WARNING
The court hearing this matter directs that the following notice should be attached to this file:
This is a case under Part III of the Child and Family Services Act and is subject to subsection 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
– (8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
– (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
COURT FILE NO.: FS-15-00020325 DATE: 20160510
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF TORONTO Applicant (Respondent on Appeal) – and – V.D. AND P.V. Respondents (Applicants on Appeal)
Counsel: L. Hayes, for the Applicant L. Kotyolo, for the Respondent, V.D. P.V., appearing in person
HEARD: April 18 and 25, 2016
BACKHOUSE J.
Reasons for Decision
RELEASED May 10, 2016
[1] On July 29, 2015, the trial judge in the Ontario Court of Justice, Judge Weagant, made a final order whereby the child, P.A.V., born […], 2008, was made a Crown Ward with no access pursuant to Section 57(1) 3 of the Child and Family Services Act [1]. The parents appeal this decision pursuant to Section 69 of that Act.
[2] It is submitted that the trial judge misdirected himself and erred in law in regard to the following:
I. The trial judge exhibited bias and allowed an expert, Dr. Wittenberg, to usurp the functions of the trier of fact. II. The trial judge exhibited bias and elected not to receive essential information concerning the ability of V.D. to parent during increased access. III. The trial judge exhibited bias and excluded Brayden witness testimony from his determination of the best interests of the child. IV. The trial judge erred in excluding Braden witness testimony from the determination of whether access should be granted after Crown Wardship. V. The trial judge exhibited bias when he gave a restraining order on May 22 2015, against the parents and did not allow them the opportunity to present an Amended Answer and Plan of Care. VI. The trial judge erred in not allowing the parents the opportunity to rebut the reverse onus test of Section 59(2.1) of the Child and Family Services Act for access after Crown Wardship. VII. The trial judge erred in not determining whether the child could be returned to the mother under appropriate circumstances.
December 11, 2014 Judgment
[3] After 35 days of trial over a 20 month period during which 26 witnesses testified, the parties closed their cases and made their closing submissions. The Children’s Aid Society sought to have the child made a Crown Ward with no access to either parent. Each parent sought to have the child returned to the mother’s care. The matter was then adjourned to give the trial judge the opportunity to prepare his reasons on whether or not the child was in need of protection and if so, the disposition.
[4] In his December 11, 2014 judgment, the trial judge found that the child was in need of protection due to neglect pursuant to Section 37(2) (b) of the Child and Family Services Act. He found that he did not have not have enough evidence to make an order under section 57 of the Act and adjourned the issue of disposition for more evidence. No appeal was brought from the December 11, 2014 decision.
[5] In his December 11, 2014 reasons, the trial judge found that the child was seriously neglected at the time of apprehension. He noted the opinions of Dr. Levin (a Children’s Aid Society paediatrician who saw the child one day after the apprehension) and Dr. Fitzgerald (a clinical psychologist who monitored the child’s progress while in care) that the neglect would have to be longstanding to produce such a developmentally delayed child. He noted that in contrast to these opinions, the child had been seen in public at Harbourfront programming and seen by the family doctor just a month before apprehension and neglect was not observed. He found that it was not clear how long the slide into that state took but that V.D.’s spiral downward may have been as short a time period as 4 weeks.
[6] The trial judge found that V.D. had been singularly unable or unwilling to cooperate with any institution, process or person that she regards as a possible threat, that she is cagey and evasive and questions why people have to have information about her. He found that this has been an ongoing theme in the professional reports. On the other hand, he found that she has been moderately more successful in working with programs and agencies that give her space and a modicum of control through participation and found that from examples of V.D. working cooperatively with certain service providers that there are glimpses of hope that she could cooperate with the society to keep the child safe from another slide into neglect. He also noted that V.D. had cleaned up her home and that she has identified a handful of people in the community to whom she can look to for support. He noted that Dr. Gorman, a psychiatrist who saw V.D. for approximately 20 sessions over an eight-month period after the child was apprehended, was of the opinion that V.D. could reform and that increased cooperation with the society could be expected if the child was put in her care.
[7] In his December 11, 2014 reasons, the trial judge found that he was not prepared to sever the child’s relationship with his mother permanently based on inconsistent assessors’ predictions. He wished to see evidence from fresh observations of V.D. in the role of parent to “assess whether or not the experience of the last 3 years can be the impetus for a change in [V.D.]”. He also determined that he needed up to date evidence as to how the child was doing and the nature of the parent-child relationship from the child’s perspective. The trial judge ordered that V.D. have access with 2 overnights per week for a one-month period with a premises inspection prior to the first visit and unannounced visits from the society during the course of the access with a view to gathering evidence about the quality of these visits and her ability to cooperate with the Children’s Aid Society. The trial judge invited submissions as to the exact terms of the access order.
[8] The Children’s Aid Society opposed overnight access for, among other reasons, the fact that the child was in school and it had no staff to supervise during the weekend. As an alternative, the parties then consented to a third parenting capacity assessment pursuant to section 54 of the Child and Family Services Act to be conducted by Dr. Jean Wittenberg. The Children’s Aid Society increased the mother’s Saturday semi-supervised access visits from 10 a.m. to 2 p.m. by a further 2 hours to 4 p.m. pending the assessment’s completion because of the trial judge’s concern that the assessor may need to see more access to do the assessment. None of the parties reserved the right to reopen their cases after the assessment report was filed with the court.
[9] Dr. Wittenberg’s March 12, 2015 assessment report concluded that V.D. fell significantly short of being able to meet the child’s needs, that she had a very significant personality disorder that seriously impacted her ability to care for the child, that the child was particularly vulnerable and that she did not have the structure in her life or in her thinking, or the attunement and understanding of the child needed to be supportive of him or the ability to improve through treatment, counselling or guidance. He noted her tendency to get into very significant conflict with those who disagree with her.
