Court File and Parties
COURT FILE NO.: 536/13 DATE: 2016-06-29
ONTARIO SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF V.T., born […], 2013
BETWEEN:
Valoris for Children and Adults of Prescott-Russell Applicant – and – C.A.T. Respondent
Counsel: Sophie Côté Langlois, for the Applicant Cedric Nahum, for the Respondent
HEARD: February 29 to March 11, 2016 and May 2, 2016
REASONS FOR JUDGMENT
ROGER, J.
Overview
[1] This Application proceeded in March, by way of a two week trial, with closing submissions on May 2, 2016. Over the course of this trial, the Court heard from 31 witnesses.
[2] The Applicant, Valoris for Children and Adults of Prescott-Russell (“Valoris” or “Society”), is a Children’s Aid Society. It seeks an order that the child be declared a Crown ward, without access, for the purpose of adoption.
[3] The Respondent, C.A.T. or Ms. T., is the mother of the child. She seeks the child to be returned to her care, without condition. She submits that the child is not in need of protection. Alternatively, that the child should nonetheless be returned to her care.
[4] There is no father involved in this Application as the mother has not identified one.
[5] The child is named V.T. He was born on […], 2013 in Hawkesbury, Ontario. V.T. is of Hare Krishna religion. He is neither of Indian nor native status. Valoris removed V.T. from his mother’s care on July 22, 2013, four days after his birth, at the Hawkesbury & District General Hospital and placed him with a foster family. The above statutory findings, made pursuant to a Statement of Agreed Facts under subsection 47 (2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“the Act”), have been endorsed in the continuing record.
[6] V.T. is still living in the Hawkesbury area with another foster family that plans to adopt him.
[7] On consent of the parties, this trial was conducted as a blended proceeding. I did not consider evidence that went solely to the issue of disposition in determining if the child is a child in need of protection.
[8] The issues that I have been asked to decide are: (1) whether a finding should be made that the child is in need of protection; and, only if such a finding is made, (2) what disposition is in the child’s best interests.
Finding if in need of protection
[9] Valoris seeks a finding that the child is in need of protection pursuant to paragraph 37 (2) (b) of the Act:
37(2) A child is in need of protection where,
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,
(i) failure to adequately care for, provide for, supervise or protect the child, or;
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.
[10] The risk of harm, as provided for under clause 37 (2) (b) of the Act, must be real and likely, not speculative. Risk of harm caused by neglect or error in judgment comes within the finding. See: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273, (Ont. Fam. Ct.) and Children’s Aid Society of the Niagara Region v T.P., [2003] O.J. No. 412 (Ont. Fam. Ct.).
[11] This is a difficult case. The mother is an intelligent, independent minded and functioning woman, with a rather complicated mental health history and a finding by experts of ongoing delusional thoughts. The following provides an overview of the evidence.
[12] C.A.T. was born on […], 1974 and has no other children. At the time of the apprehension, she was not, nor is she now, in a relationship. As indicated above, the child was apprehended shortly after birth.
[13] C.A.T. appears to have had a complicated relationship with her parents and two siblings, with whom she has no ongoing relation, while there is the distant possibility of a relationship with her father. C.A.T. did well in high school and hoped to study music, her passion.
[14] In 1992, she suffered an aneurysm and, according to experts, this incident left her with left side arm and leg weakness, numbness, spasticity, chronic pain and no ongoing cognitive limitation. She eventually studied arts and obtained a Bachelor of Arts from the University of Ottawa in 1997.
[15] As a result of the aneurysm, C.A.T. suffered from ongoing and relatively severe chronic neuropathic pain and, over the years, took many prescription and non-prescription drugs. Her employment history is spotty with significant portions of time in receipt of social assistance.
[16] At trial, Valoris called the manager of clinical records from Ottawa and Montreal hospitals, to establish that C.A.T. had attended their respective institutions for depression, psychological issues and psychosis. Only a very small proportion of these historical records were sought to be admitted. Some were admitted for identification, for purposes of further examination or cross-examination, but none of these were later presented to another witness (and none were presented to C.A.T. during her cross-examination). Only four were admitted as business records.
[17] In 1992, shortly after her aneurysm, C.A.T. was admitted to the Ottawa Civic Hospital for an attempted suicide. In 1994, C.A.T. was admitted at the Civic Hospital with a diagnosis of borderline suicidal and depression at admission. She was also admitted at various Montreal hospitals in 2002, 2009 and 2012 for psychosis. More relevant, in October 2012 she was admitted for ten days at the Royal Victoria Hospital and at the Douglas Mental Health University Institute, in Montreal, for paranoid delusions involving the mafia. It is noted that she had been brought by police, apparently fearing for her life in relation to the Rizzuto family. It is noted that she complained about the fact that the Douglas Mental Health University Institute was confusing her with another patient of the same name. She showed signs of delusions and grandeur. The impression noted was primarily of paranoid delusion and the main diagnostic at discharge is indicated as schizophrenia undifferentiated mild. However, the summary hospitalization sheet notes that following the evaluation “…she actually did not present a danger to herself or others” and “…when she has calmed down a bit, even without medication, she presents in a very organized way and appears to be able to take care of her activities with her friends at least. We were not able to demonstrate that she was suicidal or homicidal or even violent and I agreed to let her have her discharge.”
