Superior Court of Justice - Family Court
COURT FILE NO.: C848/15-2 DATE: October 31, 2018
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
Information Prohibited from Publication
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
BETWEEN:
Children’s Aid Society of London and Middlesex Applicant
COUNSEL: Joseph F. Belecky for the Society
- and -
J.D. J.H. P.C. J.S.M.D. S.L.W. Respondents
COUNSEL: Edward J. Mann for J.D. J.H. not appearing P.C. not appearing J.S.M.D. in person S.L.W. in person
HEARD: October 10, 11, 12, 15, 16 of 2018
TOBIN J.
Endorsement
[1] This is a status review application brought under Part V of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the Act).
The Parties
[2] The Children's Aid Society of London and Middlesex (the Society) asks that the child, who is of concern in this case, be found to remain in need of protection. It also asks for an order granting the child’s maternal aunt and uncle custody of the child with access to her mother.
[3] The respondent, J.D. (the mother), is the mother of E.A.M.D., born ... 2015 (the child). The mother asks that the child be returned to her care under a custody order or, in the alternative, a supervision order.
[4] The respondents, J.H. and P.C., did not participate in this case. No relief was sought by anyone, either in their favour or against.
[5] The respondent, J.S.M.D., is the mother’s brother (the uncle). The respondent, S.L.W., is the spouse of the uncle (the aunt). They seek an order placing the child in their care under a custody order with access to the mother.
The Issues
[6] The issues to be decided in this case are: (a) does the child remain in need of protection? And, in the event that she does; (b) what is the appropriate disposition order to be made in her best interests?
Updated Statutory Findings
[7] This is the first hearing concerning the child brought under the Act. As the statutory findings required under the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] (CFSA) are different than those required under the Act, this must be addressed again.
[8] Based on the statement of agreed facts filed by the parties, and pursuant to ss. 90(2) of the Act, I find:
a) the child’s name and age: E.A.M.D., born ... 2015; b) the child is not a First Nations, Inuk, or Métis child; and c) she was removed before the hearing from within the County of Middlesex and brought to a place of safety.
Facts
Circumstances Leading to Resolution of the Child Protection Case
[9] The Society became involved with the mother in June 2015, shortly before the birth of the child.
[10] The child was brought to a place of safety shortly after the child was born and a child protection application was started.
[11] By order of Mitrow J. made July 10, 2015, the child was placed in the temporary care and custody of the Society with access to the mother.
[12] On February 17, 2016, Heeney J. ordered that a parenting assessment be performed by Dr. Louise Sas, psychologist, dealing in part with the parenting capabilities of the mother.
[13] Dr. Sas prepared a parenting capacity assessment that is dated May 25, 2016.
[14] The child protection case was finalized by the order of Templeton J. dated September 22, 2016. The child was found to be in need of protection under cl. 37(2)(i) of the CFSA. [1] The disposition order placed the child in the mother’s care subject to terms of supervision.
[15] Admitted into evidence in this hearing were:
a) the statement of agreed facts dated September 2016, which was filed with the court in support of the order granted by Templeton J.; and b) the parenting capacity report prepared by Dr. Sas, which was appended to that statement of agreed facts.
[16] Counsel agreed that I should consider, accept and rely upon the facts contained in these documents.
[17] It is important to be aware of what facts informed the court when the child was found to be in need of protection and imposed terms of supervision when considering whether the child remains in need of protection under the Act. They provide context and a backdrop to the evidence adduced in this status review application.
[18] Dr. Sas concluded:
a) the mother has an intellectual disability; b) the mother can manage to take care of herself and is definitely able to live on her own and manage her affairs with little support or advice from her family; c) the mother has chronic mental health difficulties that require her to take her medications without fail; d) the mother requires anger management sessions; e) the mother has difficulty assessing suitable partners; and f) the mother can display low frustration tolerance.
[19] Dr. Sas recommended that the child be returned to the mother’s care under Society supervision. One of the recommended terms of supervision was that the mother not enter into a relationship nor cohabit with anyone during the term of the 12 month supervision order.
[20] Included in the order of Templeton J. dated September 22, 2016 were terms of supervision that provided:
a) the mother not permit any other person to stay overnight or reside in her home without prior Society approval; and b) the mother advise the Society of the names of persons spending significant time in her home.
