CITATION: The Children’s Aid Society of Ottawa v. T-L.L. 2016 ONSC 2128

COURT FILE NO.: 13-FC-2782

DATE: 20160330

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 D.K., D.O.B.: […], 2008

BETWEEN:

CHILDREN’S AID SOCIETY OF OTTAWA Applicant

– and –

T-L.L. Respondent Mother

– and –

P.K. Respondent Father

L. Malashenko, counsel for The Children’s Aid Society

Jessica Vo, for the Respondent Mother

Stephanie Smith, for the Respondent Father

HEARD: March 2, 3, 4, 5, 6 and 9, 2015 And January 4, 5, 6, 7, 8, 11, 12, 13, 14,and 19, 2016

REASONS FOR JUDGMENT

beaudoin j.

[1] The Children’s Aid Society of Ottawa (“the Society”) brings this Amended Amended Status Review Application with regard to D. K., born […], 2008 and seeks an order of Crown Wardship with no access to the biological parents. There was a previous finding of need of protection made by Justice Albert Roy on February 7, 2013.

[2] The parents, T-L.L. and P.K., seek a return of the child to their care under supervision. In the alternative, they seek a six month extension to existing order of Society Wardship. In the further alternative, and in the event that I make an order for Crown Wardship, they seek an order for access.

[3] The other parties to the proceedings are T. L. and M. C., D.K.’s maternal aunt and uncle. They had presented a plan of care, but they did not attend the trial and they have indicated to the Society that they are no longer interested in presenting a plan of care for D.K. at this time.

Procedural History

[4] The Society was involved with the family in late 2011, but the family moved to the Hawkesbury area where Valoris, the agency involved in child protection services in Prescott-Russell, became involved. On May 15, 2012, the child was returned to Ottawa and voluntarily placed with her maternal aunt, T. L. and her uncle M. C.

[5] On November 30, 2012, Valoris filed a protection application arising from its concerns relating to the mother’s medication abuse, the mother’s mental state, the father’s violent tendencies, his physical abuse of the child and his drug consumption, the parent’s financial difficulties, the child’s developmental delays and the parents’ past history with the Society in Ottawa.

[6] On December 6, 2012, D.K. was placed with her aunt and uncle subject to the supervision of Valoris on conditions. The parents were granted supervised access at the discretion of the aunt and uncle at a minimum of once per week.

[7] On February 7, 2013 there was a Final Order made on consent and pursuant to an Agreed Statement of Facts. The child was declared to be in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act (“CFSA”) which provides:

There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s

(i) failure to adequately care for, provide for, supervise or protect the child adequately.

[8] The child was placed in the care and custody of the aunt and uncle subject to the supervision of Valoris for a period of three months. The supervised visits to the parents were continued. The order specified that the Society would confirm that the mother’s use of medication did not affect her general abilities, in which case, the Society was prepared to increase the mother’s access.

[9] On Status Review, there was a Temporary Order on April 29, 2013 that continued the status quo. There was a Final Order on May 30, 2013, based on an Agreed Statement of Facts that continued the situation for a further three months. This was extended once more on August 29, 2013.

[10] On November 7, 2013, the file was transferred to Ottawa, and at that time, there was a Temporary Order on consent placing the child in the care and custody of the mother on the understanding that the mother would reside with the maternal aunt and uncle for the first three months of the Order. During this time, the aunt was to help the mother in her parenting role (routine, discipline and structure). The mother could move out with D.K. only after receiving the Society’s approval. During this time, the mother was not to allow any contact between D.K. and her father except for his supervised visits. The father was to have supervised access to D.K. once per week and that visit would either be supervised by the Society or by a third-party.

[11] The child was apprehended on December 6, 2013 and there was a further Temporary Order, on consent, returning the child into the care and custody of the maternal aunt and uncle under the supervision of the Society. The mother was to continue to follow her doctor’s recommendations regarding the administration and dosage of her medication and she was directed not to abuse these medications or any other medications and to follow addiction counselling sessions or an in-house detox program. The parents were further directed to receive therapeutic assistance to help them deal with their mental health issues and to receive follow-up services as required.

[12] On January 14, 2014, there was a Temporary Without Prejudice Order placing the child in the temporary care and custody of the Society with access to the parents at the discretion of the Society. On May 12, 2014, a Family Court Clinic Assessment (“FCCA”) was ordered on consent. On June 5, 2014, the Court ordered access to the parents at a minimum of twice per week, but the location, duration and level of the supervision was to be at the discretion of the Society.

[13] The trial initially commenced on March 2, 2015, but was adjourned after I learned that the Society was conducting a further psychological assessment of the child. The trial recommenced on January 4, 2016.

Witnesses from Valoris and the Society

Roxanne Sauve

[14] Ms. Sauve is the protection worker for Valoris who was involved with the family between March 1, 2012 and January 14, 2013. At that time, Valoris had reports from the Society regarding concerns about the mother’s depression, problems with finances, medication abuse by the mother and anger management issues on the part of the father. The child was demonstrating developmental delays: her speech was delayed and she was still not toilet trained. There had been an allegation of physical abuse by the father and there were allegations of possible drug use by the parents.

[15] On a first unannounced visit on March 14, 2012, Ms. Sauve observed the home to be appropriate and there was limited unhealthy food. When she re-attended on May 9, 2012 at 1:00 p.m., both parents were still in bed and the child was left unattended. She was dressed in her father’s T-Shirt, wearing “pull-ups”, watching television and feeding herself from a box of crackers. The apartment was dirty and there was no food. The parents had no money and they had pawned their computer. The child’s speech was delayed, the parents did not have a family doctor for the child nor had there been any consultations.

[16] The mother had claimed that the child had been primarily in the care of the father and that the parents were living separate and apart. It was subsequently discovered that this was not true which led to an investigation with Ontario Works and, as a result, cheques from social services were suspended.

[17] Ms. Sauve was concerned about the mother’s medication use. She believed that the mother was addicted to codeine, Tylenol and OxyContin. Ms. Sauve concluded that the child was not being cared for appropriately. The parents agreed to have the child placed with the aunt.

[18] When the child was placed with the aunt and uncle, there were some improvements in her speech. She was integrated into daycare. She was toilet trained by the end of her placement there. The child still had access to her parents, and Ms. Sauve encouraged family members to supervise the access. The parents lived in Hawkesbury and had no money to travel to Ottawa. There were few visits and few requests from the parents to see the child. They did make some requests of Valoris, but they were told that they were responsible for transportation. Ms. Sauve was aware of two visits by the mother and of one visit by the father.

[19] After the child was in her care, the aunt took D.K. to CHEO on May 22, 2012. The aunt had observed bruises between the child’s bum and her vagina. Physical abuse was confirmed. Pictures were taken. D.K.’s cousin reported that she had seen the father kick D.K. in the buttocks. The injuries led to concerns about possible sexual abuse, but this was not confirmed. D.K. herself reported to Ms. Sauve on April 16, 2012 that her father hit her on the buttocks and that it hurt. The police were contacted, they investigated, but no criminal charges were laid.

[20] Valoris continued to have concerns about physical abuse. There were also concerns about the father’s behaviour because he himself had been a crown ward and a victim of child sexual abuse. He had sexually abused other children when he was an adolescent.

[21] As noted, concerns about the mother focused on her medication abuse. The mother was demonstrating depressive and severe withdrawal symptoms. The mother reported using 20 to 30 Tylenol 1 per day. The mother was referred to the Drug Addiction Services of Eastern Ontario. Ms. Sauve spoke to the mother’s doctor about the mother’s Tylenol use. The doctor was trying to wean the mother off of her medication, but the mother was getting the medications off the street. The Doctor prescribed Codeine-Contin that was less addictive. The mother believed that her medication use had no impact on her parenting. As she was worried about medication abuse by the mother, Ms. Sauve wanted more drug testing before bringing the child back into the mother’s care. The drug testing results for codeine in November 2012 were positive.

[22] The father did not attend any programming during Ms. Sauve’s involvement, nor was it discussed; but she said that both parents were aware of her concerns. She had less communication with the parents after the child was placed with the aunt. She had difficulty getting in touch with them.

[23] Throughout her involvement, she expressed her concerns to the parents that they were not responding to the child’s needs. She admitted that the father’s past sexual history raised particular concerns. She identified possible attachment issues when she first met the child because the child asked for hugs and kisses even though she herself was a complete stranger. There was to be no unsupervised contact between D.K. and the father because of the police investigation and because of the Society’s concerns. She nevertheless had a good working relationship with the father.

Julie Potvin

[24] She was the child protection worker between August 2013 and November 7, 2013. The child was then residing with the aunt. There had been improvements, but there were problems at the child’s daycare where D.K. was throwing things and running away. She had speech delays. The aunt was having difficulties with D.K. and needed help.

[25] Access visits with the parents commenced in May 2013 and these were supervised. Valoris was providing transportation as they wanted to assess the parenting abilities. Ms. Potvin observed that during some of the access visits, the father was interactive with D.K. She had to ask the mother to try to be more focused.

[26] The mother moved in with the aunt in September 2013. The aunt and uncle had reported a lot of sexualized behaviours when D.K. arrived at their home. Valoris made it clear that if the mother stayed with the father, she could not have D.K. returned to her care because of their concerns. The mother knew that any contact between the father and D.K. had to be supervised and these conditions were contained in the Supervision Order. The plan was for the mother to rebuild her relationship with D.K. and demonstrate that she could take care of her.

[27] Ms. Potvin discussed her concerns with the father especially in light of D.K.’s sexualized behaviours and of the Society’s concerns with respect to his past history. She referred the father for anger management with a group called Caring Dads. The father recognized that D.K. was afraid of him and he acknowledged that he had to work on that. She also observed attachment issues and recommended that the father follow a group on parenting abilities.

[28] The mother had taken the Triple P parenting course. Ms. Potvin felt that the mother knew the rules, but had to learn how to apply them. Ms. Potvin followed up with the mother’s addiction counsellor who seemed to indicate that things were fine, but the Society remained concerned about the mother’s ability to maintain that situation.

[29] Ms. Potvin recommended a Supervision Order to the mother because she wanted the mother to have one last chance. She was worried about the mother’s ability to protect the child from the father. The mother agreed to a three-month Supervision Order under strict terms. She met with the mother and the aunt on two occasions. In her view, the mother did not appear very motivated to answer the Plan of Care. The mother and father were listening to her recommendations, but she was not sure if they fully understood her concerns.

Barbara White

[30] Barbara White is the child protection worker who was assigned to the family on November 20, 2013 when the file was transferred to Ottawa. At that time, the Society’s concerns were the same as they are now; the child’s delayed development, the father’s history of sexual deviant behaviour, the couple’s mental health, the father’s anger management issues and the mother’s misuse of prescription medication.

[31] She stated that her overall working relationship with the parents was good and remained consistent throughout the course of her involvement. The parents were always present for visits. If she asked them to take specific courses or to look into things; they did so.

[32] She described the breakdown in the relationship between the aunt and the mother in December, 2013. The mother had also allowed contact with the father contrary to the terms of the existing Order. The aunt was no longer interested in having the child in her care so the child was apprehended on January 14, 2014 and D.K. was placed in the temporary care and custody of the Society. Access to the parents was to be supervised at the Society’s discretion.

[33] There was a delay before the father could start resuming access to the child. Initially, the parents had access once per week, but this was later increased to two times per week which is the current situation. One visit takes place in the Society’s offices and the other takes place in the community. Both visits are fully supervised. There are a lot of strengths. The parents show up on time and have missed very few visits. They bring appropriate items whether it is activities or food. The concerns relate to a lack of affection at the start of all visits and the parents’ inability to engage with the child; particularly the mother.

[34] According to the access reports, there had been some observations of sexualized behaviours on the part of the child on a couple of occasions. There were other concerns about the child not wanting to go to the bathroom alone and reverting to a lot of baby-like behaviour. There are access guidelines that indicate when visits can increase, and according to Ms. White, the Society was not satisfied that the benchmarks were met for increased access. The Society was also waiting for the results of the Family Court Clinic Assessment (FCCA) to help determine the next best course of action.

[35] D.K. was referred to the Child Abuse and Trauma Team at CHEO. There was a diagnosis that D.K. could have ADHD and that the child had developmental delays. Ms. White felt that the mother had a minimal understanding of the Society’s concerns as to why the child was not in her parents’ care. The mother did not think that the father posed any risks to the child. Ms. White was aware that the parents had taken a parenting program but the mother did not find it helpful. She was open to another parenting program, but did not think she needed it. The father also had taken a program called Caring Dad’s. The counsellor from the program, Jeff Bondy, reported that the father acknowledged using corporal punishment on D.K. and that he needed to treat his daughter better. It was recommended that the father continue with ongoing counselling and support. She was aware that both parents took Parenting with Confidence and Making Parenting Connections. They also took a short anger management course.

[36] While the FCCA did not recommend that D.K. be returned to the care of her parents, Ms. White said that there were general recommendations that both parents could benefit from. Both parents disagreed with the FCCA. Ms. White explained that the Society still expected the parents to take the parenting courses and follow through with the FCCA recommendations since the Society had to ensure that the child could be cared for in the event that the Court decided to return D.K. to her parents.

[37] In the end, Ms. White concluded that the parents were unable to put what they had learned into practice. She also had concerns that they had not followed through with the recommendations of the FCCA. In her view, the parents minimized the concerns with regard to the mother’s mental health and the father’s history of deviant sexual behaviour. The Society believed that D.K. had very specific needs and the parents did not appear to understand these and minimized D.K.’s problems.

[38] At trial, she remained concerned that the parents are unable to meet D.K.’s basic needs in terms of stability, security, safety and in a home without violence. She was also concerned that the child would not be stimulated enough to be able to meet her full potential. She noted that D.K. has been in the care of others for three years and that at this point, she needs stability.

[39] Ms. White also discussed the possible placement with the aunt that was ultimately withdrawn. The Society continued to seek an order for Crown Wardship for the purposes of adoption. The Society would be prepared to support openness with the aunt and the uncle, but it continued to have concerns about openness with the parents.

[40] Access visits remained fully supervised and, in the light of the recommendations of the FCCA, the Society was not prepared to increase access since there was no recommendation that the child be returned to the parents. She acknowledged that the references to possible drug abuse by the FCCA would have been a concern for the Society but stated that the Society’s case did not hinge on that fact.

[41] While Ms. White said that the Society would not have considered a Crown Wardship prior to the FCCA, notes from a meeting with her supervisor on February 19, 2014 reveal that Crown Wardship was already being discussed at that time. Ms. White believed that the Society could be planning towards a Crown Wardship and work on reintegrating D.K. with the family at the same time but acknowledged that the Society’s plan made no reference to reintegration. She repeated that the parents had not followed through on recommendations from the FCCA. The Society was still concerned that the child could be abused if returned to the care of the father; it had verified his history, and the physical abuse of the child had been verified by Valoris.

[42] With regard to the father’s past history of sexual abuse, Ms. White agreed that there had been no new information since a 1990 report. She did not specifically ask the father to re-attend for a further sexual behaviour’s assessment, but noted that this was a condition of a previous court order and a recommendation from the FCCA. She acknowledged that there was an incident of physical abuse in D.K.’s first foster home placement. She said that the Society did not share the FCCA’s concerns about the strong possibility of adoption breakdown for D.K. if she were placed for adoption.

[43] At the recommencement of the trial on January 4, 2016, Ms. White confirmed that the maternal aunt had formally withdrawn her Plan of Care in September 2015. Since the date of the adjournment of the trial, the aunt was enjoying increased access with the child; one overnight on alternate weekends and there were no concerns.

[44] Access to the parents continued to be supervised as before. Access visits in the community commenced in October 2015. There had been some difficulty in scheduling meetings with the parents, but the mother always called to inform her if they would not be able to make the meeting and new dates were scheduled.

[45] Her assessment of the parents had not changed. She spoke to the mother’s family physician, Dr. Zheng, about the mother’s continued use of medication and the mother’s insistence that she could not discontinue her medication because of multiple medical problems. Ms. White understood that the mother was physically dependent on these drugs for pain management.

[46] She also had conversations with Carole Barrette who was the mother’s counsellor at the Catholic Family Services Bureau. She has been meeting with the mother two times per week since September 2015. Ms. Barrette was a social worker and not a therapist; she offered supportive counselling. The mother found the counselling helpful. The father was also obtaining supportive counselling from the Catholic Family Services from a social worker by the name of Diane Fox.

[47] On March 18, 2015, there was a meeting with the parents to follow up on recommendations from the FCCA. The Society made no specific recommendations with respect to any programs, but indicated where services could be accessed. The parents responded by making inquiries and indicated that they could not access certain programs because of the costs. They were seeking the assistance of the Society to pay for these. The Society did agree to pay for the phallometric testing for the father, but would not pay for any other counselling services. The Society recommended that the parents contact their family physician for referrals to psychiatric services.

