CITATION: C.A.S. of London and Middlesex v. T.Y., 2017 ONSC 3460

COURT FILE NO.: C605/16-01

DATE: July 13, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

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

BETWEEN:

Children’s Aid Society of London and Middlesex

Randolph Hammond for the Society

Applicant

• and -

T.Y. and J.M.1

David Winninger for T.Y.

Grant Rayner for J.M.1

Respondents

HEARD: May 8-12, 15-19, 2017

VOGELSANG J.

[1] The Children's Aid Society of London and Middlesex seeks a finding that A.D.Y., a young boy born … 2016, is in need of protection and, as well, a dispositive order pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] placing him in the joint custody of his father, J.M.1, and the parents of the latter, J.M.2 and B.M., subject to a short list of conditions. A.D.Y. has been in the temporary care of those three individuals since the order of Mitrow J. on July 8, 2016.

[2] T.Y., A.D.Y.’s mother, is opposed to the order sought. She denies that A.D.Y. is or ever was in need of protection and seeks an order returning her son, who had been apprehended at the hospital following his birth, to her care and custody.

[3] I have concluded that the custody order sought by the Society should issue for reasons which follow.

[4] T.Y. is 32 years of age. She has had a tumultuous life but avoids any real discussion about what would have been an obviously disturbing and chaotic childhood. She blithely described herself as “happy, [I] smiled a lot.” In actual fact, she was involved with the Children's Aid Society of Keewatin, near Kenora, at a young age and was placed in foster care with her younger half-brother who was then abused, she says, by the foster parent. Her own parents had separated when T.Y. was six years of age.

[5] In her ensuing seven years of Society involvement, Ms. T.Y. talked about reading the court documents and assembling – with her lawyer – “[her] side of the story.” After three months in a series of foster homes, where she admitted she was uncooperative, she was apparently placed with her father (himself a former Crown ward), a situation in her words: “instigated by the CAS as temporary.” She stayed there for over five years and then went to her mother in London where she lived until the age of 13 when she entered the home of her maternal grandparents. She lived there until she was 14 or 15 years old. After that, she found herself back with her mother and her fiancé (her “stepfather”) on a farm near Aylmer.

[6] Throughout this period, T.Y. admitted that she had attended “many, many schools,” but would not estimate the number. She was adamant in insisting that two past placements in special classes at school were quite inappropriate and based on both schools being wrong in their assessments of her cognitive ability. She blamed the Children's Aid Society for “getting to [her] father needlessly.” She angrily denied that she had needed the assistance and maintained that she simply “wasn’t learning an awful lot,” stating in cross-examination that her abilities were “all great” and that she now has “no problem with intellectuals.”

[7] When she turned 16, Ms. T.Y. felt she was old enough to “go out on [her] own.” She found a place to live with a young man, M.S., but, in her words, “it didn’t work out” after four months or so. M.S., a schizophrenic, unexpectedly “went off his pills,” became violent and aggressive and made their residence unsafe for T.Y. She went to St. Thomas to stay at the Women’s Shelter for three or four months and attended an alternative high school, taking Grade 11 courses.

[8] After the shelter, she returned to her mother and stepfather near Aylmer and resided with them for about five months. When she had left them before, there had been friction and disagreements about curfew and staying up after homework. Now problems among the family members recurred. As Ms. T.Y. said: “[W]e weren’t getting along, all of us … there were a lot of things.” She returned to the St. Thomas shelter, living there for almost three months, the extent of her allowed maximum time.

[9] Although the chronology offered by T.Y. is marred by inaccuracies and lengthy periods of unexplained time, by around 2004 she was living in an apartment provided by the East Elgin Second Stage Housing for women who had exhausted their eligibility at the shelter. After another short stay, she moved to another apartment in a “regular building.”

[10] Ms. T.Y. admitted that, during her stay at Second Stage Housing, she had been committed on an involuntary basis in a local mental health hospital. This led her to explode when cross-examined about her possible affliction with emotional difficulties. She heaped blame on a Ms. Hyatt, an official at the Second Stage Housing, for her admission and then indulged in a savage attack on the woman for enrolling her under false pretenses in a local secondary school, playing a role as her guardian, assuming a false name at the school and other calumnies. It was an unusual, almost bizarre display in the witness box.

[11] I think the genesis of the outpouring of emotion against Ms. Hyatt arises in another theme repeated in the trial. T.Y. had applied for benefits under the Ontario Disability Support Plan when she was around 19 years old. She admitted that she was turned down initially and then appealed, seeking a review of her claim. She testified that the St. Thomas Ontario Works agency referred her to Regional Support Associates, a group she said: “really wanted to get me on ODSP.” The result was an assessment which indicated a serious verbal learning disability. She was referred by the assessors to Dr. Pramil Tahlan, a psychiatrist, who diagnosed T.Y. as having a developmental disability and found it difficult to formulate a treatment plan given her limitations.

[12] I set this out in some detail because of Ms. T.Y.’s unyielding rejection of the very notion of having been awarded ODSP benefits as a result of any kind of mental health problem, emotional or developmental disability. She instead recounts a quite unusual story that her disability arose at the age of five when a strep infection hospitalized her and a botched spinal tap resulted in her being “paralyzed from the waist down for two weeks.” She says she was told she would find it impossible to perform heavy repetitive work, to lift or sit or stand for long periods, but the only example she could give at trial concerned short periods where she worked in a few fast food outlets and experienced lumbago in her lower spine after long hours of shift work. Her insistence that her benefit payments from ODSP are the result of a permanent spinal injury (and never had anything to do with past serious questions about her mental state and cognitive abilities) is certainly quite inconsistent with her remarkably grandiose statement in cross-examination that she anticipates finding full-time factory work at CAMI Automotive in short order after this trial.

[13] T.Y.’s transient accommodation in St. Thomas continued through two semesters at an adult learning centre, augmented by a six-hour “Learn to Study” course at the St. Thomas affiliate at Fanshawe College. She then moved to Woodstock some time in December, 2006. She was almost 21 years old, living in a large house “filled with apartments” on Dundas Street. She testified about self-improvement initiatives she undertook, like job counselling, volunteering at churches and taking courses at the Fanshawe College affiliate. Her attempts to gain any kind of effective qualification always seemed to fall short. While she received a “food handling certificate” from the Oxford County Board of Health, she vaguely spoke of many other certificates she would have to get even to work in a restaurant as a server.

[14] Ms. T.Y. completed the written portion of a drivers’ education program but never proceeded to the actual vehicle instruction. She testified: “I use the bus and like to walk,” although in cross-examination she first affirmed her choice not to finish the driving course, then said the second portion cost “maybe $200” and that “the lineup was too long to take the test.” She made little sense when she denied that taking A.D.Y. everywhere on public transit would be any detriment to him as she would “be more attentive to being on time.”

[15] As far as her formal education was concerned, Ms. T.Y. had mentioned previous periods of alternative education and special schooling. When in Woodstock, she sought to enroll at “Adult Education” at Blossom Park but the cost prohibited her admission. She opted for correspondence courses to achieve a GED, but again became quite vague about the course of her attempts. She finally answered an advertisement in a popular magazine, paid a deposit and enrolled in correspondence courses offered by Citizen’s High School in Orange County, Florida. She said she paid the tuition instalments of fees from her earnings delivering papers for the Woodstock Sentinel Review. With the tests and re-tests by correspondence, it took her five years to obtain a GED from Florida, which she vigorously defends as “completely credible” and asserts is accepted for higher education in Ontario.

[16] A fire in T.Y.’s building made her apartment uninhabitable and she came back to London and lived for a short period at the Salvation Army Centre of Hope before taking “a type of room” at what she called the “motel” above a tavern at the intersection of Richmond and King Streets downtown. By March 9, 2007, she was back on R[…] Street in Woodstock in a house full of apartments, followed by a stay on Dundas Street.

[17] At that juncture, Ms. T.Y. met and was befriended by W.E. through her volunteer efforts at his church when she was completing the community service activities needed for her Florida high school accreditation. Mr. W.E., over 30 years senior to Ms. T.Y., and his wife R.E., would go to a building on F[…] Street in Woodstock to visit M.R., a friend of Ms. T.Y. who was then seeing a man named E.M., who lived in another unit. Mr. W.E. (and R.E.) befriended T.Y. who described them as very religious and “parents to all.”

[18] As W.E. became important at the point when A.D.Y. was apprehended by the Society, some further explanation about Mr. W.E. and R.E. is necessary. T.Y. testified that R.E. “protested a lot and ran a lot of petitions.” At one point, her manic depression and difficulty with her pills drove her to serious crisis and a CMHA team intervened. R.E. was yelling and very obstructive, causing the police to arrest her. She was, as Ms. T.Y. said, “formed” and placed in hospital, where T.Y. would shop for her and bring her necessaries.

[19] Unfortunately, Ms. T.Y. recounts that, while released from hospital on a weekend pass, R.E. attended at a karaoke bar where she criticized a gay man for acting contrary to Biblical teachings. She was thrown to the ground for her comments and broke her hip. She committed suicide three months later, falling from Mr. W.E.’s fourth floor apartment balcony in Woodstock. The friendship between Mr. W.E. and Ms. T.Y., though, continued and deepened after the tragic loss of R.E., and they gave examples of the assistance each has been able to provide to the other since that time.

[20] The F[…] Street building in Woodstock, which figured so prominently in the evidence, was described by J.M.1, A.D.Y.’s father, in unusual terms. As an individual himself diagnosed with schizophrenia, he said the residences were generally populated through the placement efforts of both the Oxford Housing Authority and the CMHA. He testified that “most (residents) were on ODSP.” When cross-examined, he knew W.E., M.R., and all T.Y.’s other associates and friends. As he said: “[W]hen you’re on disability, you’ve got lots of time … it’s good for socializing, I guess birds of a feather flock together, sort of thing.”

[21] J.M.1 testified that his first sexual relations with T.Y. occurred around 2008 after he met her at M.R.’s apartment at F[…] Street. At the time, she was living on R[…] Street near the Woodstock Collegiate. He was interested in her and, in his words, soon she “warmed up.” He began staying at her apartment. At the time, W.E. lived nearby in a seniors’ apartment building. J.M.1 knew that another friend, J.W., a previous boyfriend of T.Y., was involved in an assault trial with her at the time. According to Mr. J.M.1, his “relationship” of two weeks with T.Y. ended when they argued over her refusal to go to his grandfather’s funeral, after which she “cut off all contact.” Mr. J.M.1 said he left a few messages for her without a response, “just [wanting] to know what’s going on.” In cross-examination, J.M.1 denied harassing Ms. T.Y. with “hundreds of [calls].” He testified, however, that a friend told him T.Y. had called police, prompting him to approach the police himself about the matter. He was told to “just stay away from her.”

