COURT FILE NO.: FC-16-495-3 DATE: 2018/06/25 ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH and FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD, YOUTH and FAMILY SERVICES ACT, 2017, S.O. 2017, C. 14, Sched. 1 AND IN THE MATTER OF E.L. (child).

Steven M. Pender, Office of the Children’s Lawyer

BETWEEN:

The Children’s Aid Society of Ottawa Applicant – and – D.C.-L Respondent

Danielle Marchand, Counsel for the Applicant Daniel Nugent, Counsel for the Respondent

HEARD: May 7, 8, 9, 10, 11, 2018 WRITTEN SUBMISSIONS COMPLETED: June 15, 2018

REASONS FOR JUDGMENT Justice LALIBERTE

Introduction

1The Court is dealing with a status review application under s. 113 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA). The child subject of these proceedings is 11 year-old E.L. This young child was removed from his mother D. C.-L.’s care on March 4, 2016 and has remained in the care of the Society since.

2The Society has been involved with this family on previous occasions in regards to E.L.’s 18 year-old sister, A. C.-L..

3On May 18, 2016, Justice Sheffield found E.L. to be in need of protection and ordered a Society wardship for a period of three (3) months with access to the Respondent mother. This order was reviewed on December 8, 2016 and June 5, 2017.

4The Society’s position is that E.L. remains a child in need of protection and that his best interests lie in him being placed in extended Society care with regular access to his mother and sister.

5The Respondent mother opposes the order sought by the Society and seeks his return to her care subject to a supervision order.

6On February 20, 2018, the Court ordered that legal representation be provided for the child. Counsel has indicated that the child’s views and wishes are consistent with the order sought by the Society.

7Properly articulated, the issues to be decided by the Court are whether E.L. remains in need of protection and if so, identify the final order which is in his best interests in the context of a status review application.

The Evidence

8The following material was filed on consent of the parties:

− EXHIBIT #1: Statement of Agreed Facts − EXHIBITS #2, #3 and #4: Joint Document Briefs − EXHIBIT #5: Affidavit Brief − EXHIBIT #6: Respondent’s Trial Document Brief

9The Society produced evidence from nine (9) witnesses, namely:

− Mylène Forest - Child Protection Worker − A. C.-L. – Child’s sister − Tina Berthelot – Child’s foster parent − Pierre Berthelot – Child’s foster parent − Anathele Zamor – Occupational therapist − Rosemary Farrell – Adoption and openness worker − Josée Marleau – Child Protection Worker − Micheline Barbe – Child Protection Worker − Dr. Katherine Allen: psychiatrist

10The Respondent mother called the following witnesses:

− D. C.-L. – Respondent − J. P. – Respondent’s friend − L. P. – Respondent’s friend − W. Dickson Davidson – Social worker − Dr. Alexandra Baines – psychiatrist.

11The Agreed Statement of Facts which was filed as Exhibit #1 provides a fairly detailed and comprehensive summary of the facts in these child protection proceedings.

12Exhibit #1 reveals that the Respondent mother D. C.-L. has two (2) children, namely A. L.-C. born in 1999 and 11 year-old E.L., who is the subject of these proceedings. The children have different fathers. E.L.’s father has been disqualified as a parent through a May 18, 2016 order.

January 5, 2005

13The concerns related to the use of cocaine and ecstasy by the Respondent while caring for her then five (5) year-old daughter A. L.-C. The use of drugs was confirmed and she admitted to using drugs. Her limited caregiving skills were also verified.

14The Respondent is described as being cooperative:

• She participated in a relapse prevention program at La Maison Fraternité and achieved sobriety;
• She reached out to the Centre Psychosocial for services.

15The file was closed in April 2007 as the family situation had stabilized.

January 13, 2015

16The Respondent had contacted the police following an altercation with her daughter who had also caused property damage in the home. There had been a similar incident in December 2014. Police contacted the Society who verified the concern pertaining to parent/child conflict.

17In March 2015, the Respondent requested her daughter leave the home as this was not a positive example for her son E.L. Her 15 year-old daughter was placed at the Youth Services Bureau Crisis Unit and ultimately placed with the Respondent’s friend.

May 2015

18As things were going well between the Respondent and the daughter, it was decided that she should return home. The file was closed in July 2015. They were on a waiting list for counselling. Things were going well.

August 5, 2015

19The Respondent had contacted the police for assistance. She became increasingly agitated and was restrained. Both children witnessed parts of the incident. She is described as out of control and was medically sedated. She continued to be agitated at the Montfort and was given more medical sedation. She was admitted at Montfort and tested positive for cocaine and speed.

20The Respondent admitted to using marijuana and alcohol the previous week. She then consumed cocaine and speed once she returned home with her boyfriend. She identified alcohol as being the main problem at the time especially with friends at the pub next to her home. She stated that she never used drugs in front of E.L. and that she had been abstinent for six (6) months.

21She was discharged from the hospital on August 12, 2015 and diagnosed with polydrug overdose and delirium. A safety plan was elaborated with her to deal with triggers which lead her to relapse. She was encouraged to follow up with a counsellor in the community and addictions services.

22The child E.L. was cared for by his sister and then placed with his maternal aunt during the Respondent’s stay at the hospital. He was returned to her care following her discharge.

23In September 2015, the Respondent had taken the following steps:

• scheduled an intake assessment for addictions counselling;
• scheduled counselling for a sexual assault she had experienced;
• attending A.A. meetings and found a sponsor;
• ended a relationship; and
• applied for jobs.

24She appeared to be making gains and relied mainly on the Society and A.A./N.A. groups for supports as she had a very limited support network. It is noted that she struggled with relapses but always used her safety plan and never consumed while in a caregiving role until she relapsed in February 2016, when she used cocaine at home while E.L. was sleeping.

25The current child protection proceedings stem from the events of March 4, 2016 when the Respondent attempted to commit suicide by jumping off a bridge into the Ottawa river. She was removed and transported to the Montfort hospital where she remained for three (3) weeks and discharged on April 1, 2016.

26The child E.L. was apprehended on that same day and placed in the foster home with his sister where they have been residing since. The Respondent’s sister and friend had been contacted but were not in a position to provide a placement for the children.

27The Respondent disclosed the following information to the hospital and protection workers:

• she had a lot of stress in her life;
• she admitted to alcohol abuse and using drugs for two (2) years but had quit using a week prior but everything was falling apart and she was hopeless; she was remorseful for jumping off the bridge;
• she admitted having an addiction and spoke of her friends not having children and wanting to go out;
• she stated that her daughter was the adult in the home and that this was not appropriate as she was a child.

28While in the hospital, she participated in a full psychological assessment and was linked to various mental health and addiction services. She had suffered from a substance induced psychosis and diagnosed with a bipolar disorder.

29The Society had filed a protection application seeking a finding that E.L. is a child in need of protection and made a Society Ward for six (6) months with access.

30The events which followed are set out in Exhibit #1 and are summarized as follows:

Temporary care order – March 9, 2016

− The child E.L. was placed in the Society’s care and custody with access to the Respondent at the Society’s discretion; − In April 2016, the Respondent began to attend Groupe Agir at the Montfort which is a program directed at individuals having concurrent disorders, meaning a mental health diagnosis coupled with an addiction disorder; − On May 8, 2016, she was brought to the Montfort by ambulance after having recently consumed a large quantity of cocaine; she tested positive for cocaine and admitted having consumed this substance soon after her April 1, 2016 discharge; she had attended a bar with a friend.

Final Order – May 18, 2016

− E.L. was found to be a child in need of protection and made a Society Ward for three (3) months with access; − On June 24, 2016, she tested positive for cocaine and admitted to consuming some after drinking wine; she felt embarrassed and very sad; she had not attended the next Groupe Agir to avoid a positive drug test; − Following these relapses, she attended A.A. daily and worked with her sponsor; she attended her counselling and her therapy groups; she spoke of being committed to sobriety and motivated to have her son return to her care; − On July 6, 2016, she suffered an episode of psychosis after consuming speed; the police brought her to the Montfort; she admitted having consumed speed and smoked marijuana; she heard voices and panicked; she was diagnosed with “schizoaffective disorder” and prescribed Abilify through injections every three (3) weeks; − She is described as being very emotional and adamant that she wanted to get help and live a sober life but couldn’t control her cravings; − On September 25, 2016, she completed a twenty-one (21) day residential treatment program at “Maison Fraternité” in Hearst; she was satisfied with this program and felt she had received support and tools to deal with her addiction; she reported that she was now getting up early, doing housework and outside activities; − She was encouraged to attend Groupe Agir and stated she would; she had forgotten to attend on October 3, 2016 and was reminded of the importance of this group; she did not attend until October 17, 2016 at which time she tested positive for speed which she admitted taking; − On October 8, 2016, the Respondent’s family and friends met in the context of a family group conference in order to set up a safety plan and permanency plan for the children’s return to her care; the intent was to identify a network to assist the family; such a plan was established and a network would support her with her sobriety and ensuring attendance to groups and maintain stability; she was to relocate when possible; − On October 14, 2016, she attended Groupe Agir and tested positive for cocaine; she admitted having gone out with a friend and consumed cocaine; she was disappointed that the drug screen was positive since she had drank a lot of water that week; − This was followed by a series of negative drug screens from October 21, 2016 to November 25, 2016; − She was able to reach out for help before relapsing; she had cravings but would call her godmother and did not consume; − She stated that she was attending A.A. meetings and Groupe Agir; she was following up on activities identified during the family group conference.