[48] Meanwhile, Ms. White was getting information that the school was applying for a Section 23 placement for the child. This was an indication of significant learning problems. Access in the community was recommended to provide a more stimulating environment for the child. She felt that the parents were not initially interested.

[49] In her view, D.K. still presents as a child with extreme special needs who requires a lot of stability and attention and that those needs will not be met if D.K. is returned to the parents. D.K. struggles even now when she is placed in foster care where both foster parents have the necessary skills. They required a break over the summer months from the demands of parenting D.K.

[50] Ms. White confirmed that her role was to strengthen the family and that she had an obligation to consider alternatives to Crown Wardship. She did not consider D.K.’s return to the parents since the FCCA did not support that. She agreed that there have been no new child protection risks identified after the adjournment of the trial. She repeated that the experts have identified the child as having experienced trauma at a very early stage in her life and that the source of that trauma was unclear. From her review of the file, the child experienced neglect in her early years of life. She conceded that the neglect and trauma could have occurred when the child was in the aunt’s care because the aunt also had an extensive history with the Society.

Janet Pitcher

[51] Ms. Pitcher is the child care worker assigned to work with D.K. She began her involvement on December 13, 2013 when D.K. was apprehended. Her initial assessment was that D.K. was a very difficult child. She learned that D.K.’s behaviour had been a problem for her entire school. Overall, D.K. demonstrated delayed development, both intellectual and physical, and she demonstrated infantile behaviour. Her behaviour also raised concerns that she had been inappropriately touched sexually. She knew more about body parts than other children.

[52] After she came into care, there was a great deal of difficulty finding an appropriate school placement for her. She was originally placed in a school called Mother Teresa when D.K. was placed in the first foster home. In June 2014, the school felt that they could not keep D.K. unless there was a full time Educational Assistant (EA) for D.K. The school expected the Society to contribute to the cost which the Society refused. D.K. was moved in September 2014 after she reported that the first foster father was using physical discipline and a bruise had been noted on D.K.’s back. No criminal charges were laid. That home no longer fosters for the Society.

[53] D.K. then went to Greely Public School in October 2014 when she went to live with her current foster parents. That school was managing as well as it could, but it had a full time EA to work with D.K. Ms. Pitcher described a huge improvement in the past year. She said the new foster home is very good and that D.K. felt safe there.

[54] She discussed the access visits and said that there are some problems on the access days. On one occasion, D.K. came home from access and she had soiled herself and she played with her feces. This behaviour had also occurred at the Mother Teresa School. The soiling behaviour stopped for the most part after she was placed in the new foster home.

[55] Ms. Pitcher said that initially, D.K. would not make any eye contact as she was nonresponsive and she could not focus, but by March of 2015, D.K. was much more talkative and appeared to be very happy. She was much more open and more relaxed and there was great eye contact.

[56] As it was not clear whether or not D.K.’s delayed development was as a result of neglect or developmental issues, Ms. Pitcher felt that D.K. needed a referral to the Society’s psychologist, Dr. Rouillard, for a comprehensive assessment on an urgent basis. That assessment was scheduled to take place after the trial had commenced on March 3, 2005.

[57] After hearing Ms. Pitcher’s evidence regarding her concern and the need for a full comprehensive assessment of D.K. in order to understand D.K.’s delayed development, I determined that the trial had to be adjourned so that we could have the results of that assessment to complement the FCCA. This was particularly important since Ms. Pitcher testified that Dr. Rouillard’s report was necessary for D.K.’s caregivers. In my view, the parents needed to have that information since they were presenting a Plan of Care.

[58] Ms. Pitcher updated her evidence upon the resumption of the trial. In her view, the most significant development was that D.K. was now seeing a psychologist, Dr. Elissa Romano. D.K.’s behaviour continued to be difficult. As a result of the insistence from the foster parents and the school, there was a meeting with the staff at the school in December of 2015 along with Dr. Romano. It was decided that medication (Concerta) would be attempted. It was hoped that the medication would help D.K. pause before reacting. There were some adjustment problems at the beginning, but then D.K. stabilized after a week. The foster parents reported no change in her behaviour.

[59] There was still a lot of aggression at school where it took five adults at the school to manage D.K.’s behaviour. The foster parents had three new foster kids and that was causing a problem as well. The school was very determined to try to support D.K. The school did not feel that the resources will be available for D.K. if she were transferred to another location. By the fall of 2015, there were some early signs of improvement. Even though Dr. Palframan had recommended a Section 23 placement, his report was received too late for the school to act on it in September. At that time, D.K. seemed to be doing better. Since the school board only allows one Section 23 placement for one year per child, D.K.’s school wanted to keep their options open and postpone the Section 23 placement while they could continue to manage her behaviours. While at school, she has one full time person assigned to her alone.

[60] The school was trying to help D.K. have a friend since the other children are afraid of her. D.K. is very aggressive and violent. Ms. Pitcher meets with D.K. at least once a month, and while she appears normal at first glance, she cannot sit still, she is non-responsive and she dissociates. When asked about her preferences between her aunt and her parents; she changes the subject and will not prefer one over the other.

[61] She testified that the Society has not met anyone who has been able to manage D.K.’s behaviour successfully and that even finding an adoptive home for her will be challenging. D.K. continues to have access with her aunt every second weekend and that is very successful. She indicated that the Society would not consider allowing access to D.K. in the parent’s home unless the Society was convinced that a return to their care was the ultimate plan.

[62] She confirmed that the foster parents are continuing to find D.K.’s behaviours problematic. D.K. was placed in a summer camp for five weeks in order to give them respite. This was a special camp for children with problematic behaviours. She thought that D.K.’s experience at camp could be one of the reasons why D.K. was performing better in September. D.K. also had a foster sister who then left the foster home. After she left, D.K. said that wanted to be good like her former foster sister and this also seemed to have a positive effect on her behaviour at school in September 2015.

Marie-Claude Couture

[63] Marie-Claude Couture is the Child and Youth Counsellor (CYC) who supervised the access visits after April 2014. She provided an affidavit sworn February 12, 2015. She described having supervised 37 visits. She said the parents were appropriate and respectful towards her and other staff and parents within the group access atmosphere. The parents have demonstrated a commitment to their access schedule and are usually on time. They are prepared for the visits and bring age-appropriate activities and toys to each visit. They provide D.K. with healthy snacks and supplements. They engage in age-appropriate positive conversations with D.K. They comfort her when she cries and they initiate affection towards D.K. at the end of the visits.

[64] She expressed concern that D.K. was observed to regress to baby-like behaviours during the visits. At times, D.K. did not have any reaction when she saw her parents. During a few visits, there had been accidents where D.K. soiled her pants. On several occasions, D.K. asked her mother to go into the same bathroom stall as her and the mother would accompany her until Ms. Couture intervened.

[65] She described a few incidents of sexualized behaviours. She also observed that D.K. turned more often towards her father for affection, help and comfort rather than her mother. On December 29, 2014, the mother asked D.K. who she wanted to live with if she could live with anyone. D.K. said she wanted to live with a stranger.

[66] The parents were given goals to work on for their access visits. Ms. Couture reported areas of concern; namely, the lack of initiative from both the mother and father in showing affection to their daughter. The mother was not always engaging with her daughter and presented a flat affect while interacting with D.K. She was also concerned with the displays of what appeared to be sexualized behaviour on the part of D.K.

[67] The father had been observed to engage more with D.K., whereas the mother was observed to be watching the interactions between the father and child. The mother sometimes appeared tired or depressed. During the visits, when D.K. was not listening and could be defiant, the parents would question her, and at times, restrain her in their arms. They would ask her why she was acting this way. Because of her age and developmental delays, Ms. Couture observed that D.K. was not able to respond to this type of questioning.

[68] The parents agreed to start a communication book with the foster parents. She communicated her concerns about the visits to the parents, but had not noticed any changes after she did so.

Michelle Claros

[69] We also heard from Michelle Claros who is the current access supervisor. An updated Agreed Statement of Facts concerning access since the adjournment of the trial was filed. Overall, the visits appeared to be taking place without issue. There were positive interactions noted with some concerns at times.

[70] Many strengths were observed during these visits. The concerns continued to focus on the fact that the parents do not equally engage with D.K. The father is observed to be the primary source of active interaction with D.K. throughout a number of visits. The mother was often observed to sit silently and presenting with a flat affect and engaging to a lesser degree than the father.

[71] It did appear, however, that the parents have been discussing the proceedings with D.K. On their last access visit with D.K., the father suggested to her that this may be their last visit until she is 16.

[72] She believed that the parents were reluctant to have access with D.K. in the community even though she says it was made clear to them in August, 2015 that this was possible. The Society made community access mandatory in October 2015. The Society was concerned because the parents appeared to have reservations about something that they should have looked upon more positively.

The Teachers

M.H.

[73] She is the senior kindergarten immersion teacher at D[…] School in Ottawa. D.K. was in her class in September 2012 while she was living with her aunt. She described her as a lovely child with high needs. In her 34 years of teaching, she had never seen a child who was so far behind in terms of her development. D.K. could have tantrums, be very aggressive and her speech was delayed. D.K. required an assistant on a one-on-one basis. D.K.’s moods changed very quickly; she was frequently out of control and ran away from school. She described D.K. as very smart, but she did not know social rules. The school really needed a full time EA to be with D.K. at all times. An early childhood educator was fulfilling that role, although she was not qualified for that position. The school was ultimately successful in getting an emergency EA for a few days in September and October.

[74] Ms. M.H. expressed her concerns to the principal and to the aunt. Something needed to be done right away. The aunt was experiencing the same kind of behaviours in her home. By the middle of December, the aunt could no longer take care of D.K. who was placed with the foster family.

[75] Things had started to go well by November and improvements were noted once D.K. realized that she could not get away with her behaviour. In her view, D.K thrived with consistency, discipline and love. Her social skills improved, but she observed a regression when the mother came back into the picture. Ms. M.H. knew D.K.’s mother as she had taught her in the past. The mother would pick D.K up at school a few times and while the teacher wanted to have a meeting with her and that never happened. The mother later testified otherwise and claimed to have met with Ms. M.H. and the EA and to have provided them with strategies to deal with D.K.’s behaviour. I accept Ms. M.H.’s evidence on this point that no such visits occurred.

[76] Ms. M.H. acknowledged that the French language instruction at that school could have been an issue. She indicated that change was very difficult for D.K. and that they had to take time to manage any transition. While there had been some improvement by November, the school still had significant concerns when D.K. was transferred to another school.

M.J.L.

[77] She is D.K.’s teacher at her current English public school. She has been D.K.’s classroom teacher since October 2014. She said that D.K. was performing well below grade level when she arrived. She was able to manage her behaviours with the assistance of an EA as well as an emergency EA. They were unable to use assessment tools for D.K. as her behaviour was very difficult. She was a flight risk. D.K. needed an EA on a one-on-one basis and the classroom emergency EA came in at the end of the day. D.K. had to be accompanied at all times; even on breaks.

[78] She was performing below grade level but by the end of the term, she was making some progress and she could then be in a group. They saw some changes in January and February of 2015. The school could not detect the triggers of her behaviour and was trying to chart these, but had not been able to do so. D.K. could throw things, hit and scream. She was not allowed scissors since she threatened to harm herself and others. Other children were afraid of her.

[79] D.K. was unable to take the regular bus with other students because of behavioural issues and her flight risk. D.K. went to school in a van that had a special restraining seatbelt that prevented her from disengaging it. By Christmas time, she was using a regular seatbelt.

[80] She described D.K. as very social who wanted to express herself in a physical way. Sometimes her contact with peers was inappropriate; she would rub her lower body against the other person’s body. Her rather inappropriate physical behaviour had stopped in February, 2015.

[81] D.K. had trouble with male figures. She could not tolerate a male EA; she ran away. There were issues about going to the bathroom. She would not go there by herself and always needed somebody to go with her. By the end of February, she was able to go to the washroom herself, but she still needed someone to be close by.

[82] Ms. M.J.L. described Wednesdays as the better day of the week when D.K. appeared more relaxed and with less aggression. Initially, D.K. would describe visits to her parents as going to visit “them.” By February, she was saying she was going to see “mommy and daddy.” She described the foster mother as being very cooperative. She believed that D.K. liked her foster parents.

[83] She also described D.K. as being very fascinated with blood. At the end of February, her regular EA was away and this caused additional difficulties. D.K. kicked the new EA; refused to come in a class one day and ran out of class another day. She needed stability and structure and any change could disrupt things significantly. We went through her reports and it was clear that D.K. had made some improvements by January of 2015.

[84] At the resumption of the trial, Ms. M.J.L. testified that she continued to be D.K.’s teacher. D.K. was now in grade 2. Because D.K. does not normally deal well with transition, it was decided that Ms. M.J.L. would follow her into the next grade. This is an exception to the normal rule that the teachers not follow their students to the next grade level. They are in a special classroom that can be evacuated quickly.

[85] She repeated that when D.K. first came to the school, the first focus was on her behavioural issues. While she was performing below grade level, she was able to meet some of the academic objectives by the end of the school term. In September 2015, they were able to reassess her. Because D.K. was now performing at an academically acceptable mid-grade one level, her learning plan refocused on her behaviours.

[86] With respect to her behaviour, she indicated that D.K. was more present. They had to evacuate the classroom on only one occasion during the last term. She was still having a great deal of difficulty without adult supervision, but she no longer required an additional emergency EA.

[87] D.K. still has her regular EA and Ms. M.J.L. carries a walkie-talkie at all times. Within the last week, she had to call for an evacuation, but in the end, she was able to cancel it because D.K. seemed to be more in control of her behaviour. She now cares about the consequences of her actions and is now interested in others.

[88] On the return to school in January 2016, there were issues once again. D.K. was aware that the trial was resuming and there was going to be an interruption in her access to her aunt and uncle and to her parents. D.K. was very agitated. She had to be taken immediately into the body-break room upon her arrival at the school. While being driven to school one day, D.K. undid her seatbelt and opened the van door while it was in motion. The driver was able to stop the van in time. She told her teacher that she was “really mad at the Court” – she was not allowed to visit mom and dad. Her parents told her this would be the situation until she was 16.” Because of her recent behaviour issues, her foster mother has had to pick her up at the end of the day instead of D.K. taking the van home.

[89] D.K. is unable to work independently without direct adult supervision for more than five to ten minutes. The washroom issues have re-emerged; she is very afraid of the washroom and somebody has to go with her. That behaviour had stopped in March 2015, but had re-emerged in the past week. While D.K. had become more articulate, she was still not able to express the reasons for her fear.

[90] She is able to make some friends. There are older students who come in to help at lunch time and at other occasions, and D.K. is now able to actually engage with them. She has learned the names of six or seven of the girls in her class and this fact was described as being something very “Big” for her. While she still can be aggressive, D.K. no longer directs her aggression at anyone in particular. At recess, she is capable of interacting with other children. She goes to the body-break room three times a day and this was described as being quite exceptional since no other student gets that kind of attention.

[91] D.K. always requires direct adult supervision. She is very affected by any change in her schedule. The interruption in the access visits has had a negative impact. She has made comments to her teacher that she likes to visit her parents but the teacher formed the impression that she would like them to be more interactive. She described her parents as sitting on the couch watching her. She would like her parents to play more with her. She is very happy to visit her aunt.

[92] She is showing growth with respect to controlling her emotions and this could be as a result of the therapy that she is receiving from Dr. Romano since this improvement was noted in October and November 2015. D.K. was also able to pick up on other people’s feelings; which is new for her.

[93] She has not made any observations with respect to self-harm; and they have been able to give her school supplies, but she did note that she tried to undo her seatbelt and jump out of the moving van. Her school has a fairly high allotment of EA’s and their school does not have many children with high needs at this time so they are able to manage D.K. She repeated that D. K. needs a very structured environment with few transitions. She would work well in a small classroom and in a school with access to resources and a smaller school population. She felt that D.K. would be lost in a big school.

The Foster Mother, K. S.

[94] K.S. is the foster mother. She and her husband are experienced foster parents and they have had over 25 children in their care. When D.K. came into their care, she was very agitated. She had a very short attention span. She got along very well with her foster sister. She needed somebody to be with her when she went to the bathroom. She was very defiant; she startled very easily; she was uncoordinated. She was still not toilet trained, but this was resolved; although there had been another incident on the Sunday prior to the trial in March 2015.

[95] She refused to take the bus with a male driver. While she had fun with her foster father, she preferred females. Her behaviour could improve for a day or two and then she would regress. She required one-on-one supervision, and so extracurricular activities cannot be considered as she needs to be supervised at all times. She can be aggressive. She finds that redirecting D.K. can be effective.

[96] D.K. is always very excited to see her aunt. She is excited to see her parents, but is happy to leave them also. On a few occasions, she has said that she did not want to go see her parents, but she changes her mind when she gets there and always appears happy. While at school, she has tried to run away and the school has had problems with her. The school reported that her behaviour is worse on the day of her visits with her parents and on the day after. She herself did not experience that problem at home. She said that D.K. needs constant attention, structure and discipline. She attends speech therapy every two weeks and is making progress.