[22] In the next year, T.Y. found herself involved with L.B., a man J.M.1 had termed a one-time “best friend” in his evidence. In the evidence, Mr. L.B. was disparaged by a number of other witnesses. W.E. knew that he had “quite a few girlfriends and [was] quite a women’s man.” T.Y. had confided in him that L.B. was “doing bad things and ‘womanizing’.” He, she said, “wanted to lock her away and use her for just one thing … and have as many girlfriends as he wanted.”

[23] T.Y. herself described Mr. L.B. in negative terms. Even before their relationship began, he broke into her house causing her to call the police on numerous occasions to no avail. She testified he drank to excess and fought, “got into lots of trouble and had girlfriends.” Notwithstanding all of that, she took up with Mr. L.B. notwithstanding his proven potential for mental and physical abuse. After they started seeing each other, she said when they argued in public around their friends, he would slap her “around the face and eyes” … he “wanted to blind [her]” and “wanted [her] not to associate or otherwise to look at men.” When cross-examined about her obvious lack of judgment in taking up with L.B. in a relationship, Ms. T.Y. adopted her usual response when faced with unexplainable previous actions on her part or a completely inconsistent prior statement: she flat out denied it (not at all believably).

[24] The brief union between Ms. T.Y. and L.B. lasted from November 2009 until mid-March, 2010. By that time, T.Y. was pregnant with twin girls, who would be born in August, 2010. When she discovered her pregnancy, the Oxford Children’s Aid Society became involved immediately. She was referred to “New Beginnings,” a counselling program for young mothers, where she disclosed L.B.’s abuse. Their brief relationship ended.

[25] The twins, J. and L., were born two months premature and were taken from Woodstock to the neo-natal unit at St. Joseph’s Health Services Centre in London and placed in intensive care. Serious health concerns had to be remedied. The young babies were placed in incubators for a considerable time. The Oxford Children’s Aid Society had real concerns and apprehended the twins. T.Y. was almost incomprehensible in trying to describe her understanding of the reasons for the apprehension, which she said ranged from the fact of her prior Society involvement to a preference displayed by the Society to give L.B. a chance to parent the girls because he was older than she was. In any event, it was decided that L.B. would become the caregiver of the twins and he moved in with his father near Woodstock to do so.

[26] Unfortunately, none of the parties thought it might be helpful to provide me with a copy of the eventual order made in the Ontario Court in Woodstock, but it seems to be common ground that Mr. L.B. was granted custody of the twins and Ms. T.Y.’s access was to take place at her mother’s residence, supervised by her stepfather, every Sunday for five hours. That access was apparently directed to be ultimately within the sole discretion of Mr. L.B., although I am baffled by the novelty of such a condition. Ms. T.Y. now complains bitterly about the procedure involved in coming to the final order, although her objections are hard to understand. She was represented by counsel but says she was silenced at court and not allowed to speak, with all the talking left to the lawyers. Although she was insistent that a trial took place, the circumstances satisfy me that, in all probability, what she was involved in was a conference, part of the case management function of the court. When she testified that she was “asked to sign a lot of things,” that is again consistent with her recollection that she actually consented in writing to the access order made.

[27] Access between T.Y. and her two young twin girls faltered. She has not seen them for six years. Although she says she yearns to see them and plans to institute a new application to achieve that, I have real doubts about both the extent of her ability to do so and her motivation, based on her past conduct and her explanation of events.

[28] In T.Y.’s quite confusing account, her Sunday access proceeded as ordered but ended when she was asked to go to the Merrymount Children’s Centre in Woodstock – an option she says was extended to her by the court if “things didn’t work out with her mother and stepfather.” Ms. T.Y. testified that her mother and stepfather, in fact, “wanted to have more access and to do other things with [her] daughters and not have [her] around.” They pointed her to Merrymount for access and T.Y. went there for about two months, then she says she contracted “three bouts of pneumonia” and could not attend for about six weeks. When ready to resume, she testified, L.B. had offered her mother and stepfather even more access if T.Y. was not around anymore. He would not bring the twins to Merrymount again. She stopped seeing her children.

[29] Not surprisingly, Ms. T.Y. assumes no blame for the failure of access or her lack of pursuit of a different result for six years. Without a real explanation, she testified she had “used all [her] certificate [Legal Aid] time and had to wait.” Then she said her plan was “to move to a better place in London, then pursue access.” Her next statement in cross-examination was incomprehensible, to the effect that – should she go back to court – J. and L. would be somehow removed from L.B. and “put into a foster home.”

[30] Although A.D.Y., the subject of this trial, was over five years from birth, T.Y. did herself an immense disservice and influenced the future actions of the Children’s Aid Society by beginning to assert that she had, in fact, delivered two previous twin girls – also named J. and L. – born in 2009 at the Woodstock General Hospital. She announced that the father of these girls was T.R., a member of her group of friends and, in fact, her boyfriend for a few weeks after her first short period of relations with J.M.1 Her story continued that the father of the children had taken over their caregiving after their premature birth but that they had died in his care at about eleven months of age because of an insufficient blood supply. Needless to say, the Public Health authorities and local Children’s Aid Society were excited and concerned by these revelations, especially when no Society, hospital or other health records could be found which corroborated any of her statements. Accordingly, when A.D.Y. was eventually born and T.Y. promptly repeated her story, the Society representatives were very worried and took action.

[31] In June, 2011, Ms. T.Y. found herself living at F[…] Street. She testified she had been steadily lied to by “the housing lady,” the administrator of the Oxford Authority, during her six years on the “housing list.” Even though she protested that she preferred not to go to F[…] Street because of her prior unhappy relations with J.M.1, inevitably she was placed in a unit near his.

[32] After T.Y. arrived at F[…] Street, she testified she found contact with J.M.1 “unavoidable,” although she had “tried to stay [her] distance.” She said things changed over time when J.M.1 tried to be more involved with her friends to be part of her life. She complained that she felt “pressured.” J.M.1 had a girlfriend in Scotland or England but she described how he would come out on his balcony when W.E. was visiting her and offer them wine. She said she recalled slamming her door in his face when he knocked on it bearing a “big box of wine.” She testified she sent him on his way, exclaiming: “[w]hat are you thinking?”

[33] Nonetheless, T.Y. said J.M.1 would still come around when W.E. was there. Mr. J.M.1 would have seen her walk back to F[…] Street when her papers were delivered. He would show up and do things like ask to borrow a cup of sugar, and W.E. urged her to be a good neighbor. T.Y. said she found she was pregnant around the summer of 2015.

[34] The evidence of T.Y. at trial as it concerned the circumstances of her reunion with J.M.1 and their conception of A.D.Y. was remarkably sparing, as the time period it encompassed must have been almost four years. By contrast, J.M.1 was much more forthcoming and precise in his version.

[35] Mr. J.M.1 testified that when T.Y. moved into his building at F[…] Street, he knew that she had been the girlfriend of T.R. and had had two children with his friend, L.B. T.Y. had also told J.M.1 her story about the previous twins who had supposedly died in the care of their father, Mr. T.R. J.M.1 insisted that initially he tried to stay away from Ms. Y and ignored her. After a year or so, he would see her with her friends nearby and conversations inevitably sprang up. He described T.Y. as “warming back up”; however, he had other girlfriends and demurred. Mr. J.M.1 testified that T.Y. pressed him, saying “we should both get a VD check and go out,” but he knew she was involved in the custody proceeding with L.B. and pleaded that he “loved Elaine (another girl).” He had no communication with Ms. Y for another year.

[36] Sometime in 2015, Mr. J.M.1 testified that casual communication in the F[…] Street hallways led to a renewal of his friendship with T.Y. and their commencing visits to their respective apartments over a period of six months to a year. While Ms. Y said very little in her evidence about the resumption of their sexual relationship, Mr. J.M.1 was quite explicit, describing T.Y. as the aggressor who “launched herself at [him].” He said he fended her off at first, being embarrassed about it because he had been “really good friends” with L.B., and Mr. J.M.1 still had a girlfriend living in England. While J.M.1 was cross-examined about the likelihood of his being unable to hold off the diminutive T.Y.. Y., he conceded that eventually he “let her in” and their sexual relationship began again in about May of 2015.

[37] By the fall of 2015, T.Y. was pregnant. Her evidence about immediately agreeing with J.M.1 that their child would have the first name of A. was incredible and unreliable. She insisted that a firm agreement had been made and explained how the choice had been made. Later, in cross-examination, she was presented with Exhibit 11, a newspaper impending birth notice of January 28, 2016 where the boy was to be called “Avatar,” a completely different name. Ms. Y was not able to explain her previous evidence. While she had testified that she was certain an agreement had been reached, she now tried to say that it was “not cast in stone, exactly.”

[38] Only two months after the pregnancy was confirmed, T.Y. and J.M.1 parted ways. The subject of their living together had been broached but Mr. J.M.1 was against the idea. He denied he had to marry her and, she said, called her bad names and stamped his feet. She called W.E. to come and get her and ended her relationship with Mr. J.M.1

[39] Although it was very difficult to understand Ms. T.Y.’s testimony, apparently she contacted the police and gave a “three hour police statement” about events which she said took place one week before their relationship ended. She testified Mr. J.M.1 had picked her up by the legs and threw her face first against a wall, then tried to drag her to the door and a hallway. She alleged he “put [her]” on the couch and bit [her] three times as [she] tried to escape.”

[40] J.M.1 absolutely denied all these assault allegations. He admits that the police came to his work and questioned him about domestic assault but was adamant that he was never charged with that offence. Although, again, none of the parties obtained any court document or occurrence report which would have clarified the incident, I am not satisfied that such assault charge was ever laid against Mr. J.M.1 I do not believe Ms. T.Y. and her stated recollection and W.E.’s evidence about this event is spotty, strained and worthless. He was simply trying to assist T.Y. and was obvious in doing so.