[21] The child was returned to the mother’s care on September 22, 2016. She remained in the mother’s care until the child was apprehended on September 29, 2017.
The Child’s Return to the Mother’s Care Until September 29, 2017
[22] While the child was in the mother’s care, she complied with much that was expected of her.
[23] Society workers were able to attend her home on a regular basis to meet with her and the child. With the assistance of Society workers, the mother found a place for the child in daycare and made sure she attended regularly.
[24] The mother was able to seek medical attention for the child when needed. The child had the benefit of a family doctor and pediatrician.
[25] The child experienced some language delay. E. was enrolled in a program to address this called: “All Kids Belong”. The mother ensured the child’s attendance at appointments.
[26] It was an expectation of the mother that she attend parent education programs. She did so.
[27] The mother also attended counselling at Daya Counselling Centre and the London Abused Women’s Centre.
[28] Dr. Kumar is the mother’s psychiatrist. He gave evidence, which I accept, that he diagnosed the mother with chronic schizophrenia in remission. One of the manifestations of her condition is auditory hallucinations. She hears voices that tell her to do obnoxious things. Among them: hurt other adults. When she stops taking her medication, she relapses. In his report dated August 13, 2018, Dr. Kumar stated that, due to stress in December 2017, the mother relapsed and had hallucinations. In February 2018, she reported even more hallucinations and her medication doses were consequently increased. I find that the mother has been substantially compliant in meeting with her psychiatrist and taking her medications, and she has had no hallucinations since.
[29] A further expectation of the mother was to spend a full weekend each month with the child at the home of her parents who reside in Aylmer, Ontario. The mother and child did go to her parents’ home but, due to ongoing conflict, she stopped for a period but then resumed. The mother did not like her parents telling her how to care for, or raise, the child.
[30] Throughout the period that the child was in the mother’s care, the mother was able to maintain a clean home.
[31] The mother did experience some challenges in complying with the Society plan of care and supervision order.
[32] A challenge for the mother was budgeting. She fell behind in her utility payments and eventually had to move to premises where hydro was included. The mother was unable to articulate to the Society worker where she spent her money and consequently why she was having financial difficulties.
[33] Despite taking parenting courses, the mother had difficulty ensuring the child was properly cared for and that her emotional needs were met.
[34] At times, the mother had to be directed by a worker to change the child’s diaper and ensure she was supervising the child appropriately.
[35] It was of concern to the worker that the child would often cry or fuss and the mother did not try to soothe her. To the worker, the mother appeared to have little understanding of the child’s emotional needs or how to meet them on a consistent basis.
[36] I find that parenting programs and help from the worker or family support worker were not effective in having the mother understand and implement what she was taught about parenting the child. The mother was not able to recognize and meet the child’s needs consistently.
[37] Another significant concern with respect to the mother was her relationship with M.H. (Mr. H.). The Society worker repeatedly addressed this concern with the mother. She knew and acknowledged to the worker that Mr. H. was both physically and emotionally abusive of her.
[38] Despite this, Mr. H. was found to be at the mother’s residence. On November 25, 2015, the worker was at the home, and asked the mother a few times if there was anyone else present. The worker was suspicious because, when she knocked on the mother’s door, she heard voices other than the mother’s. The mother denied that anyone was there. Eventually, however, the mother acknowledged that Mr. H. was in the home. She went to get him, as he was hiding in a bedroom closet. When he emerged, he was not fully dressed. After further questioning, the mother acknowledged to the worker that he had spent the night. This was confirmed by the mother in her statement of agreed facts signed by her March 8, 2018.
[39] The mother was told by the worker on other occasions not to allow Mr. H. to stay overnight in her home or be in a caregiving role to the child. The Society worker explained why the Society was so concerned about him. Despite this expectation, Mr. H. was found in the mother’s residence on other occasions, many of which he spent the night.
[40] In April 2017, the mother told the worker that she started a relationship with another person. However, a short time later, the mother reported that she and Mr. H. resumed contact but denied being in a relationship with him. The mother and Mr. H. continued to have contact with each other despite the risks that he posed to her and the child.
[41] The mother did try to have Mr. H. stop contacting her. She reported his actions to the police, who eventually charged him with criminal harassment and assault. He was the subject of a non-harassment order directing that he have no contact with her. The charge of assault arose because he bit the mother on her arm.