[97] At the resumption of trial, she indicated that D.K.’s behaviours had somewhat improved, but things were “up and down” and she still required a lot of attention. There are three other foster children now in her care and D.K. has reacted negatively as she does not like the loss of attention. She breaks their toys and claims it was an accident. She no longer has to take her to the washroom, but there are still some incidents of sexualized behaviours.

[98] She would work with any new family that took D.K. into their care including the parents. She has a communications book with the parents and that is working well. The mother asked for speech therapy homework which she does with D.K. She has not noticed much change as a result of D.K. taking medication for ADHD. She notes that D.K. is happy to go see her parents and she is happy to come home. She does not speak that much about her parents. She was not always keen to visit them, but those visits have been a bit more positive in the last couple of months. She was always very positive about access with her aunt.

[99] She said it is hard for D.K. to regulate her emotions. Initially, she required full-time supervision, but things are not as bad as they were. She felt that D.K. would need a placement where there are no other children and lots of attention.

The Assessments

Dr. Louise Rouillard

[100] At the request of Janet Pitcher and the school, Dr. Rouillard provided a Psycho-Educational Assessment Report. She saw D.K. on two occasions. Through the administration of various tasks, D.K. was found to be easily distracted by sounds coming from outside the room. Her focus also seemed to decrease over time. At times, pronunciation difficulties were also observed. On the language related tasks, D.K.’s responses were usually short.

[101] In terms of emotional expressions, D.K. was observed expressing some affection towards her foster parents and foster siblings. She also mentioned her foster parents as well as members of her biological family as mommy and daddy. Overall, given D.K.’s behaviour during the interviews, caution was advised in the interpretation of the results as they could be an underestimation of her true potential.

[102] On the Verbal Comprehension Index, D.K.’s performance on these tests was more than average compared to other children her age. On the Perceptual Reasoning Index, D.K.’s performance on these tests was higher than average compared to other children her age and represented an area of strength. With regard to the Working Memory Index, D.K.’s performance was found to be consistent in the average range compared to other children her age. Overall, D.K.’s performance on the subtests was found to be consistent and in the average range.

[103] With respect to academic achievement, the child was in the average range for reading, although she performed in the low average range on tasks requiring her to read aloud a series of printed nonsensical words using her knowledge of English phonetic rules. She performed in the borderline range on the reading comprehension task. D.K. displayed overall mathematical skills in the average range. Her overall oral language skills were found to be in the below average range. She presented with average overall English language skills.

[104] D.K.’s foster mother and her teacher each completed the Adaptive Behaviour Assessment System (ABAS-II). Overall, the ratings provided indicated marked difficulties with adaptive functioning both in her foster home and at school. Overall, the child presented with low levels of the skills necessary to function on a day-to-day basis compared to other children her age in both environments; home and school.

[105] With regard to socio-emotional functioning, the Conner’s Questionnaire was completed by the foster mother and teacher. Overall, the results indicated important difficulties, inattention, hyperactivity and impulsivity, presenting with defiant and aggressive behaviours, and with significant peer relationships problems.

[106] The teacher and foster mother also completed the Child Behaviour Checklist. Both identified significant concerns regarding the child’s aggressive behaviours, rule breaking behaviours, attention problems, thought problems and social problems. Significant anxiety and depression were also noted by the foster mother.

[107] In summary, the psychologist concluded that the overall test results showed an intellectual functioning in the average range with some variations. Her academic achievement abilities were also found to be in the average range, again, with some variability. She concluded that D.K. did not appear to be achieving her full potential which is usually overall indicative of the presence of a learning disability.

[108] The assessment also revealed some significant problems with attention as well as having significant relationship issues with both peers and adults around her. When the results are taken together, the following diagnoses were considered warranted:

• reactive attachment disorder (by history);

• attention deficit disorder with hyperactivity (mixed type);

• specific learning disorder(particularly in reading) and significant oral language deficits;

• Finally, the child’s presentation is also complicated by history of family instability in her life; history of physical abuse and neglect as per reports and the presentation of odd behaviours (i.e. sexual in nature). Therefore, further assessment on the possibility of the presence of a post- traumatic stress disorder (PTSD) was recommended.

[109] Specific recommendations were made with respect to both the school and home. The recommendations with respect to the home environment are as follows:

• D.K. could benefit from a stable, predictable and structured environment.

• She could also benefit from a sensitive disciplined approach that aims at the development of long-term secure attachments. As such, caregivers and teachers are encouraged to read beyond her behaviours for what he she is struggling with and guide her towards using more adaptive behaviours.

• Caregivers are encouraged to involve a tutor to assist D.K. with her school work at home.

• To provide D.K. with regular daily reading opportunities.

• A consultation with the family doctor to review the results of this assessment is recommended.

• Consultation also with the psychiatrist is also highly recommended to review the results of this assessment, further assess the presence of PTSD and offer recommendations on treatment options.

• Finally, D.K. could benefit from individual therapy services in order to learn to self-regulate her emotions, identify better but her emotional struggles are and assist her in adapting as best as possible. To be most effective in giving the attachment issues that D.K. is presenting. It is viewed as important that caregivers participate in the therapeutic process.

[110] These results were presented on June 25, 2015. She expanded on her report at trial. She agreed with the FCCA that D.K. is a special-needs child.

Dr. Elissa Romano

[111] Dr. a Romano is a child psychologist and I qualified her as an expert in the diagnosis of post-traumatic stress disorder and complex trauma. She conducted an assessment of D.K.in June 2015. In order to arrive at her diagnosis, she relied on past assessment reports, interview material from D.K.’s social worker and current foster caregivers; data from questionnaires completed by the foster mother and her observations of D.K.

[112] In reviewing the DSM – 5 criteria for PTSD for children six years and younger with the foster caregivers, she reported the following:

(1) presence of intrusive symptoms

• recurrent involuntary and intrusive distressing memories of the traumatic events(i.e., Repetitive play in which D makes dolls “hump” each other)

• dissociative reactions (i.e., D was described as being “spacey” about two times/week although the caregivers noted that this behaviour was much more frequent when D first joined their home)

• marked physiological reactions to trauma related to internal or external cues (i.e. while difficult to identify specific cues, the caregivers reported that D can become quite active at times and behaviourally dysregulated)

(2) persistent avoidance of trauma -related stimuli and/or negative alterations and cognitions

• avoidance of or efforts to avoid distressing memories, thoughts and feelings (i.e., the caregivers reported that D does not speak or respond to questions about the time that she lived with her biological parents)

• avoid of or efforts to avoid external reminders (i.e., D reportedly often says that she does not want to see her parents)

(3) alterations in arousal and reactivity

• irritable behaviour and angry outbursts(i.e. the frequency of these behaviours was reported to have diminished the time that D first joined the foster home)

• hypervigilance

• exaggerated startle response

• problems with concentration

[113] Based on this endorsement of symptoms and on the fact that these symptoms had been present for more than one month and caused significant impairment in D.K.’s functioning, Dr. Romano concluded that D.K. met the criteria for PTSD.

[114] To supplement the findings from the diagnostic interview, the foster mother completed the Trauma Symptom Checklist for Young Children which examines post-traumatic stress and other trauma related symptomatology. The foster mother’s responses indicated that the profile generated for D.K. was valid.

[115] Those findings indicated that D.K. is not only experiencing symptoms of PTSD, but is also struggling with a number of additional emotional and behavioural difficulties. The foster mother completed two additional questionnaires. The Child Sexual Behaviour Inventory overall score was in the clinically significant range which suggested that D.K. is exhibiting sexualized behaviours that are concerning in both their number and frequency of occurrence. The Child Dissociative Checklist indicated that D.K. displays many dissociative behaviours.

[116] Dr. Romano’s own observations of D.K. supported those findings. Given the number of difficulties that D.K. was exhibiting, Dr. Romano concluded that it made more sense to understand her presentation as that of a child who has experienced complex trauma. She defined complex trauma as exposure to multiple traumatic events that begin early in life and that are typically invasive, severe, and interpersonal in nature, often occurring within the context of the child caregiver relationship. She said that complex trauma can affect children in a variety of ways, including attachment and interpersonal relationships more generally; physical health; emotional, cognitive and behavioural functioning; dissociation; and a sense of self-worth.

[117] At trial, she elaborated that her conclusion with respect to complex trauma is not a diagnosis as it is not found in the DSM. She described this as being the result of a number of different traumatic experiences that involve a parent figure at an early age. There is a chronic nature to these experiences. She felt that although D.K. met the criteria for a diagnosis of PTSD, her conclusion with respect to complex trauma provided a better framework for understanding D.K.’s difficulties.

[118] She explained that complex trauma affects the developmental processes in the child and it relates to events that occurred in the early years of life during the period of attachment between the child and the parent; in the first three years of life. If that attachment is compromised, there are a number of significant consequences particularly with respect to establishing appropriate relationships in the future. She testified that complex trauma is always as a result of trauma that is interpersonal in nature; it encompasses all forms of child abuse and usually involves the abuse at the hands of the primary caregiver. She herself did not diagnose the attachment disorder and relied on the diagnosis of Dr. Palframan.

[119] Because D.K. was struggling with a multitude of difficulties stemming from her past dramatic experiences, she recommended treatment to proceed slowly and to occur within a safe, trusting therapeutic relationship as well as in a safe, predictable, stable and sensitive home environment more generally.

[120] She commenced her treatment with D.K., and her first set of interventions focused on stabilization of her emotional issues. She did not address the history of her trauma as that was not her first priority. She had contact with the foster parents as they were the caregivers who would have to do most of the work. In her practice, she involves the caregiving system extensively. She described her therapy as cognitive-behavioural. At first, she was working on the behavioural piece and now she wants to work on the “thinking” piece. As she explained it, D.K.’s developmental processes are disrupted. D.K. is making progress, although it is not always smooth. She anticipates that there could be a need for as many as 50 sessions.

[121] She herself did not observe sexualized behaviours and did not feel that it was an ongoing issue. She said that a child such as D.K. needs really good parenting; a safe, sensitive parenting to the many struggles that she has experienced. Effective parenting skills are required in order to be able to teach D.K. how to help make good choices. Her caregiver needs to be involved with available services.

[122] She did not want to contact the parents nor did she want to investigate the trauma as she did not want to confuse her role and she did not have the skills to do that. She did not want to address parental capacity. She wanted to work with the current primary caregivers because they were the ones that were best able to support D.K. in her therapy.

[123] She said that complex trauma generally happens by a primary caregiver and it occurs in the first two years of life. She also indicated that D.K. may have experienced the trauma, yet not have been aware of it. She has had about 15 sessions with D.K. so far. She acknowledged that transitions are hard for D.K. She had reservations with respect to the request to have a D.K. medicated as a result of the ADHD diagnosis, and ultimately conceded that D.K. might benefit from a low dose of medication.

[124] In response to my questions, she clarified that the term “trauma” could include neglect and not necessarily actual physical, sexual or psychological abuse or having witnessed such abuse. Neglect would fit within her definition of trauma, particularly complex trauma since that involves behaviour which is chronic in nature.

Dr. David Palframan

[125] Dr. Palframan provided a report dated June 25, 2015. In terms of D.K.’s mental status, he concluded that she showed no signs of any particular anxiety and certainly had no symptoms of anything psychotic or anything suggesting organic brain disorder. He concluded that she is highly defiant and is not motivated by an appreciation of other people’s feelings. D.K. finds pleasure in controlling her environment to an unusual degree and enjoys electronic devices which she controls completely. She can endure deprivation and consequences with indifference.

[126] His Diagnostic Impression is as follows:

Axis 1 Attachment disorder very slightly resolved. Post-Traumatic Stress Disorder partially resolved

Axis 2 Probable average intelligence

Axis 3 Good physical health

Axis 4 New psychosocial stressors includes insecurity about long term placement

Axis 5 Global of assessment of functioning (GAF) 40 – 50

The highest GAF score is 100. A score below 50 mean that the person is not functioning very well most of the time.

[127] With regard to management suggestions, Dr. Palframan noted that D.K. had made a great deal of progress in her activities of daily living, however, he was impressed by her lack of empathy, the ongoing presence of some sexualized behaviour and some ongoing symptoms of an attachment disorder. The symptoms also suggest a past history of serious neglect, possible sexual abuse and a child who was cast on her own to form her own techniques of dealing with life. She had begun to respond to the intensive social training represented by her excellent foster family. He thought that the school was easy pickings for D.K. who could dominate an environment which is sympathetic and kindly and does not appreciate that D.K. is an expert at assuming all power.

[128] He recommended a Section 23 classroom placement on an urgent basis. He also recommended a summer camp placement that could provide appropriate supervision and behavioural controls so that D.K. could no longer exercise the narcissism of a child of neglect and attachment disorder.

[129] He concluded the consequences or threats did not work at all with D.K., but she is not indifferent to trying to obtain what she likes and is prepared to make social bargains in an appropriate way. He did not hold out much hope for D.K. having an ability to talk through her problems in the near future. She said nothing about any past abuse and she appeared, at best, to be neutral towards her biological parents. He was encouraged that the people who have been consistently benevolent and reliable for her, her foster parents and her aunt, were held in some regard by D.K. This suggested that her attachment disorder could be resolved.

[130] He concluded that there is a long way to go as it is only recently been discovered how intense the therapeutic environment needs to be and how dependent everyone will be on finding ways to motivate D.K. He did not think that medication could make any difference.

[131] In his own observations of D.K., he found a young girl who was very determined to do something and that it would take a strong effort to try to stop her; she was an oppositional child. He somewhat admired her strength of character. She was willing to answer some of his questions and ignore the others. He concluded that she was quite capable of expressing herself; that she was intelligent and alert. What he saw confirmed the information he had obtained from others.

[132] He also discussed the attachment disorder which can arise in the first 18 months of life. If the child is ignored in that period of time, this can have devastating consequences for the child. They will start engaging in negative behaviour in order to get attention. He confirmed that neglect is a very basic element of attachment disorder.

[133] He said that D.K. did not care if she made friends; there is no necessity for mutuality of feelings. She can be highly aggressive, selfish and bossy at school. No other children like her. In his view, PTSD is more treatable than the attachment disorder. He himself did not diagnose ADHD. While he saw some impulsivity, he concluded that most of D.K.’s behaviour was planned. The situation was not clear enough for him to diagnose ADHD definitively. He also concluded that oppositional behaviour can mask ADHD.

[134] He confirmed that D.K. needs supervision and appropriate controls and a caregiver that can provide her with very basic social training. Her therapeutic environment needs to be intensive since D.K. will never really stop testing limits. He concluded that the therapy provided by Dr. Romano was very useful. D.K. would require a two person household and even that may not be sufficient. He did not meet the parents as he did not feel it was necessary to meet them for the purposes of his diagnosis.

The Family Court Clinic Assessment

[135] Dr. Stephen Floyd Wood prepared the FCCA under the supervision of Dr. McLean. At the outset, counsel for the parents took issue with his qualifications. Although they had consented to the FCCA and had the report for over a year, they expressed concern that they were unaware that Dr. Wood would be the psychiatrist completing the assessment. A voir dire was necessary, and I found Dr. Wood to be qualified to give evidence on the section 54 report and on the issue of parental capacity.

Assessment of the mother

[136] Dr. Wood interviewed her and obtained an employment history, a family history and a medical history. She reported numerous physical conditions that cause her pain. She was taking a number of medications, but claimed that these did not cause any problems.

[137] Her psychiatric history was reviewed. The mother reported that she struggled with depression “off and on” since her teenage years. She had experienced sexual, physical and emotional abuse by a previous boyfriend, but reported no ongoing symptoms due to these experiences. She had never seen a psychiatrist or psychologist in the past and most of her prescriptions came from her family physicians.

[138] Her last use of antidepressant medication was after D.K. was apprehended. A consultation with Dr. Yang, her family physician, disclosed that he assessed the mother on September 15, 2012 and he felt that she showed evidence of post-traumatic stress disorder as a result of sexual abuse that she had experienced. The mother thought she was experiencing flashbacks, but was not able to describe these. She was also diagnosed with drug dependency and a “personality disorder” which was not elaborated on. Dr. Yang recommended antidepressant, antipsychotic medication and another antidepressant to be used for sleep.

[139] With respect to her alcohol and drug history, she self-reported that she was a drug addict from ages 18 to 20 and during her previous abusive relationship. This partner had forced her into prostitution. Records provided by her family physician indicated that there were concerns regarding the amounts of narcotics that the mother was consuming and that referrals were made for addictions counselling in attempts to reduce the dosages and amounts prescribed. In June 2012, the addictions therapist wrote to her family doctor indicating concerns that the mother was over using over-the-counter pain relievers. The counsellor also discussed referring the mother to a pain management clinic in Ottawa, but the mother declined this and other recommendations for services.