[41] What did bring J.M.1 into conflict with the authorities was his conduct after the separation from Ms. T.Y. While he denies her assertion that he was “knocking [at her door] and calling all the time,” Mr. J.M.1 admitted leaving a gift of blueberries and some kind of organic oil hanging on her door knob – supposedly the natural oil was thought to assist in a healthy pregnancy – and also conceded that the police did call him and “warned [him] off.” Nonetheless, he persisted and said he “thought” he sent some messages to her Facebook address asking her what she wanted him to do about the pregnancy. In the end, he received a summons to appear in the Ontario Court to show cause why he should not enter into a recognizance to keep the peace pursuant to s. 810 of the Criminal Code. In his rather unusual manner of slightly disengaged speech, he related a story about being kept up to all hours by a new girlfriend at the time, sleeping in and missing his court date.

[42] After he did not initially appear at the hearing, the police attended that day at Mr. J.M.1’s work and took him to court where he voluntarily entered into a bond with a condition that he have no contact or communication with Ms. T.Y. While he complains about his criminal counsel having successfully applied to be removed from the record and leaving court when he failed to appear, I was puzzled about what he thought the lawyer should have done. That bond expired May 5, 2017.

THE APPREHENSION

[43] Deb Abdalla, a social worker employed by the applicant Society, apprehended A.D.Y. three days after his birth at the London Health Sciences Centre, birth alerts having been sent to all area hospitals after T.Y. refused services offered to her by the Oxford Society. Ms. Abdalla’s May 2, 2017 affidavit was marked as Exhibit 1 at the trial. I should note that Mr. Winninger raised objection to ten paragraphs of a hearsay nature contained in the affidavit and I subsequently made rulings finding the paragraphs admissible for the purpose of showing only that the statements were made and formed the basis for subsequent Society investigation and action. With respect to other paragraphs, it transpired that simply the fact that the statement was made, true or not, had some significant relevance and was admissible on that basis.

[44] The social worker was presented with unusual circumstances at the hospital where Ms. Y had delivered. W.E. and E.P. were attending on T.Y., Mr. E.P. presenting himself as her roommate. Ms. Abdalla was concerned when Mr. E.P. told her that he was being watched by people on the internet and disliked his privacy being violated. He also related details of his long-standing history of psychiatric problems and unhappy involvement with professionals. He announced that he was schizophrenic and had stopped taking his prescribed medication.

[45] W.E. contributed his part to the Society worker’s unease about the new baby, A.D.Y., and Ms. T.Y.’s circumstances. Ms. Abdalla questioned her about her previous assessment and negative psychiatric evaluation. He defended her by trying to cast doubt on the Society’s past reports and the integrity of the medical profession, the latter comment being related to Ms. T.Y.’s remarkable repetition to Ms. Abdalla about the twins she allegedly bore in 2009. Throughout the series of meetings the worker had with T.Y. and her associates, Ms. T.Y. staunchly maintained her position in the face of all the contrary Society information. She even announced that the births had occurred at St. Joseph’s Hospital where the interviews were being conducted. Obviously, Ms. T.Y.’s stubborn insistence about the unconfirmable twins and Mr. W.E.’s dismissal of the Society’s background reports and information were of concern to Ms. Abdalla, especially when he upset Ms. T.Y. by venturing the view that the “CAS are baby snatchers and give babies to wealthy families.”

[46] In separate interviews with E.P., Ms. Abdalla became increasingly concerned about his stability since she understood from T.Y. that he would be undertaking some co-parenting of A.D.Y. in their apartment, something T.Y. denied saying at trial when she was cross-examined on the point. Of course, Ms. Y also insisted that she never made any of the statements attributed to her about the mysterious now deceased twins born in 2009 although the Society, local health authorities, Mr. J.M.1, Ms. Abdalla and many others had heard her story.

[47] In addition, the worker had confronted both W.E. and T.Y. about an anonymous report to the Children's Aid Society that Ms. Y worked as a prostitute and that Mr. W.E. acted as her pimp. While they vigorously denied that allegation and were firm about their relationship only as friends, Ms. Abdalla was later surprised in an interview with E.P. at the apartment he had leased with Ms. Y when he suddenly volunteered that Ms. Y was prostituting herself and that it was he who had called the Oxford Children's Aid Society to report that fact. In the admixture of Ms. T.Y., W.E. and Mr. E.P. and the urgent issue at that time of what was to happen to baby A.D.Y., it was astonishing to me that Mr. E.P. would have made that statement, or would have continued, as he did, to tell Ms. Abdalla that T.Y. had no empathy for others and was a chronic liar. The fact that he did is quite relevant to a consideration of the potential stability of T.Y.’s accommodation for A.D.Y. immediately following his birth.

[48] Ms. Abdalla discussed her concerns in her interviews with T.Y. and the other participants. In those talks, Ms. T.Y. was defensive and argumentative while Mr. W.E. made a number of strange comments minimizing the Society’s investigation and motives while criticizing medical practitioners who had previously dealt with T.Y.. To his credit, however, Mr. W.E. was able to convince Ms. T.Y. to sign the consents proffered by the worker for release of the Oxford Society records. Ms. Abdalla denied, in cross-examination, that she had been oppressive, pushy, loud or scary in her dealings with T.Y. and W.E. as they both maintained.

[49] The society worker summarized her serious protection concerns surrounding A.D.Y. after her investigation. She was troubled by T.Y.’s state of mental health, in part because of the frequent talk of the 2009 twins about whom no record existed, the confusion about Dr. Tahlan’s psychiatric evaluation and the preceding assessment of a cognitive developmental issue. Ms. Abdalla’s request for a new psychiatric report, which the CMHA would be able to assist in arranging through Ms. Y’s family doctor, was not acceptable to T.Y. even though she was told it might assist her in getting her baby back. Even W.E. urged her to agree.

[50] Ms. Abdalla was quite concerned, as well, by her conversations with E.P., a self-described schizophrenic who had stopped taking his prescribed medication and was not undertaking any counselling, because he was a tenant with T.Y. and a possible co-parent to A.D.Y. Lastly, T.Y. seemed unable to understand the information provided by Ms. Abdalla or to explain her past involvement with psychological evaluations and assessments, leading the intake worker to recognize the necessity of some fresh examination of her mental state and capacity to act as a parent of an infant.

[51] A.D.Y. was apprehended at the hospital three days after his birth and the Society file was transferred to Cherilyn Meunier, a protection worker, shortly thereafter.

T.Y.’S NEXT CIRCUMSTANCES

[52] Ms. Meunier’s affidavit sworn May 5, 2017 was marked as Exhibit 2 and she was cross-examined at some length. From her evidence and that of Ms. Abdalla, the Children's Aid Society had a plan to seek a s. 54 assessment of T.Y. and to introduce her to programs – including extensive observed teaching access with A.D.Y. – which might perhaps allay its concerns about her abilities to care for the child in the future. The Society wanted T.Y. to demonstrate a real understanding and ability to consolidate the information and assistance imparted to her but also to identify significant support available to her as a single mother caring for a very young baby boy. As Ms. Meunier said in Exhibit 2, para. 35:

My involvement since that time [the file transfer] has primarily been with respect to assessing T.Y. and assisting her to try and have [A.D.Y.] placed with her: if that could be safely done.

[53] Any claimed stability in the circumstances of T.Y. was proved illusory by an altercation between her and E.P. only a few days after the baby was apprehended. She had taken up with him in late 2015 after discovering her pregnancy with A.D.Y. Again she complained in cross-examination about being continually lied to by “the Housing” in Oxford County, where she said she was told her single status prevented her from being given a one bedroom apartment. As a result, she was forced to investigate an apartment in London. From the evidence, the only reasonable inference I can make is that she then had to enlist the participation of E.P. to help in the new venture, where any real reflection about her background with him should have warned her away.

[54] Ms. T.Y. testified that she had “hooked up” (her words) with E.P. around 2010 when she and a friend, E.M., met him in a basement dwelling, after her dissociation from J.M.1 following that couple’s first entanglement. In 2012, when the downstairs tenant was to return – T.Y. was assisting E.P. in looking after the apartment and the dog – a dispute occurred when Mr. E.P. suddenly demanded money from T.Y. for his services. She refused and reached for the dog’s leash, but E.P. hit her with an “open fist,” breaking her nose in two places. Although her nose was displaced, she says she sought no medical attention but did complain to the police who would not intervene on her behalf with a charge. She resolved to have nothing to do with E.P. and had very little contact with him for a number of years. In her words, she “did her best to steer clear.”

[55] About six weeks before A.D.Y. was to be born, T.Y., unfortunately had teamed up with E.P. to rent the apartment she had found in London. He had gone off his medication, which T.Y. said she actually thought beneficial at the time because he was “more calm, relaxed and not groggy.” Obviously, she was closely questioned in cross-examination about her unhappy choice of a co-tenant when her baby was on the way, when she had had such a negative history with him. She pointed out that Mr. E.P. had found a job and had “started being friendly.” She testified that her friend W.E. had influenced her by encouraging her again associating with E.P. She said Mr. W.E. kept telling her that E.P. was “really sorry,” that he was “a good man and being good,” and that he was “constantly apologizing.”

[56] Later in cross-examination, T.Y. promptly contradicted herself by saying that she thought E.P. was “okay when [they] took the apartment when he was on meds,” having already said that she knew he had, in fact, stopped taking them.

[57] For his part, W.E. denied that he ever encouraged Mr. E.P. to move in with T.Y., although during the long period when she ignored E.P., he admitted he would tell her he was “not a bad guy,” that she should “give him another chance” and that she should at least be friendly to him. He could not remember when the two of them left F[…] Street to go to London. He said he was unaware of their plan. He said “[t]hey left very quickly.”

[58] While W.E. and E.P. had surrounded T.Y. at the hospital when A.D.Y. was born, and Mr. E.P. was taking pictures of the group, it was not long at all before things soured. About four days after the baby was apprehended by the Society and T.Y. went home, she found E.P. smoking in the living room, a violation of the arrangement she said they had made. She upbraided him because the public health nurse was due to arrive. They argued. E.P. maintained he could do whatever he wanted. T.Y. persisted and Mr. E.P. “‘openhandedly’ [sic] slapped [her Caesarean] incision several times.” She remonstrated with him, then took his ashtray and threw it out on the balcony. Mr. E.P. took hold of her, threw her to the couch and began kicking T.Y. at her incision site. He then grabbed her hair and hit her with his fist in the back of the head. She fell but stood up and E.P. hit her “in the face a few times with both fists.” Suffering cut top and bottom lips and a swollen and bleeding face, T.Y. said she asked to go to the hospital because she had fresh stitches inside her body and had been warned to be careful, but Mr. E.P. continued to sit on the couch and smoke cigarettes. Ms. T.Y. called 911. Mr. E.P. was arrested, charged with assault and eventually convicted and sentenced.

