of Waterloo v. P. W. and M. T., 2022 ONSC 4340

COURT FILE NO.: FC-18-FO-109

DATE: 2022/07/28

WARNING

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 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

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO

Applicant

– and –

P. W.

Respondent Mother

– and –

M. T.

Respondent Father

J. Boich, Counsel for the Applicant.

G. Ichim and J. Montes, Counsel for the Respondent Mother Respondent Father is Self-Represented

HEARD:

September 7, 8, 9, 10, 13, 14, 15, 16, 17, 2021

October 20, 2021

February 22, 2022

May 24, 25, 26, 27, 30, 31, 2022

June 1, 2, 20, 21, 22, 27, 28, 29, 30, 2022

madsen, j.

rEASONS FOR JUDGMENT

A. INTRODUCTION

Overview

[1] This is an amended amended child protection application in which the Children’s Aid Society of the Regional Municipality of Waterloo Region (“CAS” or the “society”) seeks a six- month interim society care order for the child G. N. W., who is now 8 years of age. The child has been in the temporary care of the society for almost one year. He was in the care of kin between the commencement application in February 2018, and August 4, 2021, first with his maternal grandmother [the “grandmother”], and then with his adult sister, B. [the “sister”].

[2] The society seeks a finding that G. is in need of protection on the basis of risk of physical harm as well as on the basis of having suffered and being at risk of emotional harm. The society argues that the mother, P. W. [ “the mother”] is unable to protect him from those risks and that harm. The society emphasizes that it continues to seek kin options for the child’s care, but in the absence of same, asserts that interim society care is required.

[3] The mother seeks an order that the application be dismissed and that the child be returned to her care. She does not explicitly seek custody. She states that the child is not now and has never been in need of protection, and that while she may at times be overprotective, she is a capable and loving parent who can safely care for her child.

[4] The father, M. T. [the “father”], supports the mother’s position. He seeks ongoing access to the child on an unsupervised basis. The society does not oppose continued unsupervised access.

[5] The mother has several strengths, including stable housing and the ability to provide acceptable instrumental care to the child. However, she experiences serious mental health challenges which are unacknowledged and largely untreated. The fundamental questions for this court are whether those mental health challenges are sufficiently profound to ground a finding in need of protection and if so, whether those challenges necessitate placement of the child in society care. Regrettably, for the reasons set out below, I find that the answers to both questions are “yes.”

Issues

[6] This court has been asked to decide the following issues:

a. whether the child is in need of protection and, if so, on what basis;

b. if the child is in need of protection,

i. what disposition is in the child’s best interests; and

ii. what the child’s access to the father should be.

[7] For the reasons that follow, this court finds that:

a. The child, G. N. W., born [date of birth redacted] is in need of protection pursuant to sections 74(2)(b), (i), and (k) of the CYFSA;

b. The child shall be placed in the care and custody of Family and Children’s Services of Waterloo Region for a period of six months; and

c. Access by the father and the mother to the child shall be as set out in paragraph 165, below.

Positions

[8] The society’s position is that the child is in need of protection primarily due to the mother’s untreated and serious mental health issues which put the child at risk of emotional harm. The society also asserts that the child is at risk of physical harm due to the presence of his adult brother in the mother’s home and the mother’s failure to plan for how his presence could be safely managed if the subject child is returned. As there are no kin options available at this time, the society seeks interim society care.

[9] The mother’s position is that she is fully capable of having the child returned to her care. She says that while she has mental health issues, they do not interfere with her ability to safely and lovingly parent the child. She states that she has good supports around her. The mother is deeply suspicious of the society, the education system, police services, and other institutions, which she says support and facilitate child trafficking, and are connected with organized crime. Consequently, she states that she will not follow terms of a court order which require her to cooperate with the society until the society has been “reformed.”

[10] The father supports the mother’s position with respect to placement. His primary concern is maintaining unsupervised parenting time with the child. He states that he will assist the mother and cooperate with her if the child is returned to her care.

Brief Overview and Chronology

[11] The parents are P. W. and M. T. They do not reside together.