Final order – December 8, 2016

31On December 8, 2016, a further four (4) month Society wardship with access was ordered by the Court.

32This Order was followed by a series of relapses confirmed through positive drug tests. These were intertwined with periods of abstinence. The first noted relapse was on December 17, 2016.

33At times, she did not attend for appointments with her psychiatrist or her Abilify injections.

34She stayed at the Detox Center from February 3 – 6, 2017. Her hope was to attend for a residential treatment program and attempted to find such a program through the Ottawa Addictions Access and Referral Services (OAARS). She reported feeling well and that her cravings had diminished after her stay at the Detox Centre.

35On February 17, 2017, she was admitted in psychiatry at Montfort after attending and reporting that was hearing voices. She would later state having exaggerated her condition so as to secure an admission at the hospital. She was discharged on February 27, 2017.

36While at the hospital, she met a male patient with who she quickly developed a relationship which raised many concerns for the Society.

37She later disclosed that she had relapsed by consuming alcohol and drugs on February 27, 2017.

38She is described as desperate for help and wanted a placement. She was upset that she couldn’t control herself and remain sober. She was also struggling with staying away from her friends who had a negative influence on her.

39The plan established through the family group conference was no longer working and she felt her supports had stopped calling after her relapse.

40There were ongoing issues with her boyfriend and her relationship with him was on and off. She had called the police because of an incident but then resumed the relationship.

41On May 12, 2017, she reported having been sober for two (2) weeks and having ended her relationship with her boyfriend.

42Within the next following weeks she tested positive for drugs.

Final Order – June 5, 2017

43On June 5, 2017, the Court granted a final order extending the Society Wardship for a further period of six (6) months.

44On June 28, 2017, the Respondent was admitted to the Concurrent Disorders Program at the R.O.H. Her admission was for the treatment of substance use and concurrent disorder. The program included a residential portion followed by an out-patient (day) program.

45She was discharged on July 25, 2017 and described in fairly positive terms by her social worker:

− She did well during her five (5) week stay; − She was motivated, positive and participated well in the group sessions; − She benefited from cognitive behavioral therapy (CBT).

46She was also doing well in the day program from which she was discharged on August 24, 2017:

− She continued the CBT group; − She was being pro-active with aftercare treatment; − She was identifying goals and taking steps to remain sober.

47On August 23, 2017, she told the protection worker that she had enjoyed the program and felt safe during her stay. She didn’t want the program to end and felt more fragile once on her own. She would have wanted to stay longer.

48She had contacted the R.O.H. for further treatment and continued to attend A.A. meetings. She wasn’t hearing voices but stated she felt fragile.

49The Respondent subsequently relapsed on speed and alcohol and admitted same to the protection worker on October 8, 2017. She had gone out with a friend to a pub and drank alcohol knowing that this would lead to drugs. Her daughter found out as she was home when she returned in the early morning hours.

50She described this as a slip as she had been sober for almost three (3) months. However, she admitted not doing much to maintain her progress and remain sober. She reported having moments when she felt fragile mentally. While she didn’t hear voices, she would see things and this occurs within the three (3) weeks period between which she receives her injection medication. Nor was she reaching out to anyone during these moments but rather tends to use drugs to relieve the tension or stay home to sleep and eat.

51It is noted that following this relapse, she did not consistently follow through with any services. She had ceased attending the Groupe Agir on June 13, 2017. She had attended 18 out of 28 sessions of Groupe Agir between March 3, 2017 and June 13, 2017.

52In November 2017, she began a new medication for her mood named Lamotrigine.

53On November 22, 2017, she started the residential Recovery Program at the R.O.H. and remains in this program to date. She had been sober for one (1) month prior to attending the R.O.H. as a pre-condition of admission. She now has over six (6) months of sobriety.

54The Respondent’s intent is to remain at the Recovery Program until June 2018 to get support during this trial.

55She had opted not to leave the program during weekends until January 2018 as she was afraid of relapsing. She now spends weekends at home and reports having no cravings.

56She is described as follows by social worker Jillian Crobbe:

• Has been doing well since the start of the program;
• Attends all programs; her participation is good; she is positive and honest; she has responded well;
• They work through her triggers together when they arise; she has not had many triggers lately.

57While she had reported in May 2017 that she had terminated her relationship with her boyfriend she had met at the hospital, she disclosed that he was staying at her home to take care of her cat during her stay at the program. She now realized he was possessive and asked him to leave her home and changed her locks.

58The agreed statement of facts notes that the Respondent remains committed to her treatment, her mental health and to addressing all concerns raised by the Society.

59Exhibit #1 also provides insight in regards to the access between the Respondent and the child E.L. Overall, these are said to be positive. It is noted that the child has a strong attachment to his mother, always looks forward to seeing her and returns to the foster home in good spirits. The Respondent is affectionate, attentive and loving. They play games together, laugh and talk.

60It is noted that the Respondent would at times share a lot of information with E.L. concerning court, her struggles and relapses. On October 13, 2017, she told him that he was going to be adopted which impacted significantly on him.

61There have been regular visits since the March 2016 apprehension. They have varied from two (2) to three (3) times weekly. They have also varied from supervised, to partly supervised to unsupervised. There have been some overnight visits. The nature of the visits varied in accordance with the Respondent’s state and condition at the time.

62Exhibit #1 indicates that E.L. struggled with organization, homework, lunches, bedtime, chores and bathing when he first arrived in the foster home. He has responded well to his foster parents’ directions. He was also caught in lies on many occasions and was taught the importance of telling the truth.

63Once he understood the situation with his mother, he was able to settle in and function much better.

64He has been in the same foster home with his sister since his initial placement.

65On November 18, 2016, E.L. was explained the nature of an addiction, the impact on his mother and why she needed help. This provided him with a better understanding. He asked very mature and good questions and said he felt satisfied with the explanations provided to him.

66He is doing very well and is meeting all of his developmental milestones. He has no behavioural problems and responds well to directions. He is polite, pleasant, mature and intelligent. He is doing well in school and involved in Scouts.

67Finally, Exhibit #1 confirms that the Respondent’s sister, C.M., was asked about her willingness to propose a permanent plan for E.L. but indicated that she was not in a position to decide at this time and needed more time to think about it. Nor did she know of any other family members who could care for E.L.. The end result is that there are no alternative plans for this child. No one from the Respondent’s family or network has come forward to present a plan.

Mylène Forest

68Mylène Forest is a Child Protection Worker with the Ottawa Children’s Aid Society. She has worked with this family since August 31, 2016.

69Her role was to support the Respondent and provide her with guidance in relation to her addiction and mental health issues. She explained that the Society’s expectations were identified, discussed and reviewed throughout her dealings with her. It was made clear that she needed to address her addiction to substances and that this required ongoing treatment and the use of tools in order to avoid relapses when struck by cravings.

70It was also made clear that she needed to remain sober if she wanted her son returned to her care.

71She generally describes the Respondent in positive terms:

− she has been cooperative:

• returns calls
• readily allows entry in her home;
• did not resist the Society’s involvement. − she was honest about her relapses most of the times; − there is no concern with the state of her home; − she was never physically violent with her children; − often time, she appears to understand the concerns raised with her and wanting to address them; − there is no question that she loves her son and longs for his return; − her access visits to the child are positive.

72The witness testifies as to some of the facts set out in the Statement of Agreed Facts (Exhibit #1). She refers to the facts leading to the Society’s involvement, the Respondent’s attendance for residential treatment programs, the police involvement with the family, the drug screening tests, the relapses, her hospitalizations and the attempts at family group conferencing.

73Ms. Forest’s main protection concerns revolve around the Respondent’s historical inability to avoid drug relapses following her participation in residential treatment programs and being provided with tools and community based resources. She notes the following:

− the only time she remains sober is while in a residential treatment setting; − she relapses within days of her return in the community; − she doesn’t regularly attend programs recommended to her such as Groupe AGIR at the Montfort hospital and A.A. / N.A.; − she needs to be monitored and reminded to take her medication; − she took no steps to move from her present home which exposes her to street drugs and people involved in drugs; − she associates with friends who consume illicit drugs; − she is somewhat passive on avoiding relapses and needs constant pushing; − she maintained an unhealthy relationship with a male individual she met while hospitalized; − she would rationalize that she didn’t consume drugs during visits with the child; − she has no natural network (family, friends) to support her in the community; she did not follow through with a plan which had been set out in the context of a family group conference involving friends and family; her only support is from professionals.

74Ms. Forest testifies that she contacted the Respondent’s sister with a view of exploring the possibility of a kin placement with her. However, the sister confirmed that she is unable to care for the child and is unaware of someone who could do so.

75The worker opines that the concerns are such that the Respondent is incapable of providing a structured, safe, organized and stable environment for the child. Her view is that extended Society care remains the only viable disposition to meet the child’s best interests.

76In cross-examination by the Respondent’s counsel, she states that there was no structure during the access visits. She appeared to simply go along with what the child wanted to do. The expectation was that she would act more as a parent.

77She confirms that there is no indication that the Respondent would have been intoxicated during any of the access visits.

78She reiterates that the Respondent was honest and forthright with her for the most part.

79She agrees with the suggestion that the Respondent has not been violent with her children including when the police attended by reason of conflicts with her daughter.

80When questioned by the child’s counsel, she notes that the Respondent has not been forthright on a number of issues such as her attendance at the Groupe AGIR and her relationship with the individual she met while at the Montfort hospital.

81She has concerns with the Respondent’s ability to follow through with conditions which would be set out in a supervision order.