[59] T.Y. told Ms. Abdalla about the assault and said she was making arrangements with Mr. E.P.’s family to recover his furniture and things from the apartment but they are still stored there today. She complained to the worker that E.P. had been “obsessed [with her] and controlling [towards her].”

[60] Ms. Meunier recognized that T.Y. had a longstanding unfortunate inclination to align herself with physically and emotionally abusive men. She was pleased when told that Ms. T.Y. had been attending the London Abused Women’s Centre and receiving counselling from a time about one month after the assault by E.P. Although T.Y. insisted that the counselling was of benefit to her, she revealed some seven months later that W.E., to whom she looks as her primary support, also emotionally abuses her. Naturally, the worker was quite concerned about this revelation because she believed Ms. T.Y. definitely would need real and useful supports from others were she to undertake the care of A.D.Y., although she recognized from all her time with T.Y. that the latter might not agree, given her insistent perception of herself as completely capable and knowledgeable about child-rearing and parenting.

[61] In any event, T.Y.’s complaints directed at W.E. involved a fight early in February, about three months before the trial commenced. A discussion over an article each of T.Y. and W.E. had read led to him becoming very angry with her and berating her in mean and demeaning terms. She said this was part of a pattern of his behaviour in the past. She attributed some of W.E.’s behaviour to the influence of a friend of W.E.’s who appeared misogynistic. T.Y. described W.E.’s controlling behaviour and his jealously discouraging her from having other friends or speaking to others on the phone, which made her feel secluded, alone and torn about her feelings about him as she had “no one other than W.E. to talk to.”

[62] When Ms. Meunier was cross-examined about her observations and concerns regarding T.Y.’s complaints of emotional abuse by W.E., she was more expansive in her replies, as she had received a later request to consider Mr. W.E. as a supervisor of Ms. T.Y.’s access with A.D.Y., which she adamantly opposed. She had seen herself W.E.’s controlling nature and his assumption of a dominant role respecting Ms. Y who would look to him before answering questions in interview, after which Mr. W.E. would take over the answer. The social worker saw Ms. T.Y. as “much more closed” in interview when Mr. W.E. was present. She was concerned about him as the only real appropriate support identified by Ms. T.Y. because he was very opinionated and expressed very strong negative views concerning Children's Aid Societies, in addition to appearing neither open to hearing about the Society’s concerns nor able to listen to what the Society saw as remedial action.

[63] Mr. Winninger cross-examined Ms. Meunier at some length about T.Y.’s self-reported upset with the periodic unhappy influence of Jeff (W.E.’s friend) and his role in frequently causing breakups in the relationship between Mr. W.E. and Ms. T.Y. (after which they would inevitably reunite and spend a great deal of time together). She was firm in her view that Mr. W.E.’s treatment of T.Y. was very concerning as she saw W.E. as her only support but then would receive emotionally abusive comments from him. The witness had counselled T.Y. that Mr. W.E.’s actions could not be minimized (as she attempted) “because [she] was not hit … and he let [her] leave”; nor did she allow Ms. T.Y. the characterization of their “having an argument” when there had actually been repeated threats to malign her in the community. Despite this, in their evidence both T.Y. and W.E. went to great lengths to downplay Ms. Meunier’s worrisome description of their relationship. In her examination-in-chief, Ms. T.Y. talked about the emotional support she says she receives from Mr. W.E. with whom she stays “at least seven times a month” when she has to “come down to Woodstock [for access with A.D.Y.].” She pointed out that he was staying at her apartment in London while waiting to testify at what became a lengthy trial.

[64] Ms. T.Y. completely dismissed the emotional and verbal abuse which Ms. Meunier said she had reported suffering at the hands of Mr. W.E. Ms. T.Y.Ms. T.Y.she has argued with her other friends and with W.E. and even “raised her voice a little bit.” But she described these tiffs as following a difference of opinion about a newspaper article or simply divergent points of view, always all followed by an apology. Mr. W.E. was even less impressive in his testimony on the point. He said he only accused T.Y. of “copying his ideas without acknowledging [his contribution]” at one point this year. He said Ms. T.Y. was “flustered but not upset.” He testified that he may have said “stupid” but then corrected himself to say he said only that her behaviour was stupid. Mr. W.E. denied any personal reference, saying “… it’s actions, how a person acts … not their mental state.”

[65] There was nothing reliable or convincing about the evidence of Ms. T.Y. or W.E. about this issue concerning the abusive, controlling and demeaning stance he can, and has, taken with her. They denied it because they have been placed in an unfortunate position where Ms. Y must proffer W.E. as really the only significant responsible support available to her in her quest to take up the care of her baby.

[66] Ms. T.Y., of course, was forced into reliance on W.E. because of her complete isolation from (and her rejection of) her own family. One has to have sympathy for someone so alone in the world. Taking a sensible approach, and no doubt well aware of the difficulties which a young single mother would face today – exacerbated by reliance on a small government disability payment for most of her income – Ms. Meunier and Ms. Abdalla were quite concerned about the lack of relatives, friends, neighbours or associates who could act as real supports for her in caring for a very young child.

[67] Ms. T.Y. said that “Cherilyn accused [her] of having no friends” but testified that she had retorted that she had close friends for a long time. Who those possibly available supportive friends actually are was never revealed.

[68] Simple common sense indicates that an appreciation of the sufficiency of available support would flow from assessing the number of individuals Ms. T.Y. could approach for help; the quality of her relationships with the support persons, whether close-knit or casual; the frequency of contact or socializing; the proximity of the persons who might be asked for help and the variety or diversity of those put forward as realistically assisting her with a young child in her care. None of these was presented at trial.

[69] Ms. T.Y. was unable to put forward any individual who showed any real promise of possible future assistance to her. Her consistent behaviours in the past indicate that, in the end, she completely excludes family members or is cut off by them. She maintains only a cursory Christmas acknowledgement of the grandparents who looked after her for a short time. She will have nothing to do with her mother and gave a bizarre story about perhaps having seen her estranged half-brother on a London city bus but ignoring him because she was almost late for a commitment.

[70] As her last witness, Ms. T.Y. called C.O. to the box, the purpose apparently being to pass off this unfortunate young woman as an able and willing support for T.Y.. The effort fell far short. C.O., now 18 years of age, sees T.Y. at parenting classes where they “hang out” together. She said the “good friends” also go to the mall for baby things. C.O. said she had seen T.Y. at the classes and described her as “a really good mom,” and said she had seen nothing concerning which could justify her observations of the staff “yelling at T.Y.” and criticizing her care of A.D.Y. She lauded Ms. T.Y. for confronting her critics and saying “she was doing her best and doing well.”

[71] Ms. C.O. had to admit that the Children's Aid Society is also critical of her care of her own son, J., who is in the temporary care of her mother. She was firm, however, that she “want[ed] to fight for [her] son.” Sadly, she appeared somewhat limited when giving her evidence and pledging her support in being there to assist Ms. T.Y. with her baby. In her words: “I’d come over and help her if she needs help … like supervising her care.” The clear impression left by Ms. C.O. was that she would be a very slender reed indeed if ever grasped by T.Y. for help with some important future parenting crisis. While Ms. Meunier and agents of the Oxford Children’s Aid Society had consistently “pushed” the idea of T.Y. meeting and encouraging young parents as new friends and potential support, Ms. T.Y. “didn’t wish to do that.”

[72] Mr. Rayner’s only question in cross-examination concerned the circumstances of Ms. C.O.’s not being allowed to parent her own son, to which she angrily answered: “It’s not my fault.”

[73] The parenting classes mentioned were but a part of the Society effort to encourage T.Y. to form a secure attachment with A.D.Y., to prove that she possessed appropriate parenting skills and to show that she has sufficient capacity to nurture a young child.

[74] I had the benefit of the affidavits and evidence of Ms. Meunier and Laurie Grove, the lead access monitor of Ms. T.Y.’s lengthy visits with A.D.Y. at the Woodstock offices of the Oxford Children’s Aid Society. In addition, the applicant introduced a Group Report of the “Best Beginnings” assistive program operated by the Children's Aid Society of London and Middlesex after notice was given pursuant to s. 35 of the Evidence Act, R.S.O. 1990, c. E.23. Last, the facilitator of that program, Leah Healy, gave evidence.

[75] It is important to remember that Ms. Meunier was spending very considerable time with T.Y., who herself was frequently accompanied by W.E., with the purpose of closely examining Ms. T.Y.’s abilities and making a real effort to assist her in improving any problematic areas in her parenting capacities. The access monitor at the Oxford agency and the facilitator of the Society’s “Best Beginnings” were also involved in very structured and intensive programs of close supervision, observation and instruction. Under those circumstances, one would expect Ms. T.Y. to behave in a fully cooperative and engaged manner – as a part of getting A.D.Y. back in her care – as she must have realized the extent and purpose of the level of scrutiny directed at her during her visits.

[76] The witnesses called on this point were quick to recognize Ms. T.Y.’s attendance and engagement in the programs. She was able to display periods of considerable cooperation and capability in her care of her infant son; however, in important areas she was inconsistent and could also demonstrate deficits of real concern. First, T.Y. exhibited (and proclaimed) a self-perception of complete confidence in her knowledge about babies and their care, although her actual demonstrations frequently fell short. Second, when long-standing deficiencies were specifically pointed out and attempts made at correction, Ms. T.Y. was often not open to hearing about the concerns – neither was Mr. W.E. when he was present – and would announce that she needed no supervision at all, acknowledging no need to change and questioning the need for both parenting instruction and any of the suggestions made. Third, all the observers came away with sustained uncertainty about the depth of Ms. T.Y.’s true comprehension, cognizance of caregiving practices and internalizing of the concepts being taught. Last, Ms. T.Y.’s universal reaction to any disagreeable comment or attempt at instruction was to react in a defensive and oppositional manner.