[10] Dr. Wittenberg testified at court and all parties were permitted to cross-examine him on May 22, 2015. The matter was then adjourned to May 28, 2015 for final submissions on disposition. At that time, V.D. sought to call observational evidence of her Saturday access visits from the Brayden Supervision workers who supervised the Saturday visits that took place between December 11, 2015, the date of the trial judge’s first decision, and May 28, 2015 which was the last day of the trial. P.V. sought and was not permitted to call the adoption worker, Ms. Allan, to be cross-examined on her affidavit. This affidavit had been filed prior to the December 11, 2014 decision as part of the case of the Children’s Aid Society and neither V.D.’s counsel nor P.V. had sought to cross-examine the deponent prior to closing their cases.
[11] The trial judge accepted the parenting capacity report of Dr. Wittenberg. In his July 29, 2015 judgment, he made the child a Crown Ward with no access.
[12] It is appropriate to consider the issues raised on this appeal in the context of the evidence and findings of the trial judge at the time he made his December 11, 2014 decision.
Evidence prior to December 14, 2011 Finding
[13] On May 16, 2011, Toronto police apprehended the child, who was then 3 years old, from the apartment of V.D. In his December 11, 2014 decision, the trial judge made the following findings of fact about the state of the apartment on the date of the apprehension:
[4] The apartment had a foul odour, and was in a state of pandemonium. Garbage was everywhere and rotting food covered most surfaces. The fridge was filled with cigarette packages, half-smoked cigars and plastic bags and containers. Curdled milk was found in containers throughout the apartment. Clothes were strewn about. Clutter abounded. Officer Butt testified that it was hard to find a clean place on the floor to walk. He did not see anything that could be described as edible food. The bathroom was dirty and the toilet appeared to be plugged with a feminine napkin. The Officer did not know if the toilet was useable. Cupboards were overflowing with plastic containers and bags. Cockroaches were everywhere.
[14] The trial judge made the following findings of fact about the appearance of the child on the date of apprehension:
[6] The child presented badly. He had food all over his face and hands. He appeared dirty. His clothes appeared dirty. His shoes appeared too small. His long hair was matted. The officer testified that it appeared he hadn’t been bathed in a long time. The officer said that his speech was basic and that he had a bad stutter.
Expert Evidence of Neglect
[15] In his December 11, 2014 decision, the trial judge set out the expert evidence of neglect:
[8] The child was assessed at the Hospital for Sick Children [by Dr. Michelle Shouldice] 2 days later [on May 18, 2011]. The findings were inconclusive at best, but dental decay was highlighted. The report questioned the appropriateness of the child’s “reported” nutritional regime, but conceded that the child was the appropriate weight and height for his age. Blood tests did not demonstrate any nutritional deficiencies in the child. As to the child’s emotional/physical presentation (language delay, observed gait irregularities, under-socialization), the report contains no conclusions because of lack of history, the brevity of the current assessment and the fact that the recent “…and difficult apprehension experience may be impacting his current functioning.”
[9] Dr. Leo Levin saw [the child] on May 17, 2011. Dr. Levin is a paediatrician and director of Health Services for the Toronto Children’s Aid Society. He testified that the examination of the child was memorable because of his level of wariness and apparent difficulty in social interaction He described the child as presenting as a …“kind of …feral child”, a child that was not experienced in social interaction. Based on the child’s flat emotional state, inability to make eye contact, flat facial expression, limited language and unusual gait, Dr. Levin concluded that “the child displays signs of significant delay in all areas of functioning. He concluded that these were symptoms of significant neglect.
[16] Dr. Dan Fitzgerald administered psychometric testing to the child on June 30, 2011 and in the fall of 2013. In regard to this the trial judge made the following findings:
[10] Dr. D. Fitzgerald, a clinical psychologist, has been monitoring [the child’s] progress while in care. His first examination was on June 30, 2011. On standardized testing, [the child’s] test results indicated overall intellectual functioning in the ‘borderline’ range, at the 8th percentile. [The child’s] affect, passivity and shyness, and general lack of social and problem solving skills led Dr. Fitzgerald to have the opinion that [the child] was facing significant developmental issues.
[11] Dr. Fitzgerald testified that he reassessed [the child] in the fall of 2013. He said that [the child’s] overall functioning was 70th percentile, and verbal reasoning skills were now 87th percentile, as compared with the 4th percentile at the time [the child] first came into care.
[12] In Dr. Fitzgerald’s opinion, the discrepancy between the two sets of results can only be explained by neglect of his developmental needs before the first testing. He discounted the notion that the trauma of the apprehension could have affected the results some six weeks after apprehension.
[17] Dr. Fitzgerald was asked during cross-examination by P.V. whether the child’s delays could have resulted from the apprehension and he replied: “I would say that it is not probable that it is a factor in the presentation of the child at the time that I saw him.” He did acknowledge that it was not possible to rule out organic causes for the child’s low levels of cognitive, social and adaptive functioning and conceded that the child’s shyness or social awkwardness could be due to his disposition or nature. Dr. Fitzgerald testified that he would classify the neglect in terms of the child’s “cognitive and social functioning and his level of adaptive function .. as severe neglect.”
[18] The trial judge summarized the evidence of the foster mother:
[13] She describes a child who was dirty, with matted hair. He refused to eat and would only sleep in her lap. He was not toilet trained. She testified that he would not make his needs known to her. It is now, after a course of speech occupational and physiotherapy that he has an appropriate skill set for his age and can communicate needs.
[19] The trial judge noted that the issue of the child’s upper, brown teeth was addressed while he was in care but that the mother had begun the same process prior to apprehension.