[42] This status review application was issued on July 24, 2017 with a first return date of September 21, 2017.
[43] Following the first court appearance for this status review proceeding on September 21, 2017, the Society worker saw the mother and Mr. H. together in downtown London.
[44] The two were found together again at the home of S.M. (Mr. M.) on September 28, 2017. Mr. M. was known to the Society as a person wholly inappropriate to be in contact with children.
[45] The child was apprehended the next day.
From the Apprehension to the Hearing: Relationship or Contact with Inappropriate Persons
[46] The mother continued to have difficulties in her relationships with potential and current male partners.
[47] On November 29, 2017, the mother contacted the worker to ask if it would be all right for a man to move into her home. During their conversation, the mother told the worker that the man could not live with his girlfriend. It was also revealed that he was a high risk person who had previously threatened to blow up the CAS building. The mother told the worker that, if she (the worker) had any concerns, the mother would not allow him to move in.
[48] During a January 29, 2018 home visit, the mother asked the worker about a person named J.L. (Mr. L.): would there be any concern if she dated him? The worker told the mother that she had to choose her partners herself. The mother said that she knew him for 13 years and they both wanted to date. She also knew that he lost custody of his two children and did not know where they were. While at the mother’s home, Mr. L. called and he spoke with the worker. As a result of this telephone call, the worker was of the view that it would be of concern to the Society if he was around the child.
[49] On February 12, 2018, the mother and worker spoke. This time the mother was considering starting a relationship with J.H. Mr. L. was not spending enough time with her. The mother also had a concern about J.H. because, during their seven year relationship, he was “really abusive.” The mother wanted to know if this was a concern to the worker.
[50] On February 14, 2018, the mother called the worker to discuss whether she could be with Mr. L. and not J.H. She was of the view that Mr. L. was safer than J.H., and Mr. L. wanted a baby.
[51] On February 21, 2018, the mother and worker spoke. The mother’s plan with Mr. L. ended. They broke up because he was controlling and he was upset that she did not want children.
[52] In March 2018, the mother told the worker that she was in Hamilton and planned to stay there with a friend. Ultimately, however, she did not stay because of a falling out between the two.
[53] In April/May 2018, the Society assigned a new worker to the case. The old worker and the new one met with the mother at her home on May 7, 2018 for a transfer visit. Later that day, the old worker made an unannounced visit to the mother’s house where she found Mr. H.
[54] On July 27, 2018, the mother was scheduled to have access with the child in Scarborough. She slept in that morning and missed the bus to Toronto that she planned to take. In the circumstance, she called Mr. H. to drive her to the access visit in Toronto. When in Toronto, she told the access supervisor that a female friend drove her. The mother subsequently admitted to the Society worker that she had lied when asked about who drove her.
[55] The mother purchased an automobile but did not drive. Though the vehicle was uninsured and did not have a licence plate, she allowed Mr. H. to use it.
[56] On August 1, 2018, Mr. H. was outside the mother’s home when she arrived there. He followed her into the house against the mother’s wishes. She tried to call the police but Mr. H. took away her phone. She was eventually able to get her phone back. At some point Mr. H. threatened the mother, such that she got into his vehicle, a rented U-Haul, and they drove off. She was able to make an emergency call to the police, who eventually found the vehicle. A chase ensued and ended when Mr. H. turned into a dead-end street. He was arrested.
[57] The mother acknowledged lying many times to the Society workers about her contact with persons with whom she should not have had contact. This was the case even though the mother was aware of the Society’s concern about these men, and the fact that there were restraining orders against some of them.
Supervised Access Visits
[58] On December 21, 2017, the child was placed in the temporary care of the aunt and uncle. They live in Scarborough. The mother was granted access with the child one time each week for two hours. This access took place at the Scarborough branch of the Toronto Children’s Aid Society. The Toronto Society worker who supervised the mother’s visits was Donna Weir. Her role was to help the mother with parenting. During these fully supervised visits, they would talk about what was needed, and the worker would demonstrate to see if the mother could learn it. The worker would sit in an observation room and go into the access room if it was necessary to intervene. She would show the mother how to engage with the child and speak in appropriate tones.