[77] Of particular concern was T.Y.’s repeated pattern of denial when confronted with criticism. On page 3 of Exhibit 5, Ms. Healy recounted an uncomfortable example of Ms. T.Y. “force-feeding” A.D.Y. who was obviously not hungry. When reproached by the observers and facilitators in a subsequent debriefing, T.Y. negated the concerns by simply saying that what the witnesses said did not happen. Her reaction on this occasion was quite similar to her response when pressed about the 2009 twins she had talked about to many different people and agencies: she just denied that she ever made the statements at all.

THE PARENTING CAPACITY ASSESSMENT

[78] Anxious to obtain information concerning both the mental state of Ms. T.Y. and her ability to potentially care for A.D.Y., the Society obtained an order for an assessment under s. 54 of the Child and Family Services Act from Hebner J. on November 24, 2016. The order directed Dr. Marlies Sudermann to conduct a parenting capacity assessment of both T.Y. and J.M.1, stating that such an assessment was “necessary because of the needs of [A.D.Y.] and the potential concerns regarding the ability of the Respondents to meet those needs now and in the future.”

[79] As required by the statute, the ordered report, dated March 14, 2017, was filed and formed part of the record at the trial. In addition, Dr. Sudermann gave evidence and was cross-examined on her assessment.

[80] In general terms, Dr. Sudermann’s parenting capacity assessment assisted Ms. T.Y. with neither the need of protection issue nor the question of disposition. At the outset, the assessor pointed out that T.Y. had blamed her failure to keep up with the Merrymount visitation with J. and L. in Woodstock on the number of appointments which she said were forced on her by the Oxford Society. In her evidence, however, Ms. T.Y. had angrily denied that she lacked the time or inclination to maintain contact with her daughters, preferring to cast the blame on the machinations of L.B. and her mother and step-father who, she said, were acting in their own self-interest. Similarly, Dr. Sudermann made specific references to T.Y.’s recent denials of her previous frequent statements that an earlier pair of twins were born, terming the whole subject “very odd and unusual.”

[81] With respect to both Ms. T.Y.’s mental state and developmental capacity as they related to child care and her previous evaluations, Dr. Sudermann reviewed the testing instruments she utilized in her examination and found Ms. T.Y.’s performance to be higher than her 2005 results which she posited was perhaps related to T.Y.’s lack of cooperation with the former assessment, noted upset when she gave a wrong answer and argumentative demeanour. In cross-examination, she also discussed the possibility that her own use of the full Wechsler Abbreviated Scale of Intelligence (WASI-II) employed a later more sophisticated edition of the testing instrument. In any event, her results indicated that Ms. T.Y. stood at the 27th percentile (91), an average level for verbal reasoning ability, but at the 8th percentile (79) in the borderline range for perceptual reasoning, yielding an overall score of 83 in the low average range (percentile rank of 13).

[82] As far as parenting capacity was concerned, Dr. Sudermann’s report and testimony termed T.Y. to be able intellectually but she remained concerned that her background would not result in the formation of a secure attachment and relationship with a child of her own. Closely questioned about the counselling Ms. Y underwent, Dr. Sudermann testified:

I’d be surprised if, in the past few months, there’d been some magical counselling that would remedy her situation.

[83] The assessor’s concerns about T.Y. included future trouble in a financial sense, tied to her deficits in her non-verbal abilities, her not optimal educational background and her entrapment in an existing “pay-day loan” she had incurred and seems unwilling or unable to pay off. I must note, in fairness to T.Y., that she vehemently denied being victimized by the loan and asserted her ability to satisfy the debt eventually.

[84] Dr. Sudermann easily conceded that her concerns about T.Y.’s parenting capacity extended to far more than an assessment of her intellectual abilities. She testified that she would not use the label of borderline personality disorder to describe Ms. T.Y. because her high defensiveness scores in some ratings would discourage labelling her symptoms. That said, the assessor suggested that some of her behaviours could be sourced in her “very difficult and unfortunate background,” and mentioned her concern over the highest elevations in the testing scales which showed a self-perception of little need to seek treatment or change her way of functioning. Although Dr. Sudermann commended Ms. T.Y. for her involvement with the counsellor, Ms. Wong, at the London Abused Women’s Centre, and her placement on the waiting list for referral for counselling at Family Service London, she was concerned that Ms. T.Y. would revert or relapse into her long term pattern of blaming others, which would make real change difficult.

[85] Aware of the observations and recordings by the supervisors and monitors of T.Y.’s conduct with A.D.Y. at the access program and parenting classes, Dr. Sudermann agreed that she did display an argumentative and dismissive side when faced with suggestions or redirection; however, she testified that perhaps T.Y. is “growing up and not trending that way … so can accept advice a little more lately.” To me, this did not represent a ringing endorsement. The access and observation notes did show that Ms. T.Y. was, at times, disengaged from her son and forced her own perceived needs and desires on him. Although Dr. Sudermann fairly admitted difficulty in prediction, she was worried that Ms. T.Y.’s problems caring for A.D.Y. could affect potential attachment.

[86] The assessor outlined the areas of greater concern to her in the context of Ms. T.Y. assuming a parental role with A.D.Y., really all surrounding social-emotional aspects of her behaviour, like her demonstrated ineffective patterns of conflict resolution. The assessor cited Ms. T.Y.’s many past conflicts with peers, describing a “pervasive pattern of instability in forming relationships … [becoming] frantic to do it, then quickly feel[ing] threatened and end[ing] the relationship.” Inevitably, numerous demands were made for the assistance of police to the point that other witnesses testified that the local police eventually became unexcited about the prospect of further intervention and avoided it if they possibly could.

[87] Of even greater concern to Dr. Sudermann was Ms. T.Y.’s “remarkably weak and dysfunctional personal support system.” Apparently Ms. T.Y.Ms. T.Y.le to obtain the occasional benefit of material support – Dr. Sudermann said she is “not shy in the community, but reluctant with respect to intimate and emotional [bonds]” – but is in a “very problematic” circumstance concerning possible personal support. She testified about Ms. T.Y.’s “very few female friends” and her looking to W.E., a dubious source of any help in mental health conflict resolution, a much older man and somebody involved in a situation where the assessor admitted to “doubt about the nature and suitability of the relationship [between them].”

[88] Dr. Sudermann emphasized the potential jeopardy to A.D.Y.’s stability stemming from T.Y.’s historical difficulties with conflict resolution, even more potentially a problem when he becomes more mobile and self-willed. Her pattern of cutting off relationships with even her close family members and certainly a whole list of boyfriends demonstrated to the assessor a series of questionable reactions to personal difficulties and a pattern of impulsive decision making which would render A.D.Y. vulnerable to unfortunately chosen partners (“unsafe or problematic people” in Dr. Sudermann’s words), leaving Ms. T.Y. without any realistic or available support.

[89] While Ms. Y tried hard to minimize the apparent verbal abuse she endured from W.E., as did the latter, neither did so convincingly. Dr. Sudermann was quite concerned about T.Y. when she “backpedalled and pulled back” from her complaints about W.E.’s treatment of her to Ms. Meunier and downplayed his misconduct by saying that she was not hit and he “let her go home” afterward, all this after she had been counselled by Ms. Wong at the London Abused Women’s Centre and was aware of how abuse starts.

[90] For his part, in the witness box W.E. was simply trying to tell a story which he thought would help T.Y. and put J.M.1 in a bad light. There were inconsistencies in his testimony, however, and he maintained absolute certainty about some things he could not have known, for example, whether or not J.M.1 was actually charged with an assault on T.Y. His memory was fuzzy about some events involving Ms. T.Y. which led him to admit “I’m not very chronological.” He later became critical in the witness box by initially blaming the local police for “not doing things properly,” I assume in relation to T.Y.’s numerous telephone calls. He said “[they] had to fight to get things done.” Then he went quite off the rails and, without being questioned, volunteered complaints about the efforts of the police who were:

Never on her side, ignored her and are being investigated and so is this courtroom and the Trudeau Liberals because it is linked to discrimination by the system against women and elsewhere in the world!

[91] There was nothing in the evidence from T.Y. or W.E. about their friendship which seemed reliable to me. They were trying to cast their relationship and its problems in a more favourable light than that offered by reality. They did not succeed in convincing me that, in all probability, Mr. W.E. would be a solid, stable support for T.Y. if she was responsible for the care and nurture of a young child.

[92] In the briefest summary, Dr. Sudermann found that A.D.Y. does not have a strong attachment to T.Y. The latter lacks family support and has a “very tenuous and concerning social support system,” a major concern because of her own social history. The assessor found it quite possible that A.D.Y. would be exposed to unsafe or problematic people, if he was in her care.

A.D.Y. IN NEED OF PROTECTION

[93] The relevant statutory provisions are formulated as follows:

40(1) A society may apply to the court to determine whether a child is in need of protection.

47(1) Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child’s name and age;

(b) the religious faith, if any, in which the child is being raised;

(c) whether the child is an Indian or a native person and, if so, the child’s band or native community; and

(d) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

37(2) A child is in need of protection where,

(a) the child has suffered 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;

(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;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (iii), (iv) or (v) [serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development] resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

[94] Concerning the issue of the allowable evidence for consideration in the threshold or first phase question of need of protection, for the purposes of these reasons, I accept the line of thought advanced by Czutrin J. in Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754 (Sup. Ct.) allowing post-apprehension evidence to be assessed in addition to evidence available and supporting the taking of the child into care. Thibideau J. commented about that reasoning in Children's Aid Society of Brant v. J.A.T., 2005 ONCJ 302, [2005] O.J. No. 5249 (Ont. Ct.), as follows:

12 On the other hand, there is a line of cases exemplified by:

(1) Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W. [citation omitted]; and

(2) Catholic Children's Aid Society of Metropolitan Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, [1994] S.C.J. No. 37, 1994 CarswellOnt 376.

These cases refer to the Act's paramount objective and the child-centred approach to statutory interpretation and judicial decision making. In Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., supra, Justice Czutrin specifically focused on the relevant time period and the issue of whether post-apprehension events could be used for a finding determination. It appears assumed that the second category -- facts in existence but not known -- could be used.

13 Justice Czutrin decided that the relevant time period for facts capable of consideration with respect to a finding of protection is flexible and can be the commencement of proceeding date, the hearing date, or some other date depending on individual case circumstance. He arrived at this conclusion for the following reasons.

