ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of the Niagara Region Applicant
– and –
JCPT and NSRH Respondents
Counsel:
C. Etherden and C. Clark, for the Applicant
L. McKenzie, for JCPT NSRH, self-represented
HEARD: March 15 - 30, 2021
RESTRICTION ON PUBLICATION
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
THE HONOURABLE JUSTICE J. R. HENDERSON
REASONS FOR JUDGMENT
INTRODUCTION
1The respondents, JCPT (“the mother”) and NSRH (“the father”), are the biological parents of the child, JLTSH, born […], 2018.
2The applicant, The Children’s Aid Society of the Niagara Region (“the Society”), has been involved with this family since prior to JLTSH’s birth. There have been two attempted kin placements with members of the father’s extended family, both of which were unsuccessful.
3On August 1, 2018, JLTSH was brought to a place of safety by Society staff. JLTSH has been in foster care since the second kin placement was terminated on February 21, 2019. The mother and the father have had regular supervised access visits with JLTSH in their home and at the Society’s offices.
4In this protection application the Society requests a finding that JLTSH is a child in need of protection, and an order placing JLTSH in the extended care of the Society for the purpose of adoption without access to the respondents.
5The respondents oppose the Society’s request. In their Plans of Care delivered in November 2019, the respondents both request that JLTSH be placed in the care and custody of the respondents on certain terms subject to supervision by the Society. However, the mother and the father have been living separate and apart since approximately January 2021. Consequently, at the trial the mother requested an order placing JLTSH with her and the father requested an order placing JLTSH with him.
6In the alternative, if the court orders that JLTSH be placed in the extended care of the Society, both respondents request an order for access to JLTSH, and both request that they be deemed to be access holders should JLTSH be placed for adoption.
FINDINGS OF FACT
7The mother has a history with the Society as a child commencing in 2012, arising out of conflicts between the respondent mother and her mother and concerns about the parenting capacity of her mother. The respondent mother was taken into foster care when she was approximately 14 years old, and she later became a Crown ward. She remained in foster care until she turned 18 years of age in September 2017.
8In October 2016, while she was in foster care, the mother was the subject of a psychological assessment. That psychological assessment disclosed a number of intellectual, cognitive, behavioural and emotional deficits. In particular, the psychologist found that the mother had an intellectual disability, and that the mother’s executive and emotional functioning were in the problematic range.
9Community Living Welland-Pelham (“Community Living”) is an organization that provides a variety of supports to persons who have intellectual challenges. The mother has been supported through Community Living’s semi-independent living program since September 2017. The Community Living staff have coached the mother, made life skills courses available to the mother, supported the mother in the community, and assisted the mother with her housing. The mother continues to maintain a strong connection with Community Living.
10The mother began to date the father in 2015, when she was approximately 16 years old. They started to live together at the beginning of the mother’s pregnancy in late 2017. They separated in late January 2021, and currently do not cohabit with one another, although they maintain a friendly relationship and wish to co-parent. The mother currently lives in a small bachelor apartment in Niagara Falls.
11The father has had a good work history since he graduated from grade 12 in approximately 2014. He currently works full-time in the shipping department for Palfinger Inc., a crane company in Niagara Falls. He presently lives with his mother at her home in Welland.
12In the fall of 2017, the mother’s long-time Society worker referred the mother to Society staff for pregnancy planning. At the same time, the mother was receiving support from Community Living which included pregnancy planning. The mother also made a connection with Elijah House, a group that provided instruction and support to young mothers.
13Much of the pregnancy planning related to where the mother and the baby would reside after she gave birth. At the time the mother was renting an apartment on Morwood Avenue in Welland from Community Living. That apartment was in the basement of a house, the upper floor of which Community Living used to operate a group home. The mother’s plan was to live in the Morwood Avenue apartment with the father and her baby, with supervision and support provided by the Community Living staff.
14However, the Society did not accept the mother’s plan. The Society’s position was that the mother should not be left alone with the baby as there were concerns about the mother’s intellectual ability, her parenting capacity, her emotional regulation, and her decision making. The Society staff believed that it was necessary for the mother and the baby to live in a residence in which there was supervision 24 hours per day.
15The Society staff felt that the father could supervise the mother when he was at home. However, the father was working, and therefore he would not be able to supervise on a full-time basis. Accordingly, the parties looked to the father’s extended family to provide the necessary supervision.
16The Society and the respondents agreed upon a plan whereby the father, the mother, and the baby would reside with the father’s grandparents, FS and MS, in their residence (the “FS home”). FS and MS would be able to supervise the mother and the baby 24 hours per day. In addition, the Society approved the father as a supervisor when he was available. This plan was implemented upon JLTSH’s birth on […], 2018.
17While the parties lived at the FS home there were conflicts between the mother and FS and MS, particularly about the way in which JLTSH should be raised. There was also confusion as to which of the parties was to be the primary caregiver. These conflicts eventually led to the termination of this initial plan.
18The final conflict at the FS home occurred in the early morning hours of August 1, 2018, when police officers were called to the residence because of a loud dispute between the mother and FS and MS. In the mother’s opinion, FS and MS are to blame for this incident.
19The mother testified that FS locked her and the father out of the home when they returned late at night after attending a funeral. The mother testified that FS and MS would not unlock the door, and therefore she called the Niagara Regional Police Service (“NRPS”) for assistance. She testified that police officers arrived and let her into the home. She said that she remained calm until sometime after the officers had decided to leave the home. I do not accept the mother’s evidence about this incident as the mother acknowledged that she had been drinking and she claimed that she was so stressed that her brain shut off such that she does not remember all of the details.
20I accept the facts as described in the NRPS report. I find that the mother and the father returned to the FS home between 1:00 a.m. and 2:00 a.m. and found that the doors were locked. I find that the mother banged on the door and yelled until FS opened the door. Thereafter, there was a loud verbal exchange during which one or both of the mother and FS called the NRPS.
21The police report indicates that as the police officers were on the roadway approaching the FS home, they could hear a female yelling and screaming profanities from inside the house. The police officers arrived and were granted entry into the home by FS and MS. Inside the home they found the mother, who they described as hysterical, angry, and intoxicated. They told her there was no reason to be concerned and attempted to calm her down.