[59] There is a team of supervised access workers who are case aids. They do not intervene with the parent. When the case was referred to the Toronto Society, it arrived as a case aid referral. After observing the mother, Ms. Weir informed her supervisor that the mother needed further instruction. Ms. Weir identified her concerns, and was assigned to the case as the supervised access worker.
[60] Ms. Weir’s assessment of the mother was that her parenting expectations were not realistic. This was the case from the beginning of her involvement with the mother. The basis of her observations were as follows:
a) The mother could be harsh with the child, who was then two years of age. Her tone was harsh. She would yell and give commands. She sounded punitive. She did not have a child-friendly voice. b) She was somewhat distant in play. c) Ms. Weir was also concerned about the mother’s frustration level and that it would escalate. She gave the example of watching the two year old child “goofing” around. The mother’s tone in response was harsh. She also gave the child a two finger swat. The worker went into the access room to provide immediate intervention in that situation. She also described an incident where the child ignored the mother’s directions. The mother was frustrated. The worker reminded the mother to be self-aware. The mother walked over, bent down to pick up the child, but did stop herself.
[61] Ms. Weir described that, in the access visit the week before this hearing, the child had a temper tantrum. The mother did a good job redirecting the child. She tried to be patient but she became frustrated when the child went to the supervised access room door and said she wanted her “other mommy.” The Toronto Society worker observed a level of frustration that was concerning to her.
[62] The Toronto Society worker also observed that the mother is eager to learn.
[63] In September 2018, the mother wanted to have a little more leeway during her access. The mother asked Ms. Weir if she could have unsupervised visits. This worker’s concern with unsupervised access is the loosening of structure. When this happens, the mother interacts less and a sharpness in her voice returns. She becomes frustrated.
[64] Ms. Weir describes that the mother regressed, but not to the point where it was when supervised access with her started. This worker was concerned that if there were unsupervised visits in the community, the mother would still need to deal with her frustrations, age-appropriate expectations, and the harsh tone of her voice. I accept the Toronto Society worker’s evidence. It was not challenged in cross-examination.
Does the Child Remain in Need of Protection?
Legal Considerations
[65] On a status review application, the first issue to be determined is whether the child continues to be in need of protection: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 SCC 83, [1994] S.C.J. No. 37.
[66] The Society seeks a finding that the child remains in need of protection under subclause 74(2)(b)(i) of the Act. This subclause provides that a child is in need of protection where 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 failure to adequately care for, provide for, supervise or protect the child.
[67] The Society must prove causation by act, omission, or pattern. The risk of harm must be likely and real rather than speculative. It is not necessary to prove intention. Physical harm caused by neglect or error in judgment is still physical harm: Catholic Children’s Aid Society of Hamilton v. A.(M.), 2012 ONSC 223.
Application of Legal Considerations
[68] I find that the child continues to be in need of protection pursuant to subclause 74(2)(b)(i) of the Act by reason of risk of physical harm.
[69] The basis for this finding is as follows:
- The mother’s pattern of behaviour demonstrates that she associates and becomes involved with men who are dangerous and would put her and the child at risk of physical harm.
- The mother has difficulty perceiving the risks posed by men who are dangerous to her.
- When the mother does realize the risk posed by men who are dangerous to her, she has difficulty removing herself safely and permanently from these associations.
- The mother’s parenting skills have not advanced to the point where the mother can safely parent the child without risk of physical harm. She is at times harsh with the child and is unable to see and react to the child’s cues on a consistent basis.
- The mother has difficulty demonstrating that what she was shown in programs and by the access supervisor can be integrated into her parenting skills.
What Disposition Order is in the Child’s Best Interests?
Legal Considerations
[70] The Act provides a statutory pathway that is to be followed in a child protection application: see L.(R.) v. Children's Aid Society of Metropolitan Toronto, [1995] O.J. No. 119 (Ont. Gen. Div.) and Children's Aid Society of Toronto v. L.(T.), 2010 ONSC 1376, [2010] O.J. No. 942 (Ont. S.C.J.). The statutory pathway also applies to status review applications: s. 114.
[71] If the child remains in need of protection, the court must then determine if a court order is necessary to protect the child in the future: ss. 101(2) and (8).
[72] For the reasons that follow, I am satisfied that an order is necessary to protect the child in the future.