14 Only facts related solely to disposition are statutorily excluded from consideration on a finding hearing which is the first phase hearing even on a motion for summary judgment.

15 The reasoning is in accord with the reasoning in Catholic Children's Aid Society of Metropolitan Toronto v. C.M., supra, that focused on the following.

16 The decision as to admissible evidence is predicated on the paramount objective of the Act to promote the best interests, protection and well being of the child by having accurate and updated information available to the court. Child welfare legislation is different from general legislation and litigation in this regard. This approach facilitates an accurate assessment of present circumstance of the parties and child to arrive at a decision that promotes the child's best interests.

17 This approach also coincides with the modern principles of statutory interpretation, reading words in context, using ordinary sense and meaning, compatible with the scheme of the Act in question and the legislative intent.

18 Justice Czutrin also pointed out the risk of return of a child to a parent using only pre-application evidence when the pre-hearing evidence clearly showed a child was in need of protection from that parent. This would undermine the purpose of the Act and put the child at further risk, contrary to stated principles.

19 This less doctrinaire and more flexible approach was also adopted by Justice Clifford S. Nelson in Children's Aid Society of Hamilton v. M.C. and R.H. (2003), 2003 CanLII 64105 (ON SC), 121 A.C.W.S. (3d) 883, [2003] O.J. No. 1271, 2003 CarswellOnt 1114 (Ont. Fam. Ct.), where best interest considerations were stated to be applicable to both stages of the trial process.

20 There are other reasons why the flexible approach to evidence capable of use is more appropriate.

21 Multiplicity of proceedings are avoided along with the risk of further harm to the child, caused by multiple apprehensions and extended court proceedings.

22 The harmful and illogical results of restricting evidence to the pre-apprehension time period might well bring the administrative of justice into disrepute in the community at large if courts handed back children to situations of risk because of mere technicalities that required compelling evidence to be ignored.

23 Equally important, the post-apprehension evidence is not necessarily one sided. There may be evidence favourable to the caregivers on the issue of risk of harm that would result in a return to parental care that would not be so if the evidence was excluded for time considerations. For instance, pre-apprehension allegations and evidence of sexual abuse could become problematic by post-apprehension DNA test results that excluded the alleged abuser as a suspect.

24 The more rigid approach reduces the hearing process to a judicial game with formal and rigid rules regardless of outcome and policy considerations. The flexible approach focuses on the best outcome for the child within an evidentiary framework that fosters use of evidence for an appropriate outcome.

25 At the end of the day, no party can complain that his or her full case was not before the court. Provided that there is appropriate and timely disclosure, no party can complain that he or she was treated unfairly or suffered prejudice.

[95] With respect to the statutory definitions involving future or potential risk, the comments of Sherr J. in Jewish Family and Child Service of Toronto v. R.K., 2008 ONCJ 774, [2008] O.J. No. 5856 (Ont. Ct.), affirmed 2009 ONCA 903, 2009 CarswellOnt 7908 (C.A.) are helpful, although I am mindful of the fact that the child in that case was three months of age when apprehended from her mother’s care. The failures of the mother, however, were mostly historical and, as in this case, the assessor found that she did not have the ability to provide a safe and secure home for her baby son.

[96] In the words of Sherr J.:

28 Risk of harm must be real and not speculative: Children's Aid Society of Ottawa-Carlton v. T. and T., 2000 CanLII 21157, 97 A.C.W.S. (3d) 939, [2000] O.J. No. 2273, 2000 CarswellOnt 2156 (Ont. Fam. Ct.). It is not necessary for the society to prove an intention to cause the child harm before finding that a child is in need of protection. A pervasive pattern of exposing a child to domestic abuse is sufficient: Children's Aid Society of Niagara Region v. T.P. and R.G., 2003 CanLII 2397, 35 R.F.L. (5th) 290, [2003] O.J. No. 412, 2003 CarswellOnt 403 (Ont. Fam. Ct.).

29 Domestic violence places children at risk on a number of levels. Witnessing violence perpetrated against the mother may have an abusive and detrimental impact on a child's development. Children may feel guilty, blame themselves and feel depressed. They can develop fears, insecurity and low self-esteem as a result of witnessing domestic violence. They can suffer emotional confusion that can result in bedwetting, nightmares, sleeping or eating disturbances, self-harm and weight loss: See Children's Aid Society of Toronto v. Sheila Ann C., [2005] O.J. No. 2154, 143 A.C.W.S. (3d) 869, [2005] W.D.F.L. 3688, 2005 ONCJ 274, 2005 CarswellOnt 2424 (Ont. C.J.); affirmed at Children's Aid Society of Toronto v. Sheila Ann C., 2005 CanLII 43289, 143 A.C.W.S. 3d 510, [2005] O.J. No. 4718, 2005 CarswellOnt 5932 (Ont. S.C.); further affirmed at Children's Aid Society of Toronto v. Sheila Ann C., 2007 ONCA 474, 158 A.C.W.S. (3d) 610, [2007] W.D.F.L. 2844, [2007] O.J. No. 2609, 2007 CarswellOnt 4267 (Ont. C.A.); permission to appeal to the Supreme Court of Canada refused at Sheila Ann C. v. Children's Aid Society of Toronto, [2007] 3 S.C.R. xiv, 2007 CanLII 66780, [2007] S.C.C.A. No. 462, 2007 CarswellOnt 7859.

[97] In that decision, the finding of need of protection was founded on the respondent mother’s exercise of very poor judgment, often putting herself into dangerous situations and exposing the baby to the risk of physical and emotional harm to which he was additionally vulnerable because of her volatile and unstable relationship with her own mother. Sherr J. observed that the mother was not taking appropriate steps to address the issues she faced and not cooperating with the society.

[98] Similarities abound between the facts in this case and those before the court in Jewish Family and Child Service of Toronto v. R.K. Dr. Sudermann was quite clear that A.D.Y. could be exposed to his detriment to very problematic individuals in any of the brief relationships in which Ms. T.Y. has historically engaged. He would face further difficulties stemming from the absence of any realistic support network for T.Y. Dr. Sudermann also pointed out that Ms. Y was reluctant to fully accept the prescriptions and advice which Ms. Wong offered in the abuse counselling – reminiscent of her longstanding insistence to the Society workers and access monitors of her own supposedly excellent childcare capabilities and her arguing with them when confronted with her shortcomings and suggestions for change.

[99] To use the language of Sherr J., the risk of harm to A.D.Y. is very real and not just speculative. He is a child in need of protection, certainly with respect to the matter of a physical harm from the presence of and exposure to the violent and unpredictable men to whom T.Y. is drawn and, as well, potential emotional harm as described in Jewish Family and Child Service of Toronto v. R.K., supra. If, as has been suggested, expert evidence is required in the usual case to support a finding of a risk of emotional harm, that evidence is plainly available from the report and testimony of Dr. Sudermann: see N.V.C. v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796, [2017] O.J. No. 525 (Sup. Ct.).

STATUTORY FINDINGS

[100] To satisfy s. 47(2) of the statute, the child the subject of this proceeding is named A.D.Y. and was born … 2016. There was no evidence with respect to the religious faith of the child. There is no Indian or native status. A.D.Y. was apprehended at the St. Joseph’s Health Sciences Centre in London, Ontario.

DISPOSITION

[101] The Child and Family Services Act directs dispositive action when the protection finding is made in the following formulations:

Order where child in need of protection

57(1) 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:

Supervision order

1. 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.

Society wardship

2. 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.

Crown wardship

3. 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.

Consecutive orders of society wardship and supervision

4. 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.

Court to inquire

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

THE PATH TO S. 57.1 CUSTODY

[102] Since the Society joins with J.M.1 in seeking a custody order concerning A.D.Y. with his parents, it is useful to refer to the statutory route described by Tobin J. in Windsor-Essex Children’s Aid Society v. T.B., [2012] O.J. No. 4481 (Ont. Ct.) at paras 73-75:

4.3 When is a Custody Order under s. 57.1 Request To Be Considered?

73 M.D. seeks a custody order under s. 57.1. The option requested by M.D., that is, that he be granted custody of H.S.D. and J.P.D., may not to be considered until the court is satisfied that allowing the children to remain in T.B.'s care subject to supervision would not be adequate to protect the children: see CFSA ss. 57.1(7) and 57(3).

74 Ms. Avery's argument, if I understand it correctly, is that M.D.'s plan for custody should be compared to the Society's plan to keep the children in T.B.'s care. This argument fails to take into account ss. 57.1(7) and ss. 57(3) which require a determination whether the children can be adequately protected while in the care of T.B. having regard to their best interests. She is the person who had charge of the children immediately before the Society's intervention. It is only after a determination has been made that they cannot be protected in T.B.'s care that a consideration of the custody request made by M.D. can be undertaken.

75 The application before me is not a custody case under the Children's Law Reform Act, in which the merits of two plans are to be considered when deciding the best interests of the children. It is the provisions of the CFSA that must be considered and applied. When doing so I must keep in mind that one of the purposes of the CFSA is to "recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered." See CFSA ss. 1(2) para.2. This is accomplished when the statutory pathway analysis is followed.

[103] Following the pathway identified by Tobin J., the first step is consideration of the adequacy of a supervision order placing A.D.Y. in the care of T.Y. with conditions imposed for guidance and monitoring. In a forceful and impressive argument, Mr. Winninger turned to first principles involving a parent’s right to personal security and the duty on a society and the courts to prosecute and decide cases consistent with the intent of the legislation without resort to irrelevant criteria or standards. He urged on me the strong statement of Gordon J. in Children's Aid Society of Hamilton v. E.O., 2009 CanLII 72087 (ON SC), [2009] O.J. No. 5534 (Sup Ct.) at paras. 163-165:

163 The principles of fundamental justice apply to child protection proceedings. In New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.), at paras. 69-70, Chief Justice McLachlin, offered these comments:

69 While relieving a parent of custody of his or her child restricts the parent's right to security of the person, this restriction may nevertheless be in accordance with the principles of fundamental justice. The principles of fundamental justice "are to be found in the basic tenets of our legal system": Re B.C. Motor Vehicle Act, 1985 CanLII 81 (S.C.C.), [1985] 2 S.C.R. 486, at p. 503. It is a time-honoured principle that the state may relieve a parent of custody when necessary to protect a child's health and safety. Rand J.'s judgment in Hepton v. Maat, 1957 CanLII 18 (SCC), [1957] S.C.R. 606, is the classic statement of this principal in Canadian law. At pp. 607-8, he wrote:

It is, I think, of the utmost importance that questions involving the custody of infants be approached with a clear view of the governing considerations. That view cannot be less than this: prima facie the natural parents are entitled to custody unless by reason of some act, condition or circumstance affecting them it is evident that the welfare of the child requires that that fundamental natural relation be severed.

