COURT FILE NO.: C105/14-01 DATE: May 31, 2016
Superior Court of Justice
Family Court
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Children’s Aid Society of London and Middlesex Denise Marshall for the Society Applicant
- and -
M.S. and W.N. Edward J. Mann for M.S. Ian R. McLeish for W.N. Respondents
HEARD: November 23, 24, 25, 30 and December 1, 2, 3, 4, 7, 8, 9 of 2015; January 18, 19, 20 of 2016
MITROW J.
Introduction
1This is a protection application commenced by the Children's Aid Society of London and Middlesex (“the Society”) pursuant to an application issued … 2014. The Society seeks an order of Crown wardship, silent as to access.
2The child, who is the subject of this application, was born … 2014.
3The respondent, M.S. (“Ms. S.”), is the child’s mother and the respondent, W.R.N. (“Mr. N.”), is the child’s father.
4The respondent parents oppose the relief sought by the Society and it is their position that the child should be placed with them pursuant to a final supervision order if the child is found to be in need of protection.
5For reasons that follow, the Society’s request for Crown wardship is granted with the order being silent as to access.
Statutory Findings and Brief Summary of Litigation History
6I make the following findings pursuant to s. 47(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] (“the Act”):
a) the child’s name is A.P.T.M.R.N., born … 2014; b) the child is being raised in the Roman Catholic faith; c) the child is not an Indian or native person; and d) the child was apprehended pursuant to a warrant shortly after birth while at the hospital in London, Ontario.
7The child has remained in the temporary care and custody of the Society since being discharged from hospital soon after her birth. Pursuant to an order dated … 2014, the child was placed in the temporary care and custody of the Society on a without prejudice basis and the said order provided that the parents would have interim reasonable access, with such access to be supervised by the Society.
8Pursuant to an order dated September 18, 2014, Dr. Louise Sas, a psychologist, was ordered to conduct a parenting capacity assessment pursuant to s. 54 of the Act. That order contained specific provisions relating to the assessment and included a provision requiring the assessor to provide a recommendation as to the ability of the respondent parents to meet the needs of the child.
9The assessment report of Dr. Sas dated March 10, 2015 (sometimes referred to as “the assessment report”) was filed as an exhibit at trial. Dr. Sas also testified at trial.
Accommodation for Mr. N. During the Trial
10As will be explained in more detail later in these reasons, Mr. N. suffers from psychogenic non-epileptic seizures. The seizures suffered by Mr. N. are related to stress.
11In order to assist Mr. N. in reducing and managing his stress, Mr. N. was permitted to participate in the trial by being physically present in a witness room just outside of the courtroom.
12Arrangements were made for an audio and video link-up between the courtroom and the witness room. Mr. N. therefore was able to observe and hear the proceedings in the courtroom through the audio/video link-up. Also in the courtroom there was a video screen showing Mr. N. in the witness room.
13Mr. N. did not have an audio feed from the witness room into the courtroom. Therefore, it was agreed that if Mr. N. needed a break at any time that he would raise his hand or he could use the phone in the witness room to dial into the courtroom.
14In addition, the respondent, Ms. S., was permitted to be in the witness room with Mr. N. as it was felt that this may further assist in reducing his stress and anxiety levels.
15When it came time for Mr. N. to testify, arrangements were made for Mr. N. to testify from a different room in the courthouse with a two-way video and audio link-up between the room he was testifying in and the courtroom. While testifying, Mr. N. had his counsel with him in the room, in addition to Ms. S. and a Court Services Officer.
16The above arrangements were made in consultation with all counsel and, in particular, the arrangements were made with the concurrence of counsel for Mr. N.
The Assessment Report Prepared by Dr. Louise Sas
17Dr. Sas prepared a thorough and comprehensive assessment report. Dr. Sas explained the procedure she used, including the time spent with the parents; Dr. Sas met with each parent separately on five occasions; Dr. Sas conducted six hours of meetings with the parents jointly, including observations in the home; Dr. Sas was present at an appointment when the child was seen by her physician, and Dr. Sas attended a meeting at the Child Parent Research Institute (CPRI).
18In addition to a review of the Society file, Dr. Sas received information from numerous collateral sources, including Society workers involved with the parents, and from telephone conversations with the parents’ neurologist and family doctor; Dr. Sas also spoke with Mr. N.’s psychiatrist and Mr. N.’s psychologist.
19Given the issues affecting the parents, Dr. Sas elected to administer numerous psychological tests orally in an effort to ensure accuracy; Dr. Sas, in accordance with her usual practice, personally administered all the psychological tests.
20As a general overview, I found Dr. Sas to be a persuasive and credible witness. She was not shaken in any material way, if at all, during cross-examination as to her observations and conclusions in relation to assessing the needs of the child and whether the parents were able to meet the child’s needs. Dr. Sas’ evidence, consisting of the assessment report (which is evidence forming part of the court record: s. 54(6) of the Act) and her viva voce evidence, is deserving of, and is accorded, significant weight.
21The qualifications of Dr. Sas to give opinion evidence were not challenged by any of the parties. Dr. Sas was qualified by the court to give expert opinion evidence on the following: a) the needs of the child; b) the parenting capacity of both parents; and c) the ability of the parents to meet the needs of the child. Specific portions of Dr. Sas’ evidence are discussed in more detail later in these reasons.
The Apprehension
22Most Society employees called as witnesses by the Society gave their evidence in-chief via affidavit.
23Portions of some of those affidavits contain inadmissible hearsay, for example, references to Society records that contained concerns expressed by hospital staff or information received from anonymous callers. I have not considered any of this evidence as to the truth of the facts alleged; but rather, this evidence was considered only for the limited purpose of explaining any action subsequently taken by Society workers.