[140] In terms of her mental status, he found that there was no evidence of any disorder in the formation of thought. Her mood was reported to be “good”, but she had a restricted affect. He observed the interaction between D.K. and her mother and father. Overall, he found it to be very calm and quiet. He observed minimal emotion expressed by the mother and father, with very little praise and positive reinforcement. There was also minimal physical contact between the parents, and D.K. did not seek affection. The parents did engage in some activities. D.K. and the parents appeared to be more comfortable as the visit progressed.

[141] Psychological testing was completed. The results suggest that the mother is likely introverted and shy. In close relationships, the mother will likely be passive and dependent and may be hypersensitive to what she perceives as criticism. It also suggested that the mother worried considerably about her health and may overreact to minor physical symptoms. She reported multiple somatic complaints which include nausea, vomiting, dizziness, fatigue, headaches and various aches and pains.

[142] Another profile suggested that the mother has strong needs for support, nurturance and guidance and is apt to form strong attachments to people who she believes will fulfil her dependency needs. In close relationships, she is apt to be passive, submissive, and dependent, and to willingly submit to the wishes of others to maintain the nurturance and affection she needs. On her own, she may feel helpless and insecure. On the CAP inventory, the validity indices suggest that the mother gave socially desirable responses in an attempt to look good. As a result, this test was considered invalid.

[143] Dr. Wood recorded his impressions of the mother as follows:

The mother presents with a history of numerous depressive episodes, a recent history of opiate abuse/dependence, features of posttraumatic stress due to a history of sexual abuse, and poor coping skills in keeping with Cluster B personality traits. The depressive features seem to be more in keeping with a chronic underlying dysthymia (now known as persistent depressive disorder on the DSM-5), which is a sub-syndrome of depression; however, this is also in the context of opiate abuse/abuse which can independently cause depressive features. The mother has exhibited poor coping skills in the past dealing with her depression and anxiety, including self-harming behaviour in her teenage years, illicit substance abuse, current opiate use/abuse/dependence, dissociative features, and avoidance. Her psychological profile suggests that she may overreact to minor physical symptoms and react to stress with physical symptoms. This is common in individuals with poor coping skills to respond to stress with denial and express it through physical symptoms. This is likely another contributor to her use of pain killers/opiates. Her psychological profile also suggests or meets for support, nurturance and guidance. The mother is apt to be passive, submissive and dependent in relationships in order to maintain the nurturance and affection she needs. This is likely the case when she was in an abusive relationship with her ex-boyfriend of six years, yet she stayed in it despite the extensive abuse. We would suggest that the above all contributed to the mother’s not having shown greater commitment to D.K. when Children’s Aid apprehended her. She did not reportedly seek access for approximately a year. She seems to have placed a heavier rule value on her relationship with the father as compared to D.K. This seemed apparent in her proposed Plan of Care reports, where she indicated she could not see a plan without the involvement of the father despite Children’s Aid clearly stating they would not support this.

While the mother has participated in parenting programs and has benefited from the material, it is concerning that this took over year. While the mother’s interaction with D.K. went reasonably well, it was marked by a certain sterility or lack of nurturing and affection. I would question whether the mother has the ability to form strong social bonds where she is in the supportive role. She may have lacked such an early attachment to parental figures herself given that her mother was apparently suffering from a mental illness. There is no indication that the mother has been abusive towards D.K. and her psychological profile supports this. However, it is likely that the mother might not intervene if the father were to harm D.K. given her history of being more submissive in relationships. We also wonder how she might function at home when she is using excessive amounts of Tylenol 1’s which could cause sedation and a sense of relaxation.

The mother would benefit from ongoing counselling or psychotherapy to address her past history of sexual abuse, and help her develop more healthy coping mechanisms. Such counseling could be offered through agencies such as Family Services Ottawa, Catholic Family Services Ottawa, or Jewish Family Services. Family Services Ottawa has a Woman Abuse Program. Because these are based on a sliding scale dependent on income, this would hopefully not impede the mother being able to afford any sessions. In regards to her pain, there does seem to be an instructive component which is likely exacerbated by stress. She has reportedly had a pain assessment done in the past, but it is possible that she could derive further benefit from the counselling mentioned above and learning to cope with pain in a healthier manner. She would also benefit from attending substance abuse programs for her overuse of painkillers which can be found at several community health centres such as the Sandy Hill Community Health Center.

Assessment of the father

[144] The father’s background history was reviewed and he explained that for most of his life he bounced around. He lived with his parents for the first five years of his life, and then he was placed with an aunt after his parents separated. He was sexually assaulted at the age nine by a great uncle. He was placed in foster care at the age of ten, and at age 14, he was sent to a group home after he was found in the basement with two other young girls who were naked. He was referred to a program at the Roberts Smart Centre and was not charged with sexual interference. He did not complete high school.

[145] He worked as a custodian and a labourer. He stopped working in 2008 to help the mother raise D.K. He has not worked since that time. In terms of relationships, he reported having many except they were all short-term. He was previously married. That relationship appears to have been unstable and characterized by a lot of drug abuse. He met D.K.’s mother when she was in a relationship with his stepson.

[146] He recalled the conflict between his parents and stated that there was quite a lot of abuse, mostly verbal, sometimes physical, and usually over money. He did not have much contact with his parents after his placement with the Society. It appears that he developed a somewhat better relationship with his father later on.

[147] In terms of his medical history, he reported experiencing debilitating migraines every couple of months. He also reported having asthma, high cholesterol and possible borderline diabetes. Medical records from his family physician indicate a history of chronic headaches.

[148] The father recalled seeing a psychiatrist on numerous occasions when he was in an adolescent group home. He himself saw Dr. Palframan as an adolescent. He has not seen a psychiatrist or any other mental health professionals since he left the Roberts Smart Centre as a youth. He acknowledged being diagnosed with pedophilia in the past and claimed to be better by the time he left Roberts Smart Centre. He did not engaged with any services for pedophilia at that time since he felt he had dealt with the problem and that he no longer had an attraction to children or adolescents.

[149] The history of treatment while he was at the Roberts Smart Centre indicated that the father reported a more significant history of sexual assaults against younger males and females in 1987 than might have otherwise been disclosed to the Society. The final assessment from the sexual behaviours clinic took place in December 1989. Dr. Marshall, who was seeing him at that time, stated that the father was able to control his sexual arousal to young boys and girls and expressed confidence in his improvements over time. On discharge from the Roberts Smart Centre, it was noted that the father had ongoing problems in a number of different areas such as anger awareness/management independence. It was believed that these two areas were natural consequences of early life experiences (victim of neglect and sexual assault), and a lack of attachment figures.

[150] He denied any history of depression except for incidents when he was a teenager. However, medical records disclose that he was provided with antidepressants due to an ongoing depressed mood with other depressive symptoms. In January 2012, the father reported his mood was down and he was “angry at his wife and daughter, but did not hurt them physically.” Contact with the family physician indicated that there was a request by the father for a referral to psychiatry and anger management in July 2013.

[151] The father reported drug abuse when he was a teenager. He remembered being addicted to crack cocaine while he was living with his first wife. He reported that he has not used crack cocaine in the last two years. He has used marijuana on a regular basis up until 2012 when D.K. was taken away.

[152] He had no significant legal history except for the sexual interference issues when he was an adolescent. He was more recently investigated by the OPP due to the allegations of physical abuse towards D.K. In his conversation with Dr. Wood, he appeared appropriate and there was no evidence of any disorder in the formation of thought. His mood was reported to be “okay” with the restricted affect that appeared to the Society - he also appeared to be tired. There was no gross disturbance of memory nor were there any delusions, hallucinations, or evidence of a psychotic or major psychiatric illness.

[153] When seen in the interaction with D.K., the father appeared to be tired, and in a somewhat secondary role. There was, however, minimal positive reassurance provided and only minimal physical contact during the interaction. The father showed good cooperation throughout the assessment process. The validity indices on the various tests suggest that the father was frank and open in his responses. The test results were considered valid.

[154] The clinical profile suggested that the father has a high energy level. He likely tends to feel agitated and restless with periods during which he is hyperactive and irritable, accompanied with difficulties in controlling or exhibiting his thoughts from becoming actions. Furthermore, he likely prefers action to though; he tends to become bored easily and may seek out risk and excitement as a means of his overcoming boredom.

[155] These results also suggested that the father is likely outgoing and sociable, and enjoys being around people. There were suggestions that he harbors feelings of resentment towards those in authority and may have his own opinions about right and wrong. The results also suggested that the father is somewhat preoccupied with various physical symptoms include headaches, constipation, chest pains, ringing in ears, and twitching muscles.

[156] There were some suggestions that the father has the potential to develop substance abuse problems should he use alcohol or drugs. Other test results suggest that the father is prone to frequent mood swings that can range between irritability, elation and depression. He tends to feel anxious and tense much of the time and may find it difficult to relax.

[157] Dr. Wood recorded his impressions of the father as follows:

The father presents with a history of depressive-like episodes, illicit substance abuse, anger issues, childhood sexual abuse and neglect, and a history of pedophilia as a teenager. He was guarded during the interviews and minimized his actions and symptoms. He denied any problems with depression or history of being on antidepressants in the past, although it was mentioned by his family physician that he had been prescribed several antidepressants for depression. He also provided a very benign story of how he was diagnosed with pedophilia. This is not in keeping with the documentation provided by the Roberts Smart and the Royal that indicated he had groomed multiple children and tested highly for pedophilia. However, on discharge, it was reported that he made considerable progress and was able to repress his urges during testing for pedophilia and was not responding to any of the children stimuli. He also denied using corporal punishment on D.K.; although there is a report from a parenting program suggesting that he acknowledged using corporal punishment.

There are several reports that the father has had a long-standing issue with anger, which she recently reported to his family physician. His psychological profile also suggests that he is prone to emotional swings, irritability, difficulties in controlling his thoughts from becoming actions. We would recommend that he participate in anger management courses to help curb or control his anger. Two major resources would be The Men’s Project in the anger disorders program at the Royal Ottawa Hospital which his family physician can refer him to. There is anger counseling at Catholic Family Services as well.

The father denies any sexual misconduct with D.K. His risk for reoffending would have been higher when he was a teenager or just out of the Roberts Smart program. However, there is no recorded history of repeat offences since then and, as offenders grow older, the risk of reoffending decreases. The father presents himself as a low risk but he has not participated in any treatment for sex offenders since leaving the program in 1991. It would be recommended that he participate in the Sexual Behaviours Clinic at The Royal which has group therapy sessions every week for individuals who have had a history of sexual offences against minors. Although his charges are remote, the group has been shown to be helpful for a wide variety of individuals with a history of these offences and to decrease the rate of reoffending. (there is a mood group as well).

The father has participated in parenting programs and has reportedly benefited from the material provided such as learning about neglect. However, the fact that D.K. was in care for over a year before he attempted to gain access is concerning regarding his motivation level and the perseverance required for parenting high-needs child. During the interaction with D.K., he observed a certain sterility or lack of nurturing and affection. We question whether the father has that ability to form strong emotional bonds and he may have lacked such childhood attachments to parental figures himself during early years when he experienced sexual abuse and neglect.

Assessment of D. K.

[158] The mother and the father reported that they did not use corporal punishment on D.K. although reports indicated that the father did acknowledge that he used corporal punishment when he attended the “Caring Dad’s” program. The father added that he has also come to understand that he unintentionally neglected D.K. by playing his video games. The parents did not feel that D.K. was poorly cared for, they reported that D.K. is not a behavioural problem nor did she require much discipline. They agreed that she was delayed in her speech and that the mother initially did not want her to attend speech therapy because she felt she was just a slow learner but was then supportive of this program. They have not witnessed her soiling and said that D.K. uses the washroom appropriately during her access visits. They are uncertain as to what could have triggered her soiling.

[159] The foster mother described a quite different scenario. Reports from the school noted that D.K. needed frequent individual attention and would largely ignore peers and engage with adults by requiring attention that was indiscriminately positive or negative. In regards to socialization, D.K. was described as “problematic” with escalating behaviour moving from disruptive to aggressive. She was noncompliant with school rules. She had speech development problems.

[160] Dr. Wood reviewed that D.K. was seen at CHEO shortly after being apprehended. This is where there was extensive linear bruising found in the inner buttock area and in the vaginal area. These appeared to be fresh injuries. A further assessment on June 5, 2012 noted that D.K. had a significant delay, primarily in her expressive speech, but also in her receptive language. Dr. Wood reported that D.K. was unusually comfortable and affectionate around strangers.

[161] Dr. Wood noted that Dr. H. Cadotte, (child/adolescent psychiatrist) conducted an assessment of D.K. on May 8, 2014 due to concerns over disruptive behaviours and attention deficit symptoms. At that time, the foster mother reported that D.K. had been disruptive at school and that these behaviours had worsened. No formal diagnosis was provided, but Dr. Cadotte queried if D.K. had an intellectual disability, language disorder, attention deficit hyperactivity disorder and an unspecified tic disorder. A differential diagnosis included reactive attachment disorder and possible dissociative disorder unspecified. Recommendations included an assessment from speech language pathology, a psycho-educational assessment, and questionnaires for attention deficit hyperactivity disorder.

[162] After recording his observations of D.K., Dr. Wood provided his impressions at page 43 of his report:

It was the Family Court Clinic’s opinion that D.K. should be viewed as a special-needs child. She shows serious developmental delays in multiple areas including language, motor skills, social skills and self-help. These deficits are likely to have widespread impact on D.K.’s future and in particular in regards to her schooling. It is also our opinion that D.K. suffers from an attention deficit hyperactivity disorder; the questionnaire provided by the school was suggesting many of the signs and symptoms that are typically seen with these children. D.K. also has rather serious behavioural issues. These have included soiling in enuresis, although in her school, there has also been difficulty with general defiance, running, and occasional aggression. Another major concern would be evidence of an attachment disorder. D.K. had been noted as showing indiscriminate affection towards strangers and our assessment further reveals limited signs of any strong bonding and attachment to expected figures which could include her aunt and uncle, the foster parent or biological parents.

[163] Dr. Wood went on to recommend that D.K. have a further assessment particularly in regards to developmental issues. She would also require specific assistance to do with other delays including that which was noted in speech and language.

[164] Dr. Wood concluded that during his individual interview with D.K., she was not identifying any expected adult as someone she would want to live with in the future. She was, in fact, identifying some stranger she could see in the truck out in the parking lot. While this raised major concerns as far as D.K.’s ability to form attachments to parental figures, the FCCA did note a significant difference in the quality of D.K.’s interaction with her aunt and uncle versus that with her biological parents. The interaction with her biological parents was characterized by D.K. as being rather quiet. There is also a certain sterility or lack of emotion or infection exchanged. Neither biological parent showed a good ability to encourage or reinforce D.K. while providing stimulation which was seen as extremely important in D.K. attempting to regain some of the delay.

[165] On the other hand, the interaction with the aunt and the uncle was characterized by D.K. as being quite verbal and receiving a lot of stimulation from both her aunt and uncle. There was also an exchange of affection with D.K. clearly enjoying the attention she was receiving.

The FCCA Conclusions and Recommendations

[166] It was the FCCA’s opinion that D.K. would need to be viewed as a special-needs child. These special-needs include developmental delays, probable attention deficit hyperactivity disorder, behavioural problems, and an apparent reactive attachment disorder. The exact origin of the development delays was not clear, but could well have included components including genetic, biological such as prenatal factors, and also the possibility of neglect during her early years. While also aware of the allegations of possible abuse, the FCCA was not in a position to comment on that definitively. While D.K. denied any abuse by adults during her interview, the FCCA could not rule out the possibility that this had seemingly occurred.

[167] Because of D.K.’s special needs, he recommended that she be in a home that could provide her with stability, affection, stimulation and structure. D.K.’s parental figures would also need the ability to ensure that her many needs are addressed. This would include their showing an ability to work along with D.K.’s school, and also ensuring D.K.’s attendance and the directions of many professionals would be working with her including speech therapists, occupational therapists, doctors and mental health professionals.

[168] Because of D.K.’s reactive attachment disorder, Dr. Wood suspected that she will have a great difficulty in establishing and maintaining a strong relationship with future parental figures. This would make her a rather poor candidate for adoption and, along with her special needs, could result in D.K.’s being one of the systems failures who could end up bouncing from one society placement to another prior to being released without any family ties or supports once she reaches 18 years of age.

[169] The FCCA also had a number of rather serious concerns in regards to the parenting plan put forward by the biological parents. While it could not be certain who might be responsible for any physical abuse of D.K., the father appeared to have the profile that could be most at risk. In that regard, the father did have a documented history of difficulty in regards to anger management. His current psychological profile suggested that he is prone to mood swings with bouts of irritability difficulty preventing his thoughts turning into actions. When combined with rather poor or questionable parenting skills, this could result in the likelihood of striking out in frustration without any purposeful intent to harm. The other outstanding concern regarding the father was his history pedophilia. While it was recognized that the father did seemingly respond to treatment during his youth, there had not been any reassessment or treatment in many years and the father was reluctant to undergo testing through the Royal Ottawa Mental Health Center, which would have helped to further confirm that he would remain at low risk for any type of inappropriate sexual exchange with D.K. The father’s ability to interact meaningfully with D.K. was also apparent, but perhaps not surprising given the lengthy period that he had not been involved in any parenting role with his daughter. While he appeared interested in observing his daughter’s actions, the father showed a limited ability to provide stimulation, praise or affection which would be important in building up a bond which was not apparent with his daughter.