[73] The next step is to consider which one of the orders under ss. 101(1) ¶ 1, 2, 3 or 4 or ss. 102(1) should be made in the best interests of the child. The options in ss. 101(1) and 102(1) are:
Order where child in need of protection
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:
Supervision order
- 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.
Interim society care
- That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care
- That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
Consecutive orders of interim society care and supervision
- 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.
Custody order
102(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
[74] It is necessary to consider the circumstances enumerated in ss. 74(3) of the Act when determining the child's best interests: ss. 101(1).
[75] The court must consider what efforts the Society or another Society or person has made to assist the child before the intervention under Part V of the Act: ss. 101(2).
[76] Before making an order removing the child from a parent, the court must determine whether there are less disruptive alternatives that would adequately protect the child: ss. 101(3).
[77] If the child is to be removed from a parent's care, the court is to consider whether there are family or community placements before making an interim or extended society care order: ss. 101(4).
[78] Subsection 101(1) of the Act is limited by s. 122 of the Act, which provides that the court shall not make an order for interim society care that results in a child being in the care and custody of the Society for a period exceeding 12 months, if the child is less than 6 years old on the day the order is made, or a period exceeding 24 months, if the child is 6 years old or older on the day the order is made, unless the time is extended as provided in ss. 122(5). Subsection 122(5) gives the court discretion to extend the time periods above by six months, if it is in the child's best interests to do so.
[79] It is important not to judge the parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential – provided that the standard used is not contrary to the child's best interests. See Catholic Children's Aid Society of Hamilton v. J.I., I.M. and V.I.O., 2006 ONSC 3510, 150 A.C.W.S. (3d) 406, [2006] O.J. No. 2299, 2006 CarswellOnt 3510 (Ont. Fam. Ct.).
[80] The significance of the child-centered approach is that good intentions are not enough. The test is not whether a parent has “seen the light” and intends to change, but whether they have in fact changed and are now able to give the child the care that is in their best interests. There is not to be experimentation with a child's life with the result that, in giving a parent another chance, the child would have one less chance. See Children's Aid Society of Winnipeg (City) v. R. (1980), 1980 MBCA 3654, 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that a parent is able to parent the child without unreasonably endangering the child's safety. See Children's Aid Society of Brockville Leeds & Grenville v. C..
Application of Legal Considerations
Services Provided
[81] I am satisfied that the Society made appropriate efforts to help the mother before bringing the child to a place of safety in September 2017. The Society assisted the mother by assigning a social worker and family support worker, who attempted to assist her with services directed to the identified risks and the needs of the child.
[82] In particular, the worker regularly engaged with the mother about the risks posed by the men with whom she wanted to associate.
[83] The Society assisted the mother in securing daycare for the child. It also assisted the mother in addressing the basic care needs of the child: diaper changes and appropriate supervision.
[84] The mother also obtained services on her own. She attended the 22 week Merrymount “Building Families” program. As well, the mother participated in abuse counselling at Daya Counselling Services and anger management counselling through John Howard.
The Child
[85] The child is described as developing normally, with the exception of her speech.
[86] This speech delay caused some concern for the mother. She arranged for the child to be seen at Thames Valley Children’s Centre because she was not using many words for her age (22 months) and did not consistently follow simple instructions. Recommendations were made, which the mother said she followed.
[87] The uncle testified, and I accept, that the child’s communication is very good now: “she doesn’t stop talking – in a good way.” He and the aunt had a speech assessment conducted and the child is scheduled to start a speech program in October 2018 if she still needs it.
[88] The Toronto Society Kinship Services support worker, Amy Goslyn, testified, and I accept, that the child appears attached to the aunt and uncle. She looks to them for comfort and nurturing. The child appeared to Ms. Goslyn as a typical three year old learning to test limits.
The Mother’s Plan of Care
[89] The mother’s plan is to have the child in her care. They would reside in her clean and tidy home where she has appropriate space and material things to meet the child’s needs.
[90] The mother recently obtained employment that will start this winter. It is the mother’s intention to have the child attend daycare, as this will help her with socialization skills. The mother has already arranged for a spot for the child at daycare.
[91] If asked by the Society, the mother will attend counselling or other services for her and the child.