24As a result of concerns received regarding Ms. S. prior to the child’s birth, the Society issued birth alerts to local hospitals. Society child protection worker, Beth Houston (“Ms. Houston”), met with both parents later on the same day that the child was born … 2014.
25The information received by Ms. Houston from the parents included: information from Ms. S. that she had developmental delays, epilepsy and a mention of a history of depression; Mr. N. reported having a history of depression, diabetes and epilepsy, and he also told Ms. Houston that his history included borderline paranoid schizophrenia.
26Ms. Houston observed that Ms. S.’s arms were covered in numerous marks. Although Ms. S. initially stated that the marks were a reaction to a cream, Mr. N. then stated that “others” felt that they were bites from bedbugs; Mr. N. added that hospital staff had requested that he take all of Ms. S.’s belongings home to clean because of concerns about bedbugs.
27Mr. N. further reported that he continued to experience seizures approximately every one to three days. This evidence is also referred to later in these reasons when dealing with Mr. N.’s cross-examination by Society counsel.
28Ms. S. was asked about previous children and any prior involvement with a Children’s Aid society. Ms. S. admitted having a son; she told Ms. Houston that at approximately age five, she chose to place her son, D., with her parents as a result of behaviour issues.
29Ms. Houston quickly learned the following after doing some appropriate checks: that Ms. S.’s son, D., was apprehended by the society in Durham County when he was approximately two months of age; that Ms. S. had never resumed care of D.; that D. was a Crown ward of the society in Durham County, now residing with his paternal grandparents; and that Ms. S. had not had any contact with D. for a number of years.
30Ms. Houston confronted Ms. S. about her misrepresentation; Ms. S. explained to Ms. Houston that she had lied because there was a nurse in the room and that Ms. S. did not want the nurse to know the past history.
31During her evidence in-chief at trial, Ms. S. did confirm that she had not been truthful with Ms. Houston regarding her prior involvement with the Durham County society and the fact that D. was a Crown ward. When asked during her examination in-chief what stopped her from telling the truth, Ms. S. responded that she did not know.
32Further, it was Ms. S.’s evidence in-chief that she had not seen her son D. for five years. She testified he was born in 2003.
33The fact that Ms. S., on her own admission, lied to Ms. Houston about her past society involvement impacts adversely on Ms. S.’s credibility; her explanation at trial that she did not know why she lied does little to restore her credibility. The explanation offered to Ms. Houston about a nurse being in the room is less than persuasive. There is further discussion later in these reasons regarding Ms. S.’s credibility.
34On … 2014, the day after the child’s birth, Ms. Houston attended at the home of the parents; they had just moved into their residence. Only Mr. N. was present and he advised Ms. Houston that they had a dog and four cats.
35Ms. Houston noticed an odour that she described as being consistent with urine, while on the main floor and near the basement door. In the basement, Ms. Houston detected a strong smell of feces and urine and observed both urine and feces “all over the floor” in the main basement room and also in another area of the basement. Ms. Houston directed Mr. N. to ensure that the basement was cleaned.
36The information presented to the Society by both parents at the time of the child’s birth, and the investigation that was done at that time by the Society, created serious justifiable concerns that the child was at risk if released into the care of the parents. I find that the Society had ample justification to obtain a warrant to apprehend the child.
The Child
37Dr. Chitra Prasad, from the Department of Pediatrics, Division of Medical Genetics at the London Health Sciences Centre, confirms in two reports (the last report dated October 28, 2015) that the child has a “pathogenic duplication of chromosome 10q (q21.1,q11.21).” This is a condition inherited from the mother, Ms. S. Dr. Prasad described, in her last report, that the child has a past history of a small atrial septal defect. In her earlier report, Dr. Prasad described this condition as being stable.
38The needs of the child are affected by her 10q chromosome duplication which, according to Dr. Prasad, can be associated with “mild developmental delays and other multi-systemic issues” and that “these are known to be very variable ranging from mild to severe.”
39Dr. Prasad confirms that the child’s issues also include mild hypotonia and mild developmental delay. The child is receiving physiotherapy and occupational therapy. It is noted that Dr. Prasad’s evidence came from the two reports. Pursuant to an order made on consent on November 12, 2015 at the trial management conference, it was ordered that the two reports prepared by Dr. Prasad shall be admitted into evidence without the need to call Dr. Prasad as a witness. At trial, all parties were content, in accordance with that order, that Dr. Prasad’s evidence would be admitted through the two reports filed as exhibits.
40Diane Rogers, who is the Society child-in-care worker for the child, testified that the child was referred to CPRI.
41Ms. Rogers further testified that after being seen by a physiotherapist and occupational therapist, that resources were put in place to assist the child. Also, a speech pathologist has been involved in assisting the child with her speech development. At-home visiting programs for the child were made available through CPRI while the child was in foster care in London.
42Ms. Rogers described the child as having a three to four month global delay. When Dr. Prasad saw the child at close to 6 months of age, Dr. Prasad reported that the child was around “3 – 4 months of developmental age of the chronological age of 6 months.”
43In approximately May 2015, the child was moved to a new foster placement. The current foster parents are M.W. (“Ms. W.) and her husband J.L. (“Mr. L.”).
44Ms. W. testified at trial. It was her evidence that Mr. L., and the child’s father, Mr. N., are first cousins. Mr. N.’s father and Mr. L.’s mother are siblings.
45I found Ms. W. to be an excellent witness. She was respectful of both parents and her evidence suggested that both current foster parents and the parents were friendly towards each other. Ms. W. gave focused, specific evidence regarding the needs of the child and the measures taken to meet the child’s needs and to work with child-service providers. Ms. W. gave very helpful evidence as to the child’s responses to the various measures taken to assist the child.
46Ms. W. gave important and cogent evidence, which I accept, as to the child’s needs and the methods of structuring a routine to meet the child’s needs.
