2020 ONSC 7017

COURT FILE NO.: FC-20-644

DATE: 20201117

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Simcoe Muskoka Child, Youth & Family Services

Applicant

– and –

A.M.

and

Lori Gibson, Counsel for the Applicant

Christopher Severn, Counsel for Respondent A.M.

S.D.

John Rogers, Counsel for Respondent S.D.

Respondents

HEARD: November 13, 2020

RULING ON MOTION

McDERMOT J.

Background

[1] This was a motion brought by the Society for temporary care of the child, M.P.M., who was born on [...], 2020. A.M. is the mother of the child; after some false starts, it has now been established that S.D. is the father. M.P.M. was apprehended by the Society from the Respondent Mother’s care at birth because of concerns over the her diagnosed paranoid schizophrenia, something she has been struggling with since she was 22 years old. She is presently 31 years of age.

[2] The Society protection concerns arise from the fact that A.M. has elected not to take medication for her condition. She says that she is exploring holistic treatments for the schizophrenia, including CBD oil but acknowledges that she does not take the medication that is recommended (although not yet prescribed) by her psychiatrist.

Result

[3] I have no hesitancy in finding, on the evidence, that the mother’s mental health issues are becoming increasingly worrisome and are a risk to the child’s health and safety which cannot be addressed with a supervision order. I have therefore granted the Society’s motion for temporary care of M.P.M.

Analysis

[4] M.P.M. was apprehended at birth by the Society and placed in foster care. Upon the apprehension of a child, the Society has five days to place the matter before the court. Once brought before the court, s. 94 of the Child, Youth and Family Services Act[^1] (“CYFSA”), the section regarding adjournments, applies:

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[5] In essence, unless the Society proves on credible and trustworthy evidence that there is a risk of harm to the child being returned to the care of the parent who had care of the child immediately prior to apprehension, with or without supervision, the child must then be returned to the custody of that parent. The test is the “reasonableness of the grounds for the CAS’ belief” in the risk of harm and the Society need not prove risk of harm on the balance of probabilities as in a regular civil motion: see L.D. v. Durham Children’s Aid Society, 2005 63827 (ON SCDC), [2005] O.J. No. 5050 (Div. Ct.) at para. 26.

[6] The Society believes that they have shown a risk of harm. They wish the child to be placed into the care of the Respondent Father’s parents, who have supervised the parties’ access in the past, and have been involved with M.P.M. once paternity testing proved that their son was the father of this child. The Society advises that they have completed their kinship assessment of the paternal grandparents, and this allows the child to be removed from foster care.

[7] The Respondent Mother acknowledges that she suffers from paranoid schizophrenia. However, she maintains that this does not provide for a risk of harm even if she does not take her medication. She points out that she has never been given a reasonable chance of parenting this child, and that she has demonstrated her ability to parent this child in any event. Her narrative differs with that of the Society worker, who paints a picture of deteriorating mental health and inability to meet the child’s needs. A.M. wishes the child to be returned to her care on a graduated basis, with the child remaining in foster care until that return is achieved. She does not agree with the Society’s proposal to place M.P.M. into the care of the paternal grandparents as she fears that there would be a status quo which would result in the child’s best interests competing with the duty of the Society to place the child in her care.

[8] The Respondent Father, S.D., supports the mother’s position, and wishes M.P.M. to be placed into A.M.’s care. He believes that A.M. can provide adequate care of M.P.M. and that there are no safety issues with M.P.M. being returned to her care. He does not seek an order for care of M.P.M. He also does not wish M.P.M. to be in foster care; if M.P.M. is not returned to A.M.’s care, he prefers that M.P.M. be in his parent’s care. It is to be noted that he, too, suffers from schizophrenia, but he does comply with his doctor’s treatment plan.

[9] The evidence shows that the Respondent Mother was diagnosed nine years ago with paranoid schizophrenia and has struggled with that condition since then. She was last hospitalized because of her schizophrenia in 2015. Her psychiatrist, Dr. Mulder, confirms that she is competent to refuse treatment and to also instruct her counsel.

[10] A.M. filed two letters from Dr. Mulder which confirmed, as far as she is concerned, that she does not need to take medication as recommended by the psychiatrist. These letters were dated August 31 and September 22 respectively. They both say that it was Dr. Mulder’s preference that A.M. be treated by “antipsychotic medication”. In the September 22 letter, Dr. Mulder confirmed that A.M.’s thought processes were “logical and organized.” He confirmed in that letter that A.M. had not been on medication for the past year. He says in both letters that there has been no decline in A.M.’s mental health since going off of her medication, and that A.M. would therefore not benefit from medication.

[11] However, Dr. Mulder has provided two additional letters since the letter written on September 22. In his letter of October 26, 2020 he confirms, after receiving information from the C.A.S. worker, that A.M. is showing “signs of decompensation, which historically has been marked by delusional paranoia and bizarre behavior.” In a second note written by Dr. Mulder several days ago, he confirmed that he had told A.M. that “she is unwell, similar to how she was when last admitted to hospital a number of years ago.”

[12] It is concerning that Dr. Mulder speaks of the historical problems that A.M. has had when she does not accept treatment or take her medication. To deny that this is the case puts the child at risk were he returned to her care. Although Mr. Severn suggested that the change in the doctor’s views was because the C.A.S. worker “got to him” and swayed his views, the evidence of the worker suggests the opposite when she conveys that Dr. Mulder told her that the first two letters were written with the intent of not impairing Dr. Mulder’s therapeutic relationship with A.M.