[170] While the mother did not appear to be in any high risk group for abusive or violent behaviour towards her daughter, Dr. Wood concluded that she did have a long history of poor coping skills with recurrent depressive symptoms, substance abuse, and a history of self-abusive behaviour in the form of cutting. Her history was also marked by her rather dependent and submissive role in relationships which would raise concerns about her ability to place the safety and best interests of her daughter ahead of the relationships with her partner. This was also reflected in the mother’s psychological testing which suggested that she is likely to be quite passive and dependent in relationships, having strong needs for support, nurturance and guidance. He thought that the mother was likely to submit to the wishes of others in order to maintain the nurturing and affection she needs. The mother’s testing further underlined her tendency towards being restless, irritable and moody. She was also noted as tending to disregard values or standards of society and being rebellious in dealing with authority figures. This would not be helpful for her ability to work with the many professionals that her daughter, D.K., will be dependent upon. She also showed a poor ability to provide stimulation, praise and encouragement, as well as nurturing and affection in interacting with her daughter. Finally, the FCCA was quite concerned in regards to the fact that the father and the mother seemingly went almost one year without having access to D.K. This apparent lack of attachment would be in keeping with D.K.’s diagnosis of a reactive attachment disorder.

[171] The FCCA concluded that the most viable options for D.K. would either be a placement with the aunt and uncle or to be made a Crown Ward of the Society for the purposes of adoption. Both of these options were seen to carry a number of identifiable problems or weaknesses. In the end, the FCCA supported giving the aunt and uncle one more opportunity to prove that they could provide the home that would best meet D.K.’s needs. In the context of a supervision order placing D.K. with her aunt and uncle, the FCCA felt that the access to her biological parents should be specified. Given her apparent inadequate attachment to them, the clinic did not see frequent access as necessary to address D.K.’s needs, and felt that it could, in fact, prove to be disruptive. The FCCA therefore suggested that access be decreased to once per month supervised by the Society, which would allow D.K. the opportunity to settle back in her aunt and uncle’s house with as few disruptions or distractions as possible. This access would be contingent upon the father and the mother demonstrating that they would not undermine D.K.’s relationship with her aunt and uncle and would otherwise ensure that the access was a positive influence on her life. Before unsupervised access would occur, the FCCA suggested that both parents would need to abstain from alcohol and drugs; the father would be required to take an anger management program and would have to be willing to undergo a sexual behaviours assessment to help confirm that he does not pose any risk to his daughter. Under such circumstances, it was seen possible that the father and the mother could someday play a more meaningful role in their daughter’s life.

[172] In the event the Court determined that it was in D.K.’s best interest to be made a Crown Ward for the purposes of adoption, the FCCA suggested that any adoptive family have no other young children so that their attention and affection can be focused on D.K. This would improve D.K.’s chances to form at least some minimal attachment to them. The question of openness would be somewhat of a two-edged sword, given D.K.’s attachment disorder. In order to optimize the chances of D.K. forming attachments with an adoptive family, the FCCA felt that openness should be limited to the provision of certain basic information about D.K.’s progress. Any direct communication might hinder or detract from D.K.’s chances of forming any sort of reasonable bond with new parents. However, given the high likelihood that the adoption might break down or be unsuccessful, this lack of openness could sever D.K.’s family identity and what attachment D.K. has slowly developed for her aunt and uncle, in particular. There was a concern that D.K. could bounce from one society placement to the other, and lose any family identity for support when she is discharged or severs herself from society responsibility.

[173] At trial, Dr. Wood repeated much of the evidence contained in his report. Dr. Wood confirmed that he offered to do the forensic sexual behaviours testing when he saw the father because he was qualified to perform the testing. The father initially agreed to the testing, but then refused. Dr. Wood confirmed that he was not particularly concerned about the father’s history; he saw him at low risk, but he wanted to confirm that and he was surprised at the father’s refusal to proceed with that testing.

[174] With respect to the father’s issues with anger, he noted that this was self-reported to many professionals. Access to some programming could have assisted P.K. and this did not require a whole lot of effort. He confirmed that although access was going well between D.K. and her parents, it was difficult to extrapolate that experience on a daily basis in the event that D.K. was returned to their care. In his view, the parents had no insight into their own issues. He was concerned about their lack of motivation seeking access to D.K. when she was initially removed from their care, their minimal contact and their failure to follow through with some of the recommendations. For all those reasons, he felt that they could not meet D.K.’s special needs.

[175] He was referred to the reports by Dr. Rouillard, Dr. Romano and Dr. Palframan and their observations coincided with his own. Dr. Fedoroff’s report confirmed his own observations and assessment that the father was at low risk with respect to pedophilia, but that he had needs that could be met by the group therapy sessions that were recommended.

[176] He repeated that D.K. needs a family that is well prepared in a predictable and stable environment to provide appropriate discipline behaviours and a wider array of different skill sets that cannot be provided by the biological parents. He felt that if the parents did not seek counselling to address their own needs, they would not be able to respond to D.K.’s needs. He confirmed that he recommended continuing access to the parents only in the context of D.K. being placed with her aunt and uncle, and it was never with a view of returning D.K. to their care. He was more pessimistic about continuing access in the event of a Crown Wardship order which could prevent D.K. from becoming attached to her adoptive family.

[177] While some of the steps being taken by the mother and father were positive, he remained concerned that the parents had failed to follow through with recommendations with respect to accessing programs for themselves. In his view, this spoke to their motivation and lack of insight; specifically with regards to the mother’s management of her pain and the father’s management of his anger.

Dr. Fedoroff

[178] Dr. Fedoroff’s report dated December 29, 2015 was entered in evidence with the consent of all counsel. After reviewing his history and conducting a mental status exam, the father underwent a full sexual behaviours clinic assessment. In terms of risk assessment, Dr. Fedoroff concluded :

The father does not face any current offences. He was previously accused of sexual interference as a youth however; he is not known to have committed any sexual offences as an adult. Unfortunately, a CPIC was not provided. Given these facts, there are no validated actuarial instruments designed to assess risk of sexual offence that would be appropriate.

I also scored the father on the H CR – 20, which is an instrument that combines static factors with factors that may change with treatment. On the H CR – 20 but following potential vulnerabilities were identified:

1. Violence as a child

2. Other antisocial behaviour as a child

3. Unemployed

4. History of substance abuse

5. Previous diagnosis or personality/conduct disorder

6. History of personal childhood victimization

7. History of “dropping out” of treatment

[179] He concluded that an actual risk assessment was not possible because he had no charges or convictions for a sex crime as an adult. Nevertheless, there were several factors that would be amenable to treatment. It was his opinion that the father no longer meets the DSM – 5 diagnostic criteria for pedophilia because there is no evidence of persistent sexual interest in children.

[180] In terms of recommendation, he concluded that the father and the mother would benefit from attending the treatment offered at the Sexual Behaviours Clinic (SBC). This is because the father has several risk factors. The father had to ensure that he does not reoffend or do anything that could raise questions about whether he has reoffended. The SBC groups are helpful to men in the father’s position because many of the men who attend the groups have been through what the father is going through and can provide helpful perspective and advice. He suspects that the father and the mother could also benefit from couples therapy. He offered to be of assistance to the father in the future.

Anik Whyte

[181] Anik Whyte provided two affidavits; the first sworn February 19, 2015 and the second sworn December 18, 2015. She expanded on that evidence at the resumption of the trial and was the last witness for the Society. She works with the Society and her task is to find adoption placements for children such as D.K. Her title is Family Finding Worker and a Wendy’s Wonderful Kids Recruiter. She provided two affidavits wherein she set out her success in placing children such as D.K. for adoption.

[182] She described the “Wendy’s” program as a very specific approach that originated in the United States. It is a very child intensive and child focused program for placing children in adoptive homes that has been proven to be very successful. A child is three times more likely to find a placement with an adoptive family through this program. The success of the program has led the Province of Ontario to introduce 12 more recruiter positions.

[183] At present, there is no pool of families waiting for a child like D.K., and this is not unusual. Generally, she has to go out and search for a family.

[184] She has read the FCCA and the other reports and materials, and in her view, D.K. is not far from the range of children she has had to deal with. The majority of the children she places have an attachment disorder. Some of her placements have presented even more extreme challenges than D.K. She has access to a large number of trained therapists who can help adoptive parents deal with reactive attachment disorders.

[185] With regard to the FCCA, she is not surprised that others may take a less optimistic view of the adoption program’s success since the program has only been in place for seven years.

[186] She does not get involved with prospective parents until such time as a Crown Wardship order is in place since it interferes with the messaging in what is a very intensive program. At present, she has 12 children in adoption probation and five waiting for placement. She said that adoptive families have to be open to openness. She could not comment with respect to the possibilities of placement with respect to D.K. since these are specific to each child. She needed to have an opportunity to meet with D.K. so that she can have her own understanding of what her needs are before she goes out to seek an adoptive family.

[187] She said that if a child under 16 wants to be adopted, she has always been successful in finding a placement for that child including kinship. On average, it takes her six months to find a potential placement or a child.

[188] She indicated that openness is much more common than it used to be in the past. Openness can include face-to-face access, and that form of openness is particularly well supported here in Ottawa.

The Evidence of the Parents

The mother, T-L.L.

[189] The mother described the father as of the “love of her life.” She was previously involved in an abusive relationship. The father disclosed his previous history as a pedophile early in their relationship. This was a bit of a concern for her initially, but she never saw anything that triggered any subsequent concern.

[190] She disclosed that when D.K. went into the care of her aunt and uncle in May 2012, she and the father were living in Hawkesbury and they had no transportation to Ottawa. She only saw the child two times in the one-year period it took before Valoris facilitated transportation. Otherwise, she claimed that there were daily phone conversations with D.K. She described the two visits she had with D.K. as great. She described doing many things with her; taking her to the park and watching movies. Throughout this time, D.K. was happy and she saw no problems with her behaviour.

[191] Access did not formally recommence until April 2013 where she and the father had access one time per week at the Society’s office in Rockland. Access was supervised for three hours. She herself enjoyed unsupervised access for a few minutes as she brought D.K. to speech therapy. These were arranged by Valoris.

[192] The mother described a good working relationship with Valoris and the agency was working with her to have D.K. back into her care. In September 2013, she moved in with her sister at the suggestion of Valoris. She said she would do everything for D.K.; wake her up and get her to school. She claimed that she went to the school on two occasions and spoke with the EA and the teacher. She claimed that the teacher and the EA asked her for strategies on how to cope with D.K. She told him they just had to hug her for a while until she calmed down and to use music. I find this evidence not to be credible and accept Ms. M.H.’s evidence to the contrary.

[193] She did understand that D.K. had been defiant, aggressive and ran away. Her sister did help her out, but she felt that her sister interfered and did not give her a chance to parent. She claims that she took steps to have an ADHD assessment for D.K. She requested a referral to a psychiatrist and for allergy tests and D.K. was put on a waiting list. She claimed that she did these things on her own initiative.

[194] She acknowledged that the father was not allowed to have access, but she did allow it one time. She could not get the car started and she did not want D.K. to miss school so she called the father to come and pick them up. She claims she did not know why her sister kicked her out of the house, and she then went to live with the father. They did not have access until February or March 2014 when access was put in place once a week for two hours. She claims she tried to arrange for earlier access and left messages, but there was no response.

[195] The mother got along well with Ms. White who told her to take a parenting course, but that was the only thing that she could recall. She conceded that the Society was not looking at integration with respect to both parents because of the father’s past. With respect to her own home; she and P.K. shared it with her mother who has been diagnosed with schizophrenia and a bipolar disorder. She would not allow her mother to have any contact with D.K. if she were to live with them.

[196] She got along well with the access supervisors and tried to do what was suggested. She did not recall a meeting with Ms. White to discuss moving the visits into the community. She was not resistant to the idea, but she was not sure how it would work. During access, she said that she and D.K. do crafts, read, and play board games. They do some activities or school work where she tries to get D.K. to read. She described only a few behavioural issues where on one or two occasions, D.K. was very defiant and she was able to redirect her. There were no bathroom issues. She felt that D.K. responded well to her direction. In terms of her parenting style, she says that the father is more of the fun guy where she is the more organized person who has to get things done. She talked about her last visit on December 31 and they told D.K. about going to court. She felt she had to tell her this since D.K. does not do well with transition.

[197] As for her pain medication, she described a lot of problems; pain in her hips, and pain in her hands and knees. She has been diagnosed with fibromyalgia, arthritis and chronic disc degeneration in her back. She acknowledged she took a lot of medications in the beginning, up to 30 to 40 Tylenol pills a day. Valoris referred her to the Centre for Addiction Counselling in Hawkesbury. She stopped the addiction counselling when she received the medication for her pain. She acknowledged that she had completed a drug screen which was positive for codeine.

[198] Her doctor in Hawkesbury was aware of the medication and told her that she was taking more than she should. She now sees her doctor in Ottawa once per month. The last time she took medication for depression was in May 2012. She says she now has ways to cope with it. Dr. Zheng required her to sign a document wherein she agreed to see only her and attend at only one pharmacy in order to get her prescriptions filled. Dr. Zheng recommended that she attend a Methadone clinic as Dr. Zheng would like to get her off the codeine and find another way to manage her pain.

[199] She said she took a budgeting course in 2014, and this has helped her manage her finances and she can now pay her bills. She took one parenting program when she was working with Valoris. She had taken two other courses while working with the Society in Ottawa. She believed that these taught her how to communicate with the D.K. and how to deal with attachment problems.

[200] She claimed to have read many books and researched on children’s behavioural issues. She did these things on her own. She also took a three hour anger management workshop along with the father. She has been seeing Carole Barrette, a counsellor at the Family Services Bureau. They discuss strategies for dealing with her stress and depression. She said they briefly discussed the history of her past abuse, but since she had dealt with it before, they did not pursue that issue.

[201] She proposed that D.K. live with her and her father. She said there are two schools close by and they have the resources to deal with D.K.’s issues. She has not been able to do more research with the school since D.K. is not in her care and the school has not been able to assess her.

[202] She thought that the father would be looking for work and, as a result, he would not be as involved. She proposed to get D.K. involved in dance or swimming. She recognized that D.K. needs to be socialized. She would also have contacts with family including D.K.’s aunt. She said she would continue to work with the foster mother, the Society and any professionals. Since May 2012, she claimed to have a better understanding of D.K.’s needs, to be better able to communicate with D.K. and better able to manage her behaviours and to effectively teach her.

[203] She discussed the observations that she has a flat affect in dealing with D.K. and claimed that she was trying to contain her emotions to prevent herself from crying. She also attributed her lack of smiling due to the lack of teeth. In speaking about D.K., she said that she can be affectionate, and she herself has not observed any behavioural issues in the two hours of her access visits.

[204] In cross-examination, she agreed that she worked very hard with the Society in order to get D.K. back into her care. She understood that when she went to live with her sister, this was so she could acquire the necessary skills and learn something from her sister. She acknowledged that there was a Supervision Order returning D.K. into her care with a condition that she is not to allow any contact between D.K. and the father. She acknowledged that she did allow contact and that this jeopardized the plan to reintegrate D.K. into her care. She did not agree that the Society had legitimate concerns about the father. She also thought it was important for him to see D.K. On the day in question, the car would not start and she felt that it was important that D.K. get to school on time and that it justified violating the Court Order.

[205] She never thought that the father was a risk for D.K. and still feels that way. She relies on what the father has told her. Even though she has read other reports, she trusted the father when he told her he was cured from his past problems which occurred when he was younger and that he did not need any further assessment.

[206] She felt that D.K. was at no risk of physical abuse. Anger management issues however had been identified as a concern that she herself had expressed to others. It was pointed out to her that the father has acknowledged that he still has issues with anger. There is a reference to the father yelling during video games. She acknowledged that this bothered her, but his anger was not directed towards people only at the games. She insisted that there was only one incident of corporal punishment.

[207] With respect to the Triple P course, she acknowledged telling Ms. White she did not find it helpful. She also acknowledged telling her that she did not think that D.K.’s behaviours were a problem. She did agree that when her sister stepped back, D.K.’s behaviours became more difficult. She presented a Plan of Care on her own in January 2014, but she was living with the father at that time. She agreed she did not want to forgo her relationship with the father. She was aware that the Society was not supporting a plan for her and the father.

[208] She felt she still needed to work things out in terms of her medication issues and parenting courses. She discussed the courses she had taken and said once more that she learned about attachment issues and about different methods of discipline. She also learned about different ways of communicating with a child.