47At the time of trial, Ms. W. was on parental leave from her occupation as a lawyer. Mr. L. is an elementary school teacher.
48Ms. W. had attended a recent meeting with Dr. Prasad. Ms. W. was familiar with the material appended to Dr. Prasad’s second report providing information about the 10q chromosome duplication.
49Ms. W. gave evidence as to the services she sought out to assist the child, as Ms. W. and Mr. L. reside in the greater Toronto area.
50Ms. W. described “a typical day” for the child. The routine for the child was very organized, including the times for all meals and snacks, the child’s nap time, child-centred activities, playtime and bedtime routine.
51Ms. W. emphasized the importance of structure in the child’s life, stating that they (meaning Ms. W. and her husband) had learned the importance of routines to promote the child’s speech and language development.
52Specifically, Ms. W. testified that they were integrating techniques that they were taught to promote the child’s speech and language development. For example, they avoided asking the child questions as this could cause stress. Instead, the focus was on making statements to the child. For example, Ms. W. explained she may say to the child “I am cooking” if preparing a meal. This strategy of making statements is followed throughout the day.
53Another learned strategy is to pick three or four words each week and then use these words repeatedly. Ms. W. testified it is best to pick words that are important to the child. Ms. W. gave a few specific examples: the words “cereal,” “milk” and “ball” were selected because they represented the child’s favourite food, drink and toy. It was emphasized by Ms. W. that she and her husband work as a team.
54Ms. W. testified that a physiotherapist comes to their home to assist with the child’s motor development. The foster parents follow instructions prepared by the physiotherapist that include five repetitions of ten sit-ups to improve abdominal strength. Ms. W. testified as to creative ways to include the sit-ups during the child’s daily routine. The child is taken to a structured environment or given “outside time” where she can do a physical activity.
55Ms. W. testified that the child has some speech delay, speaking only single words; however, it was Ms. W.’s evidence that she also noticed a significant increase in the child’s vocabulary that occurred after a routine for the child was implemented.
56Ms. W. described the child otherwise as being healthy and this is consistent with the evidence of some of the Society workers and also is consistent with Dr. Prasad’s reports.
57It is clear that the child does benefit, and will continue to benefit, from a structured routine and environment and that the child will require caregivers who are very cognizant of the child’s needs and who are able to implement and maintain specific child-focused strategies to address the child’s needs.
58I accept, and agree with, Dr. Sas’ conclusions in her assessment report where she states:
a) [A.] will continue to present with development delays and she will require close monitoring and involvement of different services (physiotherapy, speech therapy, and occupational therapy) to ensure that she reaches her milestones. A secure and stable family environment, increased stimulation to encourage development, attention to her physical as well as her emotional needs, and an ability to work with professionals and follow through on recommendations will be necessary. [page 8]
b) [A.] will present with delays in her development and will need parents who are able to adequately stimulate her growth and provide stability. It will take special parents to bring her to her maximum potential. [page 39]
The Parents: Ms. S. and Mr. N.
59Ms. S. and Mr. N. have been together for several years, and they were residing together as a couple at the time of trial.
60A central issue in Ms. S.’s ability to parent is linked to her level of intellectual functioning.
61Dr. Sas’ evidence included reference to numerous statements made to her by Mr. N. and Ms. S. during the assessment. I accept Dr. Sas’ evidence as to what the parents told her, and where there is any conflict between the evidence of either parent, and Dr. Sas, I accept, and prefer, the evidence of Dr. Sas.
62A significant finding made by Dr. Sas related to Ms. S.’s results of the administration of the WASI-II (Wechsler Abbreviated Scale of Intelligence). Dr. Sas concluded that Ms. S. is functioning in the “very low range, with significant deficits in her verbal skills (both comprehension and expression), and her executive functioning and problem solving.”
63Dr. Sas referred to Ms. S.’s VCI (Verbal Comprehension Index) and concluded that Ms. S.’s VCI score was at the first percentile. Dr. Sas further concluded that Ms. S.’s Perceptual Reasoning Index was just below the first percentile and that Ms. S.’s “Full Scale IQ” was also at the first percentile.
64I accept Dr. Sas’ evidence that these results demonstrate that Ms. S. is quite significantly impaired, cognitively.
65Dr. Sas described Ms. S. as not having a lot of ideas about how to deal with specific problems that child rearing brings, and that this is related to her level of intellectual functioning. Dr. Sas testified that Ms. S. is “very concrete and has a limited knowledge base.”
66Ms. S., according to Dr. Sas, would have difficulty in relation to abstract reasoning – meaning being able to examine a specific situation, learning from it and then being able to generalize that skill and knowledge to a similar situation. To illustrate the point, Dr. Sas gave as an example a situation where a person is taught to avoid feeding young children foods such as hot dogs or grapes because children can choke on foods having that size and shape. If a person with Ms. S.’s profile was taught that and then was presented with a situation where there was a totally different food, but still having the same shape and characteristic of grapes or a hot dog, then that person would not automatically make the connection that the new food, having the same size and shape, could present a hazard.
67There is evidence corroborating Dr. Sas’ conclusion regarding Ms. S.’s significant cognitive impairment. Ms. S. testified that she is in receipt of payments pursuant to the Ontario Disability Support Program Act, 1997 (“ODSP payments”) and it was Ms. S.’s belief that she had been in receipt of ODSP payments since 2002.
68As part of Ms. S.’s application for ODSP, a Health Status Report (HSR) was prepared regarding Ms. S. and was signed by a psychologist on April 6, 2002. The HSR was filed as an exhibit on consent. This report was intended to provide information for Ms. S.’s application for ODSP benefits. In accordance with the instructions contained in the HSR report, the Intellectual and Emotional Wellness Scale contained in the HSR report was completed by the psychologist because Ms. S.’s principal condition related to mental health or intellectual development.