22By the next morning none of the mother, the father, or FS and MS wished to continue their arrangement. With the consent of the mother and the father, JLTSH was brought to a place of safety by the Society staff.
23Shortly thereafter, GH and KH, the father’s father and stepmother, came forward to assist. On August 3, 2018, the Society placed JLTSH with GH and KH in their home (the “GH home”). The mother and the father returned to living together at the Morwood Avenue apartment.
24Initially, as part of the new plan, the respondents had access visits with JLTSH approximately twice per week at the GH home, and once per week at the Society’s offices. The frequency of access visits was increased over time and by the fall of 2018 the respondents were having some access visits at their own home with the respondent father acting as supervisor.
25There were also conflicts that occurred while JLTSH resided at the GH home, particularly between the mother and KH. The mother testified that she informed the Society staff that KH was drinking excessively, and that KH could not care for JLTSH. The mother testified that for this reason the mother began spending most of every day at the GH home, allegedly to care for JLTSH, even though this exceeded the access that was permitted by the Society.
26By early 2019, GH and KH chose to terminate the placement of JLTSH in their home. KH told the Society staff that she could not continue because she needed to return to work, that she had been injured in a motor vehicle accident, that one of her family members had been diagnosed with cancer, and that she felt worn out by the effort of caring for JLTSH.
27I find that the conflicts between the mother and KH, the mother’s insistence on attending the GH home on a daily basis, and the mother’s insistence that KH could not properly care for JLTSH, also significantly contributed to the termination of the placement with GH and KH.
28On February 21, 2019, KH brought JLTSH and his belongings to the Society’s offices. JLTSH has been in foster care since that date.
29Since JLTSH was taken into foster care in February 2019, the mother and the father have had regular supervised access visits with JLTSH at the Society’s offices and in their own home. All the access visits have been supervised by either Society staff or by Community Living staff. For a short period of time in 2020, in-person supervised access was limited because of the lockdown caused by the Covid-19 pandemic, but it has resumed and continues to date.
30Although the father was initially approved as an access supervisor, the Society revoked its approval in 2019 because of concerns about the father’s mental health. On two separate occasions the mother has called the NRPS out of a concern for the father’s welfare. The first occasion occurred in the summer of 2019 when the mother called the NRPS because the father had suicidal ideations and was at or near a bridge. Police officers apprehended the father and took him to a hospital where he was detained under the Mental Health Act. He has been prescribed antidepressant medication since August 2019, although I find that he has not regularly taken this medication.
31The mother and the father moved out of the Morwood Avenue apartment in the spring of 2019, at which time they moved into a townhouse on Dieppe Street in Welland. The staff at Community Living assisted the mother with this move as the landlord was a family home provider for Community Living.
32A recurring concern in this case has been the respondents’ home environment. In particular, there have been problems related to the mother’s two pet dogs and her cat. I find that the two dogs, a Shih Tzu and a Doberman, have on occasion urinated and/or defecated on the floor or carpet inside the mother’s residence, and that the respondents have not adequately cleaned up after these pets.
33Sharon Dam, a senior support worker at Community Living, has had a relationship with the mother for about two years. Ms. Dam testified, and I accept, that from the first time she attended at the mother’s residence in June 2019 she was concerned about the pet problem. She has observed feces on the floor in the Dieppe Street townhouse and she has seen stains on the carpet that appeared to be from urine and/or feces.
34Part of the role of the Community Living supervising staff is to “coach” clients about life skills. Ms. Dam and other Community Living staff testified that they have regularly coached the mother about the importance of quickly and thoroughly cleaning up after her pets. Ms. Dam testified that the coaching about cleaning up after pets continues to date. Despite this coaching, Ms. Dam and other staff continue to notice smells or stains from the pets on a regular basis. I accept this evidence.
35On the witness stand, the mother acknowledged that her dogs occasionally have accidents in the home, but she testified that she cleans up after them whenever that happens. She excuses the accidents because of the age of one of her dogs and the fact that she had to train her Doberman. In my view, the mother understates and minimizes the problems created by her pets.
36The mother’s tenancy at the Dieppe Street townhouse came to an end because of her conflicts with her landlord. The landlord complained to the mother and to Community Living that there was damage to the carpets in the residence caused by pet urine and feces. In addition, the landlord complained of damage to the drywall, the doors, and the tile floor of the residence. Further, there was a disagreement about whether the mother had paid a utility bill.
37These problems caused the landlord to evict the mother from the Dieppe Street residence in the fall of 2020, at which time the mother and the father moved to a small bachelor basement apartment on Bonnie Street in Niagara Falls.
38Tiffany Beverly, the supervisor at Community Living, has worked with the mother since 2017. She testified that she attended the property on Dieppe Street to review the alleged damage. I accept Ms. Beverly’s evidence that there was damage to the drywall, doors were missing, the tile was chipped, and the house was not clean. She also observed that the carpets had been soiled by urine and/or feces, and she noticed a urine smell in the house. She confirmed that Community Living paid approximately $5,000 to the landlord to cover the cost of repairing the home, including the cost of ripping up and replacing the carpets.
39I also find that there has been ongoing domestic conflict between the father and the mother. It is clear that both the father and the mother have trouble dealing with stress or conflict. The father testified that the pressure of the last three years has caused him to feel considerable stress. The mother testified about several incidents in which stress has caused her to have panic attacks and raise her voice. She testified that on occasion her brain will shut off and she will not recall events.
40Dr. Betty Kershner is a Doctor of Psychology who was called as an expert witness. As discussed below, Dr. Kershner was of the opinion that the mother is easily stressed and that she is prone to impulsive acts when stressed. Further, Dr. Kershner testified that the mother has difficulty comprehending the feelings of other people and has problems resolving conflicts. She further testified that the father may be aware of the feelings of other people, but he has real difficulty knowing how to handle situations.
41I find that this relationship dynamic has resulted in numerous arguments between the father and the mother. There were at least two incidents in which the father and/or the mother have thrown objects either at each other or at other things in the residence. One of those incidents resulted in the father breaking a mirror by throwing a cell phone, and another incident resulted in the father breaking a fish tank. I also find that the damage to the drywall and the damage to the door on Dieppe Street were probably caused by violent acts such as slamming a door or hitting a wall.