[18] In July 2013, prior to giving birth, C.A.T. moved from the Montreal area to a small house that she still rents in Ste-Anne-de-Prescott, a small rural community in eastern Ontario. She was in the process of setting up her new residence when V.T. was born at the Hawkesbury & District General Hospital. Shortly after birth, Valoris was contacted by a concerned nurse resulting in the child being apprehended.
[19] Ms. Pilon, of Valoris, testified that she attended the hospital and met with C.A.T. Ms. Pilon understood that there was no hydro at Ms. T.’s house and that she had had seizures in the past brought about by her condition. Ms. T. talked of the father being either a celebrity in Italy, or a patient in the psychiatric ward where she had earlier been admitted. Mrs. Pilon thought that it was all very rambling. Mrs. Pilon was concerned that C.A.T.’s only sources of support were a friend named (Mr. H.), whom C.A.T. said was not a viable option and a friend named P. (Mrs. T.), who lived in Montreal. She was also concerned by statements that Vito Rizzuto, a then leading figure of the Montreal mafia, was the father and that the Vatican was involved. Ms. Pilon was also concerned that C.A.T.’s parents could not help – C.A.T. said no, they had sexually abused her. She was also concerned by C.A.T.’s refusal to sign consent forms for the disclosure of historical medical records (a motion was ultimately successfully brought by Valoris to obtain these documents).
[20] During her testimony, C.A.T. explained that at the hospital, she told Ms. Pilon she knew a wealthy man in Montreal, a billionaire, who was prepared to assume financial responsibility for her son. She explained to Ms. Pilon that he was ok with his name appearing on the birth certificate. She did not know why he agreed to this but explained that he was intrigued with her level of service to others, including to Senator Rizzuto. During her cross-examination, she explained that she spoke to him to establish financial support for her unborn son. However, at the end of her examination, when asked by the Court how it was that Mr. Rizzuto had called her, she indicated that, at most, she talked very briefly on the phone to Mr. Rizzuto only once. She indicated that and she was not at all certain whether she actually spoke to him that once by telephone, as this might actually have been a prank played by James, one of her friend, whom she said had indicated that he knew Mr. Rizzuto. This testimony raises many unanswered questions, including why did Ms. T. think: that Mr. Rizzuto knew her; was interested in her level of service; would want to support her son; and, why would he agree to be listed as the father on a birth certificate with a mother he evidently did not know?
[21] Ms. Pilon had a good recollection of events and was responsive to questions. Her evidence made sense and I accept that, following two meetings at the hospital with C.A.T., she had concerns about C.A.T’s mental health.
[22] Mss. Potvin, Thibodeau and Mayer testified with regards to ongoing access. Initially, C.A.T. had supervised access at Valoris four times per week, which was reduced to three and eventually terminated. Access was initially terminated by agreement of the parties on October 17, 2014. This agreement was later set aside following court proceedings brought by Ms. T. Thereafter, by orders of June 18 and August 28, 2015, any access by the mother was refused pending the trial of this matter.
[23] Consequently, the mother has had no access to the child since October 2014. Furthermore, as a result of the lengthy court proceedings, the time limits at s. 70 of the Act have expired.
[24] The Society’s child protection workers and community integration workers testified that while access was ongoing, C.A.T. adopted a negative attitude towards Valoris during supervised access visits and she had difficulty prioritizing the needs of the child over hers.
[25] Ms. Mayer supervised access at Valoris from November 2013 to October 2014 (when they ended) and Ms. Thibodeau from August 2013 to January 2014.
[26] C.A.T. regularly attended access visits and, after its termination, litigated for continued access. During access visits, Ms. T. frequently brought activities, food (including breast milk) and clothing for her son, demonstrating a strong commitment to her son.
[27] The mother was also diligent in trying to ensure that her son’s needs were met, despite the fact that he was not in her care. She reported numerous concerns about the care that the child was receiving. She expressed her concerns directly to the workers, which were based on what she believed was best for her son’s health and development. I note that not all of those concerns were warranted.
[28] Access visits were difficult for the mother as she felt criticized. Possibly as a result of feeling criticized she created an extremely antagonistic relationship with the Society.
[29] While I agree with the submissions of the Respondent that the mother had to deal with normal emotional difficulties of being a new mother and not being able to care for her son, both no doubt difficult for her, on occasion she acted inappropriately towards her child and the Society and its employees.