[12] The child in this case is G., who is eight years old.

[13] G. has five siblings: four on his mother’s side and one on his father’s side. The mother and the society do not agree on a number of aspects of what transpired in relation to the mother’s four other children (which will be discussed below) but do agree that:

a. The now adult child J., age 27, lived with the mother until March 2000. The maternal grandmother had care of J. for a period, following which, in 2008, he was made a Crown Ward with access, and lived in a care facility. This adult child currently lives with the mother.

b. The now adult child E., age 25, was born in 1996. In 1997, her father obtained sole custody with supervised access to the mother.

c. The now adult child B., age 23, was born in 1999. In 2000, custody of B. was granted to the grandmother.

d. The now 15 year old child A., was born in 2008. In 2012, with the mother not participating in the court proceeding, custody of A. was granted to her father.

[14] The father has another child, M., who is 19 years old. He resides in the care of his mother and spends time with his father as arranged between the parents.

[15] The Guelph Children’s Aid Society was involved with the mother from 2008 – 2012 due to mental health concerns, alleged neglect, and alleged parenting capacity issues.

[16] The child G. was born in 2013 in Waterloo region. The mother had come to the society’s attention while pregnant. G. was discharged from the hospital into the mother’s care and from October 2013 to April 2014 the mother worked cooperatively with the society. The society had no involvement for a period of time thereafter.

[17] On several occasions in 2017, Waterloo Regional Police Services (WRPS) contacted the Waterloo society reporting apparent mental health concerns in relation to the mother. The agency followed up each time, but did not verify protection concerns. On each occasion, the child was found to be well cared for, and there was no evidence of unstable mental health affecting her ability to care for the child. Each time, the society found that the home was appropriate, and the mother was acting protectively.

[18] On February 14, 2018, the society received a number of community referrals expressing concern about the mother’s well-being and mental health. Society worker Michael Buckley, who had been briefly involved in late 2017 and early 2018, attended the home. His evidence was that while the mother seemed distressed by an issue related to the child’s school, overall the meeting went “not badly”. Mr. Buckley documented that the mother told him her son seemed “possessed,” which the mother acknowledged in her testimony. Mr. Buckley stated that when he advised the mother she had an open file with the society, the meeting took a turn. The mother became aggressive, called him a pedophile and said he needed to “stay the fuck away” from her son. The mother testified that Mr. Buckley had threatened her but also that her memory of what happened that day and the next was muddled because she was stressed and upset. I accept Mr. Buckley’s recollection of events.

[19] On February 15, 2018, the mother made a Facebook post which came to the attention of WRPS which was read as a suicide threat. She stated “They are going to take him and I am going to die.” A well-being check, with Mr. Buckley present, was done, the mother and child having been located at an optometry appointment. The mother declined the suggestion that she undergo a mental health assessment. At that time Mr. Buckley reached out to the grandmother to see if she could care for the child if necessary. The mother was clear in her testimony that she did not support or consent to the child being placed with the grandmother at that time.

[20] On the evening of February 15, 2018, the police and the grandmother attended at the home. The mother was apprehended under the Mental Health Act and taken to Grand River Hospital with apparent suicidal thoughts and paranoia. The medical records state that when the police attended the mother was observed to have a large knife and a Ouija board. The mother confirmed this in her testimony. The credible evidence is that no society worker was present when the mother was apprehended, and that the society learned about the event the following day when a worker retrieved an after-hours message left by the police.

[21] The child was taken to the grandmother’s home on the evening of February 15, 2018. The society subsequently formally apprehended him and the court made a temporary order placing him with her on an interim without prejudice basis.

[22] While in the hospital the mother was in the care of Dr. Banjo. On discharge, Dr. Banjo indicated a diagnosis of delusional disorder, paranoid type. The mother was discharged back to the care of her family physician on March 21, 2018, after 34 days at Grand River Hospital. Counselling and dialectical behavioural therapy were recommended at discharge.

[23] Parenting time was put in place for the child with the mother shortly after discharge. Initially, this took place by telephone on alternate days, and then expanded to face-to-face visits on April 26, 2018.