42In January 2021, the mother called the NRPS because the father had physically assaulted her, and had bruised her arm. She informed both the police officer and Community Living staff that this was not the first time that the father had been physically violent with her.
43On the witness stand the mother and the father both testified that there were no other incidents of physical violence. They both testified that on occasion the mother would get upset and that the father would physically hold her down until she would calm down. In my view, both of the respondents minimized the frequency of the violent incidents between them in an effort to portray their relationship in a good light.
44Because of the deterioration in their relationship the respondents separated from one another in late January 2021. The mother continues to live in the basement apartment on Bonnie Street in Niagara Falls, and the father has been living with his mother in Welland. It is clear that the father is not fond of living with his mother, and that he wishes to move to another residence.
45Since their separation the mother and the father have continued to spend time with one another and have been attempting to resolve their issues. They maintain a friendly relationship, and they wish to jointly raise JLTSH.
46At present the mother has access visits in her home on Bonnie Street supervised by Community Living staff on Thursdays for two or three hours, and supervised access at the Society’s offices on Fridays for one hour. The father has not had access since he and the mother separated in January 2021. I find that the Society staff have been attempting to arrange access for the father, but that the father has not permitted the Society to inspect his current residence, and he has not been available to attend access visits at the Society’s offices.
47Community Living continues to provide ongoing supports for the mother. In addition to providing staff to supervise access visits, Community Living workers have regular contact with the mother to ensure that she is well, and to offer coaching and instruction.
PRELIMINARY FINDINGS
48There is no dispute about the preliminary findings required by s.90(2) of the CYFSA. Therefore, I find that:
i. The child’s name and date of birth is JLTSH, born […], 2018.
ii. The child, JLTSH, is not First Nation, Inuk, or Métis.
iii. The child was removed from the care and custody of his mother, JCPT, and his father, NSRH, on August 1, 2018, in the Village of Wellandport, Ontario.
FINDINGS REGARDING THE CHILD
49JLTSH has done well in foster care. He is generally healthy except for some modest physical issues, discussed below.
50It appears as if JLTSH has a hearing impairment. The initial hearing assessment detected some hearing loss, and there is a possibility that JLTSH will need hearing aids. Further testing has been scheduled. In addition, JLTSH’s speech is delayed. Speech therapy is available, but the speech therapy will not begin until the hearing tests have been completed. In the meantime, some home therapy has been put in place for JLTSH.
51Further, the mother has a concern that JLTSH may be suffering from depression. The mother testified that she noticed that JLTSH was depressed on some access visits as he just pushed his toys around without smiling. She also described incidents in which JLTSH would attempt to bang his head on the floor. As directed by the Society, she provided a note that was delivered to JLTSH’s doctor. JLTSH’s doctor has now arranged a referral for a psychological assessment.
52I find that JLTSH is happy and comfortable with both the mother and the father. All of the Community Living staff who have supervised access visits testified that JLTSH and the mother are very happy to see each other at each access visit. I accept the evidence of the Society staff who testified that JLTSH is noticeably excited to see the mother at the start of access visits and runs to her while calling out “Hi Momma”.
53Further, I note that the father usually attended the home access visits after JLTSH had arrived as the father had to complete his work shift. I accept the evidence of the Community Living staff that JLTSH and the father are both happy and excited to see each other. Moreover, I accept that the father actively engages in activities with JLTSH upon his arrival.
FINDINGS REGARDING THE MOTHER
54The mother is currently 21 years of age. The Society has been involved in her life continuously since she was approximately 13 years of age, first as a child in need of protection, then as a foster child, and then as a parent. The Society knows her well.
55The mother presents as an outgoing, engaging, personable, and respectful young woman. I find that the mother clearly loves JLTSH and wants the best for him. Further, the mother is motivated to be a good parent to her son.
56The mother has made some attempts to learn parenting skills, primarily through the Society and the staff at Community Living. I accept that she can understand the instructions that are given to her by her support workers. However, I find that she is not always compliant with the directions that she receives.
57I find that the mother does not have any issues with substance abuse, either drugs or alcohol. She acknowledges, and I accept, that the only drug she uses is marijuana.
58Despite these positive attributes, there are certain troubling concerns about the mother. These concerns were specifically identified by Dr. Kershner who gave opinion evidence, which I accept, as to the mother’s psychological profile and her parenting capacity. Moreover, the concerns raised by Dr. Kershner are corroborated by anecdotal evidence from the Society staff and the Community Living staff.
59Regarding cognition, Dr. Kershner testified that the mother is in the range of developmental delay, and at the low end of that range. Her overall intellectual score was at the 0.4th percentile. This means that the mother would have problems with comprehension, thought processing, and knowing what is going on around her.
60Dr. Kershner testified that the mother’s executive functioning has improved since the 2016 assessment. The mother had a better score on the self-reporting tests administered by Dr. Kershner in 2020; she was in the normal range. This means that she can manage or use her knowledge in day-to-day life. For example, she is capable of keeping a bank account and maintaining her own hygiene.
61The mother does have some weakness in working memory. This limits her ability to learn from experience or to absorb and retain information. According to Dr. Kershner, this means that the mother has limitations in her ability to understand what is going on and what to do about it.
62Dr. Kershner also testified that the mother’s self-awareness was not good; she does not comprehend her own limitations. Further, her awareness of what other people are thinking is also poor. She is not inclined to care about what others feel or think. For example, Dr. Kershner said that if the father said that he did not like something, the mother would probably not care.
63Further, Dr. Kershner testified that the mother has trouble dealing with stressful situations. She can be impulsive and insecure. If faced with a problem or conflict, she would have difficulty identifying the problem, comprehending the problem, and predicting the consequences of her actions. Therefore, Dr. Kershner believes that the mother would have difficulty resolving conflicts, and that she may behave very inappropriately.
64Still further, because of her problems with self-awareness, the mother does not acknowledge her shortcomings. She thinks of herself in a positive light and is resistant to input or feedback. She is also very suspicious of others; this contributes to her resistance to accepting feedback.