Expert Evidence on Parenting Capacity
[20] In his December 11, 2014 decision, the trial judge set out the expert evidence on parenting capacity. A psychologist, Dr. Nitza Perlman, prepared two parenting capacity assessments in relation to V.D. pursuant to orders made on consent of the parties under section 54 of the Child and Family Services Act. Dr. Perlman found in her first assessment report dated February 29, 2012 that V.D. did not agree that the child had behavioural and developmental problems when he was placed in foster care. She further found that V.D. did not assume responsibility for the events that resulted in the child’s apprehension. She concluded: “In the absence of recognition of a problem and motivation to change, there is no indication that the past will not repeat itself.” She further concluded that V.D. was “isolated, very suspicious and has poor judgment.”
[21] In her second assessment report dated July 30, 2013, Dr. Perlman concluded at page 12 of her report:
There is no evidence of changes in [V.D.’s] understanding of the problems that brought about the apprehension of her child, into [the child’s] difficulties and her own difficulties in relating to service providers and benefitting from the interventions offered. Her coping strategies and her social isolation despite belonging to 5 churches, raise concerns about her ability as a primary care provider to respond to [the child’s] needs and about her ability to help integrate [the child] into a community.
[22] The trial judge accepted Dr. Perlman’s assessment that history could very well repeat itself again in V.D.’s life. He found that she was “vulnerable to another slide into psychological oblivion (which is the only explanation for the state of neglect of Alex when he came into care).”
Evidence of V.D.’s Psychiatrists
[23] V.D. attended approximately twenty sessions with a psychiatrist, Dr. Richard Gorman, over a period of about eight months in 2012/13. He was called as a witness at trial. He was of the opinion that V.D. could care for her child and should be allowed to do so.
[24] Dr. Gorman was not qualified in the trial as an expert in the assessment of parenting capacity. On cross-examination, he testified that he had never received any training in relation to conducting a parenting capacity assessment and that he had never been qualified by any court as an expert in parenting capacity assessment. He did not speak to any of the Children’s Aid Society staff involved with V.D. and did not meet the child or observe V.D. with him. V.D. had not disclosed to him that she had previously been diagnosed by a psychiatrist, Dr. Duckworth, in May, 2006 with a major depressive psychosis, panic disorder and agoraphobia. Dr. Gorman testified that he relied in his assessment largely on what V.D. self-reported to him and that she did not allow him to contact anyone employed by the Children’s Aid Society or any member of her family. He testified that he was not recommending for now that the child be returned to her care subject to supervision. He agreed on cross-examination that based on Dr. Duckworth’s diagnosis, V.D. had been suffering from a significant functional impairment for at least 10 years and agreed that this was not predictive of a positive adaptive function for her in the future.
[25] The trial judge made the following findings about Dr. Gorman’s evidence in his December 11, 2016 judgment:
[23] Dr. R. Gorman, who saw Ms. D. over an extended period, gave evidence in support of Ms. D’s plan. He found Ms. D. to have Chronic Adjustment disorder with Depressed Mood in his first written assessment of 2013. He also found some guardedness in Ms. D, but generally found her to be highly motivated, cooperative, punctual and attentive. He supported a return of the child to mother’s care.
[24] I can only imagine Dr. Gorman’s surprise when confronted with Ms. D.’s ODSP records. Ms. D. applied for ODSP in 2003 and was turned down. She originally self-reported that she had severe depression, migraine headaches, and anxiety. She was turned down for benefits. She appealed in 2006 and for this purpose got a new psychiatric opinion from Dr. G. Duckworth. She self-reported to Dr. Duckworth that in addition to depression and its attendant physical side-effects, she also hears voices every day, telling her she has “Greek power” and leading her to think she was psychic. She reported a history of alcoholism and blackouts. She also reported olfactory hallucinations and having difficulty with concentration and attention-the latter reporting causing Dr. Duckworth to rate her “high” on the ADHD scale. This led Dr. Duckworth to make the following diagnosis for the purpose of the ODSP appeal: major depressive psychosis. Given that Ms. D. reported such a condition had been taking place for 5 years, Dr. Duckworth gave the opinion that the delusions and hallucinations interfere with the instrumental activities of daily living, that she is completely disabled and that such a longstanding depression tends to be a chronic illness.
[25] As a result of this new history being put to Dr. Gorman, he had to admit that he had been misled. As Ms. Hayes put it in her submissions: Dr. Gorman’s diagnostic opinion was a moving target over the course of his testimony, as new information was presented to him. Dr. Gorman was forced to concede that he had likely been misled in order that Ms. D. might obtain a positive report from him.
[26] Dr. Mark Halman, a psychiatrist, saw V.D. on 5 occasions between July 2012 and December 4, 2012. The trial judge in his December 11, 2014 judgment stated:
[26] To [Dr. Halman], V.D. denied any psychiatric history. She would not tell him why she was on ODSP. In spite of this total lack of history in his first assessment Dr. Halman came up with the diagnosis of “schizotypal personality disorder” which he described as a “pervasive pattern, social and interpersonal deficit marked by acute discomfort and reduced capacity for close relationships, as well as by cognitive or perceptual distortions and eccentricities of behavior beginning by early adulthood and present in a variety of contexts.” He changed his opinion by July, 2012, saying that V.D. has a “mixed personality disorder”. However, he admitted that diagnosis is only one layer of psychiatric analysis. Another very important layer is functionality. In Ms. D.’s case, functionality was indeed the issue: she was confronted with concern about her parenting of [the child] from various quarters, but she was unable to absorb that information in a functional way.
[27] In his December 11, 2014 judgment, the trial judge stated the following regarding the professional opinions:
[27] It is hard to know what value to put on any of the professional opinions, in that they were tainted by Ms. D.’s actively misleading or hiding relevant information. It may also be that the ‘relevant’ information was never true, but simply manufactured for whatever purpose Ms. D. had at the time (e.g. the ODSP appeal). Interestingly, I did not hear of another reference to hallucinations or “Greek power” in any report since ODSP benefits were extended after appeal.