82She also agrees with counsel’s suggestion that portions of the Respondent’s Plan of Care have been tried and failed. This includes reliance on and following up with community resources.

83While a change in where she lives would address some issues, it would not alleviate or mitigate issues relating to her addictions, mental health and parenting skills.

84Finally, Ms. Forest stresses the significance of access to his mother and sister for the child. Access must be a condition precedent of any adoption.

A.C.-L.

85A. C.-L. is the Respondent’s oldest child and E.L.’s sister. They do not have the same father. She is 18 years old and has completed her first year at the University of Ottawa.

86She has been living in the same foster home as her brother since March 2016. She didn’t want him to be alone in foster care.

87The witness is asked to describe her life while living with her mother and brother. She paints a fairly bleak environment:

− it was a sad time; − her mother was depressed; − they fought a lot; − she was mad at her mother because of the alcohol, drugs, she went out a lot and was not attentive; − she states that it was hard not to resent her mother because of the things she did.

88She explains that the worse time was the year prior to her mother’s attempted suicide when she jumped off a bridge in the Ottawa River. She wouldn’t clean the house or cook. She recalls an incident when she witnessed her “acting really weird”. She was yelling and running outside. The ambulance came. This was also witnessed by her brother.

89All of this impacted on her personally as she felt confused, mad and stressed out. She worried about her mother all the time.

90As for her young brother’s relationship to their mother, she notes that he was overprotective of her to the point of being obsessed by her. He would overact to protect her. He is better now.

91While her mother would provide care to E.L., she personally took on an active role in caring for him such as waking him up for his school and reviewing his homework.

92She feels that her mother is now doing much better and is at “the best she has ever seen her”. She visits with her once or twice per month. However, she raises the concern that “there’s always a chance she will start taking drugs”.

93In cross-examination by the Respondent’s counsel, she explains her view that it wasn’t healthy for E.L. to be entirely focussed on their mother as “everything was about her”.

94She agrees with the suggestion that she personally had many anger issues and broke things. Her mother did things and this made her mad.

95She doesn’t recall the police telling her to get help for anger management nor throwing a phone at the T.V. Her brother witnessed many of these fights many of which were started by her.

96She again explains being very mad at her mother. She readily describes herself as not being really “controllable” and not inclined to follow rules. She explains that this relates to the things her mother was doing.

97While they wouldn’t go to school hungry and wasn’t malnourished, she notes that there wasn’t much food in the home.

98She confirms that the Society has shared their concerns for E.L. if returned to their mother’s care. They have spoken about her mental health and substance abuse issues. She was shown a drug report by both her mother and the Society worker.

99She was told by her mother that she was diagnosed with schizoaffective disorder.

100In cross-examination by counsel for the child, she explains having spoken to her mother about her “drug problem”. She reports being told that she wanted to stop but had cravings.

101She again explains how she was impacted by all of this. She felt stressed out and would constantly think about it.

Tina Berthelot

102Ms. Berthelot has cared for E.L. as a foster parent since his placement in March 2016.

103She notes that there were a number of issues when he first arrived, namely:

− he was anxious and overwhelmed; − he would steal and lie; − he urinated in a closet; − he would smear feces on a wall; − he had no routine and self-discipline; − he needed to be reminded to bathe.

104He was very attached to his mother and she was his world. He refused to go places out of fear that he would miss her calls.

105The witness describes the child has having improved but that he still requires monitoring and guidance with his homework and personal hygiene. He is a very “smart kid” and listens well to directives but still needs positive reinforcement. He is now more self-aware of what needs to be done. He doesn’t steal or lie anymore. He is now somewhat more independent from his mother sometimes telling her he is busy when she calls.

106Her view is that the Respondent is a very nice lady who is easy to talk to. They often invite her to events involving E.L..

107There was an incident when the child returned home from a visit with his mother heartbroken and extremely emotional. She describes him as being in “million pieces” because he was told by his mother that he would be adopted. Ms. Berthelot was mad and called the Respondent to tell her this wasn’t right.

108The witness confirmed having attended the family group conference in order to try and build a support system for the Respondent. They had offered her a job at their restaurant. The Respondent was very opened but essentially relapsed and things didn’t work out.

109While they are not presenting a plan to adopt E.L., her family is prepared to care for him pending an adoption. They will always be there for him.

110In cross-examination by the Respondent’s counsel, she confirms that E.L. has regular unsupervised telephone access with his mother.

111On the issue of the Respondent disclosing the adoption plan with E.L., the witness explains that the intent was for the Society worker and the Respondent to raise the subject together with him. While the child would ask questions about how long he would stay with them in foster care, he would never ask questions about adoption before disclosure to him by his mother. His belief was that he would stay in foster care until his mother got better. She notes that he really misses her.

112During cross-examination by the child’s counsel, the witness describes the child as intelligent, articulate and mature. His behaviour has now settled and he follows family rules. However, she states that if “they are not there to tell him, he will not do it”.

113She testifies that adoption was initially a shock for him but he is now more comfortable with the idea.

Anathele Zamor

114Anathele Zamor is an occupational therapist at the Montfort Hospital. She provides services to outpatients having mental health issues. She assists patients mainly through the AGIR program which focuses on individuals having concurrent disorders, meaning severe and persistent mental illness coupled with a substance abuse disorder.

115The AGIR program is a “harm reduction program” based on individual needs. The goal is to provide patients with coping skills and tools to manage emotions. The focus is on inner strengths and the finding of solutions on how to grapple with various stressors. Participation is based on individual needs and participation varies from 6 to 14 months.

116The Respondent was a member of AGIR from April 2016 to June 2017. She had been referred to this program following her admission at the Montfort in March 2016 when she attempted to commit suicide.

117She explains that the Respondent has expressed a desire to remain sober to regain the care of her son. Her therapy revolved around working on a number of issues including:

− how to say no to drugs and alcohol; − her role as a mother; − her living arrangements:

• there were concerns with an individual she had met while hospitalized;
• her step-father lived nearby; he was abusive and provided her with drugs; − how to manage her emotions; − her day-to-day living skills.

118The witness describes the Respondent as being motivated, pleasant and seeming to appreciate her participation in the program. However, her progress was inconsistent. The following concerns are raised:

− she missed approximately one third of the group sessions; − she sometimes did not take her medication as she didn’t like the side effects; she appeared to have good insight as to the importance of taking her medication; − there were a number of relapses:

• the drug screening tests found at Tab 2 of Exhibit #4 revealed that she consumed street drugs from time to time, namely “amphetamines”, “cocaine”, “methamphetamine” and “cannabis”;
• she readily disclosed when she relapsed by consuming alcohol and street drugs; − her approach is described as being “passive” as if others could manage and remove her cravings for drugs and alcohol; − she was overwhelmed on how to self-manage her emotions and substance abuse disorder; − while it was suggested that she move to a new home, she decided to stay there because it was subsidized and she enjoyed living there; − she did not follow through with recommendations of personal therapy meant to address her past history of sexual abuse as a child and adult (CALAC); nor did she attend A.A. / N.A. in regards to her substance abuse issues.

119Ms. Zamor explains that they felt that in order to move forward, the Respondent needed to focus on developing her inner skills so as to understand and manage her emotions. She needed to take personal responsibility for herself. As such, the solution was not for her to return to a residential setting. Having no contact with the outside world will not address her problems. It goes against “self-management recovery”.

120In the end, the witness explains that the Respondent was not receptive to their view that the solution was not a further return to residential treatment.

121In cross-examination, she indicates not knowing if the Respondent was on a waiting list with social housing to move from her present home.

122She maintains her view that the solution does not lie in a residential setting as she needs to learn to cope on a day-to-day basis. She cannot learn how to self-manage in a structured residential program.

123The witness is not familiar with the R.O.H. Recovery Program but does not question that it is a good program.

Pierre Berthelot

124Pierre Berthelot has been E.L.’s foster parent since March 2016.

125He notes that E.L. had some issues when he first arrived but that he has improved. He is a very smart child.

126He explains how the Respondent had worked for them at the restaurant on Sundays for a couple of months. This was as a result of the family group counselling. There was a relapse and she never returned.

127He confirms that they will not present a plan to adopt E.L. but he can remain in their home as long as necessary.

128In cross-examination by counsel for the Respondent, he agrees that the mother and child are mutually attached to one another. He notes that the relationship is more akin to “friend to friend” as oppose to “parent and child”.

129He is of the view that E.L. has matured. They had to “start at zero” in terms of parenting as he was many years behind in terms of maturity. He was also confused when he arrived in their home. Furthermore, he was “borderline malnourished”. His hygiene was and remains an issue. However, he had no cuts or bruises and no dental cavities.

130The witness describes the Respondent in positive terms while she worked at the restaurant.

131In cross-examination by counsel for the Child, the witness describes the oldest child A. C.-L. as very smart and as having mixed emotions. She was initially very protective of her brother and was mothering him. He told her she didn’t have to be a mother to her brother. She has never been problematic but struggles with her emotions. She has panic attacks on occasion.

132He opines that any future plan for E.L. must provide for access between these children.

Rosemary Farrell

133Rosemary Farrell is an adoption and openness worker employed by the Society. She testified and adopted the content of her affidavit sworn on April 25, 2018 which was filed as Exhibit #5, Tab 3.

134The essence of her evidence is that E.L. has no specialized needs or behaviours. He is described as a bright, healthy and polite child who responds well to structure and routine and needs to be intellectually stimulated.