65John McLachlan is a therapist who provided counselling for the mother that ended in January 2020. The mother had been referred to him by the Society in order to deal with emotional regulation and coping strategies. Mr. McLachlan testified that the mother did not display any problems regulating emotions. He observed that she already knew and was using strategies for dealing with emotional regulation.
66Mr. McLachlan’s evidence is at odds with the opinion of Dr. Kershner, as Dr. Kershner felt that the mother had a strong need for counselling for emotional regulation. In this respect, I prefer Dr. Kershner’s evidence over Mr. McLachlan’s evidence. Dr. Kershner had the benefit of reviewing all of the prior psychological assessments and conducting her own detailed testing. Mr. McLachlan confirmed that his sessions with the mother were intermittent, that there were gaps in time between sessions, and that he usually dealt only with the issue of the day with the mother.
67Several Community Living staff who supervised the mother’s home access visits testified at the trial. The Community Living staff as a group agree that the mother was punctual for the home access visits and that she was engaged with JLTSH during the visits. She generally had cleaned her house prior to each access visit, and she had a plan for activities and a meal for JLTSH. Moreover, with a few exceptions, all supervising staff felt that the mother attempted to follow the coaching that was given to her on access visits.
68At the trial, I had a good opportunity to hear and assess the mother’s personality. I find that the mother wants to be a good parent and wants the best for JLTSH. I further find that she has attempted to improve her parenting skills, but that she has had difficulty doing so, likely because of the deficits that have been identified by Dr. Kershner.
69Further, I find that the mother quickly and easily becomes embroiled in conflict. She also tends to blame others for whatever conflict may have occurred and she minimizes her own contribution to the conflict. For example, she placed all of the blame on FS and MS for the failure of the placement at the FS home. She also blamed KH entirely for the failure of the placement at the GH home.
70Also, on more than one occasion she stated that she was not able to talk to the Society workers at some meetings because they yelled at her the whole time, and that they thought she was horrible. In particular, when she presented a parenting plan to the Society, she said they would not listen to her and yelled at her for the entire meeting.
71Another example of these traits is the mother’s testimony that she has PTSD, and that the Society is to blame for that disorder. A further example is the mother’s view that JLTSH was not allowed to have speech therapy after he went into foster care, which is entirely untrue.
72I find that some of the protection concerns raised by the Society are directly connected to the mother’s tendency to blame others and to minimize her own shortcomings. For example, the mother clearly minimizes the problems that arise because of her pets in the home. At one point she testified that the pets were not having any more accidents in the home, and then later stated that the accidents only occur on occasion.
73Further, the mother clearly downplayed the domestic violence in the home. When she was cross-examined about the fact that she threw a hairbrush, she admitted throwing the brush during an argument, but said that she was just joking.
74Overall, I find that the mother has attempted to be a good parent and has attempted to be cooperative with both the Society and Community Living. However, I find that the mother has significant intellectual and emotional deficits, including difficulty comprehending situations, understanding how to deal with situations, and learning and retaining information. She also has trouble with self-awareness and awareness of others.
75Because of the mother’s normal executive functioning, she can present herself well. However, she easily engages in conflict, acts impulsively, tends to blame others for any problems that occur, and minimizes her own shortcomings.
76These deficits were identified by Dr. Kershner and are borne out in the evidence from the Society, from Community Living, and in the mother’s own testimony from the witness stand.
FINDINGS REGARDING THE FATHER
77The father is currently 24 years of age and works in the shipping department at Palfinger Inc. in Niagara Falls. He has a grade 12 education. He has a good work history. The father was not known to the Society as a child or as an adult until the Society became involved with the mother’s pregnancy planning in late 2017.
78The father presents as a likable, but somewhat reserved person. A great deal of his focus in life is directed toward his job, which he greatly enjoys.
79The father currently lives with his mother in Welland. He testified that this is a temporary arrangement. He is looking for a two-bedroom apartment in Welland where he can live with JLTSH, and raise JLTSH as a single parent. If JLTSH is placed with him, the father plans to work full-time and enroll JLTSH in daycare.
80The father’s mental health is a concern in this protection application. The father acknowledged that he had suicidal ideations in the summer of 2019 and the spring of 2020. In August 2019, as a result of the mother’s request for a welfare check, police officers took the father to a hospital where he was detained under the Mental Health Act. Since then the father has been prescribed antidepressant medication.
81Unfortunately, the father has not been taking his medication regularly. Although the initial prescription was made in August 2019, the father did not follow up with his doctor until approximately December 2019. In April 2020 his doctor prescribed three months of medication for the father, but Society staff discovered that the father had not renewed that prescription as of January 2021. On the witness stand the father acknowledged that he did not renew his prescription for more than eight months. The father now states that he has recently refilled his prescription and he is committed to taking his medication on a regular basis.
82Dr. Kershner also gave opinion evidence, which I accept, as to the father’s psychological profile and parenting capacity.
83Dr. Kershner testified that the father’s cognitive profile was in the borderline range, at the 5th percentile. This is the range between developmental delay and low average; but his profile was not flat as he had strengths and weaknesses. In particular, his higher order thinking is in the average range. This means that he can usually comprehend or read a situation.
84However, Dr. Kershner testified that the father is very weak in working memory; his working memory is even lower than the mother’s working memory. He scores in the 1st percentile. This means that he might lose track of what he is doing while he is doing it, and/or he might not remember something he has done in the past.
85He has an average ability in self-awareness and awareness of others. This is much better than the mother’s awareness. The father is apt to work hard, but he processes information slowly and often forgets his task prior to completion. The father is vulnerable to being confused, particularly in stressful situations. This can interfere with his thinking and concentration.
86Overall, Dr. Kershner testified that the father generally can understand what is happening at the time and he notices things, but his ability to put his knowledge into use is severely undercut by his memory weakness.
87Another troubling aspect of the father’s psychological testing is that the father experiences unusual sensory events such as hallucinations and delusions. For example, he said that he could hear voices no one else hears. Dr. Kershner testified that the father showed signs that could lead to a diagnosis of bipolar disorder, schizophrenia, or personality disorder, although there is no formal diagnosis of these disorders. If he continues to be stressed and finds life difficult, one of these psychiatric disorders could emerge.