[30] As examples of concerns with the mother’s care of the child, Ms. Thibodeau observed C.A.T. leave the child (at the time an infant) unattended on the sofa and once on the changing table, despite repeated warnings not to do so. She further observed the mother regularly attempting to breastfeed or change a diaper, sometimes during almost half of the access time and she regularly observed reluctance on the part of the mother to let the baby sleep. Ms. Thibodeau talked about times when the baby would be rubbing his eyes and fussing, yet, the mother would not let him sleep. Ms. Thibodeau was also critical for Ms. T. not sufficiently playing with the child, which this Court attributes to inexperience. Ms. Thibodeau was probably the less bilingual of Valoris’ employees and, as admitted by Valoris, did not have much experience with parenting abilities. However, these are simple warnings to communicate and rather simple observations and after hearing her testify in English, despite a bad cold, I accept her evidence in relation to these warnings and observations.
[31] Although some of the observations of Ms. Thibodeau may, to a certain extent, be attributed to the mother’s inexperience and efforts to do too much in the limited access time available, taken together they are a cause for concern.
[32] Ms. Mayer also testified with respect to the mother’s breastfeeding. She indicated that, when the child was younger, the mother repeatedly force-fed the child. She stated that the mother would hold the baby’s mouth pressed against her breast and press even harder whenever the child would try to push away, sometimes screaming and crying until he fell asleep. Ms. Mayer also testified that the mother had difficulty comforting the child and on occasion, instead of comforting him, would imitate his cry and screams. As with Ms. Thibodeau, Ms. Mayer also expressed concerns that the mother had difficulty reading the child’s signals.
[33] Ms. Mayer testified about situations where she had to intervene, including: an instance when the mother left the child unattended on the changing table and moved 10 to 15 feet away; a bathtub incident; instances when the mother imitated the child crying rather than comforting him; when the mother spoke to the child of suicide; when she became impatient with the child and a few rough diaper changes. Ms. Mayer testified that she terminated about eight of the mother’s supervised visits because of situations as described above.
[34] Ms. Mayer indicated that she often heard the mother talk about dying during her visits. She indicated that she had to intervene after a visit because the mother had told her son that if she didn’t return the following week, it was the Society’s fault.
[35] I find that Mss. Mayer and Thibodeau were both credible and reliable witnesses. Ms. Mayer was particularly professional, respectful and open minded. She answered questions particularly candidly, reasonably and with the most believable recall. For these reasons, I disagree with the Respondent’s argument that Ms. Mayer was critical and hostile towards her. I accept Ms. Mayer’s evidence as it relates to her observations made during supervised access, but as indicated above, attribute some to inexperience and frustration on the part of C.A.T.
[36] However, when considered together, the many instances of: parallel play, singing mantras, talking to the child for some time about age inappropriate topics, frequent or force-feedings, difficulty comforting the child and a reluctance to let him sleep, are a cause for concern as they certainly demonstrate difficulty prioritizing the child’s needs (which is a key part of the opinion of Dr. Worenklein).
[37] Now relating to the interaction with Valoris, many of Valoris’ employees testified about how they often felt threatened by the mother, insofar as to her behaviour, comments and email correspondence.
[38] Most, including Mrs. Potvin, testified about comments relating to the mafia, including: the Rizzuto family’s knowledge of the child’s whereabouts and that one day, he would not be there; that they could be punished by the mafia; and that the family will take care of your children. Another example is Ms. T.’s email, dated August 4, 2013 - Exhibit 20.
[39] In that email, Ms. T. indicates that there is a historic and well-documented difference between activities of various levels of what is commonly known as organized crime. She distinguishes gangs from the mafia and indicates that the mafia, which hails from Sicily, may act accordingly if they deem that a grave violation occurred in term of business or honour. She states that she has consulted privately for the Rizzuto, that she has been verified by the family and reassured that she and her son are still in. She explains that the mafia may decide to avenge a harmful act against their house and that when such a decision is made, they usually target or injure those dear to the offenders, even years after the fact.
[40] Another example is when she told her infant son of her wish for Valoris’ employees to have an accident or somehow for Karma to get back at them or their children.
[41] I find that C.A.T. failed, on several occasions, to cooperate or make reasonable efforts to improve any part of the relation with Valoris. She appears to have gone out of her way to make things worse. While I understand some of the many frustrations of C.A.T., as she felt she was being treated unfairly, I nonetheless find from my review of the evidence that she was treated professionally by Valoris and that some of her conduct and comments were inappropriate.
[42] Ms. T. denies making threats and says it was all a misunderstanding. I do not accept that Valoris employees misunderstood C.A.T.’s comments (made during supervised access visits), either because they were francophone or because they did not understand their context (whether or not related to language or C.A.T.’s Hare Krishna beliefs and practices). Valoris’ employees, who testified at this trial, struck me as sufficiently bilingual to appropriately understand these comments and as sufficiently open minded to objectively assess and react to these comments.
[43] Consequently, I accept their testimony that during access visits, C.A.T. regularly talked about Vito Rizzuto, her association with the mafia and how the mafia or the “family” might assist her to recover V.T. I find that she also talked about how the mafia might punish those at Valoris involved in V.T.’s apprehension. C.A.T. mourned Mr. Rizzuto when he passed away in December 2013. She wore black, cried during access and observed a period of mourning for a man that, in reality, she did not know.