135In view of his profile, there are currently two (2) approved families that could provide a proper home for him.

136In cross-examination, the witness briefly explains the adoption process. They cannot legally identify families at this stage.

137While she has never met the child, his fundamental needs have been identified as being:

− structure; − stability; − stimulation; − French Canadian heritage.

138They will ensure that access to the Respondent mother is maintained if it is important to the child.

Josée Marleau

139Josée Marleau is a child protection worker employed by the Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry, Her evidence is found in her sworn affidavit dated April 26, 2018 found at Exhibit #5, Tab 2.

140She explained that her agency had initially assumed carriage of this matter because of a conflict of interest. It appears that the Respondent had a longstanding relationship with a worker at the Ottawa Society.

141She describes her role with the Respondent as meeting her at least once every thirty (30) days to review concerns, help develop safety plans to ensure safe visits and maintain services put in place to address her sobriety. She also identifies the “plans of service” which were developed to assist the Respondent. These plans were reviewed with her.

142Her work with the Respondent was from March 23, 2016 until September 2016.

143Ms. Marleau provides particulars of her dealings with the Respondent and information received from her during home visits and telephone conversations:

March 23, 2016

− she was still at the Montfort Hospital; − the Plan of Care was reviewed with her.

April 7, 2016

− AGIR program was discussed; − she wanted to obtain individual counselling and attend A.A.; − she was taking her medication but felt very tired and slept a lot; − she admitted having relapsed and drank alcohol the day following her discharge from the hospital; she would later admit having also consumed cocaine.

April 21, 2016

− they discussed the Family Group Conference program and she seemed interested.

May 4, 2016

− she reported attending AGIR, A.A. / N.A. and Maison Fraternité; − she reported having remained sober since her last relapse following her discharge from the hospital; − she stated the groups were helping a lot; − she was able to distract herself when she had cravings by watching movies and sleeping; − she stated that she was taking her medication.

May 2016

− she admitted consuming cocaine on Mother’s Day; she had tested positive on May 10, 2016; − she consumed because she felt very sad and depressed about her family situation; − the worker noticed a decrease in her mood after this period.

June 15, 2016

− she was in a very good mood; − she stated now having an A.A. sponsor who she could contact when she was craving.

June 2016

− it was later revealed that she had consumed cocaine on June 24, 2016; she tested positive for same; − she disclosed being on a high when told that visits with her son would increase to overnights and she wanted to celebrate; she consumed wine which led to cocaine; she reported being embarrassed and very sad; she had not attended AGIR in fear of testing positive.

July 7, 2016

− she returned to the hospital as she suffered a period of psychosis; − it was later revealed that she had consumed “speed” the night before and was brought to the hospital by the police; − she explained that following her visit with her son, she began to crave for drugs; she tried to resist by keeping busy and calling her A.A. sponsor; she met friends and took speed; she also smoked marijuana; she was hearing voices and panicked; she finally went to the hospital.

July 12, 2016

− she had left the crisis center and felt rejuvenated; she would now receive her medication through injection at the hospital; − she planned to attend AGIR and had an intake appointment with OARRS; − she was adamant that she was “done” with the drug lifestyle and could not continue on this path.

July 28, 2016

− she reported doing well and planning on attending AGIR and A.A.; − she didn’t feel the need to attend residential treatment as she had been sober for three (3) weeks and was feeling good.

144The file was re-assigned to the Ottawa Agency on consent of the Respondent.

145She agrees with the following suggestions put to her by the Respondent’s counsel in cross-examination:

− visits with the child were going well; − no issues with the state of her home; − she was not under the influence during access visits; − while she delayed in doing so on occasions, she disclosed her relapses; − the child was fed during visits; there were no concerns with hygiene and physical care; − she was cooperative and made efforts to follow the recommendations made by the Society.

146The witness notes that she had, at one point, encouraged the Respondent to attend for residential treatment such as the Maison Renaissance.

147She agrees with the suggestion made by the child’s counsel that she has had no contacts with the Respondent since August 2016. Therefore, she is unable to comment on her subsequent circumstances in regards to her addiction, mental health and her plan of care for the child.

Micheline Barbe

148Micheline Barbe is a child protection worker with the Society. Her affidavit dated April 24, 2018 was filed as Exhibit #5, Tab 1. The Court was told that paras. 14, 29, 30 and 31 were not admitted and thus, not to be considered. There was no cross-examination of this witness.

149Her evidence revolves around the events of March 4, 2016 when the Respondent attempted to commit suicide by jumping off a bridge into the Ottawa River.

150She met with the oldest child who was at school and told her about the events and that her mother was at the hospital. She appeared angry and sought details.

151They then went to get the youngest child at school. His sister was present with the workers. He was apprehended by the Society.

152Unsuccessful attempts were made to identify family or friends who could care for the children. They were ultimately placed in the same foster home so as to avoid separating them. A. C.-L. wanted to remain with her brother in foster care even if she wasn’t the subject of the protection proceedings by reason of her age.

153The child E.L. is described as being very emotional and crying a lot. He was saying how much he missed his mother. He was crying so much that he couldn’t speak.

154On March 8, 2016, the worker met with the Respondent who acknowledged needing help and having an addiction problem. She explained that her daughter was acting as the adult in the home and that this was not appropriate. She was worried about her children.

155The Respondent had telephone contacts with the children which were followed by supervised visits starting March 18, 2016. These visits were described as positive and the children were happy to see their mother and spend time with her.

Dr. Katherine Allen

156Dr. Allen is a psychiatrist at the Montfort Hospital. She treats inpatients and outpatients all of who suffer from concurrent mental health and substance abuse disorders. Her resume was filed as Exhibit #7.

157Her first dealings with the Respondent was as an outpatient in May 2016.

158Reference was made during her testimony to a report dated May 27, 2016 authored by her resident Dr. Roisin Osborne. This report which was marked on consent as Exhibit #4, Tab 6, sets out the following information:

− she was referred with a diagnosis of schizoaffective disorder, bipolar type; − she was admitted from March 4, 2016 until April 1, 2016 following a suicide attempt; she had thrown herself off a bridge into the Ottawa River in response to voices telling her she would die one way or another; − she was initially doing well after her discharge and was attending the Groupe AGIR; − in early May, she stopped taking her medication and consumed alcohol and cocaine; − she had reported that her mood was last normal in December 2015 when the psychotic symptoms began; she was hearing voices and was paranoid; − she has a long standing history of substance abuse which has varied over the years; she has historically consumed speed, cocaine and alcohol on a fairly consistent basis since age 20; − both of her parents have a history of significant mental health issues; her brother committed suicide at age 25 in 2007; − she described a disruptive life as a child and adult; she was made a Crown ward at age 12; there is a history of sexual abuse at age 9; she was subjected to spousal physical and sexual violence; − she is diagnosed as having the following concurrent disorders:

• Schizoaffective disorder – bipolar type;
• Substance use disorder. − she has a number of chronic stressors which may have perpetuated her illness from a social point of view; − she appeared medically healthy and committed to treatment; − she engaged easily into the therapeutic alliance and appeared to have a good level of intelligence to protect herself socially; − she was committed to caring for her children and this appeared to be her priority; − she was prescribed medication called Abilify; − it was strongly recommended that she attend the Groupe AGIR and meetings in the community.

159Dr. Allen echoes the information found in this report during her testimony. She stressed the significance of the treatment plan given to the Respondent. She explains that her condition is chronic as there is no cure. It is a life-long disorder. She notes that the Respondent does very well when compliant with her medication and abstinent from the consumption of street drugs and alcohol.

160Her mental illness is such that she varies from mania to depression. She has psychosis episodes during which she hallucinates and is delusional. She sees, hears, feels and believes things which are not real.

161The doctor notes that the Respondent had stopped taking Abilify, a medicine prescribed to her, and then relapsed with speed. This resulted in a psychosis episode.

162The witness had also stressed with the Respondent the importance for her of attending the AGIR program as a means of acquiring the tools to avoid relapsing. She had recommended against attending for residential treatment. The doctor’s view was that she should maintain outpatient treatment.

163The point is made that the Respondent’s prognosis is good provided she takes her medication and stays away from street drugs and alcohol.

164She cannot comment on the Respondent’s present circumstances as she has not seen her since October 2017, when she wasn’t well, had relapsed and was depressed.

165In cross-examination by the Respondent’s counsel, Dr. Allen agrees that she doesn’t know how the Respondent is doing since she hasn’t seen her in 6 or 7 months.

166She opines that the risk of relapsing is usually reduced after a one (1) year period of continued abstinence. She agrees that six (6) months is “a good start”.

167She agrees that a residential program longer than three (3) months is possibly more efficient. Nor does she dispute the suggestion that inpatient programs can be useful. However, her view is that history has shown that these are not beneficial to the Respondent as she relapsed soon after leaving such programs. The hope was to help her remain sober while in the community.

168She is questioned in regards to the interaction between the mental health and substance abuse components of the Respondent’s illness. She explains that both are connected and there is uncertainty as to which one is the primary disorder. They are both equally and similarly important.

169She agrees that the Respondent has not chosen to be mentally ill.

170During cross-examination by the child’s counsel, she confirms that the Respondent had been administered her Abilify medication by way of injection as of July 2016 and was reacting well to it.

171Finally, she states that abstinence by the Respondent in the community while outside of a residential setting is the most significant consideration.

D. C.-L. (Respondent mother)

172D. C.-L. maintains that she is capable of caring for her son. She is taking care of herself because she wants to take care of him and be a parent again.