88The father has recently started to participate in some counselling. His counsellor, Deidre Neuman, testified that the father was referred to her by the Society for depression and stress management. He has only had eight sessions since September 2020. Ms. Neuman testified that she noticed a significant difference if the father was not on his medication. If he was not on his medication, she felt the father was more agitated and less engaged.
89Regarding his relationship with JLTSH, Ms. Neuman testified the father had feelings of grief and sadness. He felt as if his family had let him down because the kin placements with his family had failed.
90My impression of the father at trial was that, like the mother, he tended to minimize the seriousness of certain incidents and deflect blame onto others. For example, in response to questions about domestic conflict, he initially denied any physical assault on the mother, but he also acknowledged that he would forcibly hold the mother down at times. It is not clear if the father acknowledges any physical assault on the mother.
91The father also blamed the Society in part for the domestic conflict. He aggressively testified that his relationship with the mother broke down primarily because of the stress put on him by the Society over the past three years. He said that the Society put him under a microscope, and this caused pressure that he could not handle.
92Also, the father minimized the fact that he was not regularly taking his medication. He testified that he took his medication regularly, but he forgot “the odd time” just like anyone else would. This testimony is completely contradicted by the evidence.
93Further, the father also minimized the problems with the dog urine and feces by saying that the dogs were part of his family. He testified that he could not care for the dogs because he had to work full-time, but he cleaned up after the dogs when he got home.
94Overall, I find that the father is a sincere person, but somewhat limited in his abilities. He works full-time and focuses on his job, which is commendable. I find that the father may be able to identify a problematic situation, but he tends to minimize the problem or avoid it completely. He has trouble learning and remembering what he has been taught.
95I also find that the father has difficulty knowing how to deal with stressful situations. He can become quite agitated when faced with conflict. The father needs to take his medication and attend counselling, but his commitment to treatment is questionable at the present time.
PROTECTION CONCERNS OF THE SOCIETY
96The Society has raised a number of protection concerns. I find that all of the Society’s concerns, in varying degrees, have some merit.
97The first protection concern is the cleanliness of the home environment, which in my view is a serious issue. There is strong evidence that the respondents’ residence on Dieppe Street and on Bonnie Street have not been consistently maintained in a safe and hygienic state.
98The problem of smells and stains from urine and/or feces was initially recognized by Ms. Dam in the spring of 2019, and thereafter this problem has been a regular and recurring concern. Every home access supervisor has testified to some extent that the home had a urine smell to it and that there were often stains on the carpet that appeared to be from urine or feces.
99As recently as March 4, 2021, the Society cancelled a home access visit because Ms. Dam had reported her concerns about a urine smell in the home and what appeared to be feces on the floor.
100In addition to the obvious sanitary issues, the home environment problem raises other red flags about the mother. In particular, it is evidence that the mother cannot, or will not, follow instructions from the Community Living or Society staff. After two years of coaching, the cleanliness problem at present is no better, and perhaps worse, than it was two years ago. The mother acknowledged that the pets have accidents when she is out, but she dismisses the accidents as being inevitable. I find that the mother has not fully accepted that it is essential that the home environment be clean, safe, and hygienic at all times.
101Further, it is apparent that the mother is capable of cleaning her residence and does so prior to access visits or scheduled home visits by Society staff. However, I find that she does not do so on a regular basis. The events of January 19, 2021, when the mother refused to allow a Society worker, Mallory Dilks, to enter her home when the mother was not expecting her, is evidence that supports this finding. This dovetails with Dr. Kershner’s evidence that the mother might know what to do, but she may not do it if she is not being observed.
102Another protection concern relates to domestic conflict. Even while they were in the presence of Community Living access supervisors, the mother and the father could not contain themselves enough to hide their conflicted relationship. Every access supervisor testified that they observed unnecessary bickering or arguing in JLTSH’s presence, often to the point where the mother and the father were more focused on each other than on JLTSH.
103Again, all Community Living staff provided regular coaching with respect to dispute resolution. I find that the father would often accept the coaching by leaving the home temporarily. However, this couple clearly has not learned from the coaching. That is, the same domestic bickering seems to be replayed over and over again on many of the access visits. Again, this dovetails with Dr. Kershner’s opinion that both the mother and the father have problems with their working memory and conflict resolution.
104Moreover, I find that the domestic conflict was more serious than what the Community Living staff observed. There is evidence that the bickering and arguing became very heated when Community Living staff were not present as unobserved arguments resulted in items being broken including a fish tank, mirror, and drywall in the home. I accept Ms. Dam’s testimony that in January 2021 the mother told her that “things got bad” and that she did not feel safe in the home with the father.
105Further, the domestic conflict clearly escalated at times into physical assaults by the father on the mother. I find as a fact that the one assault that the mother reported to the NRPS and to Community Living in January 2021 was more serious than the parties acknowledged at trial. I accept Ms. Dam’s evidence that the mother told her that the father “left me lying in bed near death” at the time.
106Still further, based upon the mother’s comments to Ms. Dam and Ms. Dilks, I find that some form of physical violence has been occurring for approximately four years. Moreover, I find that the father and the mother have not truly dealt with their domestic conflict as they both minimize the extent of the problem.
107The next protection concern is the mother’s tendency to engage in conflicts on many levels. The mother is prone to stress and anxiety; she gets upset easily and when that occurs, she does not behave well. Again, this dovetails with Dr. Kershner’s assessment of the mother’s personality.
108I find that the mother’s tendency to engage in conflict has contributed to the domestic disputes between the mother and the father. In addition, this tendency has also resulted in disputes with several third parties. The police report from August 1, 2018, regarding the incident with FS and MS is one obvious example. There were other earlier examples with FS and MS, and there were multiple examples of the mother’s conflicts with GH and KH. The conflicts with GH and KH eventually contributed to KH terminating the placement of JLTSH at their home.
109The evidence from the Society and Community Living staff is rife with notes about conflicts between the mother and her landlord on Dieppe Street, her landlord on Bonnie Street, and other possible kin placements.
110The next protection concern is the lack of insight shown by both respondents. This concern takes several forms. As discussed earlier, I find that both of the respondents minimize the problems with the home environment that are caused by the pets, and both respondents minimize their domestic conflict even though the domestic conflict led directly to their separation.