[28] The trial judge went on to state that Dr. Perlman’s opinions require some attention because her standardized psychological tests rely less on accurate historical reporting and have mechanisms to try and catch a fraudulent test subject. The trial judge notes Dr. Perlman’s recommendation that in spite of normal intelligence, V.D. remains without insight, has never recognized why the child came into care and that this lack of insight leads to bad judgment and bad coping mechanisms. Dr. Perlman found little psychological evidence to support the notion that V.D. would be able to take advantage of supports put in place to help parenting.
[29] V.D. called 2 witnesses from the Harbourfront Drop-In Centre and Kindergym where V.D. attended with the child on an almost weekly basis for 2 years prior to apprehension. The trial judge noted that they saw V.D. as committed to the child’s development and that the child did not stand out as having troublesome gross motor skills. The observations of the family program coordinator in the month before the apprehension that the child engaged in normal play and used full sentences with his mother were inconsistent with the observations made by the police and the assessing doctors at the time of apprehension which the trial judge found was of critical importance. In his December 11, 2014 reasons, he held:
[39] In my view, and contrary to Dr. Perlman’s prediction that [V.D.] lacks the judgment and insight to benefit from outside supports, this preapprehension evidence suggests that [V.D.] is capable of working with supports, under certain circumstances.
[30] After being apprehended, the child was enrolled for about 2 years in Mindwerx, an intensive education-focused daycare. V.D. requested permission and was allowed to attend weekly. The trial judge found that Denise Matyn, the Director and Richard Bridgeo, Behavioural Therapist at Mindwerx, described V.D. as cooperative and appropriate and that she was able to participate in class activities; further, the child entered the program with gross and fine motor skill issues but made gains over the two years that put him in the average range across all spheres.
[31] Ms. Florence Umenyi testified that V.D. attended 44 parenting classes at the Scadding Court Community Centre. She described an emergency child care which would be a resource for V.D. and other resources that might be helpful to her if she should have care of the child. While there was no direct reference to this evidence in the December 11, 2014 decision, the trial judge found that there are “glimpses of hope in the evidence”. He gave by way of example V.D. working cooperatively with certain service providers, cleaning up her home and identifying a handful of people in the community to whom she can look to for support. (Paragraph 70 of the December 11, 2014 Judgment).
[32] The trial judge found in his December 11, 2014 judgment that P.V.’s presence in this family was the most troubling aspect of the mother’s plan of care and that when he attended court without warning the course of the case changed at that moment.
[33] The child has remained with the same foster mother since his apprehension. He is now 8 years of age. Until the trial judge’s final order on July 29, 2015, the child had supervised access with his mother and no access with his father. The trial judge found in his December 11, 2014 judgment that P.V. walked out on V.D. and the child on the day of the apprehension and was not heard from for almost two years. He then attended court just prior to the trial but refused to meet with any Children’s Aid Society worker to talk about his history and set ground rules for any access with his son. As a result, he has not had any access visits with his son since the date of apprehension. In his December 11, 2014 judgment, the trial judge found that P.V. must be assumed to have stood by and allowed his son’s home to become unlivable, allowed his son to reflect his mother’s state of emotional pandemonium and must be assumed to have done nothing to assist in the family crisis. He found: “Any consideration of P.V. having access, supervised or otherwise, is completely out of the question.” He found that his judgment about the best interests of his son is seriously impaired. Although P.V. resisted the trial judge having access to his ODSP records to know the nature of the disability that leads to his being on permanent benefits, a review of the ODSP records revealed that P.V. had a diagnosis of schizophrenia, psychosis and impaired judgment and has been on ODSP since 2006.
[34] In conclusion, the trial judge found that the child has a loving relationship with his mother; that he is bonded with her; that V.D. had been singularly unable or unwilling to cooperate with any institution, process or person that she regards as a possible threat; that she is cagey and evasive and questions why people have to have information about her. He found that this has been an ongoing theme in the professional reports. On the other hand, he found that she has been moderately more successful in working with programs and agencies that give her space and a modicum of control through participation and found that from examples of V.D. working cooperatively with certain service providers that there are glimpses of hope that she could cooperate with the society to keep the child safe from another slide into neglect. He also noted that V.D. had cleaned up her home and that she has identified a handful of people in the community to whom she can look to for support. He noted that Dr. Gorman, a psychiatrist who saw V.D. for approximately 20 sessions over an eight-month period after the child was apprehended, was of the opinion that V.D. could reform and that increased cooperation with the society could be expected if the child was put in her care. The trial judge spent considerable time in his December 11, 2014 judgment commenting on the parents’ behavior in this litigation. He found that a major issue in the case was whether V.D. can change her focus and submit to supervision. He stated at paragraph 77:
[77] I am warning [V.D.] in the clearest of terms that her future as a parent to [the child] stands or falls on her ability to be supervised. Should there be another breakdown in [V.D.]’s psychological world in the future, there has to be an operational structure of supervision in place to address both the breakdown and its impact on [the child].
Dr. Wittenberg’s Report
[35] Dr. Wittenberg is the staff psychiatrist at the Hospital for Sick Children where he is the head of the Infant Psychiatry program. He has performed over 50 parenting capacity assessments and has been qualified by the courts as an expert in child psychiatry, parent-child relationship parenting capacity and child development. He was provided with extensive documentary material selected by each of the parties including transcripts of the trial evidence. He observed a total of 3 ½ hours of access visits on 3 separate dates in January, 2015. He interviewed the mother on 3 occasions for a total of 5 hours and 45 minutes. He interviewed several society workers, the foster mother and the child. He produced a comprehensive 76-page assessment report dated March 12, 2015 in which he recited detailed observations made by him at each access visit that he observed.