The view of the child's welfare conceives it to lie, first, within the warmth and security of the home provided by his parents; when through a failure, with or without parental fault, to furnish that protection, that welfare is threatened, the community, represented by the Sovereign, is, on the broadest social and national grounds, justified in displacing the parents and assuming their duties.

This, in substance, is the rule of law established for centuries and in the light of which the common law Courts and the Court of Chancery, following their differing rules, dealt with custody.

70 More recently, La Forest J., writing for three others in [R.B. v. Children’s Aid Society of Metropolitan Toronto], 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315, held at para. 88 that

the common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being, basing such intervention on its parens patriae jurisdiction; see, for example, Hepton v. Maat, supra; E. (Mrs.) v. Eve, 1986 CanLII 36 (S.C.C.), [1986] 2 S.C.R. 388. The protection of a child's right to life and to health, when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long, of course, as it also meets the requirements of fair procedure.

Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination.

164 This concept of fundamental justice is of particular importance when the C.F.S.A. creates a conflict of interest for the Society. The dual purpose, protection of children and supporting families, often results in Society workers collecting evidence for the former while attending to the latter. Due to the special powers granted under the Act to the Society, the Society has a duty to act with fairness and reasonableness and must always exercise good faith and respect the rights of all persons: see, for example, Children and Family Services of York Region v. E. (P.) O.J. No. 4884 (Ont. S.C.J.); and Children's Aid Society of London and Middlesex v. S. (E.V.P.) (2004), 2004 CanLII 34346 (ON SC), 1 R.F.L. (6th) 68 (Ont. S.C.J.).

165 Great care must be taken when considering the evidence so as to avoid reliance on middle class standards. The following comments from Stortini J. in Re Brown (1976), 1975 CanLII 547 (ON SC), 9 O.R. (2d) 185 (Ont. Co. Ct.), at pp. 189-190, still apply:

In attempting to establish what is best for the children, I must accept the realities and accidents of life and refrain judging the needs of the children and the parents' ability to satisfy them on an unfair or unrealistic basis.

In the case of Re Warren (1973), 1973 CanLII 1929 (ON SC), 13 R.F.L. 51, His Honour Judge Matheson commented on

... a contest between the right of a subsocio-economic family to subsist together and the right of the public, represented by the Children's Aid Society, to insist upon higher standards of parental care than the couple in question were capable of offering.

At. p. 53 he goes on to say:

... this Court must not be persuaded to impose unrealistic or unfair middle class standards of childcare upon a poor family of extremely limited potential.

In other words, the community ought not to interfere merely because our institutions may be able to offer a greater opportunity to the children to achieve their potential. Society's interference in the natural family is only justified when the level of care of the children falls below that which no child in this country should be subjected to. In deciding on such intervention the Court must consider the best interests of the children in respect of their biological, social, emotional, cultural and intellectual development.

(See, also, Children's Aid Society of Hamilton-Wentworth v. M.M., [1992] O.J. No. 1704 at p. 17 (Ont. U.F.C.); and Catholic Children's Aid Society of Hamilton-Wentworth v. L.G., [2002] O.J. No. 2577 at para. 10 (Ont. S.C.J.).

[104] Mr. Winninger carefully reviewed the evidence about his client’s conduct and victimization, her long history of familial upset and chaos, the various interventions by societies in different locations and the parenting capacity assessment prepared by Dr. Sudermann. He quite properly emphasized the many commendations extended to his client for her participation in courses and counselling and her obvious love and care for A.D.Y. during her many access sessions following his apprehension. Mr. Winninger made much of the fact that Ms. T.Y. demonstrates none of the afflictions unfortunately frequently present in protection cases, like evidence of physical or verbal abuse of a child, chronic abuse of alcohol or drugs or the presence of major mental illness. He urged upon me that A.D.Y. deserved to be back with the mother from whom he had been taken at birth and that T.Y. had a fundamental right to rear her son. In his submission, a supervision order would suffice to both give assistance to his client and protect A.D.Y.

[105] With respect, I am of a different view. The Society staff and access monitors did observe adequate parenting and responses by the mother but continued to complain about inconsistency which required their continued coaching and intervention when lapses were observed. Likewise, Dr. Sudermann, while complimenting T.Y. on her good interaction with A.D.Y. during visits, her improvement in reading his cues with coaching, her demonstration of interest in learning more about child nutrition and attending a course for young parents, remained guarded about her prognosis should she have her son with her, saying she “clearly could benefit from continued input, coaching and guidance.”

[106] Because of Ms. T.Y.’s problems with her own social and emotional development and a weak social support system (and A.D.Y. being at risk from “very unstable and unsuitable people”), the assessor was of the view that only in time, and with a more stable support system, “she might well be able to parent a child on her own”; however, she issued a caution concerning T.Y.’s “tendency to tell untruths and tall tales which would make it quite difficult for community agencies to monitor and assist her and the child.”

[107] The issues identified by Dr. Sudermann loom as very problematic when considering the potential adequacy of supervision to protect the child, as such an order inevitably relies on the efficacy and willing acceptance of the continuing monitoring and guidance offered by the Society. Here Ms. T.Y.Ms. T.Y.d some reluctance to follow the advice from her counsellor Ms. Wong, and was unable to recognize or accept W.E.’s actions in demeaning her as abusive. She also demonstrated an unfortunate and stubborn tendency to argue with Society facilitators and aggressively magnify her own supposed abilities and knowledge.

[108] Ms. T.Y. has exhibited poor judgment and considerable impulsivity in the past. These traits have led to a number of bad choices on her part. If some significant aspect of imminent physical or other risk to A.D.Y. were to occur, it could be quick and sudden in its onset, leaving no time for the Society workers monitoring the case to become aware of the boy’s plight or to put safeguards in place. That concern alone is sufficient to satisfy me that returning A.D.Y. to T.Y. subject to a supervision order would be inimical to his continued protection and safety.

THE CUSTODY CLAIM BY J. M. AND HIS PARENTS

[109] J.M.1 testified at the trial, as did his parents. He was also the subject of Dr. Sudermann’s assessment.

[110] The respondent J.M.1 lives in a one-story home in Woodstock with his parents, B.M. and J.M.2 That residence was where he lived from the fifth grade until he left for college. Now 45 years of age, Mr. J.M.1 looks after his son A.D.Y. with the assistance of his mother and father and has done so since the order of Mitrow J. of July 8, 2016 which followed a contested temporary care hearing about seven weeks after the baby was apprehended.

[111] Each of the parents and J.M.1 was an excellent witness. They seemed absolutely committed to the continued care of A.D.Y. and were unanimous in their desire to provide a home for him as joint custodians and a full family structure in which he could thrive. All three gave a full description of the activities in which each is involved with the baby, with J.M.1 providing most of the childcare when home from work and his parents taking over the responsibility when he is at his employment. Besides basic care, Mrs. M. testified about the activities in which she has involved A.D.Y. and J.M.1 went on at some length recounting his aspects of care of his child. The impression left was that the household revolves around A.D.Y. and that there is a remarkable integration of effort in his care.

[112] J.M.1 testified about his background – apart from his evidence about his quick involvements with T.Y. which has been discussed. After first graduating from college (about 22 years ago) he talked of experiencing the onset of a fearful and paranoid attack while on a rugged outward bound experience in the coastal mountains of British Columbia. Beset by dangers in the cliffs and unusual perils (being hit by lightning), he became “afraid and scared” and started to feel persecuted. He repaired to respite with an aunt and uncle in Maple Ridge but continued to suffer, beginning to think television programming was aimed at him and that the radio was capable of monitoring his activities.

[113] Eventually, J.M.1 attended a psychiatrist in Maple Ridge and found himself in a hospital for one week where he was diagnosed with schizophrenia and prescribed psychotropic medication. About a month later, he returned to Woodstock and received psychiatric help from specialists in Stratford and Oxford County while living again with his parents for almost a year. As a result of his psychiatric assessment, he was, in his words, “put … onto disability,” one result of which (he tried to explain) was that some combination of ODSP and a Canada Pension Plan coverage would provide continuous health insurance benefits for A.D.Y. in the future, whether or not Mr. J.M.1 was employed.

[114] Mr. J.M.1 described weaning himself off medication over a period of about 18 months during which he employed meditation and very distinct dietary changes to gain relief from the side-effects of the psychotropic drugs. Over a period he described as “a couple, three, four five years” his paranoid symptoms abated and he returned to employment on a full-time basis. He testified that his schizoid symptoms have been “eliminated.” He is followed by CMHA staff and was more than willing to attend on doctors or a nutritionist, if necessary, and to follow any directions and recommendations given.

[115] J.M.1 appears as a very articulate and intelligent man. He has taken a number of university psychology and career-enhancing courses, concentrating on engineering and architectural technology and, most recently, a series of self-study and testing sponsored by the Computer Technology Industry Association (COMPTIA) which will yield him professional certification as a computer technician or system administrator. His evidence was unusual, however, when he was questioned about his dietary conversion to consumption of certain foods and complete avoidance of other harmful substances. Obviously he abstained from meat and a host of other products. He seemed entirely conversant, almost obsessive, with these subjects and displayed a remarkable grasp of the chemistry of nutrition. While he professes complete confidence in his decisions about his own gluten-free vegetarian nutrition and the salutary effects it has had with respect to his mental state and symptoms, he is not so dogmatic as to force his decisions on his son, A.D.Y. Both B.M. and J.M.2, his parents, testified about their roles in preparing meals and A.D.Y eating the same food as they do, while J.M.1 is happy preparing his own.

[116] In her assessment, Dr. Sudermann confirmed through Mr. J.M.1’s family doctor that he is neither prescribed medication nor reporting symptoms of schizophrenia. The physician described his current status as “stable long term schizophrenia,” and Dr. Sudermann found no indication that J.M.1 is currently experiencing a thought disorder or physical symptoms related to his condition from the results of the Personality Assessment Inventory, although she was cautious about the possible sequalae of any excessive stress, overloaded or unpredictable schedule in the future. She strongly endorsed future, formal supports from community agencies, especially the Public Health nurse, Janice McGill, should J.M.1 move out of his parents’ home with A.D.Y.