111Community Living staff spent a great deal of time coaching the respondents about these two primary issues for more than two years on at least a weekly basis. The net result is that there has been little change to the home environment and the domestic conflict problems. This fact suggests that the respondents are either unwilling to change or incapable of change.
112The lack of insight by both respondents is also very apparent in the context of their living arrangements. The parties separated because of a physical assault in January 2021, after several years of domestic conflict. Thereafter, they lived in two separate households in two different cities. However, within weeks the father was visiting the mother alone at her residence and staying overnight with her. I accept Dr. Kershner’s testimony that this conduct placed the mother at risk as their conflict issues had not been addressed. If the father and the mother were to meet, it should have been in a public place, not alone in a private residence.
113Another example of lack of insight is the father’s failure to take his medication as prescribed. The father clearly has had issues with depression that led to two acknowledged incidents of suicidal ideations. However, the father did not take his medication regularly and grossly understated the extent of his failure to take his medication. He now says, during the trial, that he is committed to taking the medication. In my view, he still lacks insight into his mental health issues and he now says he is committed to taking his medication only for the purpose of trying to convince this court that he will do so.
114The final protection concern is the failure of both the father and the mother to engage in meaningful programs or courses to deal with their issues. The mother stopped seeing Mr. McLachlan because she felt that he had a conflict of interest. At the time she indicated that she would be seeing another counsellor. However, the mother acknowledged on the witness stand that she has not been seeing any counsellor.
115In addition, the mother has avoided taking the emotional regulation course that was offered to her through Community Living. The mother initially declined to take the course because the weekly meetings conflicted with one of her access visits, and subsequently Community Living changed the time of the meetings so that she could attend. Despite this, the mother chose not to take the course. Dr. Kershner believes that the emotional regulation program would be very important for the mother as she has a significant problem in this area.
116The father has had a similar problem attending parenting courses. In October 2019, the Society set him up in a parenting course called Triple P in Beamsville, but the father had problems attending the course even though it was a course that took place after work hours. I understand that his primary excuse for missing the first two sessions was that he could not find the address. On the witness stand he testified that he attended some of the sessions, but he did not complete the course.
117In my view, both the father and the mother are not inclined to take courses or programs that would be for their benefit, and both have made weak excuses for their failure to do so.
118Overall, I find that there is merit to all of the protection concerns raised by the Society.
PARENTING CAPACITY ASSESSMENT
119Dr. Kershner gave opinion evidence regarding the parenting capacity of the mother and the father, which I accept. I find that Dr. Kershner is a well-qualified person in her field; that she read and assessed the prior psychological assessments; that she thoroughly tested the mother and the father for their psychological and personality profiles, and their parenting capacities; and that she provided a thoughtful opinion with respect to the issues.
120In the opinion of Dr. Kershner, the mother’s reduced emotional awareness limits her ability to parent. That is, she would not be fully aware of a child’s needs or feelings. To illustrate that point, Dr. Kershner testified about a test question that she put to the mother. The mother was asked what she would say to a child who had cheated on a test at school. The mother said that she would tell the child that the child should not cheat. This is an appropriate answer, but it does not deal with the real issue because the child probably already knows not to cheat. The mother did not recognize that she would need to know why the child cheated on the test because, for example, the child may have forgotten to study, or the child may have not understood the work.
121Dr. Kershner also testified that the mother’s limited ability to comprehend problems would also negatively affect her parenting ability. She provided an example that occurred when Dr. Kershner observed the mother and JLTSH together. JLTSH had picked up a dog bone, and the mother took the bone from him rather forcefully as JLTSH had wanted to hold onto the bone. Dr. Kershner testified that the mother was able to recognize that the child should not have the dog bone, but she did not recognize that the child was upset and crying because the bone had been taken away from him. A few minutes later the mother did not realize why JLTSH appeared to be upset.
122Dr. Kershner also testified that if the mother was going to parent JLTSH, she would need a stable partner. Without a stable partner, the mother would be less likely to function well. She would be more likely to be impulsive, use poor judgment, and resist feedback. Further, her lack of emotional awareness would increase.
123Regarding the father’s parenting ability, Dr. Kershner believed that the father would notice if a child had a problem, but his tendency would be to wait and see instead of acting. He would not take an active role to deal with the problem by, for example, taking the child to a doctor.
124If the father was going to parent JLTSH, he would need ongoing support to be able to parent adequately. This would mean that he would have to live with someone such as a partner or a family member who could monitor his parenting. He would be very dependent upon that person for parenting support.
125Regarding possible therapy or parenting skills development, Dr. Kershner did not recommend psychotherapy for either party. It is likely that the mother would not be receptive to psychotherapy; she might say the right things, but she would not accept the feedback, and she would not comprehend the problems. The father would likely understand the problems, but he would not retain very much from the therapy.
126Therapeutic access could possibly help. This would involve a trained worker attending with the mother and the father while they were parenting. The worker would actively attempt to teach the parents some skills throughout an access visit. Dr. Kershner cannot say that this therapy would not work; there is always a possibility. But, she thinks that it would take approximately three years of therapy and then someone would have to re-evaluate the respondents’ parenting skills.
127Dr. Kershner’s overall opinion as of the date of her report, April 30, 2020, was “I doubt that either (the mother) or (the father) will gain insight into their past or current limitations in regard to parenting. However, I believe that with long-term ongoing support and intervention, the most that Community Living can provide, their parenting can improve and they can co-parent effectively.”
128Dr. Kershner explained that she provided her opinion in April 2020 on the basis of giving the benefit of the doubt to the mother and the father. She was optimistic that they would improve over time given their stable relationship, the continuous involvement of Community Living, the mother and the father’s willingness to work with Community Living, and their young age.
129However, during the course of her examination at trial, Dr. Kershner was asked to comment upon the effect of several recent factors or events on her opinion, as set out below. In almost every instance, Dr. Kershner testified that the factor or event that was put to her constituted a negative factor in her assessment of the parenting capacity of the respondents.