[24] In general, the evidence is that the mother’s access has gone well. Access has now been unsupervised for many months. However, there was a period in 2019 (June – August 2019) that access was put on hold when the mother’s former partner was observed in the home during an access visit, against the instructions of the society (there had been concerns about domestic violence and his intoxication in the home). The mother had told the worker to leave the home or she would push her out. Supervised access resumed for a period thereafter. As at the trial, G. was spending time with his mother one evening per week and alternate Saturday to Sundays, on an unsupervised basis.

[25] The society made contact with the father shortly after (but not immediately after) the child was placed with the grandmother, and parenting time was also put in place for him starting in March 2018. The society acknowledged that the father should have been contacted more quickly given that the agency was aware of his identity.

[26] In general, the father’s visits have also gone well. As at the trial, G. was spending unsupervised time with his father as arranged through the society. The father divides his time between Canada and the Philippines. When he is away, parenting time takes place virtually, although there were delays in putting that in place with his most recent departure in the spring of 2022.

[27] For a period of time in 2019, the society was considering a return of G. to the mother’s care.

[28] A parenting capacity assessment [“PCA”] was requested by the society and ordered. Dr. Jean Wittenberg reached highly unfavourable conclusions about the mother’s parenting capacity and overall mental health circumstances. Following the release of the PCA, the society changed its position, moving away from a return of the child.

[29] The maternal grandmother passed away in December 2019. On January 14, 2020, the child was placed in the care of his older sister, B.

[30] There were challenges with B’s care of the child. She was a young mother caring for a child of her own. The evidence is that she was not always cooperative in terms of facilitating the parents’ access with G., apparently not seeing it as a priority.

[31] Shortly after G. came into her care, he was put on medication for ADHD. Neither the society nor the mother were involved in this decision and found out afterwards. Over the 18 months that G. was in her care, B. experienced some difficulties managing, and there were concerns about the level of supervision of G. and her own child. Eventually B. requested the assistance of the society in caring for G.

[32] On August 4, 2021, the child was placed in the temporary care of the society. He has remained in care since that time, with access to both parents.

Relevant Court Orders

[33] Many orders have been made in relation to this matter. The most significant are the following:

a. Interim interim without prejudice order of Rogers J. dated February 21, 2018, placing the child in the care of the grandmother A. W., subject to terms of supervision;

b. Interim order of Oldham J. dated March 27, 2018, adding the father, M. T., as a party to the proceedings;

c. Interim order of Oldham J. dated August 24, 2018, providing for supervised access to the father;

d. Final order of Walters J. dated July 15, 2019, providing for a parenting capacity assessment to be undertaken by Dr. Jean Wittenberg in relation to the mother;

e. Interim order of MacLeod J. dated January 14, 2020 placing the child in the temporary care of his sister, B. W., subject to terms of supervision;

f. Interim without prejudice order of Breithaupt Smith J. dated August 4, 2021 placing the chid in the temporary care of the society.

Non-Expert Witnesses

[34] Twenty-one non-expert witnesses were called in this matter. Where I have concerns about the credibility of their testimony, this is addressed in the analysis below.

The Society’s Witnesses

[35] The society called the following witnesses.

a. Michael Buckley, Protection Investigation Worker, CAS

b. Laura Birceanu, Family Services Worker, CAS

c. Andrea Borden, Child Protection Supervisor, CAS

d. Gregory McCarthy, Investigation Worker, CAS

e. Katie Thomas, Family Service Worker, CAS

f. Sharlene Jones, Family Service Worker, CAS

g. Shannon Simmons, Children’s Service Worker, CAS

h. Peter Holden, Child’s Counsellor

The Mother’s Witnesses

[36] The mother testified and called the following witnesses:

a. Tonya Beattie, Social Worker, Former CAS child protection worker

b. Dr. Daniel Finnegan, the adult child J.’s physician

c. Dr. Paul Karl, mother’s former physician

d. Ed Gruszka, Supervised Access Worker, CAS

e. R. L., mother’s friend

f. S. R., mother’s friend

g. M. B., mother’s friend

h. C. L. O., mother’s aunt

i. N. L., mother’s uncle

j. Dr. Shireen Saban, child’s physician

The Father’s Witnesses

[37] The father testified and did not call other witnesses.