[209] In terms of her medication, she takes Codeine-Contin 100 mg four times a day and Codeine (30 mg) four times a day. She also takes Ibuprofen for pain management when she needs it. She has suffered constant pain over her whole body for the past eight years. She did not consider herself addicted to her pain medications. She has tried other alternatives in the past without success. She is very reluctant to proceed with her doctor’s recommendations that she attend the Methadone clinic because she is not sure that it will be effective in alleviating her pain. With respect to the FCCA’s recommendations with respect to a substance abuse program or a pain management clinic, she claims she did not want to do it as she has done it in the past. She agreed that she chose to disregard the recommendations of the FCCA.

[210] With respect to dealing with her past issues and the recommendation for therapy, she felt that she has already addressed that. She had not asked her family physician to make a referral until six months ago and she is now on a waiting list.

[211] With respect to access, she was not aware of the lack of affection between her and D.K. She claimed that she is now expressing more affection. She acknowledged that she is not as actively engaged with D.K. because of her pain issues. She disagreed, however, that the pain impacted her energy levels. She conceded that pain medication could have an impact, but did not agree that it had any impact on her.

[212] With regard to her flat affect, she claims she is trying to smile a lot more and that maybe others were not noticing it. She conceded that moving out into the community is a bit of a problem for her because she has allergies which make it difficult for her to be outside in the summertime. She denied expressing any form of reservation about access in the community and claimed that she was merely seeking clarification.

[213] She agreed that she did not see the behavioural issues to the same degree as observed by all of the others and the doctors. She claimed to have set up referrals to services when she was living with her sister, but she did not know what happened. She agreed that she may never have told Ms. White about these. She thought that she might have left a message. She could not recall following up.

[214] She had some difficulty describing an attachment disorder. She knew that there were other issues but could recall them notwithstanding having heard the evidence of Dr. Romano, Dr. Palframan and Dr. Wood. She appeared to put the blame for D.K.’s behaviours on her multiple placements since she was removed from her care. She claimed to have done some research online, but could not remember what she had read. With respect to Dr. Romano’s conclusion that D.K. had suffered from complex trauma and this was as a result of problems that had occurred very early in D.K.’s life, she disagreed that D.K. suffered any neglect while she was in her care. It was pointed out to her that the father agreed with the FCCA that there had been some neglect. She did not agree that there were any attachment issues. She claimed that D.K. was socialized while she was in her care and that D.K. had a best friend that she could interact with. With respect to the delays in D.K.’s toilet training, she claimed that she started it and her sister simply finished what she had already commenced.

[215] She was aware of all the specialists that would be involved in D.K.’s care. She could identify the need for counselling and speech therapy, but she was not really sure what would be required. She did not agree with the FCCA recommendations. She was asked what resources she attempted to contact following the FCCA, but she could not recall what those were. She acknowledged that Ms. White had told her that she needed to follow through with the FCCA recommendations and that she could have done something, and that she had not.

[216] In answer to my questions, she could not explain why her doctor wanted her to stop the codeine medication. She agreed that she took a lot of it. With respect to finances, they are in receipt of social assistance and her mother helps pay the rent and some of the expenses. I pointed out to her that she had signed an Agreed Statement of Facts in February of 2013 which was the basis for an order finding D.K. a child in need of protection for what essentially amounts to neglect. She then agreed that there could have been neglect. I also reminded her of Ms. Sauve’s evidence with respect to the neglect that she observed and the reason the child was placed with the aunt. She only acknowledged a problem with respect to finances.

The father, P.K.

[217] The father said he had a good relationship with mother and that there was no domestic violence. He acknowledged that after D.K. was removed from their care, he was told not to have any contact. He denied being responsible for any physical or sexual abuse of D.K. He claims to have used physical discipline on only one occasion. He admitted that he had access when he was not supposed to. The mother had asked him to pick her and D.K. up to go to the school because the car would not start. He claimed the entire access lasted less than five minutes.

[218] He could not recall when regular access resumed, but conceded it took a while. He acknowledged that the Society’s concerns focused on his past sexual history, anger management issues and that there was something else but he could not recall. With respect to the mother, he knew that the Society’s concerns were with respect to her depression and prescription drug abuse, but once again, there was something else but he could not recall.

[219] He claimed he regularly used marijuana in the past, but stopped using drugs in 2012 when D.K. was taken away. He claimed he was candid in telling the mother and the Society about his past sexual history and consented to the release of his records. He did not have any treatment over the years because he did not think he needed it. He believed he had dealt with it as a teenager and he decided to put his past behind him. He conceded that he is now reconsidering it and is on a waiting list. He was asked why he did not agree to the sexual behaviours assessment offered by Dr. Wood. He claimed that it was not mandatory for the purposes of the FCCA. He then decided that he needed to do it and he started the process in December of 2015, just before the resumption of trial.

[220] Dr. Federoff did make some recommendations. While he was not prepared to go through with these, he has taken the steps to do so after having heard Dr. Wood testify. He acknowledged that he had anger management issues when he was younger. He now sees a social worker, Diane Fox, who provides him with supportive counselling. She is helping him change his personal lifestyle and reduce stress.

[221] He acknowledged that he may have told his doctor that he had anger management issues with his wife and daughter. He also agreed that he asked his doctor in July 2013 to refer him to a psychiatrist and for anger management. He did eventually meet with Jeff Bondy at the Caring Dads program. He learned that he might have been ignoring D.K. by playing video games and that this was a form of neglect.

[222] While Ms. White did not ask him to take an anger management course, he acknowledged that the FCCA recommended it. He claimed to be looking at programs but some of these had a cost. The best one was about $300 and he could not afford that. Ms. Fox is helping him make more positive life choices and spend less time playing video games. He acknowledged that he used to play video games and this caused anger issues and he would end up screaming and yelling. He and the mother have taken two parenting programs since D.K. is in care. He said these two courses have trained him and provided him with new techniques on how to deal with D.K.’s behaviours. Instead of giving D.K. a “time-out”, he now gives her quiet times. He has also consulted other resources and videos on the Internet and he finds these helpful. He also took a budgeting course to help them better manage their finances as this was a concern previously identified. He also took a three hour workshop on anger management.

[223] He had two Plans of Care; the first one was a joint plan and the second one was for him alone. He acknowledged that the Society did not approve the second one. He had asked Ms. White about reintegration, but because the Society was seeking Crown Wardship, it was not prepared to agree to more access. He agreed that Ms. White had the same concerns as the FCCA, but said the Society had no money for the parents to get additional help.

[224] He was asked about attachment difficulties. He knew about this from the reports. He understood this to mean that is was hard for D.K. to form meaningful relationships with anyone. He described D.K. as his angel, who was fun-loving but very stubborn at times. He was able to identify her special needs as a reactive attachment disorder, ADHD and behaviour problems (there was no mention of PTSD). He described ADHD as an inability to focus. He suffered from the same problem when he was younger. He understood that attachment disorder takes a long time to deal with. He said that this was the same with respect to behaviour problems. He said this was all because of D.K. being “stubborn.” He did not agree with D.K. being on medication, but would go along with it if the doctors recommended it. He also agreed to the Section 23 placement at school because he himself was a Section 23 student. His current plan was to have D.K. continue with professionals.

[225] The access visits describe D.K. giving him a hug and kiss when they meet. They would engage in some play activities, but would also do homework. He described D.K. as being upbeat even though the most current information indicated that she could be difficult. In general, D.K. was happy at the visits. He claimed that he was pleased to have visits with D.K. in the community and that the only concerns were that some of the activities did not line up with their schedule. He has spoken to D.K. about the court proceedings. He did tell D.K. on December 31, 2015 that this could be their last visit.

[226] In terms of the Plan of Care, he and the mother would have D.K. reside with them in their three-bedroom apartment. His mother-in-law lives with them. D.K. would have a room to herself. While the mother-in-law does have mental health issues, they would not allow her to be alone with D.K. at any time. He planned to start looking for full time work but he needs something that pays better than minimum wage. He would continue his counselling and he claimed to have support from his mother-in-law, and his brother who lives in the same building. He indicated that their first choice for school was Orleans Woods.

[227] In cross-examination, he acknowledged that he had sought help for anger management from his doctor, but he was not sure if he had told the Society or Valoris. His doctor did recommend a couple of psychiatrists, but he did not follow through because he believed there was a cost. He could not say for sure nor could he recall the names of the psychiatrists. With respect to Caring Dads, Jeff Bondy did recommend ongoing counselling. He said counselling did not happen because of the things that were happening in his life and he pushed it to the back burner.

[228] Since the break of trial, he has been speaking to Diane Fox and he described this as supportive counselling. He agreed it was not tailored for anger management. Dr. Wood had recommended two specific support groups that deal with anger management, but he did not follow-up either of those. He acknowledged that the Men’s Project offered some free courses. He thought there was a cost to the other program, but he was not sure. He agreed that he only looked into further therapy after the trial recommenced and Dr. Wood had testified. He phoned the SBC and left a message. He had not received a response. He did not go in person to make inquiries.

[229] He claimed to want to participate in programs but that these cost money. He agreed to the programs when Ms. White provided a list of free resources that are available in the community. He had only consulted the one; namely the Catholic Family Services Bureau where he is receiving counselling. He conceded that anger continues to be an issue but said it was not as serious as it was before. He claims he is working on it. Through counselling, he has learned how to reduce stress which is the major source of anger issues for him. He agreed that a more intensive program would help him and that the Society’s recommendations were the same as the FCCA.

[230] He maintained that he only used corporal punishment once. He claimed that he got frustrated with D.K. and he has now learned how to remove himself and have the mother take over. He acknowledged that he was using marijuana when he was parenting D.K., but claimed that this did not affect his parenting as he normally used at night when D.K. was asleep. He stopped using marijuana in 2012. He was aware of the fact that D.K. was taken to the hospital and found to have significant bruising. He did not do anything about it. He acknowledged that Dr. Wood made observations of him and that they were not particularly positive. He claimed he was sick at the time of the FCCA.

[231] With respect to access visits and the comments about the lack of engagement by the mother, he claimed it was physically hard for her to do. He claimed the mother’s flat affect was her way of controlling her emotions and preventing herself from crying. He acknowledged that the mother does not like to go outside.

[232] He claims that he has medical issues; he has chronic migraines once per month. These can be quite debilitating. He takes pills on a daily basis for prevention. He could not remember the names of the migraine pills. He has had breathing problems, namely, Chronic Obstructive Pulmonary Disease (COPD) for some time. He acknowledges that his smoking has not helped. He has had neck and shoulder pain and lower back pain since he was a teenager. He acknowledged that he has chronic pain all the time and that he maintains that he is still able to function. He was not sure of the names of the medications he is taking for his chronic pain.

[233] He was taken to his acknowledgement of neglect with respect to D.K. but he connected this to his playing video games. He claimed he would play up to five hours a day, but on average it was much less. When he was asked what else was being neglected he could not think of anything else. After some prompting, he did acknowledge that D.K. was removed from their care because of finances, neglect and D.K.’s delayed development. Although the Valoris indicated that there was no food, he disputed that. He acknowledged that when he was engaged in his video games, he did not take much notice of anything around him. He agreed that he could and should have done more for D.K. He agreed that D.K. has high needs and is always seeking adult attention. He had not read Dr. Romano’s report, he just glanced at it. The reactive attachment disorder was not really a concern to him.

[234] He agreed that Dr. Romano’s description of complex trauma happening in the early years could be consistent with what was going on when D.K. was living with them. He acknowledged that PTSD referred to traumatic events that could have a long-lasting effect on people.

[235] He himself suffered from ADHD and took medication but did not like the effect on him. While he said it was hard to manage D.K.’s behaviour, he claimed it was easy to get her back on track. When it was put to him that D.K. was described as being very defiant and something more than being “stubborn”, he acknowledged that this was possible.

[236] He suspected that D.K. had ADHD when she was still in their care. He did not see it as a problem. He did not take any steps to deal with it. He was not sure whether or not the mother had taken any steps. He could not recall any conversations that they had about D.K. when she was in their care and agreed that they only started to talk about it after they got the reports that were presented at this trial.

[237] He acknowledged that D.K.’s difficulties at school concerned him. He was surprised to learn that they had to evacuate an entire classroom because of her behaviours. When asked how he would deal with D.K.’s aggressive behaviours, he said he would simply go with the recommendations of the professionals and provide D.K. with other ways of venting her frustrations.

[238] With respect to her attachment disorder and PTSD, he was unsure what steps they could take in the community. They would continue D.K.’s therapy with Dr. Romano. He was concerned that there could be a cost, but then said that he would cut back on other things he buys for himself to pay for it. In terms of D.K.’s special needs, he got resources online and claimed that these have assisted him. He had not looked into anything that specifically addresses the issue of attachment disorder.

[239] He repeated that he proposes looking after D.K. when he gets home from work, but that the mother will have primary care. He acknowledged that he did have depression in the past but he no longer has depression because he has been able to manage it through self-help. He honestly did not see that he was depressed.

[240] He claimed that D.K.’s fear of washroom is because of the sound of the flush mechanism and D.K. fears loud noises. In terms of sexualized behaviours, he admitted that on one occasion during a visit, D.K. confided that she wanted to have sex with a man. He acknowledged that this was a concern to him. He said he may have communicated this to the foster parents, but he was not sure. He did not report it to the Society.

[241] He discussed the incident when he had access with D.K. even though the Court Order prohibited it. He felt that getting D.K. to school justified the breach of the Court order.

[242] He acknowledged that Dr. Wood offered him a human sexual behaviours assessment. He declined because he had already been through three such assessments and he found them unpleasant. He was not willing to subject himself to that. He acknowledged that he probably should have done it since it would have reassured the Society. He ultimately did go through with the assessment in December 2015.

[243] Dr. Federoff had suggested support groups to help him deal with his past and anger management. He recognized that his way of dealing with the past, by putting things behind him, may not be effective. He preferred not to bring it up. He did not want to do it, but he would do it if he needed to. As a result, he has recently followed-up with Dr. Federoff’s recommendations. These are the same recommendations that were made by the FCCA. He only took that step after hearing Dr. Wood testify at trial. He honestly feels that he has these issues under control. He did not really think it was necessary.

[244] In response to my question, he acknowledged that their preferred school was nowhere near their home and he assumed that transportation would be provided for D.K. since it was being offered to another child. He had not done much investigation of this issue and left that up to the mother. He was not aware of what resources would be available in the school that is closer to them. I questioned him about his lack of access during the period of time between the removal of D.K. from their care and the resumption of access in April 2013. I asked why his family, that was willing to help him as he now claimed, had not provided transportation at that time. He said it would have been up to his father who was not well. I asked whether or not there was bus service between Hawkesbury and Ottawa. He acknowledged that there was, but he had no idea of the cost.

The Position of the Society

[245] The Society submits that Crown Wardship is the only order that will meet the requirements of section 1 of the Child and Family Services Act (hereinafter “CFSA”), namely to promote the best interests, protection and well-being of D.K.

[246] D.K. has been residing in foster care since January 14, 2014, and the Society maintains that there has not been any significant and meaningful change in the parents’ situation. It submits that s. 70 of the CFSA requires that the Court determine the issue of permanency at this time and that an extension of time under s. 70(4) of the CFSA would absolutely not be in D.K.’s best interests.

[247] The Society submits that D.K.’s need of a stable, structured, safe and secure environment will only be met with an order of Crown Wardship. According to the Society, a Supervision Order or a further period of Society Wardship, as requested by the parents at this very late stage, will only delay any hopes for permanency and would be disruptive to D.K.s already relatively stable environment.

[248] Although the Court is able to exercise discretion in determining which order under s. 57 of the CFSA is in the best interests of the child, the Society maintains that the only options are: an order of Crown Wardship, a Supervision Order with conditions or an extended period of Society Wardship to the parents provided that it is in D.K.’s best interests. If I find sufficient evidence to grant an order of Crown Wardship, then the issue becomes whether the order should include a provision for access under s. 59 of the CFSA.

[249] The Society cites the presumption in the legislation against access and stresses that the onus is on the parents seeking access to demonstrate that the criteria under s. 59(2.1) are fulfilled to rebut that presumption. The party seeking access must demonstrate that access would be meaningful and beneficial to the child. In addition, the party seeking access must demonstrate that an access order would not interfere with the child’s opportunity for a permanent placement.

[250] The Society does not dispute that the parents love their child but stresses that this is not the legal test to be applied. The Society submits that that the parents’ have not led the requisite evidence to rebut that presumption against access.

The Mother’s Position

[251] The mother emphasizes that s. 1 (2) of the CFSA recognizes 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 wherever possible, be provided on the basis of mutual consent.” That same section of the CFSA also aims “to recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.”

[252] The mother relies on the Formal Plan of Care prepared by the Society in January 2014 as required by in s. 56 of the CFSA. This Plan of Care has to include “a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection” and a “statement of the criteria by which the Society will determine when its wardship or supervision is no longer required.”

[253] The mother says that she followed through with all the conditions pertaining to her within this Plan of Care, which included: cooperating with the Society; allowing announced and unannounced visits; informing the Society of changes in contact information; attending a parenting program; consenting to random, supervised drug urine screens as requested; and not allowing any further contact between D.K. and the father.