69In describing the principal condition giving rise to Ms. S.’s application, the psychologist described that Ms. S. was “functioning in the severely developmentally disadvantaged range of intellectual ability.” The HSR further indicated that the current “clinical findings suggest a guarded prognosis for any appreciable change” in Ms. S.’s situation.
70In the Intellectual and Emotional Wellness Scale, there is a category described as “severe symptoms,” with this category meaning “unsafe; severe impact on lifestyle.” All of the following areas were rated as severe in the HSR: a) intellectual functioning (cognitive disturbance, planning, organizing, sequencing and abstracting difficulties); b) judgment (difficulties anticipating impact of one’s behaviour on self and others); and c) learning (language processing, mathematics, attention difficulties).
71During her cross-examination by Ms. Marshall, Society counsel, Ms. S. was referred to the HSR. It was Ms. S.’s evidence that now she has no problems with intellectual functioning, judgment or language. Further, it was Ms. S.’s evidence that she had no problems as described in the HSR. When asked why it was that she received ODSP, Ms. S. explained that it was because of her 10q chromosome duplication.
72Earlier, during her examination in-chief, Ms. S. testified that she did not accept Dr. Sas’ evidence regarding areas where Dr. Sas said that Ms. S. was functioning in the first percentile range.
73While on the witness stand, Ms. S. presented as polite and with appropriate demeanor. However, I find that the substance of most of Ms. S.’s evidence was very unreliable and unpersuasive. It is not possible to place any credence on Ms. S.’s evidence as to substantive issues absent reliable corroboration. Ms. S. fails to appreciate and understand the extent and nature of her intellectual impairment and how it would impact on her ability to meet the child’s needs. I do not accept Ms. S.’s evidence denying her cognitive limitations, and her rejection of Dr. Sas’ evidence as Ms. S.’s evidence in that regard is contradicted by credible evidence to the contrary.
74Ms. S. testified that her disability does not prevent her from parenting – she gave as an example her participation in raising her sister’s daughter until age five. However, as the details of this claim unfolded, it became apparent that even on her own evidence, her alleged participation in raising her niece, which included as far back as 1999, was quite overstated. In any event, this evidence was not corroborated and is deserving of little or no weight.
75From early May 2014 to near the end of June 2014, Mr. N. and Ms. S. attended a group program “Best Beginnings,” facilitated by the Society. Leah Healy (“Ms. Healy”) is employed by the Society; she is a co-facilitator of the Best Beginnings program. This program consists of 14 sessions; the parents attended 12 sessions and missed 2 sessions; each session was around 3 hours duration, with the child being present for approximately the last half of each session.
76The parents received instructions in various aspects of child care, including teaching parents how to support their children and understanding their cues; the program also included basic infant care.
77Ms. Healy gave evidence as to her observations of Ms. S. and Mr. N. in the Best Beginnings program.
78Ms. S. was consistently observed socializing with others in the program, resulting in the child’s needs being unmet. Despite portions of the program focusing on attachment and recognizing the child’s cues, on one visit the child spit up while lying on her back, which both Ms. S. and Mr. N. failed to notice as they were socializing with other parents. On another occasion, the child was left unattended on the floor while Mr. N. and Ms. S. engaged in conversation with other participants.
79In another situation, both Mr. N. and Ms. S. failed to respond effectively to the child’s crying; staff intervened to demonstrate that the child stopped crying when she was picked up and given attention. However, the parents disregarded this simple and effective suggestion and, instead, tended to use other objects to soothe the child, including feeding the child despite the information in the communication book that the child was not to be fed. A concern throughout the Best Beginnings program was that Ms. S. consistently engaged with other parents, including providing them with diapers or wipes or would offer caregiving suggestions, while at the same time ignoring the child and her needs. Further, and more concerning, was the evidence of Ms. Healy that attempts to redirect Ms. S. were not successful.
80Mr. N.’s propensity for seizures impaired his participation in the Best Beginnings program when he was present. Mr. N. was observed often “sitting, staring vacantly, void of facial expression and verbal interaction.”
81The evidence was clear that Mr. N.’s condition was a barrier to being actively involved in the child’s care during visits; more concerning, however, was the evidence that Ms. S. was not able to identify this as a risk. For example, Mr. N. had a short seizure just prior to the visit on … 2014. He was left “incoherent and unable to be in a caregiving role.” Accordingly, for that specific visit, a safety plan was implemented with Ms. S. where she agreed to be the child’s sole care provider for the visit, and if she required a break or assistance, then she was to approach staff.
82Unfortunately, Ms. S. forgot the plan and handed the child to Mr. N., requiring staff to intervene. I find this evidence most concerning; the child at that time was only four months of age and Ms. S. appeared oblivious to the risk she had created for the child, despite participating in the implementation of a clear safety plan not to hand the child to Mr. N.
83In relation to Ms. S., her inability to respond appropriately to the child’s cues and her tendency to socialize with others and ignore the child, was a consistent theme during regular supervised access visits. There was evidence to that effect, which I accept, from Karen Fisher (“Ms. Fisher”), who supervised many access visits. Ms. Fisher also corroborated that teaching Ms. S. new skills was difficult, referring to Ms. S.’s thinking as “very concrete.”
84Dr. Sas, in her observations, expressed concern as to the parents’ inabilities to respond to the child’s cues. Both parents were described as having difficulty in engaging with the child appropriately.
85Dr. Sas described a situation where the child may be fussing or wanting to do something or being bored with her toys; in response, Ms. S. was described as placing various toys in front of the child and not deviating from this same pattern “over and over.” According to Dr. Sas, this was an example of Ms. S. doing what she felt she needed to do with the child, rather than responding appropriately to meet the child’s needs.
