. stated that A.D.’s apartment was a mess as well. A.D. indicated that she didn’t have a key and she was not going back to the place in which she had been raped.

[112] Ms. Young attempted to check out the other rooms but had to leave due to the overpowering odour.

[113] On June 22, 2015, she met the Respondents at their apartment. She relates that G.L. was in the process of cleaning. He had started cleaning that morning that she was to visit. The bathroom was observed to be dirty and unsanitary. A.D. was laying on a mattress in the livingroom which served as the couple’s bedroom.

[114] When asked if it was exclusively G.L. who cleaned the home, A.D. stated that she put away her laundry and made her bed. She explained that she was not able to do dishes as, in the past, she has been suicidal and was told by the Mental Health Crisis Team and the police not to be around knives. She stated that feeding A.V.D. was not an issue as the utensils were plastic. Cooking would not be an issue as long as there were no knives within reach.

[115] Ms. Young describes the following meetings with Respondents:

i) March 23, 2015

-Held at Counselling Support Services;

-Present were:

A.D.;

Her brother B.D.;

S. Delhey (SAM Worker);

M. Williams (Counselling Support Services Case Manager);

D. Hawkins;

C. Kyer.

-The “Three Columns” tool was reviewed: this tool is described as a means to determine the following questions: “What is working well?”, “What are we worried about?”, “What needs to happen?”;

-The information is gathered through the participation of everyone present and provides concrete examples which are clear and understandable;

-This document was attached and marked Exhibit “A” to Ms. Young’s affidavit.

ii) April 17, 2015

-Held at A.L.’s (A.D.’s mother) apartment;

-Present were:

A.D.;

G.L.;

A.L.

-G.L. explained that when he learned that S.S. was not the father, he believed that he was the only other option since he had been involved in a, on and off, sexual relationship with A.D. for the past three years;

-G.L. explained that he had a child from another relationship; born on […], 2013; the child was living with her maternal grandmother as a result of C.A.S. involvement; he had supervised access to his daughter at the York Center, one hour per week.

iii) May 25, 2015

-Present were:

A.D.;

G.L.;

Ms. Fontaine (SAM Worker).

-G.L. expressed his displeasure with worker D. Hawkins and her actions and directions on the day A.V.D. was baptized;

-They expressed their pleasure working with worker Kyer;

-A.D. stated that G.L. was having a hard time staying awake during visits; G.L. agreed and stated that his plan was to consume more energy drinks to stay awake;

-The Respondents confirmed that they were no longer living together; G.L. was now living with A.D.’s brother;

-The Respondents confirmed that there had been people smoking in their apartment over the weekend.

iv) June 12, 2015

-Present were:

A.D.;

G.L.;

M. Williams;

S. Delhey;

M. Fontaine;

D. Hawkins;

C. Kyer.

-Ms. Young had developed a Plan of Service using the information gathered from the “Three Columns” dated March 23, 2015; this Plan of Service was presented to the Respondents;

-This document was attached and marked as Exhibit “B” to Ms. Young’s Affidavit;

-A.D. became upset about the concerns around cleanliness and hygiene; Ms. Fontaine mentioned that A.D. had demonstrated, for a period of time, that she was keeping her apartment clean and taking showers without prompting; Ms. Fontaine noted that in the recent weeks, A.D. had however not been diligent with maintaining the cleanliness of the home; A.D. did not agree;

-The Respondents stated “10” in their confidence to commit to the “family’s plan to achieve tasks and safety”;

-Ms. Young advised the Respondents that although there had been some progress, there had not been a significant amount of progress and that the Society at that time was amending their Application for a Crown Warship;

-A.D. is described as putting her head down, taking her phone and start texting, when asked questions, she became upset and stated: “I have a disability….I can’t function like everyone else…”; she presented as very childlike and argumentative, cutting people off mid-sentence when they were trying to help, grumbling when others were speaking and at one point, yelling at G.L. “Shut up… Shut up…”;

-As for G.L.’s reaction, he stated “I knew it.”, he was frustrated and spoke of his experience with his first daughter; he expressed his desire to change; that he would do whatever it took; he shared his willingness to work cooperatively; he expressed his pleasure with the Plan of Service; he appreciated the workers being up front and honest; he stated that he understood the Society’s concerns regarding cleanliness, personal hygiene and he apologized for sleeping during the visits; he stated that he would stay awake during the visits from now on; he would make sure the apartment is clean.

v) August 12, 2015

-Present were:

A.D.;

G.L.;

M. Williams;

S. Delhey;

D. Hawkins;

C. Kyer.

-This is described as another “Three Columns” meeting; the document generated from this meeting is attached and marked as Exhibit “C” to Ms. Young’s affidavit;

-Ms. Young states that the following concerns were again discussed:

A.D.’s hygiene;

Parenting skills;

Inability to apply learned skills over a period of time in different situations.

-Both Respondents identified health issues;

-The Respondents were told that the Society wanted the parents prove their parenting skills and be able to apply them to suit A.V.D.’s developmental needs, specifically around safety;

-Ms. Young’s evidence is that the concerns were explained in detail to the Respondents who were given every opportunity to discuss the issues and ask questions.

vi) September 18, 2015

-Present were:

A.D.;

A.L.;

B.D.;

S. Delhey;

M. Williams;

Ms. Vinokuroff (Ms. Young’s supervisor);

Mr. Boisvenue (Ms. Hawkins’ supervisor);

D. Hawkins;

Joanne Landerau (A.D.’s worker).

-The Respondents and family outlined their concerns and belief that they were not given a fair chance by the Society;

-They were seeking overnight visits;

-They wished to prove that they could care for A.V.D. and if not, they would consent to a Crown wardship order;

-They felt that it was unfair that the Society had knowledge of their respective past histories; A.D. stated that the Society took the position that because she was abused as a child she would in turn abuse her child;

-Ms. Young’s evidence is that she explained during this meeting that although some of the steps in caring for a baby had been met, the Respondents had not developed the ability to care for the child’s changing needs and developments;

-The end result was the family agreeing to continue to work with workers Kyer and Hawkins but not with Ms. Young.

[116] In cross-examination, counsel for the Respondent G.L. questions Ms. Young on the statutory objectives set out in the Child and Family Services Act.

[117] Counsel’s suggestion is that the Society failed to consider and provide the resources needed for the Respondents to acquire parental skills.

[118] She is asked whether thought was given to access support services outside of the access regime set up by worker Kyer.

[119] Reference is made by counsel to the “Early Year Center”, the “Nipissing District Developmental Screen”, “St. Mary’s Home” and “Triple P”.

[120] Ms. Young agrees that outside resources were not considered by the Society. Her view is that the Respondents were in need of teaching on parenting skills and worker Ms. Kyer was given this task. Ms. Young confirms that she has no input in regards to access schedule. She had no role in deciding access.

[121] Ms. Young explains that the Society’s goal is to return a child to the parents regardless of what is sought in the court application.