[254] The mother argues that there were no concerns with either parent following through on the Society’s Plan of Care, and yet the Society never considered a reintegration plan to the parents. An updated Plan of Care for the family was not prepared until January 2015, one year later, which did not set out any expectations for the parents as the Society was then seeking Crown Wardship. The mother accuses the Society of having tunnel-vision and being focused on Crown Wardship from the very outset when Ms. White met with her supervisor in February 2014.

[255] The mother complains that the Society has never offered to reduce the level of supervision or to increase the amount of access, either in duration or frequency. The mother maintains that she and the father have been described as cooperative and polite with almost every Society employee they have worked alongside. They followed the Plan of Care recommendations as initially drafted and they have been receptive to cues from the Child and Youth Counsellors. The legislation recognizes that some parents may need a little help, and the mother submits that the Society has consistently made no meaningful or genuine efforts to reasonably guide these parents in resuming care of their daughter.

[256] The mother argues that the evidence of cooperation and from the access visits indicate that she and the father are not the same parents as they were in May 2012 when D.K. was removed from their care. These facts demonstrate that the parents have consistently shown they can meet D.K.’s needs in the limited two hours they have in a given visit and further demonstrate that the parents have a genuine interest and willingness to assist their daughter in overcoming any challenges.

[257] The mother notes that the parents have never been offered any opportunity to have the authors of the assessments review the reports and recommendations with them, and answer any questions the parents may have. She submits that this was a gross disservice to the parents, and by extension, a gross disservice to D.K.

[258] The mother submits that the proposed plan of Crown Wardship comes with a significant warning that in light of D.K.’s Reactive Attachment Disorder and along with her other special needs, she would make a poor candidate for adoption. While the Society has taken the position that every child is adoptable, the mother maintains that is not necessarily a realistic approach. The mother argues that the Society has minimized and effectively ignored the risks of Crown Wardship, contrary to D.K.’s best interests.

[259] The mother submits that the Society’s written Plans of Care were severely lacking from the very beginning. The mother adds that the Society had an ongoing responsibility to reassess its position if the circumstances warrant it, and it had a legislative obligation to the parents to provide assistance. The Society was supposed to provide services that would be necessary to determine whether or not the risk to D.K. could be sufficiently addressed if she were returned to her parents. The mother claims that not only did the Society fail in providing services, the Society actually failed in outlining the services that were necessary.

[260] The mother submits that the less restrictive alternative to Crown Wardship that would be adequate to protect D.K. and that would also be in her best interests is a gradual return to her parents’ care. The mother argues that D.K. deserves a real opportunity to be reunited with her parents, where they can actually demonstrate to the Society that they are able to meet her needs and they are prepared to continue working alongside the Society under a Supervision Order.

[261] The mother also asks that I consider a six month extension of time pursuant to s. 70(4) of the CFSA. She submits that the parents have not been given a real opportunity to demonstrate that they can address D.K.’s special needs and that it may be several months before D.K. can be placed in a new home.

[262] Should the Court determine that Crown Wardship is the most appropriate course of action, the mother maintains that the evidence has shown that D.K.’s access to her parents is beneficial and meaningful. The FCCA highlighted the importance of D.K. maintaining some form of continued support, ideally with her biological family, in the likely event that she becomes a system failure. The mother says there is no evidence to suggest that the parents, who have worked cooperatively with the Society and the foster parents, would undermine an adoptive placement.

The Father’s Position

[263] The father submits that he has addressed the Society’s concerns regarding him. With respect to the Society’s concern regarding his anger management, the father testified that he made attempts to find an anger management program, and that he sought assistance from Ms. White in paying for anger management counseling he had found. He blames Ms. White for not providing him any other assistance or guidance in addressing this concern beyond what was set out in the FCCA.

[264] With respect to his parenting abilities and attachment to D.K., the father relies on the Agreed Statement of Facts dated January 11, 2016, regarding the parents’ access which confirms that overall access is positive. He too complains that he has not been given an opportunity to parent D.K. He joins the mother in challenging the Society’s level of motivation to assist he and his wife in addressing the concerns and reuniting his family.

[265] He also accuses the Society of tunnel vision and cites its obligations to provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children. He submits that the Society could have done more to assist the parents in addressing the Society’s concerns. He maintains that the evidence shows that they were cooperative with the Society and open to feedback. The Society was in a greater position than the parents to determine what needed to be done to address the concerns, and what specific services were available. He maintains that the Society had an obligation independently of the FCCA recommendations to create a Plan of Care outlining what the Society would expect from the parents in order to consider reintegration.

[266] He joins the mother in seeking an extension of time pursuant to s. 70(4) to allow the coordinated increase of access which should have occurred during the original period of society Wardship in order to measure their parenting ability in some meaningful fashion. He notes that many changes have occurred since the FCCA and the adjournment of the trial.

[267] He relies on his Plan of Care and submits that it is in D.K.’s best interests. He maintains that this would allow D.K. to be reintegrated into her biological family unit, with caregivers that she knows and loves. With the assistance of the Society, D.K. could continue to work with her current professionals. It would require a change of schools for D.K., however, this would likely be the case no matter what plan the Court decides.

[268] As for the Society’s Plan of Care, he also cites the FCCA’s concerns of a high risk of adoption breakdown. He submits that the Society’s plan is more drastic than the one proposed by the parents. In the event of a Crown Wardship order, he maintains that the evidence demonstrates that the relationship between D.K., himself and his wife is beneficial and meaningful. He submits that ongoing access between D.K., himself and his wife is in D.K.’s best interest. If no adoption placement is found, then continued access would provide D.K. with ongoing support from her family. In the event that an adoption placement is found, the access order would terminate automatically and an openness order could be created.

[269] The father argues that this is not a situation where the child is already in a stable and permanent home. D.K.’s foster parents have no intention to adopt her. The maternal aunt has submitted and withdrawn nine different Plans of Care. The options available to the Court are either unknown future caregivers with whom D.K. may or may not become attached, or her parents who already know and love her and whom D.K. loves.

Analysis and Conclusion

[270] D.K. has already been found in need of protection pursuant to s. 37(2)(b)(i) of the CFSA on February 7, 2013. As this is an Amended Amended Status Review Application brought under ss. 64 and 65 of the CFSA, the burden rests with the Society on a balance of probabilities to establish what order pursuant to s. 57 is in the child’s best interests. In doing so, I must consider the relevant factors set out in s. 37(3) of the CFSA. I must also apply the paramount and other purposes of the legislation as set out in s. 1 of the CFSA.

[271] In this case, I must weigh the Society’s plan for D.K. to be made a Crown Ward against a plan for the child to be placed in the care and custody of the parents, the granting of a further period of Society Wardship; or in the alternative, a plan for Crown Wardship with an outstanding order of access to the parents, to the aunt or both. The relevant statutory provisions that guide me are as follows:

Paramount purpose and other purposes

Paramount purpose

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

Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

1. To recognize 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, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. 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, and

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.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

37(3) Best interests of child

(4) Where a person is directed in this Part to make an order or determination in the best interests of a 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.

D.K.’s Special Needs

[272] In evaluating any potential plan for the child, I must first consider the issue of whether that plan will meet the specific physical, mental, emotional and developmental needs of D.K. D.K. is a young child who is seven years of age and whose ongoing needs have been assessed as high and significant as detailed by the various experts who testified on the issue of the challenges of raising a child with D.K.’s special needs.

[273] The evidence of the expert witnesses makes its abundantly clear that D.K. is a child who has extensive special needs in light of her diagnosed Reactive Attachment Disorder, Post-Traumatic Stress Disorder, ADHD, Complex Trauma, developmental delays, behavioral challenges as well as some academic struggles.

[274] There is no doubt that D.K.’s special needs are significant and any chance for success for this child will be largely determined by her ability to develop a secure attachment to a family who can provide her with a safe, stable, loving, consistent, stimulating and structured environment where she will get the focused attention that she requires.

[275] On all of the evidence, I find that the parents have no real insight into D.K.’s needs. They describe D.K. as someone who is “stubborn” and whose behaviour is influenced by the person she happens to be with. They claim to have no difficulty redirecting her behaviour. The child that they describe is simply not the same child described by experts, the protection workers, the foster parents and the teachers over the many days of this trial. While the parents will no doubt attribute this limited insight to their limited supervised contact with D.K., I am satisfied that these parents never had an appreciation of D.K.’s needs from the very outset.

[276] I am satisfied that D.K. suffered neglect while under the care of her parents from a very early age and that this neglect is at the root of her reactive attachment as suggested by Dr. Romano, Dr. Palframan and Dr. Wood. The mother consistently denied that there had been any neglect while D.K. had been under their care. The father seemed to acknowledge that there was some neglect, but limited this to the fact that he ignored D.K. while he played video games. These denials were repeated at trial even though there was a finding pursuant to an Agreed Statement of Facts that D.K. was in need of protection because of the parents’ failure to adequately care for, provide for, supervise or adequately protect her.

[277] The parents overlook the mother’s serious addiction to pain killers and the father’s obsession with video games and marijuana use during this earlier period of time. Ms. Sauve described the pitiful image of neglect when she attended the parents’ home and found both parents still in bed at 1:00 pm, D.K. left alone in front of a TV with a box of crackers to eat; still not toilet trained at nearly forty-four months of age. She described how the child looked to her for affection even though she was a complete stranger. Ms. M.H. described D.K. as the most developmentally delayed child that she had known in 34 years of teaching. The totality of the evidence paints a history of chronic neglect at an early age that lies at the heart of D.K.’s Reactive Attachment Disorder.

[278] The parents then blamed Valoris for their minimal contact with D.K. between the period of May 2012 and April 2013 because of Valoris’ failure to provide them with transportation even though their current Plan of Care invites the Court to consider support that they will get from family members. None of these family members were prepared to help them out at this critical time nor did they come to testify at trial. The father admitted that they did not look into alternate means of transportation. Moreover, the parents do not appear to recognize the significance of this lack of contact at this critical point in D.K.’s life. The mother seemed to think that her daily phone calls were enough. In her view, her two visits did not disclose any problems.

[279] Both parents have minimized or have been dismissive of the child protection concerns throughout the course of the Society’s involvement. These concerns pertain to the mother’s ongoing use and historical over use of pain medication and her mental and emotional health. The father had outstanding issues of anger management. There was verified physical abuse of the child, and possible sexual abuse given his past history.

[280] Roxanne Sauve testified that the Society confirmed physical abuse by the father when she spoke with the father and D.K. Despite no charges being laid and CHEO not being able to confirm physical abuse other than rendering the bruising as “concerns for inflicted injury” and “suspected intra-familial sexual abuse and/or physical abuse”, Valoris confirmed physical violence by the father. The father also acknowledged having used physical discipline in a very limited way. The father did not seem to grasp the seriousness of the situation. He appeared to believe that the abuse was not a serious concern for him since the extensive bruising was discovered after D.K. was removed from his care and no criminal charges were laid. There was no indication of any concern or appreciation of the harm that had been caused to D.K.

[281] I conclude that the parents have little insight into their own problems and, in the absence of any meaningful insight into their own needs, it is unlikely that they will ever have a genuine appreciation of the special challenges and demands of looking after a special-needs child such as D.K.

[282] Although the parents have engaged in counselling, this did not commence until after the adjournment of the trial in March 2015. They attempted to blame this delay on the Society and on Ms. White, but the recommendations of the FCCA were known to the parents by November 2014. Dr. Wood identified accessible programs for both the mother and the father. I am satisfied that the parents did not act on those recommendations because they did not accept the conclusions of the FCCA. Ms. White’s failure to make any additional recommendations is irrelevant.

[283] Furthermore, the type of counselling taken by the parents is not the therapeutic counselling recommended by Dr. Wood for the mother to address her difficult traumatic past and the abuse that she endured. The mother testified that she felt it was not a requirement as she had dealt with it in the past. Likewise, the father believes that he has dealt with his past problems and no further therapeutic treatment is necessary. Both parents are receiving supportive counselling only. Their counsellors did not provide evidence at trial to discuss any progress made by the parents nor has the Court received information outlining the counselling being provided and whether it was beneficial to address meaningful change.

[284] Dr. Wood recommended that the mother would also benefit from substance abuse programs for her overuse of pain killers. The mother testified that this was not something that she felt would be helpful because she had tried it in the past and it failed. The mother still did not appear to have any insight that this was necessary nor did she engage in the Methadone program when it was recommended to her by Dr. Zheng. This dependency and lack of motivation to seek change reinforces the Society’s argument that the mother is unable to give priority to D.K.’s needs.

[285] While the father has taken steps to address his anger by taking some anger management programming in the past, he did not follow through with the recommendations of Jeff Bondy and the resources that were recommended to him in the FCCA. Although he conceded that he was aware of the recommendations and that the Society was supporting them, he was unable to articulate why he did not follow through. He cited concerns that programming was costly despite Dr. Wood saying that these resources were readily accessible. In his evidence, the father spoke of a waiting list though he could not provide details of such. He was aware that he could have obtained a referral through his family doctor for a psychiatrist where there would be no cost, yet he did not follow through with this option.

[286] I conclude that the father’s anger issues have not been fully addressed to the degree that it should be when contemplating a return of a special-needs child with challenging behavioral issues back into his care.

[287] Although the father has been open with the Society about his own sexual history and there is no evidence to suggest that the father sexually abused his daughter, the CHEO report of suspected intra-familial sexual abuse and or physical abuse of three year old D.K. who was seen in emergency should have made it abundantly clear to the father that he had to address any concerns. In addition, there was evidence that D.K. presented with sexualized behaviors.

[288] The father did not attend for a Sexual Behaviors Assessment (SBA) until December 16, 2015, on the eve of the resumption of trial. He had an opportunity to prove to the Society that his sexual past was no longer a concern when Dr. Wood offered to complete the SBA during the FCCA one year earlier. He had an opportunity to alleviate concerns and demonstrate that D.K. was his top priority and that he was not a risk to her, yet he placed his own discomfort with the testing first.

[289] While Dr. Fedoroff is of the view that the father no longer meets the DSM-5 diagnostic criteria for pedophilia, he nevertheless recommended that both parents would benefit from attending treatment as offered in the SBC because the father presented with several risk factors. The SBC groups were described as helpful to men in the father’s position because many of the men who attend the groups have been through what the father is going through and can provide helpful perspective and advice. It came out at trial that the father called and left a voice mail at the SBC only after hearing the testimony of Dr. Wood.

[290] This failure to respond to recommendations, or the late responses by the father, undermines the viability of their Plan of Care. The evidence of the experts, Dr. Rouillard, Dr. Romano, Dr. Palframan and Dr. Wood make it clear that motivation, commitment and follow through will be required to meet D.K.’s special and complex needs. That motivation and commitment is missing here.

The Parents’ Plan

[291] The father gave evidence that assistance and support, both practical and financial, would be made available through his mother and brother who lived nearby and/or in his building. Not one of these family members presented themselves at court to testify as to what they are prepared to do for D.K. and exactly what role they are prepared to play in her life. As noted, none of these supports were ever available to the parents at the time leading up to D.K.’s removal from their care in May 2012 onwards.

[292] The plan is to have D.K. reside in a three-bedroom apartment along with her parents and her maternal grandmother who has been diagnosed with schizophrenia. The grandmother’s mental health is such that the parents have assured the Court that they will prevent any contact between her and the child. This will require constant vigilance on the part of the mother. The mother is in constant pain which requires narcotic medication. I believe that she is deeply dependent, if not addicted to this pain medication. She claims that her medication does not affect her ability to look after D.K., but she has always maintained this belief notwithstanding the expressed concerns of her physicians. She acknowledged that her current family physician wants to refer her to a Methadone clinic but she did not know why. She is unwilling to try a pain management clinic as recommended by Dr. Wood. This demonstrates that her own needs are given priority over those of D.K. The father himself excused the mother’s inability to interact with D.K. during her access visits because of her pain, and he described her as being allergic to the outdoors.

[293] The father proposes to return to work even though he has not worked in eight and a half years and he has his own chronic pain issues. This part of the plan is not realistic on many levels. Even if I accepted that he could somehow return to work at a better than minimum wage job as he says he needs, this would leave primary responsibility for D.K.’s care with the mother who must attend to her own issues as well as the grandmother.

[294] D.K. has been described as a child whose behaviours can change without notice. The teachers have described her as having very challenging and difficult behaviours. She has been in the care of two skilled foster parents who needed respite care over the summer months and have identified a need for medication to help manage D.K.’s behaviours. The foster mother described how D.K. cannot be enrolled in any extracurricular activities because of the need for one-on-one supervision. Surprisingly, the mother seems to think that D.K. can be enrolled in swimming and dance classes.

[295] Dr. Palframan provided a rather alarming picture of D.K. as a highly defiant child who was not motivated by an appreciation of other people’s feelings. He concluded that D.K. finds pleasure in controlling her environment to an unusual degree. She can endure deprivation and consequences with indifference. He felt that she was making some progress because of the intensive social training being provided by her excellent foster parents. There is nothing in the parent’s plan as presented that suggests that they have any idea of the level of effort that will be required to provide D.K. with the consistent structure that is essential for her future development.