[44] On the other hand, outside of the relationship with Valoris, Ms. T. seems to be (and to have been from July 2013 to date) functioning quite well.
[45] Despite having no access, Ms. T. has continued to gather clothes, toys and things for her son, should he return and she has made connections with her neighbours and community.
[46] The evidence demonstrates that as soon as Mrs. T. moved to Ste-Anne-de-Prescott, she quickly made efforts and successfully integrated into her new community.
[47] Upon moving to Ste-Anne, Ms. T. started to attend the local French Catholic Church, despite being a devout Hare Krishna. She has attended regularly and, more importantly, she quickly assumed ongoing key roles within the Church. It is clear, as well, that she is well appreciated by her neighbours and fellow parishioners.
[48] The Respondent called ten character witnesses, all of which were extremely credible. Despite a natural tendency to want to help Ms. T., I find that all witnesses answered questions candidly. Mr. H. might have known a bit more about the mother’s historical hospitalizations and he might have been confused about the immediate plan following birth but overall he answered questions honestly, as did all witnesses.
[49] Ms. T.’s two closest friends, Mrs. T. and Mr. H., testified in support of Ms. T. Both indicated, amongst others, that they would assist Ms. T. and her child as much as their personal circumstances would allow.
[50] Though Ms. T. did not have support in the community at the time V. was born or at the time of the apprehension, other than Mrs. T. and Mr. H., it did not take her long to integrate into her community through her talent and love of music. She built a strong foundation of people who obviously care about her and who are interested in helping her care for her son, as best they can. Ms. T. neighbours and many of the members of her Church have welcomed her and offered her support for such things as: transportation, snow removal, mowing the lawn, driving her to the grocery, transporting her harp to and from home-Church, inviting her regularly at their farm and including her in family events.
[51] While most know her very superficially, they all have a very favourable impression. None has noticed anything wrong. Those who have been to her house described it as satisfactory. All saw her as an extremely intelligent and socially outgoing person. She was described as calm and always willing to help, a happy go lucky person. They explained that she plays the organ, the harp and sings at Church, and is involved in the Church choir. They all described a person wholeheartedly involved in her Church, Church Committee and Church activities.
[52] Mr. B. described her as always pleasant, good with people, soft spoken and easy going.
[53] Some, including Ms. C. and Mr. and Mrs. L., indicated a willingness to assist as best they could with her son, including with baby-sitting and the like. Mr. and Mrs. L. indicated that Ms. T. is a positive example for their handicapped grandson. Both were highly impressed with Ms. T.’s level of self-reliance and both struck me as solid members of their community.
[54] Ms. T.’s homecare worker and her contact at Maison Interlude, both testified that they had not experienced any difficulty or safety concerns in dealing with Ms. T. They each confirmed that additional services could be available to Ms. T if she is ever granted charge of V.
[55] The evidence of Ms. T.’s neighbours and parishioners establishes that after about 2.5 years of limited interactions, they all perceive Ms. T. positively. There is no evidence that she has threatened anyone, said anything inappropriate or acted inappropriately in her private life post 2012, other than with Valoris. Not one observed any mental health issue with Ms. T. Most testified about an intelligent, intellectually inclined, artistic and self-reliant woman. None observed physical limitations that could pose a real risk of physical harm to her child. They were all impressed with how she coped with her handicap and ongoing physical limitations. Members of the Church committee described her as easy going and none made any reference to a lack of cooperation. She was described as willing to help and to get involved.
[56] My impression of these witnesses is most favourable.
[57] What I have heard of Ms. T.’s community is that it is a mutually supportive environment where people often help and support one another without anyone having to ask. However, there is no doubt that most were not fully aware of her past issues and all had extremely limited opportunity to observe her interact with children.
[58] Consequently, their evidence has little weight in relation to assessing Ms. T.’s parenting abilities, as few had seen her interact with children and whatever observations were made from the Church choir or in a family setting were rather limited and of a superficial nature.
[59] Five experts testified.
[60] Dr. David McLean, a forensic psychiatrist well known in this region, indicated that C.A.T. showed evidence of delusional thoughts that were currently minimal. He indicated that her condition is confusing because of the history of borderline personality. He opined that there does not appear to be any current expanding of her delusional thoughts, that she appeared more stable with no major depression or suicidal thought. He suggested possible diagnosis to be considered to include bipolar disorder, paranoid schizophrenia and acute psychoses triggered by drug abuse and underlying borderline and paranoid personality traits but he did not make any diagnosis. He did not conduct any assessment of her parenting abilities and referred her to Dr. Labelle for his opinion on a possible diagnosis.
[61] Dr. Alain Labelle is a psychiatrist at the Royal Ottawa, specializing in schizophrenia. His opinion was limited to a possible diagnosis and he did not opine on parenting issues. Following his assessment, Dr. Labelle arrived at a diagnosis of psychosis not otherwise specified.