[117] Dr. Sudermann testified about the strong attachment apparent to her in the M. family home and A.D.Y.’s interaction with his father, grandparents and the rest of the large family. She found it would not make sense to disrupt A.D.Y.’s life by changing his primary placement where he is developing well. She found it likely that the M. family together could plan a reasonable transition to more independent care of A.D.Y. by J.M.1 as the boy grows older and becomes, in some respects, less demanding to care for. It was her recommendation that J.M.1 and A.D.Y. become involved with programs, like Ontario Early Years for community supports and for J.M.1 to learn more about parenting.

[118] I agree with Dr. Sudermann that a joint custody order involving J.M.1 and both his parents would best meet the needs of A.D.Y. and be most consistent with his best interests. It would, in my view:

(i) ensure that A.D.Y.’s physical, mental and emotional needs continue to be appropriately met;

(ii) be consistent with his very young age and early stage of development;

(iii) safeguard his settled place as a member of the M. family and the positive relationships he has formed with his father, grandparents and their extended family;

(iv) allow further enhancement of the relationships and emotional ties obvious from the evidence in his present placement;

(v) maintain continuity of the care the child has received in the past twelve months and prevent disruption of that care;

(vi) promote the plan for A.D.Y.’s care proposed by the applicant Society;

(vii) prevent a series of required status reviews involved in any supervision order, which would delay a final disposition for A.D.Y.;

(viii) obviate the clear risks of harm apparent from the evidence and the assessment of Dr. Sudermann if A.D.Y. were returned to the care of T.Y.; and

(ix) recognize the vulnerability of a child as young as A.D.Y. to harm from the actions or misconduct of unreliable and irresponsible persons.

STATUTORY REQUIREMENTS

[119] As required by ss. 57(2), I have considered both the extensive evidence at trial and Dr. Sudermann’s assessment. They set out fully the significant efforts made by the Society to help T.Y. and equip her with the skills and knowledge required to safely rear her infant. The assistance and monitoring was intensive but insufficient to permit Dr. Sudermann to conclude that the risk of harm to A.D.Y. was minimized to a point that would allow Ms. T.Y. to take over his care.

[120] To comply with s. 56 of the Child and Family Services Act, I note that Exhibit 12 is a signed Plan of Care dated May 19, 2017 in terms consistent with these reasons.

ACCESS

[121] Section 58(1) of the statute gives the court authority to make an access order following disposition, and to impose conditions. The burden of proof and onus applying in requests for access is set out in Children's Aid Society of Haldimand & Norfolk v. D.(R.), 2011 ONSC 4857 (Sup. Ct.). The test involves only the child’s best interests.

[122] The evidence disclosed a major rift between T.Y. and A.D.Y.’s grandparents, causing Ms. T.Y. to distrust B.M. and J.M.2 She consistently blamed Mrs. M. for her being “yelled at” by access supervisors and staff when she failed to respond appropriately to her baby’s cues, saying that it was the grandmother’s failure to utilize a written communication book to inform her of what A.D.Y. had been fed and other recent information which caused her confusion. In fact, I accept Mrs. M.'s evidence that she frequently passed notes with all necessary information to the access staff or told the staff directly of A.D.Y.’s activities before the access handovers.

[123] Other situations arose where Ms. T.Y. tried her best to scapegoat the grandparents. She testified that they frequently prevented her having access by quickly leaving the scene if she were at all late in arriving, in fact she said, at times, looking at her as they drove away. She tried to say at one point that nobody had clearly explained the rules about times of arrival for access, but she was not believable.

[124] T.Y. went on at length blaming the Society workers and staff for manhandling her and slamming her into a pillar when she ventured into a lobby area where the grandparents were picking up A.D.Y. In my view, Ms. T.Y. knew quite well that the access facility rules precluded her presence in that area and her complaints about her treatment seemed much exaggerated. I agree with Mr. Rayner’s submission that her evidence condemning the Society workers clearly demonstrates her suspicion of and lack of faith in any Society efforts on her behalf.

[125] Dr. Sudermann had the following to say in her assessment about the problems existing between T.Y. and the grandparents, and about access:

… I would note that Mr. J.M.1, Ms. J.M.2 and Mr. L.B.M. are currently not agreeing to have any contact with Ms. T.Y. at all, lest she make more false allegations about J.M.1 or about other family members. This is probably wise.

With regard to access, given that Ms. T.Y. intends fully to continue living in London, and that Mr. J.M.1 does not drive or have a vehicle, it might be best that for access Ms. T.Y. see [A.] at the Merrymount facility in Woodstock for access, if Mr. [M.] retains care of [A.] with his family, and after C.A.S. bows out with regard to supervised visitation services. A frequency of weekly or biweekly (every two weeks) access might be good, given that Ms. [Y.] would have to take the bus from London, which she says she is willing to do in that case. In time, if things go well, she could take [A.] out for walks or outings to the park or community programmes suitable to his age, with pick up and return at the Merrymount facility, if she has been attending reliably and interacting well with [A.], as she does now, and as long as she stays away from inadvisable associates. In bad weather, she might have to stay at the facility. There would have to be conditions that she not bring [A.] in contact with any individuals not known to the C.A.S. and approved, at least at first. Later, she might need to leave a name and address where she is going, if she is having outings in Woodstock with [A.]

[126] When cross-examined about her proposals for access to A.D.Y. by T.Y., Dr. Sudermann agreed that she did recommend a diminution of the extent of her present access in the teaching program, but was of the view that the access she envisaged would still maintain A.D.Y.’s relationship with her without causing possible disruption to him because of his young age. She specifically cautioned against over-frequent access because a child his age requires, in her words, “a settled experience without the stress of frequent back and forths.” She cited another problem with a routine of frequent exchanges stemming from the position of the grandparents who want nothing to do with T.Y., fearing some aspects of her mercurial personality. Although Dr. Sudermann agreed that Ms. T.Y., to her knowledge, has never made any false allegations against them, she described Mr. and Mrs. M. as “not the type of family with any experience with criminal involvement or problems, so they do not want anything to do with [direct contact] with T.Y.”

[127] Dr. Sudermann was clear in her opinion that overnight access or weekend access to A.D.Y. at this time would be contrary to his best interests and that a supervised structure for access should be initiated. She expressed concerns related to the risk of the boy’s exposure to unsuitable people; the chance of an impulsive move with the child, and the heightened potential for conflict between the parties at exchanges. Overall, the assessor expressed a preference to see T.Y. prove herself before enjoying access with more relaxed or no supervision.

[128] In trying to fashion an access order consistent with A.D.Y.’s best interests, I am attempting to take into account the parties’ work and other commitments, the antipathy Ms. T.Y. has for the grandparents – and the corresponding concerns they have about contact with her – and the distance between London and Woodstock. In her evidence, Ms. T.Y. said that she has been taking the bus to Woodstock where she can stay with W.E. For a number of reasons, I am reluctant to impose an obligation on the grandparents to transport A.D.Y. to London, particularly in light of T.Y.’s displeasure about them and the inadvisability of promoting contact between the M.s and Ms. T.Y. On the other hand, J.M.1 and his parents all agree about the importance of the maintenance of the bond between T.Y. and her son and the opportunity to develop secure attachment and a beneficial relationship between A.D.Y. and his mother.

ORDER

[129] In the result, an order will go:

1. placing A.D.Y. in the joint custody of J.M.1, J.M.2 and B.M. pursuant to s. 57.1 of the Child and Family Services Act;

2. granting T.Y. supervised access with A.D.Y. on a biweekly basis on Saturday or Sunday (as agreed by the parties and the supervising agency) for three hours at the Woodstock Merrymount Children’s Services Supervised Access Centre or the Oxford Children’s Aid Society (if available), the costs of supervision of access to be shared equally by J.M.1 and T.Y.;

3. requiring B.M. and J.M.2 to intervene and assume primary care of A.D.Y. if they believe that J.M.1 has suffered a relapse in his mental health symptoms to the point that A.D.Y.’s care may be adversely affected, or they believe that J.M.1 needs to complete a re-assessment of his mental health by a psychiatrist or one is recommended by Dr. Tam;

4. requiring that communication between T.Y. and J.M.1 regarding visits should either be through a mutually agreed third party, such as the access centre, or via email, unless there is an emergency;

5. requiring that T.Y. not attend at A.D.Y.’s future community activities except during her access time, unless agreed to in writing by J.M.1;

6. requiring that J.M.1 continue to consult Dr. Tam and any specialists in mental health recommended by Dr. Tam as required, and especially if suggested for mental health reasons by his parents or community agencies;

7. requiring that J.M.1 continue to educate himself in infant nutrition along the lines approved by the Oxford County Board of Health and Canada’s Food Guide and other reputable, non-controversial sources which can be approved by Public Health service providers;

8. requiring that J.M.1 engage in some form of organized parent-child activity group in the community with A.D.Y. during 2017 and 2018, which could include a program at an Ontario Early Years Centre or similar organization (as long as T.Y. is not enrolled). In later years, this could include children’s sports and so on, as age appropriate;

9. requiring that T.Y. access community support services such as her planned counselling at Family Service Thames Valley, when it becomes available;

10. requiring J.M.1, should he choose to leave the home of the paternal grandparents with A.D.Y., to inform the Children's Aid Society of Oxford County of any change of address and or telephone number prior to such change occurring;

11. requiring J.M.1, should he choose to leave the home of the paternal grandparents with A.D.Y., to allow an assessment by the Children's Aid Society to determine whether or not child protection concerns exist; and

12. requiring J.M.1, should he choose to leave the home of the paternal grandparents with A.D.Y., to access the supports of his local Public Health agency.

[130] For the purpose of future reviews of access, I endorse Dr. Sudermann’s suggestion that T.Y.’s access supervision be relaxed or even ended over time, after a significant period of successful visits, and draw particular attention to one of the paragraphs in her report concerning her recommendations:

That Ms. [Y.’s] access could eventually include an outing to a park or similar facility or to a community parent-child programme, or even an agreed-upon child activity if available, from time to time. Should she in time wish to visit individual persons’ homes in the community, that those persons be vetted by C.A.S. in advance, for as long as possible.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Released: July 13, 2017