[122] She notes that on September 1, 2015, she participated in a meeting with other workers with a view of coming up with “extra” ideas on how to help the Respondents. She states that the following ideas were discussed:

-Use a trajectory for visits with expectations;

-Define clear expectations of goals for a visit and if not achieved, discuss at the end of the visit outlining positives and negatives;

-Go back to the basics and have the parents learn by repetition, provide homework and use a baby real doll.

CHILD PROTECTION WORKER, KATHY KIVERAGO

[123] Kathy Kiverago is a Child Protection Worker. Her involvement in this matter is limited to assessing A.D.’s brother B.D. as a potential “Kin and Care” and adoptive parent for A.V.D.

[124] She was not cross-examined on her affidavit sworn on October 30, 2015 and filed as an exhibit in this trial.

[125] On September 19, 2015, she received a referral to initiate a “Kin and Care” assessment for B.D.

[126] She met B.D. on September 28, 2015. He stated he wanted the assessment to include his girlfriend S.L. as they had been dating since July 2015 and were planning on moving together.

[127] On October 1, 2015, it was determined that the “Kin and Care” assessment could not proceed at this time due to the following reasons:

1. The fact that B.D. and S.L. had been in a short-term relationship, which was less than one year and would therefore not allow for a fair assessment in a stable relationship;

2. S.L. currently has an open Child Protection file with C.A.S. which is being moved to ongoing services due to physical discipline related to a three year old son and a previous history with the Society.

[128] On October 15, 2015, Ms. Kiverago received an Adoption Assessment referral from B.D.

[129] Ms. Kiverago advised the Court that she is in the process of completing this assessment. She states not being able to take a position yet.

[130] She raises the following concerns in her affidavit:

-There is a pattern of the family being enmeshed, with a pervasive lack of functional, healthy family boundaries which creates tension and conflict including police involvement;

-B.D. has a significant amount of trauma, abuse and neglect that included emotional and physical abuse as well as neglect of basic needs, which resulted in his coming into the Society in 2003, until he exited care in 2006 of his own accord;

-There were historical concerns from 2012 when B.D. was residing with a girlfriend and her newborn baby from a previous partner; the worker at that time visited the home twice per week after the baby was born due to ongoing concerns which included poor housekeeping standards, such as unwashed dishes, leftover food going bad, cigarette butts and debris on the floor, garbage bags full of clothes and a general unpleasant smell; the Society’s workers addressed these issues on each occasion; at times, the state of the home would temporarily improve following the Society’s recommendations however it would then slowly regress to its original state;

-The Health Unit nurse and Family Worker also worked with the couple on hygiene, particularly as is related to cleaning baby bottles; the baby had Thrush, and required antibiotics believed to be related to unsterilized bottles; throughout June and July of 2012, the state of the cleanliness of the home fluctuated.

G.L. (RESPONDENT FATHER)

[131] G.L. testified being A.V.D.’s biological father. He first saw her on April 29, 2015 at the C.A.S. office. He expresses his love for her.

[132] He is 26 years old and resides with his grandmother since September, 2015. He is on O.D.S.P.

[133] He explains that he has a learning disability with the mental ability of a 10-11 years old. With time his brain could develop to the level of a 13 year old. However, this does not stop him from doing day-to-day stuff. He has been self-sufficient since 2012. He describes being able to do the following tasks:

-He can do math;

-He does his own tax return;

-He pays his bills on line;

-He has a debit card;

-He operates a computer and mobile phone;

-He can read;

-He cooks; he completed a 3 months chef’s course; he has learned from his grandmother;

-He books his own appointments and attends by himself;

-He does his own grocery shopping.

[134] G.L. rejects the suggestion that he has low level energy. He states that he exercises and trains in a wrestling ring. He has a heart condition in that the left side is bigger than the right side. This causes pain and difficulty breathing. He is on medication.

[135] He attributes his falling asleep during some of the access visits to the taking of new medication. A list of medication was filed as an Exhibit. This issue was recently discussed with his doctor who recommended the taking of the medication before super.

[136] He testified having fallen asleep only once during this trial as a result of the medication.

[137] G.L. explains that he has prior experience as a parent. In fact, he has a daughter from a prior relationship with S.P.-L. The child’s name is A.V. S.P.-L. who was born on[…], 2013.

[138] The record shows that this child was placed, on consent of the parents, in the custody of her maternal grandmother P.P. The final order was granted on June 17, 2014.

[139] The parents were granted reasonable supervised access to the child.

[140] G.L. testified that he had called C.A.S. prior to the child’s birth. He indicates that the mother had given up and he was hoping to get help from the Society. The result was the maternal grandmother deciding to take the child. The record is unclear as to what led to the June 17, 2014 final order noted above.

[141] His evidence is that his access to his first daughter was supervised by Tony, a C.A.S. Family Services Worker and the child’s maternal grandmother, P.P.

[142] He indicates having learned alot from both these individuals on how to care for a young child. This includes changing diapers, cleanliness, dressing the child, holding her for feedings and how to support her head. As the child got older, he was shown how to prepare bottles, wash bottles, making cereals, communicate with her and bath her.

[143] P.P. taught him the following parental skills as the child got older:

-How to keep an eye on her when she stated walking;

-How to “potty train”;

-How to crawl;

-How to grab on to furniture;

-How to say yes and no.

[144] He describes that there were no overnights as there wasn’t room in the home but there were two times when they were left alone with the child for 15 and 30 minutes. P.P. was in the basement and outside. Everything went right.

[145] His evidence is that he hasn’t seen his first daughter since April 2015. He blames P.P. for not allowing access. At one point access was taking place at the York Center. He states having brought P.P. to Court for contempt. Mediation was not successful according to him. It is unclear on the record why there is no access since April, 2015.

[146] The end result of his evidence in regards to his first daughter is that he states having learned from this experience and is able to care for his second daughter A.V.D.

[147] In terms of his future plans, he indicates that he and A.D. are back together and will get married. He intends on moving in with A.D. at her present residence. He will live at her apartment if she attends St. Mary’s Home in Ottawa. He has an aunt who can drive him to Ottawa to visit A.D. Upon A.D.’s return, the four of them (which includes the yet unborn child who is due in […], 2016) would reside together at this apartment. Photographs of this apartment were filed as an exhibit.

[148] He states being willing to work with the Society and identifies a number of individuals on whom he can rely for support namely:

-His mother;

-His grandmother;

-His aunt, K.P.;

-His aunt M. who is a certified nurse;

-A.D.’s brother B.D.;

-Sue.

[149] G.L. is of the view that they have been treated unfairly by the Society Workers. They were never given an opportunity to prove how they can care for their child. He raises the following points in support of his belief:

-They refused to give them more access;

-They used his falling asleep as an excuse; he explains that he has the ability of sleeping and yet not be in a deep sleep; he woke up when A.V.D. was crying;

-He knows they were doing good and yet they were told that they were not ready;

-The Society gave him the “run around”;

-Triple P was never offered;

-They refused access in a different setting such as a park or in the community;

-How can they follow a plan if the child is not with them?.