[62] Dr. Labelle explained that Ms. T. reached the criteria of delusion for a diagnosis of schizophrenia (because of some grandiose descriptions), but she did not reach all other set criteria for a diagnosis of schizophrenia. He could not give an opinion about future risk of psychotic episodes as he explained that there are too many possible diagnostics, such that one cannot assess the probabilities of what might happen in the future. Despite issues of delusion, he indicated that this does not mean that she is a danger. In cross-examination, Dr. Labelle indicated that he did not have any evidence that she presented a danger to anyone nor that she could not care for herself (at the time of his assessment). He also indicated that her tangential thinking would not necessarily impact her day-to-day life.
[63] A clinical psychologist with expertise in child custody and child protection cases, Abe Worenklein conducted an evaluation of the mother and observed her and the child, pursuant to an order to this Court. He was qualified to opine on Mrs. T.’s parenting abilities.
[64] He recognized that Ms. T. attended at every access visit, regularly showed concerns over V.’s health and is no longer having seizures. He also recognized that she made significant changes in her life for her son, whom she obviously loves very much.
[65] However, he also expressed many concerns. Dr. Worenklein explained that the mother’s lack of insight and lack of reality testing showed a lack of judgment and an inability to prioritize the child’s needs. In his opinion, this could have serious effect on the child. He explained that Mrs. T. did not have a realistic focus on the child’s needs and, as a result, she would probably not be able meet the needs of the child in a consistent manner.
[66] Dr. Carswell completed a neuropsychological assessment of the mother to evaluate her current cognitive functioning. Dr. Carswell noted mild anxiety and depressive symptoms. Test results presented within normal to high average and superior range of cognitive functioning. Dr. Carswell found no impairment in cognitive skills that could impact C.A.T.’s normal life. She noted no evidence of cognitive limitations that could interfere with employment or managing child related responsibilities. She stated that, despite other things going on, her cognition is normal.
[67] Dr. Briscoe, a neurologist, examined the mother in December 2015 to assess any ongoing effect of her neurological condition.
[68] Dr. Briscoe noted ongoing evidence of her past right sided brain lesion, including: reduced cold sensation in her left face, spasticity in her left arm, weakness in the finger extension on the left hand, weakness of grip strength of the left hand, spasticity in her left leg and mild weakness in the left foot. She also noted reduced sensitivity on her left arm and leg, while her gait assessment showed issues with gait, with the left foot turning in while walking. Dr. Briscoe explained that there is no available treatment. She offered Mrs. T medication to reduce pain, cramping or stiffness; though she agreed that the medication could cause mild sedation. Mrs. T. declined the medication.
[69] In December 2013, the mother was provided with a letter by the Society requesting information from a neurologist. In answer thereto, Dr. Briscoe explained that the risk of a re-rupture is very low. She stated that, using adaptive strategies, Mrs. T. is independent for activities of daily living and employment and indicated that her neurologic issues should not affect her parenting skills.
[70] Dr. Briscoe noted that Ms. T. had suffered complex partial seizures following her AVM rupture. Dr. Briscoe believed that many medical persons would usually be able to recognize a complex partial seizure if they were able to witness a seizure during the event. She indicated that after a seizure, a patient might be a bit psychotic or have a change in mood or cognitive state. She explained that if a patient had a seizure and following that had a psychosis, a psychiatrist seeing the patient right after the seizure might not attribute the observations to a recent seizure.
[71] Ms. T. argues that this is how she may have been misdiagnosed in the past. She argues that she was misdirected to psychiatric treatment and that it may very well be that she presented psychotic symptoms following a seizure, which may have been misidentified as a psychiatric condition. She argues that this could explain why there have been no issues with her mental health requiring any form of medical intervention since her move to Ste-Anne, as she has apparently been able to remain seizure free since her move.
[72] As indicated at the outset, this is a complicated situation. According to her friends and neighbours, Ms. T. functions normally outside of her interactions with Valoris. She has been able to make full use of governmental programs and services. She is an ODSP recipient and benefits from required services of a homecare worker and Maison Interlude. Since December 2015, she works on a full time basis in Hawkesbury for a collection agency. Furthermore, she completed the Triple P parenting course in December 2015 and despite physical limitations, she recently obtained her driver’s license and drives to and from work.
[73] On the other hand, based on the expert evidence presented at trial by Drs. McLean and Labelle, Ms. T. suffers from some form of psychiatric condition, not yet clearly diagnosed and has a complicated medical history.
[74] A parent suffering or not from a psychiatric condition is however in no way determinative of the issue before this Court. Rather, whether a child is in need of protection is answered following a very careful assessment of the evidence, remembering that the onus is on the Society to prove, on a balance of probabilities, a risk of harm.
[75] I agree with the Respondent that, in relation to the mother’s drug use, there is no evidence that she uses drugs of any kind or, more importantly, that it poses a risk of harm. The mother has previously been prescribed and has taken medication. The Society suggests that because one of those medications prescribed to her was marijuana, the Court ought to be concerned about the mother’s lifestyle. This argument fails to recognize that her use of marijuana was legal and monitored by physicians. Further, I accept that the mother has probably not consumed marijuana in close to three years and that she has no plans to use marijuana in the future. I agree that there is no reason to believe that drug use was an issue at the time of the apprehension or that it has become one since.