86The concerns discussed earlier regarding Ms. S.’s inability to recognize the risk posed by Mr. N. was also observed by Ms. Fisher during supervised access visits. It was Ms. Fisher’s evidence, which I accept, that Ms. S. would hand the child to Mr. N. while he was standing, even though Ms. S. had received direction not to do that because of the potential risk to the child should Mr. N. have a seizure. It was Ms. Fisher’s evidence that this happened more than once.
87On one occasion at the Family Visit Centre, Dr. Sas observed Ms. S. place the child on a change table and then fail to secure the child; Ms. S. then began to reach into a diaper bag to retrieve something. Dr. Sas intervened by running over to the other side of the room to warn Ms. S. Dr. Sas testified that the child was nine to ten months of age and easily could have rolled over. On another occasion, while feeding the child, Dr. Sas observed that neither parent noticed that the child was stuffing too many “puffs” in her mouth. Dr. Sas had to intervene.
88At a home visit, Dr. Sas observed Ms. S. to change and feed the child properly; however, Ms. S. required suggestions as to how to stimulate the child after the basic child-care tasks.
89During that home visit, Mr. N. came downstairs as the child was about to leave. Dr. Sas indicated that Mr. N. had a seizure earlier in the day and had been sleeping. Dr. Sas described Mr. N. as being groggy and unfocussed. Dr. Sas noted that Mr. N. “totally ignored” the child while she was being dressed and getting ready to leave. Although the child was “a foot” away in her car seat, Mr. N. did not acknowledge the child. Dr. Sas stated: “I was struck by his inability to engage with her.”
90There was ample evidence from the observations of the parents at access visits and the Best Beginnings program, to suggest that if the child was placed in the care of the parents, that most of the child-care would fall to Ms. S. I accept the following observations of Dr. Sas, at page 14 of the assessment report, in relation to the roles of Ms. S. and Mr. N. if they were caring for the child:
I believe what I saw was what likely would be transpiring in the home if [A.] was replaced. [Ms. S.] would be doing the bulk of the child care as [Mr. N.] could not. If there was an emergency and [Mr. N.] was incapacitated, I did not have confidence that [Ms. S.] would know what to do.
91During the assessment, Dr. Sas discussed with Ms. S. her son D.’s background and the fact that he was now living with his paternal grandparents. During this conversation, Dr. Sas was concerned when Ms. S. indicated that, when she got A. back, she was planning to get custody of D. as well.
92While such a plan clearly had significant legal obstacles, Dr. Sas focused on Ms. S.’s failure to consider that the plan was disruptive for D. and not in his best interests. In support of this plan, Ms. S. stated to Dr. Sas that D.’s “grandparents were in their sixties and could die soon!” In arriving at this plan, Dr. Sas noted that Ms. S. showed a lack of judgment in realizing that this plan made little sense, considering many factors including D.’s attachments and his reported special needs. Dr. Sas concluded at page 17: “[Ms. S.’s] naiveté and poor judgment were quite striking.”
93Dr. Sas’ assessment of Ms. S.’s judgment is entirely congruent with the HSR, discussed earlier, where Ms. S.’s judgment was ascribed a category of “severe symptoms.”
94The evidentiary record establishes that Mr. N. has suffered from psychogenic seizures brought on by stress. The seizures are non-epileptic. This is amply supported by medical records, including reports from Mr. N.’s treating neurologist, Dr. Mirsattari.
95In his report dated February 9, 2006, Dr. Mirsattari set out a lengthy history and noted that Mr. N. has had “daily spells” since June 2004. Dr. Mirsattari’s reports indicate various circumstances that can trigger a seizure. A discharge summary dated August 25, 2006 referred to Mr. N. having two “big spells”; the first spell occurring in July 2006 at a family reunion that Dr. Mirsattari describes was “likely provoked by stress” and the second spell having been provoked by stress related to Mr. N. having his step-daughter’s friend stay at his home.
96In a clinic report dated June 3, 2010, Mr. N. reported a significant increase in his stress levels. The frequency of his seizures increased. The increased stress levels occurred at a time when Mr. N. changed residences and was having a conflict with his brother, with whom Mr. N. was sharing the residence.
97In a report dated July 23, 2014, Dr. Mirsattari noted that Mr. N. had experienced an increase in the frequency of his seizures. The report refers to Mr. N. having “40 pseudo seizures” in one day, resulting in attendance at the emergency department; otherwise the frequency of seizures was described as “one to two times a day for one to two times per week.”
98Although Dr. Mirsattari’s medical reports do describe periods of time when Mr. N. was doing better in relation to a reduction of his seizures, the evidentiary record, as a whole, establishes that Mr. N.’s seizures remain a serious issue such that Mr. N. cannot be left alone as a caregiver with the child.
99A number of Society witnesses gave evidence as to their observations of Mr. N. having seizures, including at the Best Beginnings program as discussed earlier. It was Ms. Rogers’ unchallenged evidence that during a period of time while supervised access was ongoing that Mr. N. had seizures at access visits, resulting in 28 visits being cancelled or shortened.
100Society worker Taryn O’Reilly (“Ms. O’Reilly) testified as to her observations of Mr. N. having a seizure while at the hospital when the child was apprehended. It was Ms. O’Reilly’s evidence that Mr. N. began to “stare off,” saying that he was feeling funny; Mr. N. then sat in his chair with his eyes closed and writhing like he was being “electrocuted.”