[36] Dr. Wittenberg was qualified as an expert in child psychiatry, parent-child relationships, parenting capacity and child development. He appeared in court for questioning on his report. The trial judge accepted Dr. Wittenberg’s opinions and observations.
[37] Dr. Wittenberg made the following findings:
(a) V.D. has a very significant personality disorder (mixed type with schizotypal characteristics) that seriously impacts her ability to care for [the child]. (b) V.D.’s personality disorder leads her to derive a distorted perception of other people and of their intentions. It also leads her to respond maladaptively to them. This has been true of her interactions with everyone she encounters including [the child]. She is not capable of accurately understanding other people nor of recognizing her distorted perceptions or maladaptive responses and thus correcting them. (c) The nature of the presentation in [the child] when he was apprehended is characteristic of long-term neglect. Furthermore, if it had been an acute and short-term dysfunction in his mother that was causing the regression in [the child], his recovery from that regression would have been much faster than, in fact, it was. (d) V.D. falls significantly short of being able to meet [the child’s] needs. (e) Certainly there is very significant stress in [the child’s] relationship with his mother. She has exposed him repeatedly to conflict between herself, Children’s Aid Society workers, drivers, etc. She has encouraged him not to trust those with whom he has been living. Finally her manner with him directly is stress-invoking by its unpredictability, her lack of attunement, her tendency to dissociate, her repeated tendency to overlook, ignore or contradict wishes that [the child] has expressly conveyed. There is significant evidence of this stress in [the child] at the present time. He repeatedly welcomes the arrival of the driver to end visits. He not infrequently, leaves his mother without saying goodbye and without looking back…During visits he behaves in a remarkably regressed fashion. He speaks in an infantile voice. This suggests a process of dissociation in him, a psychological defence associated with stress and trauma. (f) [The child] has a very serious genetic history making him vulnerable to psychosis. All of these vulnerabilities and highly stressful experiences are of great concern. They make him, more than the average child, in need of supportive and secure, well-attuned, and well-structured responses within a family that can provide that to him predictably, consistently and in the long-term. (g) V.D. repeatedly, whether in [the child’s] presence or when speaking to Dr. Wittenberg when the child was not present, characterized Children’s Aid Society workers as unqualified unlicensed, and evil. She claimed that they held onto children in order to make money. (h) At no time did she acknowledge any concerns that anyone might have about her care of [the child] in the past or in the present. (i) V.D. withheld, opposed, and obstructed Dr. Wittenberg’s collecting of information. (j) V.D. has not shown any ability to make significant changes over the course of time. She has had opportunities over the past 3 years that [the child] has been in care to engage with psychiatrists, therapists, counsellors, etc. The relationships that she has maintained are, in fact, very superficial. She has not established ongoing relationships that are likely to lead her to change her understanding and parenting behaviours in more significant ways. Even when working with professionals, she has tended to mislead them. (k) There were concerns about the mother’s difficulties working with supervisors. This has in no way diminished. [Dr. Wittenberg] made all efforts that he could to reduce stress on the mother, but she was significantly unable to cooperate with him…She showed an ability to collaborate only superficially and only with a couple of people in the community. Whenever there was a degree of significant authority, however benign, she did not collaborate effectively. He had no doubt that she will not be able to work effectively with supervisors. (l) In summary, V.D. does not show the characteristics in anyone who is a primary caregiver for [the child], particularly given his vulnerable state. Not only does she not have the structure in her life or in her thinking, the attunement and understanding of [the child] needed to be supportive to him, or the ability to improve through treatment, counselling or guidance, but she tends to get into very significant conflict with those who disagree with her.
Applicable Standard of Review
[38] In Housen v Nikolaisen [2], the Supreme Court held that on a pure question of law, the standard of review is that of correctness. An appellate court is free to replace the opinion of the trial judge with its own because it is the role of appellate courts to delineate and define legal rules and ensure their universal application. With respect to all factual conclusions and questions of mixed fact and law, the standard of review is palpable and overriding error (unless there is an extricable issue of law). The trial judge’s conclusions are on issues which are mixed questions of fact and law. The standard of review is palpable and overriding error.
Grounds of Appeal
[39] I will consider each of the appellants’ grounds of appeal.
I. Did the trial judge exhibit bias and allow an expert, Dr. Wittenberg, to usurp the functions of the trier of fact?
[40] Counsel for V.D. made the following submissions:
(a) By accepting the parenting capacity report of Dr. Wittenberg completely and incorporating it into 27 paragraphs of his 30-paragraph Reasons for Judgment of July 29, 2015 whereby he made the child a Crown Ward with no access, the trial judge allowed the expert to usurp his function. (b) On December 21, 2014, the trial judge was uncertain about whether the parental negligence was long-term or short-term. By the time of his second judgment on July 25, 2015, he accepted Dr. Wittenberg’s opinion that it was long-term and allowed Dr. Wittenberg to be the ultimate decision-maker in the case and distorted the fact-finding process.
[41] Counsel for the CAS made the following submission:
(a) In his disposition decision dated July 29, 2015, the trial judge reconsidered his conclusion in his December 11, 2014 ruling that the neglect may have been over a relatively short time frame. He reconsidered the evidence of professionals who had seen the child in the months before his apprehension without noticing any neglect in light of Dr. Wittenberg’s opinion that the neglect and maltreatment must have been long-standing based on the observations made about the child upon coming into care coupled with the long period of time it took the child to gain ground (described as one of the strongest markers).