173She states that she has been an inpatient at the R.O.H. since November 22, 2017 and has gone home during weekends for the last four (4) months. She couldn’t do so for the first two (2) months as she was having cravings and wasn’t ready.

174She was told that she could get discharged anytime from the R.O.H. and Dr. Baines identified the end of June. However, she chose to remain pending this trial as she needed support.

175The medication Abilify which she has been taking since July 2016 is working well. She isn’t hearing voices anymore and all of her symptoms and psychosis have disappeared since taking this medication.

176Her present anti-depression medication, Lamotrigine, has also tempered her condition.

177She notes that she no longer craves alcohol and understands she can’t drink in moderation. Her obsessive thoughts have gone.

178She is questioned in regards to some of the issues raised through the Groupe Agir:

− She had taken steps to move from her home in Vanier by calling Ottawa Housing and filling an application but she was not on a priority list. She wants to move to Orleans. However, she is on ODSP and can’t afford to move. She needs subsidised housing. Her present intent is to move to Orleans. − Her stepfather was responsible for the maintenance where she resides and lived in the same building. He was a huge trigger for her but has now moved to Nova Scotia. She hasn’t seen him since October 2017 and rarely communicates with him. − She terminated her relationship with G.M. in January 2018, who she dated for less than one (1) year. He had made a gesture close to her neck but had not choked her. The child E.L. wasn’t present. She did argue with him over the telephone on one occasion while the child was present. Her son stated G.M. wasn’t right for her. She had tried to break-up with him but he followed her to the Montfort Hospital and on Montreal Road. He returned to her home for a few months while she was at the R.O.H. as she needed someone to care for her cat. She has since changed the locks. She states that she now understands that G.M. is not a good example for her and that this was an unhealthy relationship.

179She identified Dr. Baines as her psychiatrist and Dickson Davidson as her social worker who she meets once per week.

180D. C.-L. provides a brief history of her past. She explains that E.L. has always done well in school and she would help him with his homework. There were no complaints from teachers. He had a routine which included a bath every second day after which she read him stories.

181Her evidence is that E.L. had a routine while in her care. He never smeared feces on walls or urinate in closets.

182E.L. did have some tantrums as a child.

183Her daughter would act as a parent for E.L. while she was working full-time. She would never have left him alone with her boyfriend. Nor did she drink when E.L. was in her care.

184She feels she did a good job with her children.

185She went to college in 2009-2010 and worked as an addiction counsellor. She was sober then. She was laid-off from her work. Subsequently, she worked on and off at Toys “R” Us and in 2014 worked for High Speed Canada. She hasn’t worked since 2014.

186She used to drink and go out with her best friend almost every weekend.

187She recalls the altercation with her daughter A. C.-L. when she had called the police so as to stop the fight. There was yelling and A. C.-L. had thrown her cell phone at the T.V.

188As already noted, she describes her present circumstances in fairly positive terms.

189She testified now having a new support system through friends met at the R.O.H. These new friends are like family.

190When asked to explain what is different this time, she notes the following:

− she is now healthy; − she has the proper medication; − she accepts her situation; − she has no cravings; − she has a routine; − she is happy and feels great; − she can do activities; − she has energy; − she has a routine; − she understands the need for safety and a routine for her son; − she is not the same person; − she will remain sober; − being alone is no longer a trigger; − she knows that she can’t go out drinking; − she now has the tools to deal with her cravings; − she has attended A.A. and N.A. recently; − she takes walks and fresh air; − she reads and writes; − she talks to her social worker.

191On a prospective basis, she plans to continue seeing Dr. Baines or Dr. Allen at the Montfort.

192The following points are raised by counsel for the Society in cross-examination:

− she agrees that she returned earlier to the R.O.H. during a weekend in February 2018 as she needed support; − she agrees that her old friends know where she lives; − she is not bothered by the fact that there is a pub close to her home; − there is no final plan for her release from the R.O.H.; − she has just recently started to attend A.A. and N.A. meetings.

193During cross-examination by the child’s counsel, she doesn’t dispute the suggestion that similar plans have been tried in the past. She is mindful that this trial is all about E.L.’s best interests. She knows that all of this has impacted on the child and that taking care of him will be challenging. She also agrees that he is doing well and is being well cared for in foster care.

194She rejects the suggestion that she is fragile. She responds not being “that fragile”.

195She states that she knows that E.L. doesn’t want to be adopted and wishes to return to her care once she is ready.

196In re-examination, she explains that she would historically relapse when stressed. While this trial has been emotional and stressful, she has not relapsed during same.

J. P.

197J.P. has been friends with D. C.-L. since 2004. They met as neighbours and their children used to play together. She moved in 2010 but they have maintained their friendship and communicate by telephone. They have gotten together on two (2) or three (3) occasions since 2010.

198She describes D. C.-L. as a very good mother who was always involved in activities with her son E.L. such as crafts and going to parks. She supervised him properly and made sure he was at the bus stop every morning. He was always clean, well dressed and fed. The home was also clean like a normal home.

199She states that things were pretty well the same as before during a couple of visits since 2010. She had no concerns for the child during these visits.

200J.P. knows that the child E.L. is in foster care. She was present for the family conference group meeting.

201She notes that the Respondent has contacted her a couple of times about her relapses. She would tell her to get the help she needed.

202In cross-examination by counsel for the Society, she agrees that she has only seen the Respondent interact with her son on two (2) or three (3) occasions since 2010. She cannot comment on these interactions other than these visits. She speaks to her through Facebook a couple of times per month.

203She explains that her part in the family conference group was to call her on Tuesdays and Thursdays to remind her to attend the Groupe Agir. She states that this only lasted a few weeks and she stopped calling.

204In cross-examination by counsel for the child, she indicates that D. C.-L. told her that she had relapsed on a few occasions but she doesn’t recall when. It was after 2016.

205While she did see her intoxicated by alcohol, she did not know that she consumed speed and cocaine. This was never disclosed to her by D. C.-L.

L.P.

206L.P. is a long-time friend of D. C.-L. They met when they were 12 or 13 years old. Their friendship was maintained after high school. They split at one point.

207She has often seen her children and would visit their home. She notes that D. C.-L. has normal interactions with her children. The child E.L. appeared normal and clean. She would prepare meals for him, bathe him and put him to bed at around 8:00 p.m. The child was well behaved.

208The house was well kept and she believes there was always food in the fridge.

209She became aware of her issues with drugs when she got a call about her suicide attempt. She went to see her at the hospital.

210She also attended the family conference group. They all agreed to help the Respondent. Her role was to call her every Thursday but she stopped doing it.

211She hasn’t seen the Respondent and the child together since the apprehension. She may have since them once but is unsure.

212She notes that the child is really attached to his mother and that they love each other.

213In cross-examination by counsel for the child, she explains that D. C.-L. had mentioned to her having a drug problem a few times. She had started to hang around with certain people in 2010. However, she wasn’t worried. The child E.L. was with them most of the time. She didn’t know she was taking speed but told her about the cocaine during the last year.

W. Dickson Davidson

214W. Dickson Davidson testified in the context of a voire dire. While his expertise as a social worker is not challenged, his ability to provide an opinion as a psychotherapist is opposed and requires a ruling by the Court. This issue will be re-visited in the Discussion portion of this judgment.

215His resume was filed as Exhibit #4 in the said voire dire. It reveals that he has been employed as a social worker in various programs at the R.O.H. since 2012. He is presently assigned to the Recovery and Youth Drug Treatment Program since 2016. He is also a registered therapist.

216As a social worker, his duties include assisting patients with the following:

− housing; − financial issues; − occupational and vocational support; − identifying primary support groups; − connections in the social environment.

217He explains that psychotherapy is connected to mental health. He refers to “solution focus therapy” and “cognitive therapy” which are used to assist patients in developing social skills. Psychotherapy would be used with an individual returning to an environment with risk factors. “Solution focus approach or therapy” is used to provide means to manage such risks and develop responses to stressors.

218His training as a psychotherapist was mostly at the R.O.H. He explains how cognitive behavioural therapy is used in dealing with people suffering from schizophrenia.

219When cross-examined on his training as a psychotherapist, he agrees that only doctors are able to make a diagnosis. He doesn’t work in substance abuse disorders. His input as to a patient’s discharge is limited to a social work perspective.

220His work with the Respondent mother was more as a social worker than a psychotherapist. His involvement as a psychotherapist is probably in the 10 – 15% of his dealings with her. He notes that she participated in group therapy and social skill groups but not led by him. He is assisting her more in connecting with services in the community.

221He has known her since November 2017. He notes that a major issue with her when she arrived at the R.O.H. was the lack of support in the community. He refers to her step-father who was problematic.

222The witness opines that her lengthy stay in the Recovery Program has been beneficial to her. He provides the following particulars:

− she is realistic about her education and realizes that she has other issues to deal with first; − she wants to move to Orleans away from Vanier and has taken steps; − she is better connected to her present program; − she is more reflective and better able to communicate with health professionals; − she attends and participates in various groups including addiction group and occupational health group; the reports and notes reveal that she participates well; − she has developed significant friendships with people she did not know before; she met these friends in the unit; − she is showing more capacity for emotional self-discipline; − she attends N.A. at the R.O.H.

223His opinion as a social worker is that she is showing progress and stability over time. She could leave the program anytime and is expected to leave in June 2018. There is nothing stopping her from doing so form a social works perspective.

224The witness cannot comment as to her parenting and ability to care for her child.