[76] In relation to Ms. T.’s ties to the mafia or criminal affiliations, the mother has lived in St-Anne-de-Prescott since July 2013. I agree that during that time, there have been no indicators that the mother has any ties to the mafia or any other persons that may be involved in criminality. The mother has acknowledged that any contact she may have had in the past with Vito Rizzuto, was limited to a single phone call, for which she had no way of verifying the true identity of the person on the phone. There is no reason to believe that the mother has any current ties to the mafia or that any previous ties would have any impact on V or pose any risk of harm to V.
[77] The mother suffers from severe chronic pain and important physical restrictions. However, the experts agree that she is independent with adaptive strategy. Dr. Worenklein was similarly not overly concerned with her physical restriction. Her friends and neighbours confirmed the above. On a balance of probabilities this does not pose a risk of harm to the child, particularly not at this time considering the age of the child.
[78] With respect to Ms. T.’s parenting abilities, I accept that she was and is a new mother with limited parenting experience and that she was limited to three supervised access visits per week with parenting skills largely based on theoretical reading from books and the internet. As such, to a certain extent, some of the comments made by Valoris’ employees concerning her parenting skills must be tempered. However, and as indicated above, when this evidence is considered together and when we factor that most occurred during supervised access visits, it becomes a cause for concern. Indeed, this evidence considered as a whole generally describes a parent who lacks the ability to control her feelings and impulses, lacks insight and the ability to anticipate consequences and who lacks the ability to prioritize the needs of the child ahead of her interests and her needs. Moreover, it reveals a parent who, despite explanations, warning and admonitions, shows little improvement and a lack of ability to cooperate with persons in authority with whom she disagrees.
[79] For example, despite warnings, the mother often failed to adequately supervise the child in circumstances where he could have been injured, including some near misses. She is regularly observed talking to him about inappropriate topics and age inappropriate topics. On multiple occasions, the mother is observed not letting her son sleep, when he appeared tired to Valoris’ employees and waking him up when he fell asleep. She is also frequently observed insisting on whatever she considers more important to her rather than dealing with what is important to the child. For example: discussing topics important to her but inappropriate with a child, insisting on feeding when the child showed no interest and failing to adequately console the child when that was not convenient to her.
[80] The above concerns about her parenting abilities are not attenuated by the comments of Drs. McLean, Labelle and Worenklein. Dr. McLean noted evidence of delusional thoughts (although stable) and signs of borderline personality and schizophrenia. Dr. Labelle noted grandiose abilities and delusions but not all criteria for a diagnosis of schizophrenia, such that at the time his diagnosis was of psychosis not otherwise defined. Dr. Worenklein was generally concerned with the mother’s ability to meet the child’s needs. He questioned the mother’s ability to make appropriate judgment calls relating to the safety and care of her son. He saw a lack of insight into the child’s needs and feared for V.’s health. He saw a risk of harm in the mother’s lack of self-control and insight. What appears to me to have been his primary concern relates to his observations and opinion about the mother’s lack of ability to prioritize the child’s needs. He opined that the mother’s lack of insight into her shortcomings would result in an inappropriate environment for the child where his needs would not be sufficiently met.
[81] These concerns are only very slightly tempered by the evidence of the friends and neighbours, as they had limited opportunities to observe the mother’s parenting skills and by the experts called by the mother as none was qualified to opine on her parenting abilities.
[82] Similarly, the fact that she has no cognitive limitations or that from a neurological perspective she is stable, does not address the concerns outlined above.
[83] Moreover, although I agree with some of the Respondent’s critique of Dr. Worenklein (that some of his findings are contradicted by the evidence of the Respondent’s engagement with her Church and community, along with the emphasis he appears to have placed on historical hospital records when only very few such records were admitted at trial), I am nonetheless accepting of his findings that a lack of insight into the child’s needs demonstrates that the mother will probably not be able to meet the needs of the child in a sufficiently consistent manner. Although I recognize that the mother has made many changes to her life in anticipation of her son (moved and prepared a home for him as well as a number of lifestyle changes), her interactions with her son during access are an ongoing cause for concern. As indicated, I am concerned with observations relating to the mother’s lack of ability to control her feelings and impulses during supervised access, during her interactions with Valoris and with her lack of ability to anticipate possible consequences. Finally, as observed by Dr. Worenklein, I am also concerned with the mother’s apparent lack of insight into the above and with her lack of demonstrated efforts to improve her shortcomings.
[84] Considering all of the above, I find, on a balance of probabilities, that the Society has persuasively demonstrated that the mother is not sufficiently able to meet the needs of the child such that there is a real risk that the child is likely to suffer physical harm resulting from the mother’s failure to adequately care for, provide for, supervise and protect the child. I therefore make a finding under paragraphs 37 (2) (b) (i) and (ii) of the Act that the child, V.T., is in need of protection.