Analysis
[42] Prior to the trial judge receiving Dr. Wittenberg’s assessment report and hearing his evidence, he had heard extensive evidence from 27 witnesses. Among the many witnesses who testified, he heard from 2 doctors who saw the child within a day or so after apprehension, 2 psychiatrists who assessed V.D.’s mental health, a child psychologist who assessed the child twice, a psychologist who prepared 2 parenting capacity assessments of V.D., workers at a drop in centre V.D. had attended with the child for 2 years prior to apprehension, workers at the intensive education focused day care the child attended after apprehension and that V.D. attended weekly and a Braydon worker who V.D. had identified as someone who had supervised her visits with the child and with whom she was able to cooperate.
[43] Dr. Wittenberg, as an expert in child development, was qualified to offer opinion evidence on whether the neglect was short-term or long-term and it was open to the trial judge to rely upon that opinion. Dr. Wittenberg’s conclusion was consistent with Dr. Levin's finding of significant neglect and Dr. Fitzgerald’s opinion of severe neglect. When Dr. Wittenberg was asked how it would be possible for staff at a community centre or a dentist not to observe signs of neglect, he replied: “You have to know the field in order to look for the symptoms and signs that are associated with neglect. I would not expect a dentist to know those.” He testified that detecting neglect involves assessment of things like emotional, social and cognitive development. He gave the example that “a dentist is very unlikely to figure out how much does this child know? How well can he speak? How well can he put sentences together? How does he respond in relationships that tell something about the experience he’s had of relationships?” Dr. Wittenberg also testified that an Early Childhood Educator at a community drop-in centre could miss signs of neglect if they did not conduct a specific assessment using standardized instruments related to the relevant areas of development. He stated in his report that several descriptions of mother behaving appropriately and supportively in drop-in centres and of the child behaving at more normal age levels were in the context of service providers dealing with large groups of mothers and children who did not have the luxury of being able to focus their observations on mother and child alone and were not as highly trained as Drs. Shouldice, Fitzgerald, Perlman or Levin, all who saw the child individually.
[44] Dr. Wittenberg testified that one has to know what you are looking for to detect neglect. This was specialized information outside the trial judge’s knowledge and experience. In accepting Dr. Wittenberg’s opinion, the trial judge concluded that the “professionals who saw [the child] before he was apprehended were not specifically looking for emotional, social or cognitive markers, and therefore would not be expected to see them.”
[45] This allegation of bias has no merit. The trial judge believed that he needed more evidence. The new evidence might have assisted the appellant. The fact that it did not is not evidence of bias. There is a presumption of judicial impartiality. Nothing in the record supports a finding of bias.
[46] Dr. Wittenberg did not usurp the trial judge’s role. Dr. Wittenberg prepared a detailed report, 76 pages in length, which comprehensively detailed his inquiries and his conclusions. He did not opine on the ultimate question of whether to make the child a Crown Ward or whether the mother should have continued access. The decision to make the child a Crown Ward and to terminate access was the trial judge’s decision.
II. Did the trial judge exhibit bias and elect not to receive essential information concerning the ability of V.D. to parent during increased access?
III. Did the trial judge exhibit bias and exclude Brayden witness testimony from his determination of the best interests of the child?
IV. Did the trial judge err in excluding Braden witness testimony from the determination of whether access should be granted after Crown Wardship?
– and –
VI. Did the trial judge err in not allowing the parents the opportunity to rebut the reverse onus test of Section 59(2.1) of the Child and Family Services Act for access after Crown Wardship?
[47] These points are related. Counsel for V.D. made the following submissions:
(a) The trial judge found on December 11, 2014 that he needed evidence from observations of V.D. in the role of parent outside the artificiality of access visits in a supervised setting and fresh evidence to determine whether the child could be safely reunited with his mother. After the CAS opposed the overnight access that the trial judge ordered, V.D. was given increased access to 6 hours on Saturdays for those purposes. After the trial judge received Dr. Wittenberg’s report and he was examined upon it on May 22, 2015, the trial judge announced that he did not need any more evidence and then elected not to receive the evidence V.D. wished to call of the Brayden supervisors who witnessed her access in the community with her son between the December 11, 2014 judgment and the May 28, 2015 conclusion of the trial. (b) Section 59(2.1) of the Child and Family Services Act places the onus on the parents to prove that continued access was meaningful and beneficial and that the said access would not interfere with adoption of the child. It is submitted on behalf of V.D. that the trial judge erred in not allowing the parents an opportunity to rebut the presumption by: (i) calling the Braden witness testimony who would have information as to whether her relationship with her son was meaningful and beneficial; (ii) calling and cross-examining the adoption worker on whether access would interfere with adoption of the child; and (iii) hearing evidence from V.D. about what she did to make her access beneficial for her child and whether she would be able to not interfere with the adoption process if she received access. (c) The trial judge should have accepted the evidence of Dr. Gorman who had counselled V.D. for 21 sessions and had testified that he believed that she would accept the adoption in order to maintain contact with her child.
[48] Counsel for the Children’s Aid Society submits:
(a) that the parents did not seek to call any further evidence at the conclusion of Dr. Wittenberg’s testimony on May 22, 2015 or during the trial held in June and September 2014; and (b) that it was open to the parents to bring a motion for the introduction of fresh evidence on this appeal with respect to any post-trial access evidence that the appeal court needs to consider.
Analysis
[49] The trial had continued for more than 7 weeks. The trial judge placed no restrictions on the number of witnesses the appellants could call. The trial judge heard evidence from one Brayden worker called by the CAS who the mother had identified as someone with whom she could cooperate. He found in his December 11, 2014 decision that the child had a loving relationship with his mother with whom he was bonded and that there were examples of the mother working cooperatively with certain service providers. The issues remained her ability to cooperate with the Children’s Aid Society who had the legal duty to supervise, her parenting capabilities and whether the experience of the last 3 years had been the impetus for a change in the mother.