225He notes that she is presently going home roughly four (4) days per week which serves as a transitional period. Steps have been taken for her release in the community, namely:

− finding a new home − ODSP − getting a pardon for an unpaid OSAP student loan − volunteer work.

226He explains that there is a possible after care plan with the R.O.H. but it hasn’t been determined whether she will follow-up with the Montfort Hospital or the R.O.H.

227The witness is challenged in cross-examination by counsel for the Society in regards to his views.

228While she has applied for a new home, he agrees that she is presently residing in the same home in Vanier. The significant change is her step-father’s departure.

229The stability he refers to is based on what he sees in the Recovery program. His view is that this program is different than other residential programs as it allows patients to come and go as they wish and be exposed to life in the community.

230He measures her present condition by her sobriety, self-regulating and deeper discussions. Reliance is also placed on her new friendships with other patients in the unit.

231The witness is unaware of the concerns which arose from a relationship she had developed with a boyfriend in a hospital setting.

232He has no personal knowledge concerning her attendance at A.A. and N.A. meetings. It is based on self-reporting by her.

233He agrees that his opinion is relative to the present absence of psycho-social stressors related to mental health concerns and not her addiction issues.

234He sees her return to the R.O.H. for support during a weekend when she was offered a drink by a friend in Smiths Falls in a positive light. It is indicative of her seeking help when in need.

235In cross-examination by the child’s counsel, he agrees that she spends most of her time at the R.O.H. She sleeps and lives on the same floor as where the programs are held.

236The point is made that the present setting is highly controlled and monitored. The witness is not aware of a more comprehensive program in Ottawa. He agrees that she will not have the same level of control outside of this setting.

237He also agrees that there is no guarantee that she will be able to move from her present home.

238The follow-up will likely be through the Montfort Hospital.

239His view is that her past failures to follow-up with support while in the community is a factor but he maintains that she is now involved with a different team and mode of therapy.

240In re-examination, the witness reinforces the point that the Respondent has been subject of a different mode of therapy and treatment plan. She has been in the program for a longer period. She was provided with new programs which were not available to her at the Montfort Hospital.

241He points out that patients can come and go as they wish. The fact that she goes home during weekends allows her to practice her skills, self-regulate and manage her environment.

242This is different from other programs where patients remain inside at all times.

243The fact that she attended the R.O.H. from Smiths Falls while in distress shows that she made a good choice.

244The fact that she ended her relationship with the individual who was abusing her shows that she put an end to this abusive relationship.

Dr. Alexandra Baines

245Dr. Baines is a psychiatrist at the R.O.H. She was called by the Respondent mother as an expert witness to provide an opinion in regards to her progress, stability and future care. Her resume was filed as Exhibit #8. She has cared for D. C.-L. as a patient in the Recovery Program since November 2017. Her ability to provide the above noted views is not opposed by the other parties.

246She confirms that D. C.-L. has been diagnosed with a schizoaffective disorder (sub-bipolar) coupled with a substance use disorder (alcohol, speed, cocaine, cannabis). She notes that she is doing “incredibly well” under medication namely Abilify and Lamotrigine. She has better moods and reports feeling much better. She is very stable and has had no hallucinations or delusions since the end of 2017. She is not depressed and there are no suicidal thoughts.

247There have also been improvements in her ability to function and care for herself “day-to-day”. She is engaged in activities and has made several friends in the program. She is thinking of getting involved in volunteer work.

248The tests reveal that she has maintained sobriety for over six (6) months. Abstinence for a period of 3 to 12 months is quantified as “early remission”. There is no such quantification for mental health disorders.

249The doctor’s view is that while there is debate as to the relationship between mental health and substance abuse disorders, the treatment of D. C.-L.’s mental health issues impacts on her substance use disorder. Her belief is that this makes a difference for D. C.-L. She notes that she is no longer hearing voices leading her to consume.

250She has also benefited from occupational and psychosocial therapy. She is said to have been very engaged in these groups and compliant with rules. She has made many friends in these groups and works with the social worker.

251Dr. Baines believes that D. C.-L. is ready to leave the Recovery Program and return into the community. She explains that patients are usually discharged after six (6) months but there is flexibility. Some stay up to a year in the program. The plan is for her to leave in June 2018. She wanted a gradual release by reason of this trial. She could also be gradually released through a transitional period.

252The follow-up and aftercare will likely be with Dr. Allen from the Montfort Hospital since she was the referring doctor. However, her discharge plan has not been finalized.

253The witness is aware that D. C.-L. has been treated in a residential setting in the past and relapsed soon after leaving these programs. She explains that there is a potential for this and such relapses are hard to predict. This is the nature of what she deals with in her work.

254She states that the close proximity of a pub close to her home is a potential concern.

255As for the length of programs, she explains that there is ongoing debate on whether longer programs such as the Recovery Program are better. Recovery is unique by reason of its duration and the fact that patients are free to come and go.

256Her view is that it seems that D. C.-L. has benefited more from this longer program. It has provided her with more time to reconnect. The fact that she has spent weekends away from the R.O.H. is significant as this is what they look for in patients.

257She cannot assess her abilities to care for her child.

258Dr. Baines concludes by stating that D. C.-L. has done extremely well in the Recovery Program. She is doing much better and being properly treated.

259In cross-examination by counsel for the Society, she agrees that D. C.-L. has returned to the R.O.H. for support during weekends and guesses she did so on ten (10) occasions.

260She agrees that she is being monitored while in the program, which includes the taking of her medication. She also has access to extensive support while in the program.

261The failure to take her medication would likely result in psychosis, paranoia and hallucinations. She will be responsible for taking her medication once in the community. The doctor is aware of her history of non-compliance in taking her medication.

262The expectation once released in the community is for her to follow-up with a psychiatrist, take her medication and possibly attend groups. In the end, we will not know until it is tried and tested in the community.

263The doctor is cross-examined along the same lines by the child’s counsel.

264She agrees that once discharged, she will be in a significantly different environment with more stressors. Caring for a child could add to these stressors. Counsel notes that she will return to the environment she was in with people she consumed with in the past.

265She is questioned in regards to the Respondent’s plan of care which the doctor has not seen.

266In the end, the doctor agrees with the suggestion that D. C.-L. has done very well to maintain her sobriety in a semi-controlled environment.

267In re-examination. Doctor Baines notes that there is debate on the importance of A.A. meetings while in the community. She usually stays away from recommending specific programs such as A.A. following discharge.

268The doctor’s view is that her return to the R.O.H. during weekends is indicative of her making healthy choices. It shows that she was able to recognize the symptoms and triggers and coped with same by returning to the R.O.H. She notes that this is what patients are encouraged to do in such situations. So that, she followed instructions.

269Her ultimate goal is for D. C.-L. to gain stability. She has done well so far and has better control over her mental health disorder.

POSITIONS OF THE PARTIES

The Society

270The Society’s position is that the child E.L. continues to be in need of protection and as such, a Court Order is required. It submits that his best interests will be met through extended Society care with access to his mother and sister.

271The ongoing need for protection stems from the cumulative effect of the following consideration:

1. The Respondent mother’s mental health and substance use issues:
   • The child is at risk of harm when her symptoms are active;
   • She has failed at her attempts to address the concerns raised by these issues.
2. Her instability:
   • She was hospitalized on a number of occasions;
   • She has not yet demonstrated a period of stability and/or sobriety outside the various residential treatment programs and admissions at hospital;
3. Her lack of follow through with services and supports:
   • She has not worked diligently over the past two (2) years to maintain her sobriety;
   • She does not follow through with her supports, discharge plans and after care recommendations.

272It is argued that the Society’s plan for extended care coupled with access is in E.L.’s best interests. The following points are raised in support of its position:

− The child is consenting to the Society’s plan as confirmed by his counsel; it therefore reflects E.L.’s views and preferences; − The child requires and deserves a caregiver who is sober, consistent, reliable and capable of exercising good judgment; − It provides for finality as there are two (2) potential adoptive families; − There is no question that access to his mother and sister is in the child’s best interest; such access is meaningful and beneficial to him; − The Respondent mother is unable to meet the child’s physical and emotional needs:

• She cannot provide him with a permanent, stable and safe home;
• She plans on returning to the same home in Vanier once discharged from the Recovery Program;
• She has no concrete plan for her own care once she leaves the said program; a discharge plan has not yet been finalized;
• History has shown that she doesn’t follow through with services in the community;
• The outcome and sustainability of her sobriety and stability is not clear since she has not been “tested” outside the present program. − The Respondent’s plan amounts to a “trial run” to test her ability to maintain sobriety and stability over time; − Her plan would keep the matter before the Court and further extend litigation.

273In regards to the issue of witness Dickson Davidson’s ability to provide opinion evidence as a psychotherapist, the Society’s submission is that his testimony must be viewed and limited within the scope of his role as a social worker. Counsel notes that Mr. Davidson testified that his work with the Respondent mother was mostly in the role of a social worker with some instances when psychotherapy was used with her. Furthermore, he does not have any clinical work relating to individuals with substance use disorders but had worked with persons having this disorder.

Respondent Mother

274The Respondent mother’s position is that the Society has not met its onus of justifying the need for ongoing state intervention. It is argued that the evidence does not provide a basis for a finding that E.L. is in need of protection under the factors set out in para. 74(2) of the CYFSA. Specifically:

− There is no evidence that he has ever suffered physical harm; − At its highest, the evidence speaks to the possible risk of harm due to the Respondent’s illness/addiction; however, this possible risk must be considered in the context of his never having suffered such harm while in her care; − While there is ample evidence that she suffers from substance abuse and mental illness, the evidence establishes that she has successfully undergone treatment for both; her treating physician Dr. Baine’s opinion is that she is stabilized; furthermore, any risk of future emotional harm must be considered in the context of no historic evidence of harm despite the fact that she was not diagnosed or treated until after the child’s apprehension.