[150] His position is that the child should be placed in their care.

[151] In cross-examination, G.L. expresses the view that A.D. does not have many flaws as a parent. He believes they are equally capable of caring for the child. He hasn’t noticed any flaws with A.D. He states that she does better than him.

[152] The only thing he feels she may need to work on is when she tries to calm A.D.V. She should go “milder” …try harder. He rates her at 8 to 8.5 out of 10.

[153] He is questioned on the concerns raised by the Society. He notes cleanliness, hygiene and smoking. There were no other concerns raised by the Society. He then states that he knew of concerns for basic child care.

[154] His belief is that the Society Workers are lying. He indicates that they put what they want in their notes.

[155] They are lying on the following:

-Cleanliness of the home;

-The suggestion that they did not smell good;

-The smell of tobacco smoke;

-A.B. not being able to pick up on cues from the child.

[156] He states that none of the criticism is accurate.

[157] He expresses the belief that this is how the Society Workers operate. He states that this is “what they do”… “they get a bonus if they have a child adopted…”

[158] He describes A.D.’s mother as one of their support. His view is that her apartment is clean. He has no knowledge of cat feces, garbage and smell.

[159] He is cross-examined on his explanation for falling asleep during access visits. He is shown through his Exhibit, which sets out when he was prescribed medication, that he fell asleep on May 7, 11, 14, 21, 22, 27 and June 9, 11 and yet he had not been prescribed any medication during this period of time. He explains that he had been using a new puffer.

[160] Counsel suggests that he has a hard time staying awake during visits as he did during this trial. He states having learned how to hear when sleeping even while he is snoring.

[161] He again makes the point that they were never given a chance. That he got angry when the Society changed their expectations. There were times when they met these expectations and yet the Society said no.

[162] He describes himself as the parent with the experience. He would step back and let A.D. learn. He learned all of his parental abilities from P.P. The workers did not let him show them. Cecilia Kyer would always step in and interfere.

B.D. (A.D’s BROTHER)

[163] B.D. is A.D.’s 26 year old brother. He describes their relationship as “pretty good”. She turns to him for help. He became a Crown Ward at 13 and shared a foster home with her.

[164] He qualifies his relationship to G.L. as brotherly. They grew up together. Their parents were very close.

[165] B.D. testifies that he was present for many of the weekly access visits between the Respondents and the child. He also attended meetings at the C.A.S. office.

[166] His view is that the parents took proper care of the child. They would ask him and the C.A.S. Workers for assistance. He gave them advice on how to care for a newborn. He didn’t feel any pressure during the visits. He would help A.D. prepare for visits when she wasn’t feeling well.

[167] He has offered his name for both kinship and adoption. There have been two visits in regards to his adoption proposal. They are waiting for the result of this trial. Not having received any news in regards to the kinship, his belief is that same was declined by the C.A.S.

[168] He confirms being on O.D.S.P. He has undergone an assessment. He doesn’t recall what the problem is but he can’t maintain a job. He manages his own finances and has a grade 12 education. His health is not the best having been diagnosed with chronic bronchitis for which he is on medication.

[169] B.D. explains that he has experience as a parent in caring for young children. He raised two young children. He raised two young babies from birth to ages of 4 and 6 months. He was not the father. C.A.S. was involved with both babies. He describes preparing bottles, feedings, putting to bed, changing diapers and attending medical appointments. He kept the home tidy and would smoke outside. He has never taken any parenting courses.

[170] When asked on how he sees his role if the child is placed with the Respondents, he responds that he would support them if they had questions. He would also provide them with financial and moral support.

[171] He describes A.D. and G.L.’s relationship as being “pretty good”. It is more positive than her relationship to S.S. who was initially believed to be the father. He describes to S.S. as a “known pedophile”. S.S. would put A.D. down.

[172] G.L. is described by him as being active and involved during the visits. He notes that G.L. did fall asleep on a couple of occasions but so did he.

[173] He has provided A.D. advice and she seems to take it and use it.

[174] His sense is that C.A.S. Workers interfere more than the SAM Workers who ask as oppose to interfering.

[175] The only other person he can think of who can support the Respondents is their aunt, K.P.

[176] In cross-examination, he responds that he saw the Respondents do everything they had to do during visits. He acknowledges having slept during some of the visits. He opines that it should be easy to be a good parent.

[177] While the Society Workers were helpful most of the time, he expresses a strong dislike for the Society. He states that he “hates the Society”. His hope is that their “building burns”. He admits having “bashed” the Society during visits. He confirms having an “axe to grind with C.A.S.”

A.D. (RESPONDENT MOTHER)

[178] A.D. testified that she left foster care at age 19 or 20 and went to live with her mother. She then found her own place.

[179] She describes her relationship to S.S. Her first pregnancy was in 2013 and resulted in a miscarriage. S.S. was the father.

[180] She has never worked other than at her foster parents’ restaurant for which she was never paid. She is recipient of O.D.S.P. since September, 2012. She hasn’t taken courses since high school and has no future plans.

[181] The SAM Workers have helped her since 2013 at a rate of 15 hours per week. They coach her on life skills such as cooking and shopping. Samantha Delhey helps her with cleaning, relationships and child care. She re-words instructions from C.A.S. so she can understand.

[182] She also relies on neighbours for cooking. For example, she was explained how to prepare Hamburger Helper. She is visual so that a step-by-step explanation was required.

[183] She goes shopping with her mother or brother. They taught her how to look for sales.

[184] She provides the following information:

-She can do her own laundry; she learned from her foster parents;

-While she doesn’t like cleaning, she does because she doesn’t want cockroaches; her resistance to cleaning stems from being treated as a maid while at the foster home; it may take 2-3 days, but she cleans;

-Up to now, her mother has managed her finances but she states being capable of managing her own affairs;

-She refuses to talk to strangers on the phone; in case of an emergency, she will attend the hospital; she will call as she trusts people in uniform;

-She is able to set up her own medical appointments;

-She explained why couldn’t take the pre-natal vitamins referred to by C.A.S.; she spoke to the pharmacist;

-She states having a heart murmur and that there is something wrong with her ovaries; she describes her children as “miracle babies”.

[185] When asked what she did different while pregnant she explains that she showered and cleaned more. She ate more vegetables, meat and drank more milk.

[186] In regards to smoking, she testified having cut down. Her doctor would have told her not to stop completely as it could bring the unborn child into shock. When she found out about A.V.D.’s breathing problems, she started smoking outside the apartment.

[187] A.D. describes her relationship to G.L. as excellent. He was like a brother at one time. His dad, K.L., is her cousin. K.L. is also in a relationship with her mother. They have a 28 year old child with whom they have no contact.