130First, Dr. Kershner testified that the fact that the mother and the father are no longer in a stable relationship is a negative factor. The stability of their relationship was an important positive factor in Dr. Kershner’s original opinion. If the relationship is unstable, the stress particularly on the mother, would increase and her opinion about the mother’s parenting capacity would be more guarded.
131Second, Dr. Kershner testified that the bickering and domestic conflict between the mother and the father, including throwing or breaking items, was also a negative factor. This, of course, would be traumatic for the child and would raise a concern about co-parenting. If there had been domestic violence that had gone on for years, Dr. Kershner had a real concern about the respondents’ ability to parent.
132Third, Dr. Kershner testified that the home cleanliness factor, related to urine and feces on the floor, despite coaching on this issue, is a negative factor. Dr. Kershner testified that when she attended the home it was clean and hygienic. If there had been ongoing concerns about urine and feces on the floor, Dr. Kershner testified that might mean that the mother was putting on a show for Dr. Kershner. This means that the mother knows what to do and say, but she does not intend to do what she says she will do.
133Fourth, it was a negative factor that neither party has been attending courses or programs to increase his/her skills. Community Living has been providing support for the mother, but they really only provide supervision of access, as the mother does not request any other supports. In addition, the mother appears to have avoided the emotional regulation course, which Dr. Kershner described as regrettable as this was an important area for her.
134Fifth, Dr. Kershner testified that it was a negative factor that the father was not taking his prescribed antidepressants regularly. Dr. Kershner did not stress this as a significant negative factor as she would want to see a medical opinion about the reason for the father not taking the antidepressants before she gave a further opinion.
135I find that all of the abovementioned recent factors or events that were put to Dr. Kershner have been established by the evidence in this case. Therefore, Dr. Kershner’s opinion from April 2020 must be re-assessed. On the witness stand Dr. Kershner testified that the cumulative impact of all of these negative factors was that there would be a strong negative impact on the respondents’ ability to parent. She said that it was highly dubious that Community Living could provide enough supports to allow the respondents to overcome this. I accept this opinion.
CHILD IN NEED OF PROTECTION
136Although it is not admitted, based upon the abovementioned analysis, I find that the child, JLTSH, is likely to suffer physical harm caused by or resulting from the respondents’ failure to adequately care for, provide for, supervise or protect him. Therefore, I find that JLTSH is a child in need of protection pursuant to s.74(2)(b)(i) of the CYFSA.
DISPOSITION
137Having found that JLTSH is a child in need of protection, I am satisfied that intervention through a court order is necessary to protect JLTSH in the future. Therefore, this court is required to make an order pursuant to s.101 of the CYFSA in JLTSH’s best interests. Section 74(3) provides a list of factors to be considered when a court is directed to make an order in the best interests of a child.
138An order placing JLTSH in the interim care of the Society is not available as the time limits in s.122 of the CYFSA have expired. Therefore, the only options available are an order placing JLTSH with the mother and/or the father subject to the supervision of the Society, or an order placing JLTSH in the extended care of the Society for the purpose of adoption.
139There are both positive and negative factors, in the child’s best interests, that apply to the possible placement of the child with the mother and/or the father.
140The positive factors include the obvious love that the respondents have for JLTSH. I accept that both parents love JLTSH and want the best for him. I also accept that JLTSH has an emotional bond with the respondents. Even though JLTSH has not lived with his biological parents for more than two years, the father and the mother have been in JLTSH’s life and have been part of his routine. JLTSH runs to the mother and calls her “Momma.” Thus, I accept that there is a bond between parents and child.
141Also, I am cognizant of the fact that the child has a biological connection to the respondents. Over time the biological connection is important as it will give the child the comfort of being aware of his ancestral and cultural heritage.
142Further, there is evidence that the mother has the ability, when she is motivated, to meet JLTSH’s basic needs as she is capable of planning appropriate activities and providing an appropriate meal on access visits. However, this positive factor has to be tempered by the evidence that the mother likely cannot consistently meet JLTSH’s basic needs on a full-time basis without immediate supervision.
143In my view, the negative factors regarding the possible placement of JLTSH with the respondents far outweigh the positive factors.
144One of the most obvious negative factors regarding the mother is her inability to recognize the child’s emotional needs or feelings because of her reduced emotional awareness, as described by Dr. Kershner. In my view, it is likely that JLTSH’s emotional and mental needs would not be recognized or met if JLTSH were placed with the mother.
145Further, as discussed by Dr. Kershner, the mother has a limited ability to comprehend any problems that a child may encounter, or to know how to resolve the problems. She also may not care about the problems. In addition to limiting the mother’s ability to deal with day-to-day issues, this trait would be of particular concern if JLTSH required the use of hearing aids and/or speech therapy. In my view, the mother does not have the ability to consistently address these physical issues, nor does she have the ability to recognize the psychological effect that a failure to address these issues could have on JLTSH.
146Also, as described by Dr. Kershner, the mother is not likely to follow advice or directions unless the mother wants to do so. She has little insight into her own limitations, and she resists input or feedback from others. Complicating matters is the fact that the mother might say that she will follow the directions given to her, but this does not necessarily mean that the mother will commit to following those directions.
147In addition, as discussed in detail earlier in this decision, the ongoing concern about the cleanliness of the home environment, and the unresolved issue of domestic conflict are two significant negative factors. The home environment issue could cause an immediate safety problem for JLTSH if JLTSH was placed in the mother’s care on a full-time basis, and any domestic conflict between the respondents could result in emotional and/or psychological harm to JLTSH.
148The father has suggested the possibility of JLTSH being placed with him so that the father could raise JLTSH as a single parent. In my view, this suggestion is also unworkable.
149It must be recognized that although the mother seems to take most of the blame for the home environment issues, the father lived with the mother for most of the relevant period, and the father is also responsible for the problems with the home environment.
150Moreover, the father is a full participant in the domestic conflict issue. He has bickered and argued and lost his temper in front of JLTSH. This has led the father to focus more on the mother than on JLTSH at some access visits.
151Still further, the father’s mental health issues are unresolved. The father acknowledges that he has mental health issues, and there is objective evidence of same. This is a great concern because the father has only recently started taking his medication on a regular basis, and he has only recently stated that he is committed to doing so. His long-term commitment to treatment remains questionable.