[92] In order to help her parent the child, the mother stated that she would have the support of her parents, who could take the child on weekends as they had in the past. She also named three people who could provide her with support if she needed to work or had a rough day, if they are approved by the Society.
Assessment of Mother’s Plan
[93] There are positive aspects to the mother’s plan:
a) I have no doubt that the mother loves the child very much. b) The mother is motivated to try to care for the child. c) When directed, the mother will attend at recommended services. d) She has a clean and tidy apartment in which to care for the child. The apartment has the amenities the child would need. e) The mother is attending with a psychiatrist and taking the medications prescribed to her. f) The mother has attended almost every access visit since the child was placed in the care of the aunt and uncle. g) The mother recognizes the child’s need to attend at daycare in order to socialize with other children. h) The mother recognizes that she will need some assistance in caring for the child.
[94] However, the mother’s plan has significant problems associated with it:
a) The family and community support the mother said she had was not borne out in the evidence: i. The mother described her difficult relationship with her parents because she did not like when they told her how to care for the child. The parents did not testify about the support they are able to offer. ii. One of the witnesses put forward by the mother as a support did not testify. There is no credible evidence about the support the named witness could or would provide. iii. A second witness offered by the mother as a support had not seen the mother in almost two years. She “barely saw” the mother because of her continued association with Mr. H. There were no details offered about what actual support this witness could provide the mother. iv. The final witness offered as a support is a parent of four children, none of whom are in her care at this time. When asked if she could support the mother, this witness reported “I’m a good support for her, yeah.” No further details were provided. I find that the mother does not have a viable community or family supports to care for the child.
b) I am not satisfied that a supervision order would be adequate to protect the child. Fundamental to a supervision order being successful is the parent’s compliance with its terms, and being truthful with the Society and other service providers. Unfortunately, the mother has admitted to not being truthful with the Society workers on a number of occasions about her contact with Mr. H.
c) The mother has not demonstrated that she is able to integrate the parenting skills that she was taught into the manner she cares for the child. The supervised access worker, Ms. Weir, from the Toronto Society testified about the mother’s interactions with the child. This worker testified in a fair manner about her observations and the positive and negative aspects of the mother’s care. Her evidence was given in a neutral and unbiased manner. I accept her evidence in total. This worker observed that the mother’s expectations of the child, given the child’s age, were not realistic. The mother could be harsh with the child. When frustrated, the mother had difficulty remaining in control of her temper. On some occasions, the mother did not remain engaged with the child during parts of the visit. The worker conceded to Mr. Mann in cross-examination that the mother did make some gains: but not so much as to dispel her concerns about the mother having access with the child in the community. It is noteworthy that throughout the supervised access between the mother and child in Toronto, she was unable to demonstrate the skills necessary to have the level of supervision reduced in any manner.
d) The mother still has considerable difficulty in assessing with whom she should associate, as well as protecting herself from those who clearly are a danger to her. She continued to see Mr. H. when she knew from the worker that he posed a risk. She lied about it. She allowed people in her home who took advantage of her. When asked why she let them in, she said: “I am the kindest person.” I accept that the mother is a kind person, but not a discerning one. There would be risk of harm to the child if placed in her care with the mother not being able to keep away from or protect herself from these men. The mother recognized that there are “red flags” or warning signs based on the behaviour of the men she associated with. When asked why Mr. H. was still around, knowing that his presence presented “red flags”, she said that she had an abusive past, and was “scared to cut abusive people out of [her] life.” She testified that she was “afraid [she] would be killed or hospitalized. That’s why [she] had [Mr. H.] around.” On all of the evidence related to the mother’s association with inappropriate men, I conclude that she lacks the necessary good judgment such that placing the child in her care would pose a risk to the child.
[95] Terms of supervision would not ameliorate the risk. I find that an order placing the child in the mother’s care subject to a supervision order would not be adequate to protect the child from the risks identified in this case. The child’s need for permanency would not be achieved by taking the chance of placing the child in the mother’s care again.
Assessment of the Society’s Plan
[96] The Society seeks an order placing the child in the custody of the aunt and uncle. I find that it is in the child’s best interests for such an order to be granted.
[97] The child has been in the care of the aunt and uncle since December 21, 2017. The child is doing well in their care.