[188] She started living with G.L. in April 2015. She has never met G.L.’s first daughter. She is disliked by the child’s maternal grandmother P.P. who has custody. However, the child’s mother is like a sister.

[189] A.D. has very little recollection of the “Baby Real Program” provided by SAM Worker Ms. Delhey. She doesn’t remember. It was mostly true or false questions.

[190] She states that the C.A.S. Worker refused to teach how to prepare a milk formula. The response was that this was her SAM Worker’s job. Ms. Delhey did teach her.

[191] In terms of past experience with a young child, A.D. explains that she took care of a newborn while in foster care. She also babysat a newborn for a friend as well as taking care of her cousins.

[192] She notes her parental skills at 8.5 out of ten. She finds she is good. She has grown as a parent. She has learned alot. While she didn’t know what she was doing at the beginning, she now knows how to care for a child.

[193] She notes that the Society has never offered or suggested any classes. She is now involved in Triple P for her second pregnancy. She has thus far watched a video and reviewed a tip sheet.

[194] She is also taking parenting classes offered by St. Mary’s Home. She has one module left. Her name is on a waiting list at St. Mary’s. She will return once the trial is completed.

[195] As for her plans if A.V.D. is placed in her care, she intends on bringing her at St. Mary’s with the second child or leave her with G.L. in Cornwall.

[196] She is willing to work with C.A.S. and follow their instructions.

[197] She is confident that she and G.L. can work as partners and take proper care of both children. She can rely on her brother and mother.

[198] She also identifies her friends S. and P.P. as individuals who can help her. However, she is aware that S. and P.P. are involved with C.A.S. for their own children.

[199] In cross-examination, she recognizes how much work is involved in taking care of two young babies. She states that she loves kids and she can do it. When reminded that she had a hard time taking care of a puppy, she states that she was only babysitting this dog and that the C.A.S. did not see that they had food for this dog.

[200] She is questioned on her boyfriend Mark with whom she was involved in September 2015 after she broke up with G.L. She explained that they had dated back in high school. She notes that Mark wasn’t interested in children so it didn’t last long.

[201] She is somewhat critical of G.L. She requested separate access visits in September as she felt that G.L. wasn’t helping during visits. He wasn’t pulling his weight. She is hoping that he will step up. She doesn’t know why he is not doing so.

[202] She acknowledges having moved on 6 occasions in the last year or so.

[203] When she learned that she was pregnant, she was hoping that S.S. was the father. She was happy thinking it was him. She was drunk when the child was conceived and has no recollection.

[204] She understood the Society’s concerns being:

-Relationship to S.S.;

-Hygiene;

-Nutrition;

-Smoking;

-Sleep patterns.

[205] She knew what the Society’s expectations were. If she didn’t understand, it was explained by her SAM Worker. The 3 columns exercise was a useful tool. It was clear.

[206] She denies a number of the points raised by the Society’s evidence, namely:

-They were never distracted by cell phones or visitors during access visits;

-Her apartment was clean;

-She didn’t smoke on the day of a visit;

-She states not having any flaws as a parent;

-She only twice forgot to support the child’s head;

-She doesn’t’ have a hard time soothing the child.

[207] She denies the incident reported by her girlfriend where she is described as rolling on the floor wanting to die. She states that this never happened. Her friend is lying. She was upset because of her break up with S.S. However, she recalls having attempted suicide while in foster care. She describes having a bed sheet around her neck. She explains that she couldn’t do dishes because of suicidal thoughts and the handling knives. She states being better now.

[208] She also recants the allegations of sexual assault made by her against K.L. (G.L.’s father and her mother’s partner). She states that he is a father figure to her and that the truth came out in the Ontario Court of Justice at the trial.

SAM WORKER, SAMANTHA DELHEY

[209] Samantha Delhey is one of two support workers assisting the Respondent A.D. through Counselling Support Services. She has been working with her for close to two years at a rate of ten hours per week. She is provided another five hours with another worker.

[210] Ms. Delhey explains that they try and build on A.D.’s needs which include communication, relationships, budgeting, nutrition, hygiene, cleanliness and daily routine. She also refers to parenting skills.

[211] She testifies that A.D. participated quite well in parenting sessions which dealt with issues such as nutrition, cleanliness and recognizing developmental steps. She was able to remember what she had learned in school. She was very receptive and able to repeat and retain the information. While they did work on the concerns raised by the C.A.S. prior to the child’s birth, Ms. Delhey testified that A.D. “took things” more seriously following the child’s birth and apprehension. Thereafter, she noted improvement. She describes A.D. as being committed, more involved, focused and determined to prove that she was able to care for her child. She states having seen lots of changes as time went on.

[212] Reference is made to “parenting skills” type programs in which A.D. participated, namely the “Baby Real Program”, St. Mary’s and Triple P.

[213] The “Baby Real Program” was only half completed since A.D. was busy with other programs.

[214] St. Mary’s is a group home in Ottawa which is understood to offer counselling and services to young mothers. It also provides an outreach program. The Court was advised that A.D. is registered in this external program.

[215] Ms. Delhey is unable to provide much information in regards to A.D.’s participation in Triple P as she is on a maternity leave. She believes she started in September 2015 and has attended two sessions.

[216] The witness testified that she started to attend supervised access visits between the Respondent parents and the child in June 2015.

[217] She describes these visits in fairly positive terms. She stated the following in speaking of A.D.:

-She was attentive to the baby;

-She would pick up on “cues”;

-She never improperly handled the child;

-She would prepare for the visits;

-Her apartment was always tidy;

-She stopped smoking in the apartment;

-She showered and changed her clothing before visits;

-She was more energetic;

-She got all of her own supplies such as toys, high chair and bottles;

-She was able to prepare bottles and solid foods;

-She adjusted to the child’s development;

-She was active and protective in caring for the child;

-She never felt that the child was at risk so as to require intervention.

[218] She is also positive in her description of how A.D. and G.L. worked cooperatively in caring for the child during visits.

[219] Ms. Delhey completed her examination in-chief by stating that she shared the Society’s concerns prior to the child’s birth. However, as time went on, she saw lots of changes. In her words “…they are not the same…”.

[220] In cross-examination by counsel for the Society, Ms. Delhey is mindful that she points a significantly different picture than the three C.A.S. Workers. She agrees that she has a different role and perspective. Her role is to focus on A.D. and assist her with life skills because of her cognitive deficiencies.

[221] She also agrees with counsel’s suggestion that she is an “advocate” and “cheerleader” for A.D. She cares alot for her and always tries to see the positive. She wants her to improve.

[222] She sees things through a different lens. Her role is not to supervise and monitor access visits. The end result is that her case notes, which were filed as an Exhibit in this trial, are not detailed.

[223] The point is made that she attended a fairly limited number of access visits, perhaps ten visits from June to August 2015. She also recognizes her limited experience on questions of “child care” when compared to the Society Workers. She readily admits that her work is not to focus on child care abilities.