Disposition
[85] The Court’s disposition options are set out in subsection 57 (1) of the Act. This subsection reads as follows:
Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:
That the child be placed in the care and custody of a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months.
That the child be made a ward of the Society and be placed in its care and custody for a specified period not exceeding twelve months.
That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the Society.
That the child be made a ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.
[86] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:
Determine whether the disposition that is in the child’s best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms or supervision are in the child’s best interests and include them in the order. If not, determine whether the disposition that is in the child’s best interests is Society wardship or Crown wardship.
If a Society wardship order would be in the child’s best interests, but the maximum time for Society wardship under section 70(1) has expired, determine whether an extension under section 70 (4) is available and is in the child’s best interests. If so, extend the time and make a Society wardship order. If not, make an order for Crown wardship.
If a Society wardship order is made determine whether an access order is in the child’s best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child’s best interests.
[87] In determining the appropriate disposition, the Court must decide what order is in the child’s best interests. The Court has considered the criteria set out in subsection 37 (3) of the Act in making this determination. This subsection reads as follows:
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 by blood or through an adoption order.
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.
[88] A Crown wardship order is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J) (1997) 23 R.F.L. (4th) 79 (SCJ- Family Branch).
[89] In determining the best interests of the child, the Court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child’s perspective. See: Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).
[90] The witnesses consistently described the child as happy, friendly and healthy. He will be three years old this summer.
[91] The Society’s plan is to place the child for adoption.
[92] The Society’s employees, including the adoption worker, testified that the child is highly adoptable and provided sufficient evidence to support that claim along with supporting the sufficiency of efforts made by the Society to find a suitable kin placement for the child. In fact, the child has been with his potential adoptive family since December 12, 2014. The Society asks that the Court not make an access order in order thereby facilitating the child’s ability to be adopted. The adoption worker testified that they might otherwise have to find a new family and that this could be difficult as they worry that cooperation with the mother during access would create problems.
[93] The mother’s plan is to care for the child on her own with some assistance from her friends and various governmental programs.
[94] No community or family plans were presented to the Society or the Court. I am satisfied that the Society made reasonable efforts in this regard.
[95] The theory of the mother’s case is that she is functioning and the child ought to be returned to her care as she alleges that the applicable criteria weigh heavily in her favour. She points to the efforts she made to look after the child even while he was in the care of the Society and to the significant changes she made to her lifestyle to be in a better position to raise her child.
[96] The Court finds that it is not in the child’s best interests to be placed in the care of the mother for the reasons that will be set out below.
[97] The protection concerns, outlined above, existed at the time of the intervention and were ongoing at the time of trial. They remain a concern. Indeed, the mother appears to lack any insight into her parenting deficits.
[98] The mother’s testimony also raised a number of contradictions, which the mother did not attempt to rectify. For example, she argued that some of the historical clinical records were not hers and her counsel cross-examined some of the witnesses based on this theory. Yet, she presented almost no evidence on the point other than alleging, through the evidence of Dr. Briscoe, the possibility that she was occasionally misdiagnosed. Her testimony about Mr. Vito Rizzuto is another example of evidence that leaves more questions unanswered. On the other hand, Ms. T. gave long and extremely detailed answers about seemingly unimportant events that happened years ago. One example is the extremely detailed answer she gave relating to her efforts to have the water and hydro reconnected at her newly rented premises, back in July 2013. One had to question how she could remember seemingly unimportant details with such precision and yet be unable to explain an alleged business relation with Mr. Rizzuto.
[99] In addressing the relevant clauses in subsection 37 (3) of the Act, the Court finds that:
(a) The Society’s plan will best meet the child’s physical, mental and emotional needs.
(b) The Society’s plan will best meet the child’s physical, mental and emotional level of development.
(c) The Society’s plan will best meet the child’s needs for continuity and a stable place in a family through adoption.
(d) The risk of placing the child with the mother is real.
(e) The Society’s plan will best address the child’s needs than the plans proposed by the mother.
(f) The child should receive a permanent home as soon as possible considering the unacceptable delays to date in this matter. The mother has not presented a safe and secure long-term plan for the child. It is in the child’s best interests that the child’s placement be in an adoptive home.
[100] With regards to the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, the evidence demonstrates that the mother has difficulty prioritizing V.’s needs. The mother has been able to bring change to her lifestyle and make other changes for her son. Yet, during access visits when she was caring for her son she was quite often too centered on her own needs, which she prioritized over her child’s needs. This was observed during the mother’s visits and was referred to by Dr. Worenklein, as a primary cause of concern. There is quite a difference between being able to live by yourself and meeting the needs of a young child. The evidence during access does not support the mother on this point.
[101] With regards to the child’s physical, mental and emotional level of development, the evidence of Dr. Worenklein is not supportive of the mother. He expressed significant concerns about the mother’s ability to meet the child’s needs and noted that the child would not have an appropriate environment that would prioritize his needs. He felt the mother had a lack of focus on the child’s needs and a lack of insight into areas that need improvement.