[50] In his December 11, 2014 decision, the trial judge proposed access of two overnights per week until the end of January, 2015 as a sufficient period for fresh observation in which to determine which professional assessor was correct about the mother’s parenting capabilities. When the overnight access proved unfeasible, a further assessment was agreed upon. Access was increased by 2 hours on Saturdays and was supervised by workers at Braydon, an outside supervision agency. Some of the weekday access took place outside the CAS premises and in the community to allow the assessor to observe the mother/child relationship in a less artificial environment and where the mother was more comfortable. During the period of increased access, Dr. Wittenberg observed access visits on 3 occasions between the mother and child for a total of 3 ½ hours. Evidence concerning the mother’s behavior during the period of increased access was set out in detail in Dr. Wittenberg’s report and was before the trial judge. In his July 29, 2015 decision, the trial judge stated:
[22] On the question of mother’s ability to cooperate with supervision, Dr. Wittenberg was of the opinion that Ms. D. would not be able to work effectively with supervisors. There is a history of lack of cooperation which simply repeated itself between Dr. Wittenberg and Ms. D. The doctor claims that he spent more time in more venues with this mother than with any other parenting capacity assessment he has conducted, yet mother withheld, opposed and obstructed his collecting of information. She insisted repeatedly “in phone calls and faxes” to the doctor’s office that he needs to undertake more observation of her with [the child].
[51] At the same time that V.D. was attempting to direct Dr. Wittenberg’s assessment, his report states that she repeatedly refused to provide him with information, some of it quite trivial (e.g. her exact age) but other information that is very significant, for example, the degree to which she was involved with the child’s father and questions abut her childhood, adolescence or her family.
[52] In his assessment report Dr. Wittenberg reviewed observational notes by the Children’s Aid Society of supervised visits both before and after the December 11, 2014 decision. He also reviewed observational notes by a Braydon supervisor of at least one access visit after the December 11, 2014 decision. The trial judge stated the following in regard to Dr. Wittenberg’s assessment report:
[26] I now have an up-to-date assessment of mother’s abilities, taking into account the events of the last three years. The only conclusion that I can draw is that Ms. D. has not changed and likely will not. She remains impossible to supervise. She continues to display a complete lack of insight into the process and this explains her enormous bad judgment displayed throughout and continuing to the present.
[53] Further evidence would not have changed the result. The trial judge was aware that the mother’s pattern of conduct varied depending on context. There is no doubt that if the circumstances suited the mother, access could be positive. But there was an abundance of current evidence of the mother evading supervision, behaving very inappropriately during access, of being angry with and making threats to the supervisors in front of the child and referring to the Children Aid Society’s personnel and foster parents in a manner that would be likely to cause conflict and even fear in a child who is dependent upon them.
[54] Before an access order with respect to a Crown Ward can be made under Section 59(2.1) of the Child and Family Services Act, the court must be satisfied both that the relationship is beneficial and meaningful and that the ordered access will not impair the child’s future opportunities for adoption. Having concluded that the relationship between the mother and son did not meet the standard of “beneficial and meaningful”, it was not necessary for the trial judge to go on and consider whether access would impair the child’s future opportunities for adoption. The affidavit of Mary Allan, the adoption worker, about the likelihood of a permanent home being found for the child without great difficulty expressed no opinion about whether access would impede adoption. This affidavit was filed prior to the December 11, 2014 decision and no one asked to cross-examine on it. The trial judge made no reference to this affidavit in his reasons. Instead, in accepting Dr. Wittenberg’s opinion that harassing behavior from the mother could be expected in the future for any family trying to parent the child if V.D. was given access, the trial judge made the following findings in his July 29, 2015 decision:
[11] Dr. Wittenberg describes Ms. D. as being a “challenging participant” in the process of assessment. She was suspicious throughout, whether the meeting place was on CAS property or at a neutral community setting. She withheld or avoided giving certain pertinent information. Dr. Wittenberg was subjected to Ms. D.’s tireless advocacy. Her modus operandi is familiar to this court. The doctor describes her leaving many long messages on the telephone. He testified that Ms. D. also sent faxes to his office, urging specific action. He describes, in his testimony, the fact that Ms. D. threatened to “report” him. This threat was delivered outside of the courtroom door before he was to come in to give his testimony.
[12] This pattern of threatening the participants in the legal process is indeed an ongoing theme with Ms. D. In the hundreds of pages of out-of-court communications, submissions and ‘motions’ that have shown up in my inbox (and the entire collection is to be exhibited in the trial proper) there are many references to the Law Society’s complaints against a former CAS counsel. I have previously made reference to the number of interlocutory appeals-the ‘threat’ of appeal persisted in oral submissions until the last court appearance.
[13] Dr. Wittenberg described her behavior towards him as ‘harassment’. Her behavior during the course of the assessment, that is her harassing behavior, provided Dr. Wittenberg with some of the evidence he need[ed] to come to the conclusion that Ms. D.’s advocacy to regain custody of the child she loves leads her to interfere with a “…whole other set of relationships because that’s what she wants without understanding the context.” In turn, Dr. Wittenberg was of the opinion that if [the child] is not returned to mother, but is given a permanent placement that includes access for mother there is “…a significant likelihood that she would continue to try to be involved and interfere and continue to try and get him back which would create difficulty I think for an adoptive family and would continue to create difficulty for [the child] as well.”
[14] In spite of the fact Ms. D. was directed by me to cease her out of court communications with my office, she has persisted in this endeavor. The last shipment of documentation arrived this morning.
[15] Based on this court’s own experience (the transcripts and exhibits all informing that experience), and the evidence of Dr. Perlman (describing this persistence as “an inability to contain” herself), it becomes easy to accept Dr. Wittenberg’s opinion that harassing behavior could be expected in the future for any family trying to parent [the child] if Ms. D. was given access. In short, the best predictor of future behavior is history.