Expert Witnesses

Steven Martin

[38] The mother called Steven Martin, the child’s therapist, to testify. On consent and on the strength of his qualifications he was found to be a participant expert in the area of family counselling.

Dr. Jean Wittenberg

[39] A parenting capacity assessment was ordered on July 15, 2019 and undertaken by Dr. Jean Wittenberg. He conducted his assessment on November 1, 2019 and delivered his report nine- months later on July 29, 2020. He concluded that the mother fulfils the criteria for delusional disorder with persecutory delusions. He found that she has refused to collaborate in treatment of her disorder and concluded that she does not have the capacity to raise a child safely and securely.

[40] While I qualified Dr. Wittenberg as an expert in this trial and permitted him to give expert evidence on child psychiatry and on parenting capacity assessment, I have concerns about his methodology and report, and give his evidence limited weight. This is discussed more fully below. The assessment is also now quite dated.

Other

[41] No request was made to have either Dr. Finnegan, Dr. Saban, or Peter Holden testify as participant experts, per se. Each testified as to their specific involvement with the patient under their care. To the extent that they offered limited opinion evidence squarely within their experience and education, such evidence was heard without objection.

Affidavit and Other Documentary Materials

[42] The court received and marked a number of affidavits sworn by Children’s Aid Society workers. The author of each affidavit testified and was made available for cross-examination.

[43] In addition, and on consent, the court admitted documentary evidence including but not limited to:

a. Statement of Agreed Facts dated October 14, 2008;

b. Parenting Capacity Assessment of Dr. Nitza Perlman dated April 24, 2009;

c. Statement of Agreed Facts dated September 18, 2012;

d. Medical notes and records related to the mother;

e. Police Occurrence Reports;

f. Parenting Capacity Assessment and Curriculum Vitae of Dr. Jean Wittenberg;

g. Medical notes and records related to the adult child who resides with the mother;

h. Photographs of the mother’s life with the child;

i. Photographs of injuries sustained by the child; and

j. Certificates obtained by the mother.

Procedural and Evidentiary Considerations

Zoom Trial and Parties’ Attendance

[44] This trial was commenced in September 2021 when all child protection trials took place virtually by Zoom. There were numerous adjournments due in part to Covid-related illnesses of counsel, and family members of the parties. When the trial resumed in May 2022, it continued online to ensure fairness of the overall process, notwithstanding that in-person trials were by that time resuming.

[45] The mother participated fully throughout the trial by Zoom, attending from her home.

[46] The father initially participated in the trial from Kitchener-Waterloo. When the trial resumed in May 2022, however, he was in the Philippines with his second family. He was aware of the trial resumption dates, which had been set in February 2022, but chose to proceed with his travel. The trial was stood down on May 24, 2022 to allow time for the society to reach out to him. Ultimately, the father was able to participate in much, but not all of the trial continuation on Zoom using his phone. However, given the significant time difference, some afternoons he advised that he needed to rest and signed off early. He was advised, and understood, that the trial would continue without him when he chose not to be there.

Records motion

[47] On June 21, 2022, day 21 of the trial, the mother brought an oral motion without notice seeking the immediate production of access notes from the society in relation to a non-subject child for the period 2008 - 2012. She said that these notes would show harm to that child in the care of the society, and thus that she is not paranoid or delusional, but rational in the face of actual harm to another child. I heard argument and dismissed the motion on the basis of the incredibly late timing of the request, 21 days into trial and 8 months after its commencement. However, to its credit, over the coming days the society managed to locate, redact, and produce some 700 pages of access notes as sought. Ultimately, the mother did not seek the admission of any of those notes into evidence.