275If the Court finds that E.L. remains in need of protection requiring protection through an order, her view is that he should be returned to her care with a supervision order to address these concerns. Such a disposition is in the child’s best interests. She raises the following points in support of her position:

− While the Office of the Children’s Lawyer need not call evidence to assert that E.L. supports the Society’s application for extended care, there is no admissible evidence supporting the position that he is in agreement with the plan for his adoption; to the contrary, the only evidence is that he was upset when he was told about such plan. As this is hearsay, there is no admissible evidence in regards to his wishes; − He has no special needs beyond those of a typical boy of his age and she has demonstrated that she is capable of providing for these; − He has always enjoyed a very good relationship with his mother; − They share the same ancestry, ethnicity, and cultural heritage; she is bilingual and he attends a French school; − He has a positive relationship with his mother; she has been his primary caregiver from birth to March 2016; − The Society’s plan lacks stability and permanence; he will remain in foster care if he objects to being adopted; the return to the mother will provide him with stability and permanence; − He was removed from his mother’s care on March 4, 2016 and should be returned to her without delay; − He is very attached to his mother and the acute anxiety he went through when placed in foster care is probably as a result of being separated from her; − The medical witnesses from the Montfort Hospital are not currently treating the Respondent mother and therefore cannot speak to her present state; Dr. Baines who is currently treating her testified that she has been sober for six (6) months, has responded incredibly well, demonstrated stability over time, is doing better now than any time in the last 20 years and is ready for discharge.

276While she concedes that the risk justifying the initial apprehension was serious, she has taken substantial measures to address and has addressed the Society’s concerns. Thus, it is in the child’s best interests that he be returned to her care.

277Counsel argues that witness Dickson Davidson is eminently qualified to testify as an expert witness in his capacity as a social worker and psychotherapist due to his extensive experience, knowledge and training.

CHILD E.L.

278The Children’s lawyer submits that E.L. continues to be in need of protection and that this requires a Court Order for his protection. Counsel points to the following concerns raised by the evidence:

− The mother does well in treatment programs but struggles to maintain sobriety often within short periods after completing the programs; − She has used multiple substances on multiple occasions; − There is no one trigger for her substance abuse and this makes it difficult to predict; − A number of relapses were in and around access time with the child; the cause for this is unclear but poses a tangible real risk to E.L. should he be with her full-time; − Her present positive engagement in the current program is not new to her; − She has failed to consistently follow relapse prevention and medical treatment plans; − There will be additional stressors on her once she is home full-time and parenting full-time; − Her current ability to maintain stability, sobriety and her medical treatment plan outside of a residential treatment program is unknown.

279It is argued that the Respondent mother’s plan for a supervision order amounts to a concession that the child remains in need of protection.

280The submission is that the disposition sought by the Society is in the child’s best interests. The following points are raised by his counsel:

− Significant weight should be given to his views and preferences:

• He is consenting to the Society’s application;
• He is intelligent, articulate and mature;
• Counsel me E.L. in private at the foster home on March 15, April 8 and May 3, 2018 and his views were consistent, strongly expressed and independently held; − E.L. has no special, physical or emotional needs but requires structure and routine as he does not do well without it; while he is intelligent, he is neither independent or highly self-directed; − The Respondent is unable to provide him with the structure, routine and discipline needed; − The plan must provide for the continuation of his relationship to his mother and sister; he has strong emotional ties to both; − A change in his care arrangement would be disruptive for him:
• He would leave the home he has been in for over two (2) years;
• Leaving daily contacts with his sister;
• Change school
• Return to his mother with who he has not resided for over two (2) years. − There are many important questions regarding the mother’s plan:
• Her discharge from the Recovery Program;
• Her post-discharge plan of care to prevent relapses. − Any further delay is not in E.L.’s best interests; he is aware of the proceedings and anxious to have a decision made; − The degree of risk associated to extended care coupled with access is materially lower than what is proposed by the Respondent mother; − The degree of risk of harm when finding that E.L. was in need of protection was significant; it includes risk of physical and emotional harm.

281Counsel’s submission is that witness Dickson Davidson cannot be qualified as a participant expert in the area of either addiction or psychotherapy. Given his training, experience and work with the mother, he is qualified as a participant expert in the area of social work and mental health.

The Law

282By operation of para. 11(1) of O. Reg. 157/18, these proceedings are continued under Part V of the new Child, Youth and Family Services Act as oppose to Part III of the old Act.

283The relevant statutory provisions are as follows:

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

Sec. 1 (2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.
3. Services to children and young persons should be provided in a manner that, i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons, v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests,
4. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.

Sec. 3 Every child and young person receiving services under this Act has the following rights:

1. To express their own views freely and safely about matters that affect them.
2. To be engaged through an honest and respectful dialogue about how and why decisions affecting them are made and to have their views given due weight, in accordance with their age and maturity.
3. To be consulted on the nature of the services provided or to be provided to them, to participate in decisions about the services provided or to be provided to them and to be advised of the decisions made in respect of those services.

Sec. 74 (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; (f) the child has suffered emotional harm, demonstrated by serious, (i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development (h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) 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.

Sec. 74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

Sec. 101 (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 102, in the child’s best interests:

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.
2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
4. That the child be placed in interim society care and custody 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 a total of 12 months.

Sec. 101 (2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

Sec. 101 (3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

Sec. 101 (4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

Sec. 101 (8) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

Sec 105 (1) Where an order is made under paragraph 1 or 2 of subsection 101 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child’s best interests.

Sec. 105 (5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests

Sec. 105 (6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and (b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

Sec. 113 (2) The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child’s status; (b) shall apply to the court for a review of the child’s status before the order expires, unless the expiry is by reason of section 123;

Sec. 114 Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order; (b) order that the original order terminate on a specified future date; (c) make a further order or orders under section 101; or (d) make an order under section 102.

Sec. 122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding,

(b) 24 months, if the child is 6 or older on the day the court makes the order.

Sec. 122 (5) …the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so.

284The function of a status review hearing was explained as follows by the Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165:

“37. The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection….

This flexible approach is in line with the objective of the Act, as it seeks to balance the best interests of children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail”.

DISCUSSION

285Having considered all of the circumstances in this matter and the relevant principles, the Court if of the view that the Society has established, on a balance of probabilities, that the child E.L. continues to be in need of protection and therefore requires a Court Order for his protection. Specifically, the Court finds that it is more probable than not that there is a risk that he is likely to suffer emotional and/or physical harm resulting from the actions and/or inactions of the Respondent mother if he is returned to her care. This risk of possible harm is seen as real and not just speculative.

286In arriving at this finding, the Court has considered and weighed the very positive and supportive evidence of the expert health professionals who have been treating the Respondent mother through the Recovery Program at the R.O.H., namely Dr. Baines and social worker W. Dickson Davidson.

287As noted earlier, witness W. Dickson Davidson’s ability to provide an opinion as a psychotherapist was challenged by the Society and counsel for the child and therefore, testified in the context of a voire dire. The Court’s ruling on this issue is that his evidence relating to psychotherapy is admissible. This ruling is based on the principles set out by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9. The Court finds as follows:

(a) Relevance

− While his involvement as a psychotherapist with the Respondent mother is limited to 10 – 15% of his dealings with her, reference was made to “solution focus therapy” as a means to assist patients in developing social skills, managing risks and responding to stressors; these are closely and logically connected to one of the core issue in these proceedings as to whether or not the Respondent is capable of functioning in the community and avoid relapses when confronted by stressors; − This evidence is limited and represents only a small portion of his testimony and of the evidentiary record; the bulk of his evidence pertains to social work; − The Court is capable of properly assessing this evidence and giving proper weight and consideration to same.

(b) Necessity in assisting the Court

− It is found to be reasonably necessary as it is relevant to a significant issue and provides information which is outside the experience and knowledge of the Court;

(c) Exclusionary rule

− Counsel did not point to any exclusionary rule of evidence;

(d) Properly qualified expert

− He is found to have acquired special or peculiar knowledge through study or experience in respect of psychotherapy:

• he is a registered therapist;
• his training as a psychotherapist was mostly at the R.O.H.;
• psychotherapy is connected to mental health;
• he has been employed as a social worker at the R.O.H. since 2012; R.O.H. is a mental health facility;
• he is assigned to the Recovery and Youth Drug Treatment Program since 2016. − The Court is mindful that he is unable to make a diagnosis, he doesn’t work in substance abuse disorders and his input as to patient’s discharge is limited to a social work perspective; nor does he have any clinical work relating to individuals with substance use disorders but has worked with individuals having this disorder.

288Witness W. Dickson Davidson’s voire dire evidence is therefore part of the trial evidentiary record.

289There is no question that the Respondent is described in very positive terms by these health professionals. There is no evidence to counter this evidence because the health professionals from the Montfort have not dealt with the Respondent since at least November 2017 when she entered the Recovery Program. Therefore, they cannot comment in regards to her present condition.

290So that the Court accepts the following facts:

− she is presently stable; − she has had no hallucination or delusion since the end of 2017; − she is not depressed nor suicidal; − she has maintained sobriety for over six (6) months; − she is doing much better and being properly treated; − she has better control over her mental health disorder; − she could leave the program anytime.