[55] The trial judge found that the mother’s inability to contain herself and to harass presented a predictable impediment to permanency planning. There was a great deal of evidence to support this conclusion. Calling the adoption worker would not have changed the result.
[56] I note that during this appeal, the out of court communications with my office have continued despite my directions.
[57] Both parents testified during the trial. The trial judge heard at length from the mother about her beneficial relationship with the child. She had the opportunity when she testified to give evidence about her ability not to interfere with the adoption process if she received access. There was an abundance of evidence of her undermining the foster mothers and the CAS workers with the child and of her talking to the child about him coming home although she had been told not to. Allowing the parents to testify again after Dr. Wittenberg’s evidence would not have changed the result.
[58] There is no basis for the allegation of bias. It was open to the trial judge, based on the evidence, to conclude that the mother had not satisfied her onus of showing that access would benefit the child once he became a Crown Ward. It was open to him on the record to conclude that continued access was not in the child’s best interests.
[59] My review of all of the evidence leads me to conclude that the trial judge reached the correct decision. In any event, the appropriate standard of review for the issues which were mixed questions of fact and law is palpable and overriding error. His conclusions are supported by the record, are reasonable and show no error.
[60] These grounds of appeal are dismissed.
V. Did the trial judge exhibit bias when he gave a restraining order on May 22, 2015, against the parents and did not allow them the opportunity to present an Amended Answer and Plan of Care
[61] The parents submit that they were not given the requisite 30 days to respond to an Amended Amended Child Protection application brought by the CAS by filing an Amended Amended Answer and Plan of Care.
Analysis
[62] The restraining order was only against the mother. The Children’s Aid Society served and filed an Amended Amended Child Protection Application on the mother’s counsel on May 4, 2014. The only amendment was the request for a restraining order to prohibit the parents from contacting or coming near the foster parents or the child in the community based on allegations that arose during the trial that the mother had contacted the child’s school and harassed the foster mothers. It was also personally served on V.D. on May 7, 2015. It stated that the respondents had 30 days within which to respond. On May 22 2015, the Children’s Aid Society made an oral motion for a temporary restraining order pending the completion of the trial. In response to the parents’ request for an adjournment, the trial judge noted the mother’s harassment of him and Dr. Wittenberg. V.D.’s trial counsel agreed, based on the trial judge’s comments, that there was no need for the Children’s Aid Society to call evidence from the foster parents. V.D.’s counsel did not point to any evidence that he wished to call with respect to the CAS’s application. A temporary restraining order was made. During final submissions on the issue of whether a restraining order should be imposed, it was agreed that the parents’ evidence would be that the mother had absolutely no intention of contacting the foster mother or being near the child’s school. Neither V.D. nor her counsel submitted that they wished to call additional evidence as to whether there should be a final restraining order.
[63] There was no need for an amended answer to respond to the request for a restraining order by the CAS. A further parenting plan was also not necessary or relevant. The court’s firsthand experience with V.D. and the way she dealt with the court and the evidence of Dr. Wittenberg formed part of the factual basis for the order. The evidence was overwhelming that the mother routinely ignores directions and rules which do not suit her. This ground of appeal is without any merit and is dismissed.
VII. The trial judge erred in not determining whether the child could be returned to the mother under appropriate circumstances.
[64] This ground of appeal is in effect, a challenge against the finding that Crown Wardship was appropriate. The evidence fully supports the trial judge’s conclusions on this issue. There is no basis to submit that he did not consider whether the child could be returned to the mother. Unfortunately because of her mental health issues which impact her ability to parent she is not a fit person to parent this child. This ground is dismissed.
[65] The appellants also submitted that the trial judge failed to determine whether the child may suffer harm through the mother/child relationship being severed as required by Section 37(3) 11 of the Child and Family Services Act.
[66] The trial judge stated the following in his July 29, 2015 judgment:
[10] [The child] has been subjected to ongoing stress throughout the course of these proceedings, according to Dr. Wittenberg. [The child’s] relationship with his mother is the source of that stress. Her manner according to Dr. Wittenberg, is stress invoking “…by its unpredictability, her lack of attunement, her tendency to dissociate” and her tendency to ignore or contradict [the child’s] wishes. Dr. Wittenberg points to the fact that [the child] welcomes the driver at the end of visits not infrequently leaving without saying goodbye and without looking back. Reports from the foster home have indicated that he appears to be dysregulated, depressed and withdrawn after unsupervised visits with his mother. He has witnessed repeated conflict between his mother and CAS workers. He is encouraged by her to distrust his caregivers.
[17] Dr. Wittenberg would not predict the effect on [the child] of severing the relationship between [the child] and his mother. His concern about a continued mother/child relationship centres on Ms. D’s inability to support the development of healthy autonomy and independence in [the child] as he gets older. Further, based on [the child’s] complex emotional needs, he needs a caregiver with particular skills. Dr. Wittenberg described Ms. D. as someone with none of what is needed.
[18] At the present time, Dr. Wittenberg also has concerns about the stress that exists in [the child’s] relationship with his mother. Dr. Wittenberg doubts Ms. D’s ability to adapt in the future.
[27] Although Ms. D. has a long-standing relationship with [the child], that relationship is not without problems. Dr. Wittenberg went as far as to say that mother’s parenting would likely lead to personality issues for [the child] in the future.
[67] The trial judge accepted Dr. Wittenberg’s opinions and observations. It was open to the trial judge to conclude as he did that the mother’s problems would have a negative impact on the child if access was continued. It is implicit in that finding that the harm to the child of continuing the relationship outweigh the possible negative effects on [the child] of severing the relationship.
Conclusion
[68] The appeal is dismissed. I would like to thank counsel for their excellent submissions, both written and oral.
BACKHOUSE J.
Released: May 10, 2016
Footnotes
[1] R.S.O.1990, Chapter C.11 as amended