101Ms. O’Reilly also was one of the Society workers who observed Mr. N.’s seizure on November 24, 2015, during the trial in the courthouse but outside of the courtroom. Ms. O’Reilly stated that Mr. N. started “staring off”; soon he was on the floor shaking; Ms. S. then administered some lorazepam to Mr. N. (it was the evidence of both Mr. N. and Ms. S. that Ms. S. routinely administered this medication to Mr. N. post-seizure in accordance with medical advice); then Mr. N. had a further seizure; while Mr. N. was having his first seizure, he was incoherent and writhing on the floor; then he was responsive while he took some water and medication but then his eyes closed and he began writhing on the floor again. Ms. O’Reilly’s account of this occurrence was consistent with the testimony of other Society witnesses.
102Mr. N.’s evidence in-chief was primarily through his affidavit. It was Mr. N.’s evidence that he has had seizures since 2003; initially the diagnosis was epilepsy but in 2006, Dr. Mirsattari’s diagnosed the seizures as psychogenic.
103Similar to Ms. S., Mr. N. in his evidence minimized the nature and the effect of his seizures. Mr. N. was quick to blame the apprehension of the child and the ongoing presence of the Society as a trigger for increased stress, leading to increased seizures.
104During cross-examination by Society counsel, Mr. N. testified that while Ms. S. was pregnant that he was happy and relatively stress-free and was experiencing seizures only once every two months. It was his evidence that once the Society came into his life, that his stress level “skyrocketed.”
105However, Mr. N. was then referred to Ms. Houston’s evidence that he had told Ms. Houston, on the day that the child was born, that he had been experiencing seizures approximately every one to three days. Faced with this contradiction, Mr. N. testified in cross-examination that he was “mistaken” as to his earlier testimony when he said that he was only having seizures once every two months while Ms. S. was pregnant; Mr. N. then acknowledged that Ms. Houston’s evidence was accurate and that in fact he had been having seizures every one to three days.
106Mr. N. is quite aware that the current frequency of his seizures is a material issue in this case. I find that Mr. N. is not a reliable witness as to the extent and frequency of his seizures currently, and in the more recent past.
107Dr. Sas testified that she has witnessed the beginning and the tail end of Mr. N. having a seizure. Dr. Sas described that Mr. N. starts to stare, that he starts to shake and that it appears that he loses consciousness briefly. Importantly, Dr. Sas testified that Mr. N., during interviews, told Dr. Sas that he cannot identify the trigger that causes a seizure and that it comes on so quickly such that Mr. N. is unable to react or do anything to avoid the seizure.
108Mr. N.’s seizures impact his ability to attend for appointments with the child’s health-care professionals. For example, regarding the meeting at CPRI that Dr. Sas attended, Mr. N. was unable to attend that meeting as he had had a seizure earlier in the day.
109I agree with Dr. Sas’ conclusion that Mr. N. displays “little insight” as to the impact that his seizures have on his ability to develop his relationship with the child or attend meetings with her health-care professionals. I find, further, that Mr. N.’s views as to the effects of his seizures on his ability to care for the child, are facile in the extreme.
110Mr. N. had seen a psychologist, Dr. Derry, in the past to assist in the management of his stress and thereby hopefully reducing his seizures. During cross-examination by Society counsel, Mr. N. testified that he had seen Dr. Derry in 2007 and in 2014. Techniques learned from Dr. Derry included breathing techniques and thinking about a “happy place.” It was Mr. N.’s evidence that these techniques worked for about three years, but by 2010, because of other symptoms, including paranoia, it was Mr. N.’s evidence that these techniques were not working.
111When asked to describe his panic attacks, the symptoms, according to Mr. N., included shortness of breath, muscles tightening, sweatiness and heavy breathing; these symptoms would come on quickly. Mr. N. claimed during cross-examination that he no longer suffers from panic attacks and he thought that 2014 was the last time that he had a panic attack.
112Mr. N. presented no viable plan to manage his stress. He agreed in cross-examination by Society counsel that after a seizure, he rests, and that this could be for an hour or two or, depending on the level of stress, the rest could be for more than two hours. Also, as discussed earlier, when Dr. Sas attended at the parents’ home, Mr. N. had been incapacitated for many hours because of a seizure.
113Mr. N. also admitted to Dr. Sas that after a seizure he would “often lose a day” because the medication made him groggy.
114Mr. N.’s evidence was that “each seizure lasts only a few moments.” While some seizures may have been brief, that was not the case with other seizures as described by witnesses at trial.
115One of the orders made at the trial management conference included a consent order that Mr. N. agreed with the various diagnoses made by his psychiatrist, Dr. Chamberlain, as summarized by Dr. Sas in her assessment report. Dr. Sas confirmed in her report that Dr. Chamberlain had advised her that in November 2013 he saw Mr. N. for auditory hallucinations, social anxiety and generalized anxiety disorder. In 2012, Mr. N. had symptoms of paranoia, including blocking his windows with tinfoil because people were looking in (assessment report, page 37).
116Medical reports from Dr. Chamberlain that were filed as exhibits confirmed the above; specifically, in his letter to Mr. N.’s counsel, Mr. McLeish, Dr. Chamberlain referred to Mr. N. having auditory hallucinations in “2012 or so”; in his final report to Mr. N.’s family physician dated August 24, 2015, Dr. Chamberlain summarized past “diagnostic conditions” that included “depression and anxiety in addition to his pain, diabetes and hypertension etcetera.” Dr. Chamberlain also listed the various medications that Mr. N. was prescribed and noted in this letter that he was closing his practice and that he requested Mr. N.’s family physician to continue prescribing for Mr. N.
117Mr. N. did describe to Dr. Sas his history of auditory hallucinations and his paranoia. In relation to the auditory hallucinations, Mr. N. described that the voices continued unabated until his referral to Dr. Chamberlain, who prescribed medication to control Mr. N.’s moods, auditory hallucinations and to assist with his sleep.
118Although Dr. Sas noted in the assessment report that Mr. N. was oriented “in all three spheres,” Dr. Sas did note evidence of unusual thinking patterns and that, when questioned, Mr. N. admitted to hearing voices, stating that they were in his head, that Dr. Sas could not hear them but that they were annoying and he could not shut them out. This demonstrates that Mr. N.’s auditory hallucinations do continue.