291It is also noted that the fact that the Recovery Program has been positive and beneficial is documented through the R.O.H. progress reports found in the Respondent’s trial document brief filed as Exhibit #6 in this trial. There is no question that she is to be commended for her efforts in addressing her significant challenges. It is certainly hoped that she will pursue the present course.

292So that while the Court is mindful and has pondered on her present favorable circumstances, these positives cannot be looked at in a vacuum. They must be assessed in light of the whole of the evidence and history revealed in this trial.

293The probable risks of harm to the child remains when the last 6 – 7 months are measured against the cumulative effect of the following circumstances:

− There is a longstanding, deeply rooted and consistent history of significant health and substance abuse issues:

• Dr. Allen referred to her family’s history of mental health issues as a factor to be considered;
• She had been consuming illicit drugs for some 20 years up to October 2017;
• In January 2005, the Society intervened by reason of her consumption of cocaine and ecstasy and how this impacted on the care given to her daughter A. L.-C. who was 5 years old. − Her condition is described as chronic as there is no cure. It is a life-long disorder. − There had been very limited improvement and consistency up to November 2017 notwithstanding that she was closely monitored and scrutinized by the Society first in 2005 and starting in January 2015 onward. She clearly understood that her actions and inactions could jeopardize her ability to properly care for her son in the context of child protection proceedings. − She has participated in a number of residential and non-residential treatment programs and yet, her mental health and addiction issues have continued. − Similar to the present circumstances, the evidence reveals a pattern of optimism, commitment and professed willingness to change in order to care for her child, which usually follows the Respondent’s participation in treatment programs. This hope is also shared by protection and health workers. Unfortunately, this is short lived as she most often relapses within days. − The Court is not questioning the value of the Recovery Program nor the quality of care given by these health professionals. Its duration and the fact that patients may come and go as they wish make it different than other programs mentioned in this trial. While the Respondent’s participation in this program and the benefits flowing from same provide a possibility that she may remain stable and sober once in the community, it does not rise to the required probability that the child E.L. will not be exposed to significant risk of mental and physical harm if placed in the care of the Respondent mother. The Court cannot return this child to her care based on a possibility that she may remain stable and sober; the Court notes the following concerns:
• Dr. Baines guesses that the Respondent returned to the R.O.H. needing support during weekends on ten (10) occasions; while this shows an ability to make healthy choices when faced with triggers in the community, the real concern is how she will react to such triggers having care of her child in the community and a return to the R.O.H. not being an option;
• She is described as being in early remission in regards to her abstinence;
• Dr. Baines explained that relapses are hard to predict and that this is the nature of what she deals with in her work;
• She also explained that we will not know until it is tried and tested in the community. − Her discharge plan has not yet been finalized but the follow-up and aftercare will likely be with the Montfort Hospital. Again, the Court is not questioning the value of the care given by the health professionals at Montfort but these are the programs historically relied upon to treat the Respondent with very little, if any, permanent success. − The Respondent has shown not to follow-up with aftercare community based programs and resources such as A.A., AGIR and the family group plan which were made available to her. − Other than health professionals, she has very little community based support. − While she has taken steps to move from her present home in Vanier because of the issues connected to this home (her friends, the presence of a pub close by), the plan is to return there with no certainty as to when she will be able to move. The Court notes that the concerns with this home have been raised by the Society with the Respondent on numerous prior occasions. − The evidence shows that the Respondent’s condition is hard to manage as it is difficult to identify what triggers her relapses. At times she relapsed when things were going very well with E.L.. − The evidence pertaining to the Respondent’s oldest child 18 year-old A.C.-L. is instructive and reinforces the Court’s concerns for the child E.L.. Section 93(1) (a) of the CYFSA provides that the Court may consider the past conduct of the Respondent towards A.C.-L. The impact on her is also telling. The Court notes the following:
• The events of January 2005 which have already been referred to in this judgment;
• The need for repeated police intervention in the home by reason of conflicts between the Respondent and her daughter, including an incident of a physical altercation;
• A.C.-L. was exposed to an episode of severe psychosis;
• She was removed from the Respondent’s home;
• A.C.-L. explained how she felt confused, mad, stressed-out and being worried about her mother all the time; she has anger issues;
• A.C.-L.’s demeanor and emotional state when she testified in this trial are indicative of how she has been negatively impacted by all of this. − Thus far, E.L. has been exposed to the following while under his mother’s care:
• Conflicts requiring police intervention between his mother and sister including a physical altercation;
• Being removed from his home on a number of occasions;
• Witnessing a violent and very severe episode of psychosis by his mother;
• Being removed from school and placed in foster care following his mother’s attempted suicide in March 2016; he has been in foster case since;
• The very real possibility, which is denied by the Respondent, that he witnessed his mother being assaulted by her boyfriend. − The Court finds that the child E.L. has probably been emotionally harmed by all of this:
• His sister describes him as being overprotective of their mother to the point of being obsessed by her; he would overact to protect her; he was entirely focused on her; everything was about their mother;
• The foster parents described a number of issues when he first arrived including: − Anxiety; − He lied and stole items; − He urinated in a closet; − He smeared feces on the wall; − Had no routine or discipline.
• The foster mother noted that he would refuse to go places out of fear of missing his mother’s calls;
• The foster father testified that E.L. was borderline malnourished when he arrived and that hygiene was and remains an issue; they had to start at zero in terms of parenting as he was many years behind in terms of maturity;
• The fact that he told his mother to call him if she felt the urge to consume; − What is perhaps the most telling and yet sad statement in this matter, is the fact that the child E.L. does not wish to return to his mother’s care notwithstanding his love for her and attachment to her.

294As already noted, the cumulative effect of these considerations lead the Court to the conclusion that the child remains in need of protection and as a consequence, a Court Order is required for his protection.

295It should be noted that the Court is mindful of the efforts made by the Society to assist this family starting back in January 2005.

296Furthermore, the evidence reveals that there is no possibility that E.L. be placed with a relative, neighbour or other member of his community.

297In the end, the Court finds that the child’s best interests lie in the extended society care disposition sought by the Society. There is no less disruptive alternative to protect this child.

298This finding is based on the following considerations:

− Significant weight is given to the child’s views and wishes in support of the Society’s position. E.L. will turn 12 in November and is described as intelligent, articulate and mature. His counsel indicated that his views and preferences were consistent, strongly expressed and independently held. It is also confirmed that he is aware that ultimately, the plan is for his adoption. While he was initially shocked by this when it was disclosed to him by his mother, the evidence is that he is more comfortable with the idea.

Undeniably, the introduction of the new legislation on April 30, 2018, has enhanced the significance of a child’s views and wishes in protection proceedings:

• The preamble provides: “The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard”.
• Part II sets out the rights of children and young persons, including: “1. To express their own views freely and safely about matters that affect them.
  2. To be engaged through an honest and respectful dialogue about how and why decisions affecting them are made and to have their views given due weight, in accordance with their age and maturity.
  3. To be consulted on the nature of the services provided or to be provide to them, to participate in decisions about the services provided or to be provided to them and to be advised of the decisions made in respect of those services”.
• Section 74(3): “74(3) Where a person is directed in this Part to make an order or determine in the best interests of a child, the person shall, (a) Consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained”.

− For the reasons already discussed in this judgment, the Court finds that it is more probable than not that the plan of care proposed by the Respondent mother would result in the child being returned to the setting and the risks of harm associated thereto from which he was removed and brought to a place of safety in March 2016. − E.L.’s physical, mental and emotional needs are more likely to be met through the Society’s proposal considering his condition when he first arrived in foster care as compared to his present significantly more positive circumstances described by his sister and the foster parents. This child needs structure, routine and discipline. − While the Recovery Program has been beneficial to the Respondent mother and she has made gains, there remains a significant element of uncertainty on how things would unfold in the community tasked with her child’s care. The Court cannot operate on the notion that she has not been tested and we will not know until it is tried. The Court cannot take a “trial run” with a soon to be 12 year-old child who has already been exposed to much turmoil in his young life. As stated by Justice Ratushny in Children’s Aid Society of Brockville, Leeds and Grenville v. C., [2001] O.J. no. 1579 at para. 16:

“16. The significant of this child centered focus is that good intentions are not enough. The test is not whether the parents have now seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in her best interests. There is not to be an experimentation with the child’s life with the result that in giving the parents another chance, the child would have one less chance…”

− The Society’s plan provides for continued access to his mother and sister. In fact, this access is identified as a condition precedent to any adoption. This will allow for the maintenance of positive relationships for this child. − There are two (2) potential adoptive families which have been identified for E.L.. Furthermore, both foster parents have explained that they are prepared to care for E.L. and his sister as long as necessary.

CONCLUSION

299Therefore, for the reasons set out in this judgment, the Court finds that the child E.L. remains a child in need of protection and that he is to be placed in the extended care of the Society subject to access to the Respondent mother at the Society’s discretion and in keeping with the child’s best interests.

Justice R. Laliberte Released: 2018/06/25

COURT FILE NO.: FC-16-495-3 DATE: 2018/06/25 INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH and FAMILY SERVICES ACT ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD, YOUTH and FAMILY SERVICES ACT, 2017, S.O. 2017, C. 14, Sched. 1 AND IN THE MATTER OF E.L. (child). BETWEEN: The Children’s Aid Society of Ottawa Applicant – and – D.C.-L Respondent REASONS FOR JUDGMENT Justice R. Laliberté