[13] Other individuals have confirmed that when A.M. goes off of her medication, she has severe mental health issues. The maternal grandmother, who lives in New Brunswick, confirmed that when A.M. stops taking her drugs, she “has delusions, obsesses, is disorganized in thought and is paranoid.” She also said that A.M. can be, when suffering from her disease, “manipulative, controlling, … aggressive and cannot be empathetic or show emotion.”

[14] In fact, according to the worker’s affidavit, A.M. is increasingly showing that behavior. According to the worker, A.M. exercises extreme control over S.D, not permitting him to take any child care responsibilities or changing M.P.M.’s diapers. She tells him what to eat, imposing her veganism on S.D. According to S.D’s CMHA worker, A.M. insists upon coming to S.D.’s appointments notwithstanding requests to the contrary. She insisted upon going along when S.D and his father wanted to go golfing to the extent of walking behind the golf cart. She has asked to go to S.D.’s appointments with his lawyer. The police report from an incident that occurred on November 9 shows that A.M. was unwilling to allow the officer to speak with S.D separately from her.

[15] There have also been several outbursts. On November 6, 2020, A.M. became quite upset when the foster father dropped off M.P.M. prior to her arriving at the paternal grandparents’ residence; she ran after his car cursing at him and told him never to do that again. More seriously, on November 9, 2020, A.M. became upset at the paternal grandmother, pushed her and then tried to hit her. M.P.M. was present for the altercation, and was strapped to her in a Snugli carrier during the latter part of the incident.

[16] A.M. said that the latter incident was not an assault and that she did not push the paternal grandmother. However, the police report corroborates this incident, and confirms that S.D, who was a witness, told the officer that A.M. had pushed his mother. Charges were not laid against A.M. at the request of the paternal grandmother.

[17] The Society also says that A.M.’s mental illness gets in the way of her ability to care for the child. She becomes obsessive about cleaning M.P.M. up when changing his diaper, using 13 to 17 wipes even when the child has just urinated. She does not adequately feed M.P.M. when he is cuing that he is hungry, wishing to only feed A.M. on a schedule. She refuses to immunize the child against preventable diseases including polio and diphtheria, again contrary to the child’s physician’s advice.

[18] It is A.M.’s evidence that the Society evidence is either false or is exaggerated. She denies all of the concerns or that the outbursts took place. Unfortunately, all of this may be, as suggested by Dr. Mulder, A.M.’s denial that any of these events “ever occurred” which he says is a symptom of A.M.’s condition.

[19] Indeed, the behavior of A.M. is in accordance with her mother’s descriptions of what occurs when A.M. decides to go off of her medication. Again, her mother said she is delusional and obsesses about issues. That is reflective of her need to control S.D, and her obsessive cleaning of her baby’s bottom when changing a diaper. She is manipulative and controlling in her treatment of S.D, insisting on going with him to his appointments and in preventing him from parenting M.P.M. She is becoming increasingly aggressive as shown by the several outbursts that have occurred in the past week.

[20] I therefore find that there would be a risk of harm to return M.P.M. to the care of the Respondent Mother, even on a graduated basis. Mr. Severn says that the child should be placed with the Respondent Mother on an increasing basis to determine whether she is safe with the child; unfortunately, this is not a science experiment, and the safety of the child is not up for negotiation or an experimental regime. And without a safety plan, wherein the mother’s mental health is monitored by a trustworthy person on a daily basis, it would be unsafe in my view to place the child with the mother on any sort of unsupervised basis at this time.

[21] I wish to note that I am not saying that parents with mental health issues cannot care for their children. If they seek treatment, there is no question that many individuals with those issues can successfully care for their children. I am saying, however, that if they wish to care for their children, they need to follow proven medical therapies to address their mental health conditions. Without proof of compliance, the court cannot be asked to just take the parent’s word that she is “OK” especially when there is evidence that the party has gone off of medication in the past resulting in serious behavioral issues.

[22] A.M.’s denial of past events or that anything happened makes a supervision order unworkable. If A.M. is not willing to work on her issues or acknowledge that she needs help and advice concerning the care of her child, it is unlikely that a supervision order would assist in ensuring M.P.M.’s safety.

[23] The Society is proposing placement with the paternal grandparents, obviously a better choice than foster care as requested by the Respondent Mother. Care by the paternal grandmother is sanctioned and required, if possible, by s. 94(5) of the CYFSA. And although the access schedule was generous because the paternal grandparents were willing to supervise the access, that bridge may now be burned as a result of the incident on November 9, 2020; according to the worker, the paternal grandparents do not want A.M. in their home (A.M. says that this is not the case). Finally, in order to address the control issues (and in accordance with the submissions of Mr. Rogers for the Respondent Father), I agree that S.D should have access out of the Respondent Mother’s presence in order to allow assessment of his parenting abilities.

[24] There shall therefore be a temporary order to go for Society care of the child as requested in para. 2 to 6 inclusive of the Society’s motion found at T. 13 of the Continuing Record.

[25] This order may be reviewed by the court if:

a. The Respondent Mother files trustworthy evidence with the Society and the court that she is compliant with her psychiatrist’s treatment plan; and

b. The Respondent Mother comes up with an adequate safety plan to monitor the progress of her illness and any safety issues which may result from that mental illness.

Justice J.P.L. McDermot

Released: November 17, 2020

[^1]: S.O. 2017, c. 14