[102] With regards to the child’s cultural background, the child’s mother is Anglophone, as are the foster parents with whom he resides. One must note that this is a primarily Francophone community and that the mother testified that if her son was returned to her care, she doesn’t know if she would be sending him to an English or French speaking school.
[103] With regards to the religious faith, if any, in which the child is being raised, the mother is of Hare Krishna. However, the evidence is that despite efforts such a placement is not available. One must note that the mother testified that she might be sending her son to a Catholic school if he is returned to her care. Furthermore, although the mother is of Hare Krishna faith, she is also a practicing Catholic, very involved in the Church, which is of the same religious faith as the foster parents.
[104] With regards to 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 only family the child knows is the foster family where he is currently living since December 2014.
[105] Similarly with regards to 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 only family the child knows at this point is his current foster family and its extended family.
[106] The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity is an important criterion. As indicated above, the child has been living with the same foster family since December 2014 and according to the evidence it is this family who will adopt V., should he become eligible for adoption. Consequently, the child will likely not live through any disruption regarding his placement if he is declared a Crown ward.
[107] With regards to the merits of a plan for the child’s care proposed by the 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 Society’s plan is to have the child adopted by his current foster family. The adoption worker, Mr. Joly, testified that the child is doing well with this family. He testified that the child is developing and bonding well. On the other hand, as outlined above, there are real risks with the plan proposed by the mother, including real risk that the child will suffer harm if he is returned to his mother’s care.
[108] Another factor is that the child has not seen his mother since his last supervised visit in October 2014.
[109] From the evidence, this Court is also aware that the mother never truly cooperated with the Society. All of the Society’s employees indicated that the mother often refused to talk to them or to receive advice. On occasion, she would refer them to her lawyer. In the event the child is returned to her under a supervision order, this Court has grave reservation about the mother’s ability to cooperate with the Society. A supervision order would most likely be unworkable as the mother has consistently shown, through her conduct during supervised access, that she would have serious difficulties abiding by conditions and even more difficulties cooperating with the Society. It is clear that the mother has no confidence in the Society whom she perceives as the enemy.
[110] The mother’s lack of insight into her parental shortcoming would be a constant obstacle to any effective cooperation with the Society in the event of a supervision order.
[111] Considering all of the above and consistent with the child’s best interests, the least disruptive disposition is to make him a Crown ward.
[112] Once a disposition of Crown wardship is made, the Act provides for a presumption against access. The current test for access to Crown wards is set out in subsection 59 (2.1) of the Act, which reads as follows:
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.
[113] The onus to rebut the presumption against access to a Crown ward is on the person seeking access. See: Children’s Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (Ont. C.A.).
[114] The Society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family though either adoption or a custody order.
[115] The issue is not whether the mother or parent views the relationship with the child as beneficial and meaningful. The Court must examine the quality of the relationship from the child’s perspective. See: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850.
[116] The meaning of the phrase “beneficial and meaningful” was examined by Justice Quinn in Children’s Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family) where he said:
(45) What is a “beneficial and meaningful” relationship in clause 59(2) (a)? Using standard dictionary sources, a “beneficial” relationship is one that is “advantageous”. A “meaningful” relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.
(46) I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother of father learns how to be a responsible parent.
(47) Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.
[117] In Frontenac Children’s Aid Society v. C.T. and M.T., 2010 ONSC 3054, the Court indicated that the Court should also consider the potential detriment to the child for not making an access order. Knowing one's roots can be an important part of a child's development. Consequently, if a child can maintain a connection with these roots without jeopardizing the security of a permanent adoptive placement, that is an option that should be considered. See: Children’s Aid Society of Toronto v. M.M. [2012] O.J. No. 3240 (OCJ).
[118] Considering the evidence outlined above, the Court finds that the mother has not met her onus of establishing that her relationship with the child is meaningful and beneficial nor has she met the second prong of the two-part test. Access to the mother would likely impair the child’s future opportunities for adoption.
[119] Indeed, as indicated by Justice Sherr in Children’s Aid Society of Toronto v A.F. and A. K. 2015 ONCJ 678, [2015] O.J., No 6236 at paras. 165 – 169, the case law has recognized that persons who hold certain attributes are more likely to impair a child’s opportunities for adoption, as these attributes might dissuade adoptive applicants from coming forward to adopt the child. Some of these are relevant to the circumstances of this case. Difficulty with impulse control and people who are often confrontational may threaten the physical or emotional security of the adoptive parents and their family. Lack of support for an alternate caregiver of the child might manifest itself in an undermining of the adoptive placement and the child’s sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult, as they are usually unable to accept their reduced role in the child’s life. The mother’s conduct during access and in her dealing with the Society convinces this Court that the above is highly likely.
[120] A final order shall be that the child be made a Crown ward, with no access, for the purpose of adoption.
[121] I am very aware that this decision will be extremely painful for the mother and I regret that. She has had many challenges in her life and is trying to the best of her ability to improve herself. There was never any doubt in my mind that she loves the child very much and wants what is best for him. I sincerely wish her the best, as I do for the child.
Justice Pierre E. Roger Released: June 29, 2016