[296] The father testified that a school by the name of Orleans Woods could potentially meet D.K.’s needs and might be made available to her since that school had EAs. He was unaware that most schools in fact have EAs available to students. He was provided much of the information about Orleans Woods through a neighbor friend whose child was attending there. He acknowledged that D.K. would need to be bussed to that school since it was not located within their jurisdiction. He seemed oblivious to the evidence presented at trial that D.K. cannot be bussed with other children at her current school and that she requires a driver. Both parents suggested that they could not obtain information about what programs were available for D.K. in their local school because D.K. was not in their care. I am satisfied that this information was available if they had made the effort to find it.

[297] With regard to schooling, I found Ms. M.J.L.’s evidence to be compelling. In the normal course, when a child was promoted to the next grade level, the teacher does not follow the child. Because of D.K.’s special needs, the school made an exception and had her grade one teacher follow her. She is also in a special classroom that can be evacuated in the event that D.K.’s behaviour becomes uncontrollable. Ms. M.J.L. carries a walkie-talkie with her at all times. There is one full time EA working with D.K. throughout the day. They have only recently been able to discontinue the emergency EA at the end of the day.

[298] Ms. M.J.L. said that D.K. needs to go to the break-out room three times a day and that no other child has required that level of support. She claimed that their school can offer these services for D.K. because they have a relatively high EA staffing level and fewer special needs children at this time. They are managing her behaviour only because of these exceptional efforts.

[299] The plan forward by the parents is simply not viable and cannot be relied upon. The father deferred to the mother although she did not provide any specifics either. Moreover, I am not satisfied that the parents have thoroughly investigated or researched the resources out in the community that could help better support their daughter’s needs and challenges. They did not appear to have absorbed the evidence provided by the teachers and the experts at this trial. The father admitted that he had not read Dr. Romano’s report; he was surprised to learn that D.K.’s classroom had to be evacuated because of her behaviour.

[300] When looking at all the evidence, I am satisfied that the parents lack the motivation and commitment that is necessary despite saying that they will do whatever it takes. I am satisfied that the parents lack the ability to provide the intensive and supportive environment required to meet D.K.’s needs over the long-term and that a Supervision Order would be inadequate.

[301] When Dr. Wood recommended Crown Wardship, given all the concerns that he cited, he expressed concern over the parents’ lack of motivation. Dr. Wood was also of the view that there was underlying aggression with the father which might also be exacerbated if depressed or frustrated. Dr. Wood further opined that the mother would be more likely to take on a passive approach if this were to happen given her dependent and submissive history with others, her traumatic childhood and issues with depression.

[302] He testified that a child with special needs tends to overwhelm the best of parents, and with the parents having their own issues, the situation could be potentially exacerbated unless the parents addressed their own problems.

[303] The parent’s plan is problematic and is not supported by the FCCA. Although Dr. Wood did not say with certainty that he would support Crown Wardship today in light of the dated report, he did not say that he required an update given what he had heard at trial. I am satisfied that very little has changed since the FCCA.

An Extension of Society Wardship

[304] I conclude that an extension of Wardship is not in D.K.’ best interests. Having concluded that the parents have not gained any insight into their own issues, let alone the special needs of their daughter, this is not a situation where additional time is warranted. D.K. has not resided with her parents for more than three and a half years, and a further period of Society Wardship would only contribute to further complications for this child as she gets older, and it could also impede upon her prospects for adoption.

[305] I note the lack of follow through of the FCC recommendations. While there are strengths noted by the access supervisors, there is to some degree, a lack of active engagement on the part of the mother at times during access, and on a few occasions, even the father. Access remains supervised.

[306] The weaknesses in the parent’s plan cannot be remedied in six months when so little has been accomplished in almost four years.

Efforts made by the Society and Society Witnesses

[307] Pursuant to s. 57(2) of the CFSA, before making an order of Crown Wardship, I must inquire into the efforts by the Society to assist the parents. The parents are extremely critical of the Society and of Ms. White in particular for not providing them with more direction as to the steps they needed to take to have D.K. returned to their care. They accuse the Society of tunnel vision and of failing to fill their statutory mandate to help the reintegration of D.K. into their family.

[308] The parents cite the decision of Justice Gordon in Children’s Aid Society of Hamilton v. E.O., 2009 72087 (ON SC) where he concluded that the CAS in that case had not pursued the delivery of necessary services for the parents. He concluded nevertheless at para. 198 that issues pertaining to services should not be left for trial. He went on to make an order for Crown Wardship with no access to the parents. At para. 244, he emphasized that in a child protection case, the ultimate test is the best interests of the child. He concluded that returning a child to the parents’ care as a result of mistakes by the CAS is not appropriate.

[309] I also conclude that the parents have taken the Society’s actions and plan out of context. They ignore that the Society was originally involved in 2011 and with Valoris since May 2012. While Valoris had contemplated a reintegration of D.K. into their care, their placement of the child under the supervision of the mother in the fall of 2013 was described by Ms. Potvin as a last chance for the mother to demonstrate that she had the appropriate skills to care for D.K. It was hoped that the mother would learn those skills from observing her sister.

[310] Within a short period of time, that plan proved to be unworkable. More significantly, the mother allowed unsupervised contact between D.K. and P.K. notwithstanding that this was in direct violation of a Court Order. The mother and father’s attempts to justify this are simply not believable. The mother allowed this one contact, even though it could jeopardize her last chance to have her daughter returned to her. This underlines the mother’s inability to understand the legitimate concerns that existed at that time.

[311] While the Society may have considered Crown Wardship in February 2014, it must be remembered that D.K. had not been in her parent’s care for almost 2 years. The mother had failed at the final opportunity given to her to have D.K. returned to her care. The Society also had an obligation to consider permanency planning for D.K. who was clearly a child with very special needs.

[312] Both Valoris and the Society have attempted to assist the parents. While the parents blame the Society, the parents also needed to be proactive and needed to demonstrate true and positive change. On the one hand, the parents argue that the Society’s concerns were not justified; but on the other, they blame the Society for not giving them more direction and assistance. To this day, the parents never saw the problems to begin with and minimized D.K.’s needs. More direction from the Society was not the problem; it was and continues to be the parents’ lack of insight and motivation to address the articulated concerns. They maintained they did not need the therapeutic help that was recommended because they had dealt with their previous issues on their own.

[313] In seeking a return of D.K. back into their care, the parents will need to parent her on a 24/7 basis. Therefore, there needs to be adequate demonstration on their part that they have the energy and the capacity to take initiative, exercise good judgment and do everything possible that is required. The evidence to support that conclusion is not there.

[314] The reality is that the parents are unable to offer D.K. the permanency and stability that she needs. They have been unable to show evidence of sufficient change that would allow them to provide care for D.K. in a manner which would promote her needs and best interests. The time for further chances is gone. The parents have had more than two years to do this and have not taken advantage of seeking out the appropriate help that was required when it was available. Seeking out a few resources in the midst of trial is far too late. It is not in the child’s best interests to have to wait and wait, and wait again until the parents have done more.

Least Disruptive Alternatives

[315] Section 57(3) of the CFSA requires that I be satisfied that alternatives that are less disruptive would be inadequate to protect the child. I have already determined that the parents’ alternative plan for a return of the child under their care pursuant to a Supervision Order would not be realistic.

[316] Section 57(4) of the CFSA requires me to consider placement of the children with relatives or another community person before making an order of Crown Wardship. Regrettably, and despite the optimism of Dr. Wood, placement with the maternal aunt and uncle is not an option. They failed to attend this trial. They have presented and withdrawn nine Plans of Care. Despite their apparent ability to be able to provide more structure and the positive reports about access, the issue of stability remains a concern given the aunt’s multiple plans and her wavering. Structure is what this child so badly requires.

The Society’s Plan

[317] Although the Society does not have a specific family available for D.K. at this time, there has been credible, hopeful and optimistic evidence from adoption worker, Anik Whyte that through the Wendy’s Wonderful Kids Program, it is three times more likely to find a placement for a child with D.K.’s special needs and that she has been successful in the past in doing so. Ms. Whyte described the degree of resources that she seeks out in the community, sometimes going outside the jurisdiction, if required, to reach out to potential available families who would be willing and eager to adopt children like D.K. While Dr. Wood described the potential for adoption breakdown, I am satisfied that the situation is not as dismal as he predicted.

[318] When it is apparent and clear that children cannot be placed with family members in a manner which promotes their protection, well‑being and best interests, the Society has a duty to advance the best possible plan to meet a child’s needs. I am satisfied that Crown Wardship for the purposes of adoption will provide D.K. with the greatest chance for future success given her young age, along with her significant special needs and so that a permanent plan be put into place immediately.

Crown Wardship with Access vs. Crown Wardship without Access

[319] The relevant statutory provisions are as follows:

Termination of access to Crown ward

(2) Where the Court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated. 2006, c. 5, s. 17 (2).

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the Court is satisfied that,

a. the relationship between the person and the child is beneficial and meaningful to the child; and

b. the ordered access will not impair the child’s future opportunities for adoption.

[320] When the Court grants an order for Crown Wardship, there is presumption in the legislation against access. The onus is then on the party seeking access to demonstrate that the criteria under s. 59(2.1) are fulfilled to rebut the presumption against access. The presumption will not be rebutted unless the party seeking access can show that access would be meaningful and beneficial to the child. In addition, the party seeking access must demonstrate that an access order would not interfere with the child’s opportunity for a permanent placement.

[321] In Children’s Aid Society of Niagara Region v. V.J.(M.), 2004 2667 (ON SC), 4 R.F.L. (6th) 245 (ON SC), the CAS obtained a crown ward status for six children. Access was found not to be beneficial or meaningful to three of the youngest children and termination of access would not have a negative impact on them.

[322] On p. 9, para. 45, Justice Quinn indicates the following:

A beneficial relationship is one that is advantageous. A meaningful relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship, that is not enough. It must be significantly advantageous to the child.

Justice Quinn speaks of:

…an existing relationship between parent and child and not a future relationship as it precludes the Court from considering whether a parent might cure their shortcomings as to create, in time, a relationship that may be beneficial and meaningful to the child. This accords with common sense for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

[323] In Native Child and Family Services of Toronto v. K.W.H., 2007 ONCJ 169 at paras. 40-43, Justice Murray stated that “case law has observed that the fact that a relationship is pleasant is not sufficient for it to be beneficial and meaningful. The relationship must be significantly advantageous to the child.”

[324] In Children and Family Services for York Region v. J.E., [2008] O.J. No.3948, Justice Graham noted at paras. 174-180:

Some evidence indicates that access visits with Ms. E are meaningful to child P. In particular, P has stated that Ms. E is special to her. P enjoys the visits and is sad when they do not occur. On the other hand, as noted by Ms. Sheehan, the degree of attachment demonstrated by P towards Ms. E is limited and as noted by Ms. W, P is easily consoled when visits are cancelled. Further simply enjoying visits and having an emotional bond with the visitor are not sufficiently significant to be meaningful.

[325] At para. 179, he was noted as follows:

Ms. E has shown only a limited commitment to P. Although her attendance and her conduct at access has improved, she has not had sufficient commitment to P to complete an anger management course or parenting course prior to trial despite having had 3 ½ years to do so.” Further, her access continued to be supervised at the Society. The Court found that “Ms. E had not met her burden of proving on a balance of probabilities that her relationship with P is meaningful and beneficial to P within the meaning of s. 59(2)(a) of the CFSA.”

[326] In Catholic Children’s Aid Society of Toronto v. S.R.M, [2006] O.J. No.1741, Justice Zuker interpreted s. 59(2) at para 168 and added at paras 169 and 170:

I read s. 59(2) as speaking of an existing relationship between the person seeking access and the child and not a future relationship…

Even if the relationship is beneficial and meaningful as a final precaution I think that there must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[327] In Children’s Aid Society of Hamilton, (supra), Justice Gordon concluded at para. 242:

There is some attachment or bond established over time; however it appears to be done out of routine and not from parenting. D.H. enjoys time with his parents and there is obviously some benefit to him.

He nevertheless determined that this did not meet the evidentiary onus.

[328] At this time, the foster mother testified D.K. is happy to see her parents, but is equally happy when it is time to leave. This is in marked contrast with the evidence of both Ms. Pitcher and the foster mother that D.K. has always enjoyed visits with her aunt and these visits are always described in very positive terms. There was never an instance where she did not want to go.

[329] From the Agreed Statement of Facts, it seems that, overall, the visits with the parents are going well without major concerns. Although the Agreed Statement of Facts on access outlines many positive aspects of the access, the mother’s flat affect and lack of active engagement at times has also been problematic especially since the experts identified the importance of demonstrating attachment and security in a child. The mother did not appear to make consistent improvements in this regard. There were instances where she was disengaged and she did not demonstrate the type of attention that D.K. requires.

[330] I am satisfied that the parents were reluctant to have access in the community and this had to be mandated by the Society. This should have been considered a positive thing by them and yet, they responded with reservation and concerns.

[331] There was improvement observed with regard to the father and there appears to be many visits where D.K. enjoys her time spent with her parents. There are even times where she has expressed wanting to see her parents, and on one occasion, being disappointed when they cancelled. She cried stating that they “did not love her anymore.” The evidence in this case is that the degree of attachment is limited whereby D.K. is either disappointed that her parents’ “sit on the couch and watch her” and where she is expressing wanting to live with strangers. Access remains supervised and this fact underscores the lack of meaningful and beneficial access.

[332] There was a difference in access leading up to the commencement of this trial and since the break of trial where more engagement was observed with the parents and D.K. D.K. was upset when access was interrupted, but she had also been told by her father that she may not ever see her parents until she was 16. The fact that D.K. was upset is not evidence that the access was meaningful or beneficial. It is equally consistent with all of the evidence that this is a child who copes badly with any change.

[333] The parents have not their onus to establish that access is “meaningful and beneficial” to D.K. which is required for me to order access. There is no doubt that the parents love their child. However, this is not the legal test to be applied. In Native Child and Family Service of Toronto v. K.W.H. (supra), Justice Murray, stated at para. 43:

…the determination under 59(2) of whether a parent’s relationship is “beneficial” to a child requires an assessment of that parent’s ability to support the child’s placement in a permanent home… If the evidence indicates that a biological parent, in subtle or not-so-subtle ways, will not support the child’s placement in a permanent home (other than her own) and will put the child in a loyalty bind, then that is a very significant factor in determining whether an order providing for future access should be made.

In that case, the mother stated she would support the transition into an adoptive home and the Court believed she was sincere in saying this. However, her actions demonstrated that she had not grasped the importance of permanency planning for the child. The Court did not agree that the relationship was beneficial and meaningful to the child and therefore, access was not granted.

[334] In this case, we did not hear any evidence that the parents would support a placement into another home and that access would not be disruptive. The parents have made it clear that they do not support Crown Wardship and seek a return of the child into their care. The parents have not met their onus of showing that their access would not impair D.K.’s opportunities for adoption.

[335] Moreover, Dr. Wood did not recommend ongoing access to the parents or to the aunt given this child’s already insecure attachment and he highlighted the importance of her having to bond with her prospective adoptive family. I am satisfied that any access order could indeed impair a possible placement with a family since we do not yet know who this family will be and what they are prepared to accommodate. Given this child’s significant special needs, there will be a smaller pool of available applicants to select from.

[336] According to Anik Whyte, the Society does support some form of openness, and this can occur in any event without a court order but the degree of openness will vary from family to family taking into account the child’s best interests. Openness does not mean access. When considering all of the issues at stake, I am mindful of all the issues related to D.K.’s attachment when contemplating an access order and I allow the Society to approach the issue of openness on its’ own and in the appropriate fashion when the time comes and it is the appropriate course of action.

[337] In light of the positive relationship with the aunt, the Society can continue to preserve the relationship and contact between the aunt and D.K., but this can be done without an access order. This relationship should be preserved in the light of the possibilities of adoption breakdown and the need to maintain a sense of family identity for D.K.

[338] I was impressed by the evidence of Anik Whyte and her success as Wendy’s Wonderful Kids Recruiter. I am satisfied that that Dr. Wood’s assessment of D.K.’s future prospects of adoption was overly pessimistic. Given Ms. Whyte’s success in placing children with similar or greater challenges than D.K., I believe that D.K.’s placement with an adoptive family is possible.

[339] I make the order for Crown Wardship without access on the expectation that the Society will make best efforts to encourage openness where it is recommended and in the best interests of the child. D.K. requires a permanent and stable placement to meet her physical, mental and emotional needs. She requires consistency, structure and a safe environment in which to develop and grow. I am encouraged by the evidence of Anik Whyte that the Society can find a home that will provide the appropriate care to meet all of her needs and best interests.

Mr. Justice Robert N. Beaudoin

Released: March 30, 2016