[224] She is cross-examined on the following points raised in her examination in-chief:

i) She admits having told C.A.S. Worker Cecilia Kyer, following the July 2, 2015 visit that A.D. was not able to recognize cues given by the child; she recognizes that her task is not to focus on A.D.’s “baby skills”;

ii) She also qualifies her evidence in regards to cleanliness of A.D.’s home; she is referred to her July 2015 notes; she states that she often helped A.D. to clean up and that it wasn’t always clean; it has been better since September;

iii) When questioned on what she means by “the visits were always positive”, she explains that “nothing bad happened”; she is referred to the July 2, 2015 visit which was documented in negative terms by the C.A.S. Worker; she states that she “…may not have seen concerns”;

iv) She explains that her opinion that there has been “alot of improvement” is measured from when she started working with A.D.; she notes punctuality, focus; being invested and giving feedback; she recognizes that these attributes may not necessarily deal with the ability to care for a child.

[225] When questioned by counsel for G.L., Ms. Delhey agrees with the suggestion that A.D. was very good to retain information such as how to feed a child.

[226] She states that G.L. has contributed to A.D.’s improvement. She noted that there was good communication between the parents. G.L. was active in tasks. They worked well together.

POSITION OF THE PARTIES

SOCIETY

[227] The Society’s position is that the evidence presented at trial warrants a finding that the child is in need of protection.

[228] The child is at risk and likely to suffer physical or emotional harm if returned to the care of the Respondents.

[229] The Society submits that the request for Crown wardship is in the child’s best interests.

[230] Furthermore, the disposition should not provide for access to the Respondents as they have failed to provide any evidence to support that access would be in her best interests.

A.D. (RESPONDENT MOTHER)

[231] The Respondent mother’s position is that if the child is found to be in need of protection, the appropriate disposition is the placing of the child under her care with supervision by the Society.

[232] Her view is that the placement should be with her alone or in the care of both Respondent parents.

[233] She also raises the possibility of placing the child with her mother or brother in the event she nor G.L. are successful in this trial.

G.L. (RESPONDENT FATHER)

[234] The Respondent father argues that the Application for Crown wardship should be dismissed on the basis that the Society has failed to afford him a full and fair opportunity to parent the child.

[235] His view is that he has been treated unfairly by the Society.

[236] So that if the Court is not willing to dismiss the Society’s Application, the Court should either set a date for a new trial of the issues or an adjournment of this trial to February 2016 for the production of fresh evidence as to parenting ability.

[237] In the further alternative, he is requesting a short term supervision order placing the child with both parents.

THE LAW

[238] In deciding this matter, the Court is mindful of the purposes of child protection proceedings set out in the Child and Family Services Act.

[239] The paramount purpose is set out in paragraph 1(1) of the CFSA and states that:

1(1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

[240] Paragraph 1(2) provides additional objectives to be considered by the Court so long as they are consistent with the above-noted primary purpose. These include:

-The recognition that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, whenever possible, be provided on the basis of mutual consent;

-To recognize that children’s services should be provided in a manner that:

i) Respects a child’s need for continuity of care and for stable relationships within a family and cultural environment;

ii) Takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children;

iii) Provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests;

iv) Includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.

[241] A protection hearing requires the Court to make two distinct decisions:

1. The Court must first determine whether the child is in need of protection (Section 47 CFSA);

2. If the child is found to be in need of protection, the Court must identify the appropriate disposition for this child (Section 57 CFSA).

[242] While the hearing of these two distinct issues may be blended, both are based on different evidentiary and legal considerations. The significance of this “bifurcated analysis” is noted in paragraph 50(2) of the CFSA which provides:

50(2) In a hearing under subsection 47(1), evidence relating only to the disposition of the matter shall not be admitted before the Court has determined that the child is in need of protection.

[243] Principles which are relevant to the question of whether the child is in need of protection in this matter include the following:

a) The burden of proving that the child is in need of protection rests on the Applicant Society;

b) The threshold is on a civil balance of probabilities;

-CAS of Niagara Region v. D.P. 2003 CanLII 1932 (ON SC), [2003] O.J. No. 619.

c) The risk of harm must be likely and not speculative;

-CAS of the District of Rainy River v. C.B. 2006 ONCJ 458, [2006] O.J. No. 4745.

d) There is no absolute rule and the Court is to take a flexible approach on the question of the point in time for the determination of a child’s need for protection; depending on the circumstances, it can be at the commencement of the proceedings, at the hearing or some other date;

-CAS of Hamilton-Wentworth v. K.R. [2001] O.J. No. 5754.

-CAS of Toronto v. J.R. 2003 CanLII 64125 (ON CJ), [2003] O.J. No. 2095.

e) The basis relied upon by the Society in this matter to establish that the child A.V.D. is in need of protection is as follows:

i) Subclause 37(2)(b)(i): the risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by the person’s failure to care for, provide for, supervise or protect the child adequately;

ii) Subclause 37(2)(g): the risk that the child is likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behavior, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

f) The Respondent’s cognitive ability is a significant issue in this trial; the Court is guided by the following comments of Justice Thomson in CAS of Kingston v. F.R. (1975) 1975 CanLII 223 (ON CJ), O.J. No. 1686 at paragraph 8:[^1]

“It is my opinion that the Court should take the following approach when faced with cases as the one before me. First of all, the fact of a low parental intelligence should not be taken as determinative in itself of the child’s need for protection. Rather, the question should be one of deciding whether, in light of their individual capabilities, these parents are able to meet their parental responsibilities. If the answer to this question is no, then the judge should decide whether, given the proper assistance and intervention, the parents can be provided with the tools necessary to care adequately for their child. This issue should not be resolved by simply noting the difficulties involved in securing the needed help when the child remains within the home. The actions of the persons involved in this case show that, with a co-ordinated effort, extensive assistance can be given to parents such as the R. Only if it is felt that the risk to the child is too great, even with outside help, should the court remove the child from the home. If such removal is necessary, it would seem to me that in most cases this would require an order of Crown warship, at least if the child is young, highly adoptable and not too closely attached to his or her natural family. I think that it should also be noted that the risk to the child need not be physical; it would seem to be understandable that if a child lives in an environment which is grossly deficient in stimulation and emotional involvement, he or she may be damaged or at least may fail to develop to the extent to which he or she is capable. It is difficult to apply this known fact to individual cases but clearly the court’s perspective should be broader than a simple examination of the child’s physical health. It may be that the child’s intelligence and capabilities, if known, would be relevant information when deciding whether the parents are able to care adequately for the child. If, even with outside help, it appears to the judge that they are not able to perform the task, an order removing the child would be indicated.”