152Moreover, the father does not have an adequate plan of care for JLTSH at present. He has a vague plan to leave his mother’s residence and get his own place, but he has not taken any steps to do so. Furthermore, the father would not let Society staff inspect his current residence or talk to his mother. Thus, the father is unable to propose any residence that would support an order placing the child with him.
153Overall, I accept that the father could only care for JLTSH if he lived with someone who could provide 24 hour per day support for him. Those circumstances do not exist at present.
154For all these reasons, it is not in the child’s best interest to be placed with the father or the mother under a supervision order.
155JLTSH has been in foster care since February 2019, and therefore it is important at this point to make an order that provides JLTSH with long-term stability and a sense of permanence. An order that will allow for JLTSH’s adoption will address those needs. Therefore, I find that it is in JLTSH’s best interest that he be placed in the extended care of the Society for the purpose of adoption.
ACCESS
156Section 104 of the CYFSA allows the court to make an order for access, in the child’s best interests, when making an order under s.101. However, there are limitations as to the availability of an access order when the court makes an order placing the child in the extended care of the Society.
157Section 105 (5) and (6) read as follows:
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.
(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.
158Counsel agree that the test for deciding whether or not to allow access to a child who is placed in the extended care of the Society is essentially a best interests test. Again, the court must consider, in the child’s best interests, the factors enumerated in s.74(3). Section 105(6) provides two factors for consideration, but those factors must be considered in light of the best interests of the child.
159Given that JLTSH will be placed in the extended care of the Society for the purpose of adoption, JLTSH’s physical, mental, and emotional needs should be met in the long-term, and JLTSH should develop a secure place as a member of a family. The issue is whether continued access with his biological parents would be in JLTSH’s best interests.
160Regarding JLTSH’s relationship with his biological parents, I find that JLTSH has a good emotional bond with the father and the mother. JLTSH’s language skills are not good, but he expresses his views of the father and the mother through his actions. The evidence clearly shows that JLTSH finds access visits exciting and enjoyable. He runs to the mother and calls her “Momma”. When the father arrives at the access visits, JLTSH runs to the father and hugs him.
161Although Dr. Kershner testified that the termination of contact between JLTSH and his biological parents would not have a significant effect on JLTSH, I find that there would be an emotional impact on JLTSH that would be more than insignificant.
162It is also important to recognize that, despite their flaws, the father and the mother truly love JLTSH and want to do what is best for him. This can only be beneficial to JLTSH. This factor, along with the obvious emotional bond between parents and child, leads me to conclude that the relationship between JLTSH and the respondents is meaningful and beneficial to JLTSH.
163If I make an access order at this stage, it would allow for the possibility of an open adoption order that would provide for some contact between the child and the biological parents. I accept that there are some benefits to an open adoption order that may be in JLTSH’s best interests. Specifically, it would limit the emotional trauma of a complete severance of the child’s ties to his biological parents, it would provide the child with a sense of his heritage, and it would prevent him from doing his own secretive investigation into his heritage at some future date.
164Regarding the possibility that an access order would impair the child’s future opportunities for adoption, I acknowledge that there is some evidence in this case that an access order may impair a possible adoption of JLTSH.
165In the Catholic Children's Aid Society of Toronto v. A.P. and E.S., 2019 ONCJ 631, at para. 131, Zisman J. summarized the attributes of a biological parent that may suggest that an access order would impair a child's future opportunities for adoption, including the aggression or anger of the parent, the parent’s lack of support for an alternate caregiver of the child, the parent’s dishonesty or secrecy, and a propensity for litigious conduct.
166I agree that some of those factors apply to the mother in this particular case. However, the mother gave evidence on the witness stand, which I accept, that she understands that if there was an adoption order she would not be permitted to have contact with JLTSH except as provided in any court order, even if she thought that she could provide better care for JLTSH.
167Further, I note that the mother has had a good working relationship with the foster mother of JLTSH over the past two years. This is to the mother’s credit, and suggests that she understands that, although she engages in conflict regularly, she must follow any court order that relates to JLTSH’s placement.
168Therefore, I find that the mother would understand the nature of any open adoption order that may be made in the future, and that the mother would not impair the adoption of JLTSH through her own conduct.
169The Society also provided evidence, through Kim Dolff, that the Society maintains a roster of potential adoptive families. Ms. Dolff testified that the possibility of an open adoption may reduce the number of potential adoptive families. I accept Ms. Dolff’s evidence, but in my view any reduction of the number of potential adoptive families would be modest and would not substantially impair JLTSH’s future adoption.
170In that respect I rely on the evidence that openness in adoption has become much more prevalent in recent years. Potential adoptive families are very aware of the possibility of an open adoption. Moreover, every family that is approved as an adoptive family must indicate a willingness to at least consider an open adoption.
171For all these reasons, I find that it would be in JLTSH’s best interests if the respondents had access to JLTSH while he is in the extended care of the Society for the purpose of adoption. Because of the possibility of an open adoption order in the future, I find that each of the respondents and JLTSH should be deemed to be access holders.
CONCLUSION
172In summary, I find that JLTSH is a child in need of protection. I find that it is in JLTSH’s best interests, and I hereby order, that JLTSH be placed in the extended care of the Society for the purpose of adoption.
173Regarding access, it is ordered:
The mother shall have in-person access to JLTSH and JLTSH shall have access to the mother, once per week for a minimum of one hour per week, to be arranged and supervised in the discretion of the Society.
The mother and JLTSH shall have other forms of access with each other such as video chats, telephone calls, or other forms of communication as are age appropriate, to be arranged and supervised in the discretion of the Society.
The father shall have reasonable access to JLTSH and JLTSH shall have reasonable access to the father, to be arranged and supervised in the discretion of the Society.
The mother and the father shall be deemed to be access holders to JLTSH.
JLTSH shall be deemed to be an access holder to the father and the mother.
J. R. Henderson J.
Released: April 20, 2021
COURT FILE NO.: 473/18
DATE: 2021-04-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of the Niagara Region Applicant
– and –
JCPT and NSRH Respondents
REASONS FOR JUDGMENT
J. R. Henderson J.
Released: April 20, 2021