119Mr. N., like Ms. S., has been in receipt of ODSP for a number of years; in her assessment report, Dr. Sas noted that Mr. N. “accepted that he would be on ODSP from now on” (assessment report, page 26).
120It should be noted that Mr. N. explained to Dr. Sas that he was hit in the head with a large carcass while working in a meat-packing plant out west a number of years ago. Mr. N. explained to Dr. Sas that he thought his latest seizures were caused by a brain injury. It was also Mr. N.’s evidence that he received ODSP and CPP as a result of a head injury received “several years ago” at a meat-packing plant.
121During his interviews with Dr. Sas, Mr. N. indicated that his work experience included being overseas on a ship. Later, evidence at trial established that this was not the case, including Mr. N.’s own evidence. It was Mr. N.’s evidence that he did not recall saying that. I do in fact find that he made that misleading statement to Dr. Sas. In her assessment report, in dealing with Mr. N.’s history of past relationships, Dr. Sas noted that it was difficult to follow Mr. N.’s chronology, and Dr. Sas was not sure if the information shared was accurate.
122There are issues with Mr. N.’s reliability in recalling and describing past events; while I accept that Mr. N. is on ODSP, I make no finding about the nature or extent of his head injury in the absence of corroborating medical or other reliable evidence.
123It is noteworthy that, in speaking to Dr. Mirsattari, it was Dr. Sas’ evidence and her view that Dr. Mirsattari was not aware of the high frequency of Mr. N.’s seizures.
124Dr. Mirsattari’s report dated November 30, 2015 referred to seeing Mr. N. in his clinic on November 26, 2015, and referred to Mr. N. having a number of seizures at the courthouse on November 24, 2015 during this trial. Dr. Mirsattari, in the report, referred to Mr. N.’s hope that if they “win the custody battle for his daughter, the stress level will be diminished and the attacks may vanish.” Dr. Mirsattari then opines: “I tend to agree with that.”
125The totality of the evidence at trial does not support a conclusion that the seizures may “vanish” if Mr. N. and Ms. S. “win the custody battle.”
126I much prefer Dr. Sas’ analysis and conclusions. I do not rely on this portion of Dr. Mirsattari’s report.
127In relation to Ms. S., there were other health and medical issues. Ms. S., also, is a patient of Dr. Mirsattari. Ms. S. does have a diagnosis of epilepsy but the seizures are well controlled by medication, as reported by Dr. Mirsattari. Ms. S. also has a diagnosis of diabetes; it was her evidence that this is controlled by diet.
Protection Finding
128The totality of the evidence amply justifies a finding that the child is in need of protection, and I make that finding pursuant to s. 37(2)(b)(i) of the Act.
Disposition
129Having regard to s. 70 of the Act, and given the age of the child, the option of temporary wardship is no longer available.
130The dispositions provided for in s. 57(1) of the Act are required to be made in the child’s best interests. Section 37(3) requires the court to consider a number of circumstances in determining the child’s best interests:
37(3) 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:
- The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
- The child’s physical, mental and emotional level of development.
- The child’s cultural background.
- The religious faith, if any, in which the child is being raised.
- The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
- The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
- The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
- The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
- The child’s views and wishes, if they can be reasonably ascertained.
- The effects on the child of delay in the disposition of the case.
- 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.
- The degree of risk, if any, that justified the finding that the child is in need of protection.
- Any other relevant circumstance.
131The first two factors (paragraphs 1 and 2) are relevant and can be considered together. The full extent of the child’s 10q chromosome duplication is not known. However, the evidence establishes that the child has mild developmental delay; she also requires physiotherapy and has some speech delay. The child will require much structure, patience and adherence to routines; the child’s caregivers must understand the child’s limitations and need to be able to implement the strategies and recommendations of various health-care providers. This is very apparent from the evidence of Ms. W.
132In relation to the next two factors (paragraphs 3 and 4), the most relevant is religious faith. The parents and the foster parents all agree to raise the child in the Roman Catholic faith.
133The fifth factor (paragraph 5) is partially connected to the first two factors. Dr. Sas specifically found that a secure and stable environment for the child is necessary. The child’s caregivers will need to provide stimulation to encourage development. Ms. W. noted that she and her husband work as a team. As Dr. Sas noted, it will take “special parents” for the child to reach her maximum potential.
134Regarding the child’s relationships and emotional ties (paragraph 6), the child does have some relationship with her parents through ongoing supervised access visits. Unfortunately, because of his seizures, Mr. N. has missed some access visits and has not been able to participate fully in others; as between the parents, Ms. S. has had more interaction and “hands-on” time with the child. There is no evidence of any regular contact between the child and her extended family.
135The next factor (paragraph 7 – continuity of care) is essential for the development and wellbeing of the child. The child needs to have the security of a structured environment presided over by knowledgeable and understanding parents. Routines that have been developed by the caregivers to assist the child in meeting her special needs must be followed; these goals are best achieved through continuity of care.
136I consider the merits of the two competing plans of care (paragraph 8).
137Dealing first with the parents’ plan of care, it must be said that Mr. N. and Ms. S. are both well intentioned; they love A. and desperately want to parent her; they have purchased clothes and appropriate furnishings for the child’s room in anticipation of her return home.
138Although there was evidence, including Ms. S.’s evidence, suggesting that the state of the parents’ home while Ms. S. was pregnant was at times quite deplorable, this was rectified after the child was born; the Society agreed that the state of the parents’ residence was no longer a protection issue.
139Mr. N.’s seizures are long-standing and debilitating. He cannot be a primary caregiver for the child. Dr. Sas also makes that finding. There is no credible evidence, medical or otherwise, to suggest the prospect of any significant change or improvement for Mr. N. in relation to his seizures.