[244] Principles which are relevant to the question of the proper disposition include the following:

a) Section 57 provides for five possible dispositions if a child is found to be in need of protection and the Court finds that such an order is necessary to protect the child in the future, namely:

1. The child is placed in the care and custody of a parent or another person, subject to supervision by the Society for a period of 3 to 12 months;

2. They child is made a ward of the Society and placed in its care and custody for a maximum period of 12 months;

3. The child is made a ward of the Crown and placed in the care of the Society;

4. The child is made a ward of the Society for a specified period and then returned to a parent or another person for a period or periods not exceeding an aggregate twelve months.

5. An order granting custody of the child to one or more persons, other than a foster parent, of the child, with the consent of the person or persons.

b) The order made by the Court shall be in the child’s best interests as defined under paragraph 37(3) of the CFSA which provides:

37(3) Where a person is directed in this Part to make an order or determination in the best interests of the child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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

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

3. The child’s cultural background.

4. The religious faith, if any, in which the child is being raised.

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

6. 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.

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

8. 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.

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

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

11. 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.

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

13. Any other relevant circumstance.

c) The Court must also consider the following principles:

− What efforts the Society or another agency or person has made to assist the child before intervention (paragraph 57(2) CFSA)

− The child shall not be removed from the care of the person who had charge of him or her immediately before the intervention unless the Court is satisfied that alternatives that are less disruptive to the child, including non-residential services and assistance would be inadequate to protect the child (paragraph 57(3) CFSA)

− Where the Court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention, before making an order for Society or Crown wardship, the Court shall consider whether it is possible to place the child with a relative, neighbor or other member of the child’s community (paragraph 57(4) CFSA)

− Notwithstanding a finding that the child is in need of protection, if the Court is not satisfied that a Court order is not necessary to protect the child in the future, the Court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention (paragraph 57(a) CFSA).

d) As stated by Justice S. O’Connell in CAS Region of Halton v. T.A.G. 2012 ONCJ 746, [2012] O.J. No. 5824 at paragraph 207:[^2]

“A Crown wardship order is the most profound order that a Court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after careful examination of possible alternative remedies.”

e) The court shall not make an order for Society wardship that results in a child being a society ward for a period exceeding 12 months, if the child is less than 6 years of age on the day the Court makes such an order (paragraph 70(1)(a) CFSA); in calculating this period, time during which a child has been in a society’s care and custody under a temporary order shall be counted (paragraph 70(2)(b) CFSA).

f) The Court may make an Order allowing for access to the child if such access is found to be in the child’s best interests. (paragraph 58(1) CFSA)

DISCUSSION

[245] The first issue to be decided by the Court is whether A.V.D. is a child in need of protection.

[246] The evidentiary record presented in this trial leads the Court to the conclusion that the child A.V.D. is presently in need of protection as she was when she was apprehended by the Society at birth.

[247] The Society has met its initial burden of proof on a balance of probabilities. It is more probable then not that she is at risk of both physical and emotional harm.

[248] The risk is found to be the following:

− That the child is likely to suffer physical harm resulting from the Respondents’ failure to adequately care for, provide for, supervise or protect her;

− That the child is likely to suffer emotional harm resulting from the actions and failure to act on the part of the Respondents.

[249] The Court notes that this point is not raised or argued in the written submissions filed by both counsels for the Respondents. Be that as it may, this finding is the inevitable result of an objective review of the whole of the evidence.

[250] While it is recognized by the Society Workers that the Respondents have shown some improvement, in the end, the significant concerns raised in regards to their ability to care for A.V.D. remain as of this trial.

[251] The essence of the concern is their inability to progress, adopt and respond to the child’s needs.

[252] This worry has historically been compounded by the Respondents proposing an environment for the child’s care which was, most often, unhealthy, unhygienic and potentially harmful.

[253] It is further exacerbated by uncertainties in the Respondents’ present situation. A.D. is pregnant and expected to give birth within the next few weeks. She may reside at St. Mary’s home in Ottawa. It is unsure if A.V.D. could reside with her. G.L. is residing with his grandmother and planning on moving to A.D.’s apartment once O.D.S.P. has been notified. If A.V.D. cannot reside at St. Mary’s, then G.L. would care for her.

[254] A finding that the child is not in need of protection requires the Court to conclude that, on balance, she would not be at risk of physical and/or emotional harm if turned to the care of the Respondents without any involvement by the Society. The evidence does not allow for such a finding.

[255] A.V.D. is therefore found to be a child in need of protection.

[256] The Court is also satisfied that intervention through a court order is necessary to protect the child in the future.

[257] The more troublesome question is how to manage the risk in accordance with the child’s best interests.

[258] There is no question that the risk associated with placing the child with her parents revolves around their cognitive abilities. Their love for her and their yearning to care for her is undeniable.

[259] The Court must be mindful that “low parental intelligence” is not determinative. As stated by Justice Thomson in CAS of Kingston v. F.R. op. cit., in discussing the incidence of “low parental intelligence”:

“…only if it is felt that the risk to the child is too great, even with outside help, should the court remove the child from the home.”

[260] The Psychological Assessment Reports filed on consent as Exhibits 2 and 3 in this trial reveal fairly significant cognitive limitations for both Respondents. The findings go beyond mere “low intelligence”.

[261] Doctor Janine M. Scott provides the following description of A.D.:

− Her perceptual reasoning is extremely low;

− Her working memory is extremely low;

− Her processing speed is extremely low;

− Her overall intelligence is extremely low;

− She does not always recognize dangerous situations and places herself at risk;

− Her intellectual ability is in the extremely low range of intelligence;

− It should not be assumed that since she understood and followed instructions on one day that the next day she will remember what she did;

− She needs reminders, prompts, supervision and follow through in most of her activities.

[262] Doctor Raymond Proulx describes G.L. as follows:

− His adoptive skills are moderately too severely delayed in all areas;

− He has significant delays in a number of areas: communication, social/interpersonal skills, work and leisure activities, and some academic skills;

− He is developmentally challenged (mental retardation);

− He will need to be closely monitored and likely experience significant problems in assessing the consequences of his actions and planning his daily activities.

[263] While somewhat dated, these reports were filed on consent. The findings therein are unchallenged and unqualified by any subsequent psychological assessment. There is no evidence to suggest that there have been any changes as to the Respondents’ cognitive abilities.

[264] Common sense and life experience would suggest that a good number of the attributes found in these assessments would go to the very core of the minimum qualities needed to properly and safely care for a child.

[265] These findings touch upon:

− The ability to perceive, reason and act accordingly;

− The ability to register and remember;

− The ability to recognize and avoid dangerous situations;

− The ability to acquire and maintain skills;

− The ability to assess and appreciate the consequences of actions.

[266] The Court is told through Doctor Scott’s report that it should not be assumed that since A.D. understood and followed instructions on one day that the next day she will remember what she did. How then do we ensure proper care for the child short of constant supervision?