[98] The aunt and uncle were assessed by Toronto Society workers with respect to their willingness and ability to care for the child on a long-term basis. Their home has been observed to be a proper one with sufficient space and amenities to provide for the care of the child. The child is attached and is now secure in the care of the aunt and uncle. The aunt took an almost 11 month parental leave from her employment to provide care for the child. The kinship worker observed, and I accept, that the aunt and uncle get along well with each other. They support each other. They use each other to come up with solutions and they communicate well together. The worker observed no evidence of substance abuse and both appear to be in good health. The aunt and uncle have sufficient financial resources to provide for the child.
Subsection 74(3) Considerations
[99] When taking into account the ss. 74(3) considerations related to best interests, I find as follows:
- The Society’s plan will better meet the child’s physical, mental, and emotional needs. The aunt and uncle are well able to understand and meet those needs. The mother has not demonstrated that she can do so.
- Both plans would allow the child to maintain contact with her extended family. The Society’s plan would better allow the child to develop a relationship with her maternal grandparents given the conflict that exists between the mother and them.
- The mother’s plan recognizes the importance for the child’s development of a positive relationship with a parent.
- The Society’s plan would better allow for the child’s continuity of care and minimize the possible effect on the child of a disruption of that continuity.
- The Society’s plan better mitigates the effects on the child of delay in the disposition of this case. I am satisfied that the Society’s plan will afford the child a long-term stable placement, while the same cannot be said about the mother’s plan.
- The Society’s plan better addresses the risk that justified the finding that the child remains in need of protection.
Disposition Order
[100] Having taken into account the positive and negative aspects of the mother’s plan, the ss. 74(3) consideration, the Society’s plan and the paramount and other purposes of the Act, I find that it is in the best interests of the child to be placed in the custody of the aunt and uncle.
Access
[101] The Act provides at ss. 105(2) for access after a custody order is made as follows:
Access after custody order under s. 102
105(2) If a custody order is made under section 102 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 will not be in the child’s best interests.
[102] As mandated by the Act, I am satisfied that continued contact between the mother and the child would be in her best interests.
[103] The child recognizes the mother as her mother.
[104] The child was in the mother’s care for approximately one year and she has attended at almost every access visit since removed from her care in September 2017. The mother and child will attend family functions and should be able to enjoy each other’s company.
[105] Based on the evidence set out above, I find that the mother’s access with the child is to be supervised. However, there should be some flexibility in who can supervise and to what extent. These are decisions that will be made by the aunt and uncle in the best interests of the child and with the goal of allowing the child to maintain her relationship with the mother.
[106] The mother is concerned that, without a very specific schedule, she will not be able to have access.
[107] I am satisfied that the aunt and uncle understand and accept the importance for the child to have a positive relationship with the mother.
[108] An access schedule that provides a minimum number of visits that can be arranged by the mother, aunt, and uncle will provide sufficient certainty, and at the same time flexibility, to meet the needs of the child.
[109] The mother shall have access with the child a minimum of six times per year in London or Toronto or such other location as agreed to by the mother and aunt and uncle, as well as access on holidays and special occasions where the aunt, uncle, and mother are together with their respective extended families.
Order
[110] An order will go as follows:
- The child continues to be in need of protection under subclause 74(2)(b)(i) of the Act.
- The aunt and uncle shall be granted custody of the child pursuant to s. 101 of the Act.
- The mother shall have supervised access with the child a minimum of six times per year in London or Toronto or such other location as agreed to by the mother, aunt, and uncle, as well as access on holidays and special occasions where the aunt, uncle, and mother are together with their respective extended families pursuant to ss. 105(2) of the Act. There shall be reasonable supervision of access by persons designated by the aunt and uncle.
[111] I recognize that this decision will be most difficult for the mother given her love for the child and desire to have her returned to her care. I recognize and appreciate that she has tried hard, despite her challenges, to demonstrate that she can meet the child’s needs.
[112] It is hoped and expected that, as the child grows older and the mother addresses those matters that gave rise to the decision made in this case, the level of supervision can be reduced or eliminated.
“Justice Barry Tobin” Justice Barry Tobin
Released: October 31, 2018
FOOTNOTE
[1] The parties at this status review hearing agreed that the finding referred to in Templeton J.’s order was a typographical error. The correct statutory basis for the finding was subclause 37(2)(b)(i) of the CFSA.