140This, of course, is not a criticism of Mr. N. This gentleman has struggled over the years in coping with his seizures. The trial, clearly, was an event that was stressful for him. There were at least four occasions during the course of the trial when Mr. N. experienced seizures and the trial could not proceed any further. In one instance, the trial did not proceed for a number of days based on a note produced from Mr. N.’s doctor.
141Mr. N. deserves significant credit for his perseverance in coming to court each day for trial, despite struggling with seizures. On some occasions, despite having some seizure-like symptoms, or not feeling well, Mr. N. wanted to remain and continue with the trial.
142Although Dr. Sas concluded that there was no issue with Mr. N.’s intellectual functioning, Dr. Sas also did find that Mr. N. remains “significantly compromised” by his mental health issues, including a generalized anxiety disorder that Dr. Sas labels as pronounced and which results in his uncontrolled psychogenic seizures. I accept this evidence.
143The level of Mr. N.’s insight into the child’s special needs is superficial at best. He told Dr. Sas that when the child goes to school, that she might be in the top tenth, fifth or even third percentile in her class. He stated that the child was “just a slow learner” but would catch up, like he did. According to Mr. N., whenever the child gets a new toy, it would stimulate her development. This prompted Dr. Sas to state that Mr. N. “was wildly optimistic” about the child’s future, and that “his analysis was shallow.” I agree.
144Mr. N.’s hope that his stress would be reduced if the child was returned home is little more than wishful thinking, understandable though it may be. The reality is that parenting the child, with her special needs, will most surely be a stressor that can likely trigger seizures. Mr. N. is vulnerable to stress in a multitude of situations, including attending at access visits and the Best Beginnings program. It is quite impossible to fathom how Mr. N. can believe that placing the child in the care of himself and Ms. S. will lower stress, and lower or eliminate the frequency of his seizures.
145While Ms. S. can handle some basic childcare such as clothing, feeding and changing the child’s diapers, the evidence, regrettably, is quite overwhelming that Ms. S. has significant cognitive impairment and is unable to meet the child’s needs on any long-term basis. Dr. Sas states in her assessment report (page 38): “Even with added services such as FSW [family support worker] and more parenting programs, it will not be possible to change [Ms. S.’s] level of insight, her overall judgment.” I accept this finding.
146If the child was returned to the parents, Ms. S. will become the de facto primary caregiver. Based on the evidentiary record, there is credible evidence to suggest that the child will be placed at risk of harm because of Ms. S.’s lack of judgment, including her inability to accept or understand the true extent of Mr. N.’s limitations.
147I accept the following summary provided by Dr. Sas as to Ms. S.’s cognitive functioning (page 22):
In summary, [Ms. S.] unfortunately has significant cognitive limitations, and poor comprehension monitoring. Her judgment and insight are impacted and her ability to learn information and generalize it to different situations is affected. In terms of parenting skill, basic tasks are able to be completed, but more complex parenting such as providing adequate stimulation and language development are not present. …
148I find that Ms. S. and Mr. N. are unable to parent the child and to meet the child’s needs on a long-term basis. Specifically, they are not able to meet the child’s special needs and they are unable to provide the necessary stimulation and routine for the child to achieve her maximum potential.
149The Society’s plan of Crown wardship and to have the child adopted by the current foster parents meets all of the child’s needs and is in her best interests. The current foster parents wish to adopt the child.
150Ms. W. was very receptive during her evidence in maintaining contact between the child and the parents. Given the kinship relationship, the foster parents would be going to social family gatherings where Ms. S. and Mr. N. would be present. Also, the foster parents have maintained a good relationship with the parents.
151Shortly before Dr. Sas released her assessment report, she learned that members of Mr. N.’s family were prepared to adopt the child. Dr. Sas, when recommending Crown wardship, stated in her assessment report (page 39) that this was “the best possible scenario for the baby in this difficult case.”
152Regarding the remaining factors: the child is too young to ascertain her views and preferences (paragraph 9); any further delay would not be in the child’s best interests and the disposition needs to reflect a permanent plan (paragraph 10); regarding paragraph 11, the potential risk of harm if the child is returned to the parents has been discussed above; and in relation to paragraph 12, the degree of risk that justified the finding that the child is in need of protection was substantial, for the reasons already discussed above.
153The child continues to be in need of protection, and the least intrusive disposition that meets the child’s best interests is Crown wardship.
Access
154Section 59(2.1) creates a statutory presumption against access to a Crown ward:
59(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.
155The onus is on Mr. N. and Ms. S. to prove on a balance of probabilities the criteria set out in s. 59(2.1): Children's Aid Society of Niagara Region v. C.(J.) (2007), 36 R.F.L. (6th) 40 (Ont. S.C.J. (Div. Ct.)).
156While the parents have had some contact with the child during supervised access visits, I find that the evidence falls short of proving that the relationship between the parents and the child is beneficial and meaningful for the child as required by s. 59(2.1)(a). In arriving at this conclusion, I have considered, specifically, the discussion of this issue in Children's Aid Society of Niagara Region, supra, at paragraph 29.
157Given the relationship between the parents and the proposed adoptive parents, I do draw specifically to the Society’s attention its statutory and mandatory obligation when placing a child for adoption, to consider an openness order or agreement: s. 141.1.1(2) of the Act. In the circumstances of this case, the Society is urged to give serious consideration to implementing an openness arrangement, whether by order or agreement.
158This is an appropriate circumstance for the order to be silent as to access.
Final Order
159The child is made a ward of the Crown and placed in the care of the Children's Aid Society of London and Middlesex.
“Justice Victor Mitrow” Justice Victor Mitrow Released: May 31, 2016