[267] In fact, both Respondents are described as requiring high levels of structure to safely and properly function. A.D. is said to need “…reminders, prompts, supervision and follow through in most of her activities…” As for G.L., “…he will need to be closely monitored…”

[268] As already noted, there is no medical and/or expert evidence to counter or temper these findings.

[269] The evidence of the Society Workers who testified in this trial is that they had not read these reports prior to a few days before testifying. This is seen as a significant factor by the Court in assessing their evidence. In simple terms, it is compelling that the Workers would make independent findings which mirror those set out in these two reports. This serves to bolster the credibility and reliability of the Workers’ evidence. It is independent and unchallenged evidence which is supportive of their evidence.

[270] The observations made by the Workers are consistent with the psychological evidence. For example:

− Poor hygiene;

− Cleanliness of the home;

− Her plan to co-parent with S.S. who is a known sexual offender;

− Continued exposure of the child to second hand smoke;

− Struggling to change a diaper;

− The need to repeatedly and prompt about basic care and safety;

− Failing to properly “baby-proof” the home;

− Failing to purchase a medication which was required for the child and stating that it would be purchased the following month;

− The use of a ritualistic routine in caring for the child and being unable to deviate;

− Not grasping that the child was choking on Cheerios;

− Raising their voices when caring for the child.

[271] The Court finds the evidence of Society Workers Cecilia Kyer, Doris Hawkins, Robin Young and Kathy Kiverago to be credible, reliable and compelling. This is based on the following considerations:

− Their ability to make relevant observations;

− They provide a detailed account of their observations;

− Their observations are well documented;

− They are experienced workers;

− They have no personal interest in the outcome of these proceedings;

− They provide a fair and balance account of their observations;

− They were not shaken in cross-examination;

− They are consistent;

− As already noted, they are supported in their news by the two independent psychological reports which were filed on consent.

[272] Over and above their abilities to properly and safely care for the child, the evidence discloses unreasonable beliefs and behaviours on the part of the Respondents which are concerning to the Court.

[273] In regards to A.D., the Court notes the following:

− She has a history of suicidal thoughts;

− She attempted to commit suicide while in foster care by trying to hang herself;

− There is a recent episode in November 2014 where she is reported as wanting to commit suicide while pregnant; she denies this but acknowledge that she felt like it because of her breakup with S.S.;

− She can’t do dishes because of the knives and her suicidal thoughts;

− She will not follow medical advice because she doesn’t trust Cornwall doctors;

− She follows medical advice in regards to a potential heart attack from one of her friends who almost completed nursing school;

− She will not talk to strangers on the phone;

− She was either sexually assaulted by K.L. ( who is G.L.’s father and her mother’s partner) in November 2014 in circumstances where she placed herself at risk or she has made up the story as she is now alleging; it is either way troubling;

− She will not do housecleaning because she was used as a maid in foster care;

− The belief that the child could have been conceived by S.S. and G.L. as she resembles both;

− Her eating and sleeping habits; the evidence of witness Kyer is that the current pregnancy raises the same concerns as the first one in regards to nutrition, hygiene, cleanliness and smoking;

− The observation described by witness Hawkins when A.D. vigorously bounced the child on her knee while her voice was raised and refusing to calm down;

− The fact that she has moved on six occasions since June 2014.

[274] As for G.L., the Court notes the following:

− He has shown to have anger management issues; some of this anger was displayed while caring for the child;

− The fact that he fell asleep during a good number of the visits; while he explains that this is as a result of taking new medication, his own evidence contradicts this since he fell asleep during a period of time when he was not taking any new medication other than a “puffer”;

− The fact that he fell asleep during the trial is concerning;

− His belief that the Society Workers will receive a bonus if the child gets adopted.

[275] The history and nature of the Respondents’ relationship also raise significant concerns with the Court. While the exact nature of how, where and who would actually care for the child if she is turned over to either or both is unclear, their proposal is to act cooperatively.

[276] Unfortunately, as noted in Ms. Kyer’s evidence, their ability to co-parent has shown to be problematic.

[277] Their relationship has historically been volatile and unstable. The initial belief was that S.S. was the child’s biological father. A.D. has no recollection of how the child was conceived as she was impaired by alcohol. Her hope up to the D.N.A. paternity was that S.S. was the father. Both Respondents believe that S.S. and G.L. have contributed to the child’s conception. They resided together for a fairly short period of time. They separated in May 2015 and have not resided together since. A.D. introduced a new boyfriend in the mix in August 2015. They had renewed their relationship soon before the trial in November 2015.

[278] Of significance on their ability to cooperate is the evidence that in September 2015, A.D. requested that both be provided with separate access visits as oppose to continuing the existing joint visits which had been in place since the end of April 2015.

[279] A.D. explained her reasons for requesting separate visits. She felt that G.L. wasn’t helping during visits. He wasn’t pulling his weight. She is hoping that he will step up. She doesn’t know why he is not doing so.

[280] The Court agrees with the submissions made by counsel for the Society on the question of the frailties of the plan of care proposed by the Respondents.

[281] A.D. will soon give birth to her second child. Her plan is to attend St. Mary’s Home in Ottawa with this child. There is no evidence which would confirm that A.V.D. is able to be cared by A.D. at St. Mary’s.

[282] If A.V.D. is unable to stay at St. Mary’s, the proposal is for A.V.D. to reside with G.L. in the apartment that she is presently occupying. There is no indication as to how long this arrangement would be in place. Nor are the concerns raised by A.D. as to G.L.’s lack of motivation and engagement addressed by this proposal.

[283] The Court also agrees with the Society’s submission that SAM Worker Ms. Delhy’s evidence that G.L. was motivated and involved during the access visits which she attended is contradicted by A.D.’s evidence to the contrary.

[284] There is no question that SAM Worker Ms. Delhey paints a more positive picture of both Respondents. The Court has considered her evidence. However, in the end, it is found not to counter balance the compelling evidence of the four Society Workers. The Court notes the following factors which impact on the weight to be given to her evidence:

− She attended a fairly limited number of visits;

− To her credit, she recognizes her limited experience on questions of child care;

− Her work is not to focus on child care abilities;

− She is mindful that the improvements she has noted with the Respondents may not speak to the issue of their ability to care for a child;

− She agrees with the suggestion that she is an “advocate” and “cheerleader” for A.D.; she cares alot for her and always tries to see the positive;

− She admits that she may not have seen the concerns during the visits;

− She recognizes having told Worker Cecilia Kyer, following the July 2, 2015 visit that A.D. was not able to recognize cues given by the child.

[285] The submissions filed by G.L.’s counsel are fairly critical of the Society Workers in this matter. He states the following:

− The workers have failed to properly consider and give him credit for the many positive parental abilities he has shown during visits;

− The Society has deliberately restricted their access because of its “in-house” decision of April 8, 2015 to seek a Crown Wardship;

− It is fundamentally unfair at the earliest stages of a court case to provide a level of access that in its effect sets the child on the path to a loss of her family;

− The Society has failed to explore whether the Respondents can manage semi-supervised or extended hours of access;

− The Society has failed to consider outside resources such as the Early Years Center in Cornwall; the Society has made no efforts to maximize the Respondents’ ability to succeed.

− The Society has failed to provide individually appropriate services in keeping with their mandate;

− The Society did not give him sufficient opportunity to prove that he could adequately parent the child; the hours he was afforded were insufficient to accommodate any attempt to satisfy their concerns about his ability to learn and incorporate techniques that were presented to him.

[286] The Court rejects the suggestions made by the Respondent G.L. that the Society Workers had a pre-conceived notion and that the Respondents were set up for failure. Furthermore, the evidence is not supportive of his belief that the Society Workers failed in their duty by not provide appropriate services.

[287] In dismissing G.L.’s submissions, the Court has considered the following:

− The access visits were increased to three hour visits, twice weekly during the summer 2015;

− The visits were decreased in September 2015 by reason of A.D.’s request to proceed with separate visits for each parent;

− G.L., for whatever reason, was sleeping (and sometimes snoring) during a good number of the access visits; he is described as showing low level energy; common sense would suggest that such conduct would not re-assure the Society as to his ability to properly and safely care for this young child for longer periods with less supervision; it is not reasonable to suggest otherwise;

− The evidence of Respondent A.D. is that G.L. wasn’t helping during visits; he wasn’t pulling his weight; again, this would not serve as a strong incentive for the Society to increase access;

− The Respondents did not bring a motion to vary the terms of access set out in the without prejudice temporary order issued at the start of the proceedings on January 21, 2015;

− The Court finds that the Society Workers took reasonable steps to explain their concerns to the Respondents; they were addressed during visits and case conferences; they were explained in simple terms and in keeping with their cognitive abilities; it was also reviewed by the SAM Workers;

− They were provided with a very experienced Child and Family Worker; Ms. Kyer has been involved with over 70 families;

− The Court accepts her evidence that she took the access visits as an opportunity to provide the Respondents with insight, support, teaching, guidance, reminders and encouragement;

− The Court believes her when she states that she has done everything she could;

− The Respondent A.D. was also provided with support through Counselling and Support Services; she had the assistance of Support Worker Melanie William; she also relied on 15 hours per week from the SAM Workers who assisted her with life skills.

[288] The reality is that the services provided by the Society were responsive to the needs and abilities shown by the Respondents. There was no increase in access as there was no progression shown by them. The progress was never sustained.

[289] In such a context, any change in access in terms of duration and/or level of supervision could have resulted in harm to the child.

[290] Having considered all of the circumstances and the relevant principles the Court finds that on a balance of probabilities, A.V.D.’s best interests dictate that she be made a Crown Ward without access.

[291] The Court is satisfied that alternatives that are less disruptive to the child would be inadequate to protect her.

[292] The risk of placing A.V.G. with the Respondents is so significant that it cannot be managed even with outside help. The child would be at significant risk of physical and emotional harm and the reasonable efforts made by the Society have proven inadequate. The Court accepts Society Workers’ statement that she has done all that she could.

[293] The unfortunate reality is that time has confirmed the findings noted by Doctor Scott and Doctor Proulx:

− A.D. needs a structured supportive environment…she needs reminders, prompts, supervision and follow through in most of her activities;

− G.L. needs to be closely monitored and will likely experience significant problems in assessing the consequences of his actions and planning his daily activities.

[294] There is no evidence before the Court to suggest that there is a person or an agency who could provide such constant and close monitoring of the Respondents with A.V.D. in their care.

[295] The Court also rejects the proposal that the child be placed with A.D.’s brother, B.D. This would not be in the child’s best interests.

[296] The Court notes the concerns raised by Child Protection Worker Kathy Kiverago in her evidence in this trial. She was not cross-examined on the information in regards to B.D. As already noted earlier in this judgment, she states:

− There were historical concerns from 2012 when B.D. was residing with a girlfriend and her newborn baby from a previous partner; there were significant concerns with hygiene and cleanliness of the home;

− There is a pattern of the family being enmeshed, with a pervasive lack of functional, healthy family boundaries which creates tension and conflict including police involvement.

[297] There is very little information provided to the Court on B.D. He confirmed being on O.D.S.P. He has undergone an assessment. He couldn’t recall what the problem is but he can’t maintain a job.

[298] The Court is concerned with his display of anger towards the Society when he testified. He expressed a strong dislike for the Society. He states that he “hates the Society”. His hope is that their “building burns”. He admits having “bashed” the Society during visits with the child.

[299] This is not seen as providing for a healthy environment for A.V.D.

[300] It would not be in her best interests to be placed with B.D.

[301] Nor is the Respondent G.L.’s request to adjourn the trial to February 2016 for the production of fresh evidence as to parenting ability seen as being in the child’s best interests. The Court adopts the comments of Justice Parayeski in CAS of Hamilton v. R.P. [2013] O.J. No. 5817:

“41. Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change that is unlikely to happen. The parent’s right to correct parenting inadequacies must be balanced with a child’s right to appropriate development within a realistic time frame, if damage to the child is to be minimized…”

[302] A.V.D. has been under the care of the Society since her birth of […], 2015. Section 70(1) C.F.S.A. provides that a child shall not be under the care of the Society for more than 12 months unless a 6 month extension would be in the child’s best interests. The Court finds that it would not be in A.V.D.’s best interests to extend her present status.

[303] In regards to the question of access to the child, the Court is of the view that access to the Respondents would not be in her best interests. Crown wardship without access with a view of an adoption is seen as the appropriate disposition in this matter.

[304] The following considerations are seen as supportive of the Court’s finding that Crown wardship without access is in the child’s best interests:

− She is fairly young;

− There is no evidence to suggest that she is attached to the Respondents;

− She is described as happy and thriving in her present setting;

− The foster parents have expressed their wish to adopt A.V.D.;

− The child has been with the same foster parents since birth;

− The disposition will allow for the nurturing of positives relationships for the child and provide her with a secure place as a member of a family;

− The risk of harm which justified the Court’s findings is significant;

− Further delays would not be beneficial to the child.

CONCLUSION

[305] Therefore, the Court finds the child A.V.D. to be in need of protection and orders that she be made a Crown Ward without access with a view of her being adopted.

Justice Ronald M. Laliberte Jr.

RELEASED: December 22, 2015

CITATION: Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. A.D. and G.L., 2015 ONSC 7069

COURT FILE NO.: 10-150

2015/12/22

ONTARIO

SUPERIOR COURT OF JUSTICE

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

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF A.V.D., born […], 2015

B E T W E E N:

Children's Aid Society of the United Counties of Stormont, Dundas and Glengarry

Applicant

• and –

A.D.

Respondent

• and -

G.L.

Respondent

REASONS FOR JUDGMENT

Justice Ronald M. Laliberte Jr.

Released: December 22, 2015

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