The mother’s conduct during the trial

[48] More will be said about this below, but the mother’s conduct during the trial was highly disruptive, particularly when hearing testimony with which she did not agree. She interrupted repeatedly, and was unable to follow direction that she allow her lawyers to manage objections, and that she not interrupt the proceedings. She frequently gestured inappropriately to witnesses and to the court. On some days during trial there were upwards of 100 interruptions. This lengthened the trial and demonstrated significant, persistent impulse control difficulties. While the mother was frequently apologetic, her conduct would often resume within minutes of the court’s redirection. While generally, all parties and counsel were unmuted, when the repeated interruptions threatened to derail entire trial days, those not actively required to speak (counsel actively questioning, the witness, the Judge) were occasionally collectively placed on mute, with direction to raise a hand in the event of an objection. The court permitted frequent recesses for the mother to be able to speak with her counsel.

Hearsay

[49] There was considerable hearsay and double hearsay evidence tendered in this trial. This included apparent statements of the child’s siblings, and statements of some professionals not called to testify (such as Cheryl Cruickshank of the Canadian Mental Health Association (CMHA)). Much of this evidence was heard without objection. Where I have considered such statements, I have commented on that below and explained the basis. Otherwise, I have considered those statements only as narrative and background to assist in understanding the admissible evidence in the proceeding.

[50] I have considered some statements of the foster parent, as reported by the Children’s Service Worker Shannon Simmons, with respect to her observations of the child’s behaviours (not double hearsay of the child’s statements). I accept the society’s argument, unchallenged by the mother’s counsel, that calling her to testify would necessarily have put undue strain on the foster parent’s relationship with the mother which could in turn affect the child’s placement. The mother’s counsel stated that she did not “feel strongly” about having the foster parent testify (as the alternative to the hearsay evidence) and that she would advise the court if she wished the foster parent to be called as a witness. At no point did mother’s counsel either object to the statements of the foster parent or request that she be made available for cross-examination. I find that the statements of the foster parent, put to the court through Shannon Simmons are necessary, in that she is the direct caregiver of the child, and reliable, in that they were documented by Ms. Simmons within 24 hours of their meetings. Not compromising the placement of the child or putting unnecessary strain on the relationship between the mother and the foster parent is crucial.

[51] Some of the child’s statements are admissible under the state-of-mind exception to the hearsay rule and have been considered on that basis.

Consideration of Evidence

[52] This trial took 26 days, much longer than necessary. Twenty-three witnesses testified. Some of the evidence presented did not bear squarely on the issues the court was asked to decide, but was relevant to the mother’s explanation for her parenting approach and conduct. The mother clearly wished to tell her story, which is a story marked by pain and trauma, and the court provided her with a full opportunity to do so. Although the mother expressed concern that the society’s case took longer than hers, her counsel’s cross-examinations of society witnesses were lengthy and vigorous, she called eleven witnesses in addition to her own testimony, and there was no indication at the conclusion of the trial that there was any witness she had still hoped to call.

[53] In the analysis below, I have addressed what I found to be the most relevant aspects of the testimony and evidence tendered during trial, and commented on credibility where I have concerns. While I have not discussed all of the evidence presented at trial, I have very carefully and comprehensively considered the totality of evidence in my determination of the substantive issues.

B. PRELIMINARY FINDINGS

[54] On a child protection application, and before any finding in need of protection or disposition is determined, the court must address certain preliminary findings under section 90 of the Child, Youth, and Family Services Act, S.O, 2017 Chapter 14, Schedule 1 [“CYFSA”], as follows. These findings relate to the child’s name, any indigenous identification, and the place from which the child was removed when brought to a place of safety.

[55] In this case, on the evidence, I make those findings as follows:

a. The child’s name is G. N. W., born [date of birth redacted];

b. The child is not a First Nations, Inuk, or Métis child;

c. The child was removed from the home of the mother in Waterloo Region.

C. PROTECTION FINDINGS

[56] On a child protection application, the court must also ascertain, before turning to the questions of disposition and any access arrangement, whether the child is in need of protection.

[57] In this case, for the reasons set out below, I conclude that the child is in need of protection under section 74(2)(b), (i), and (k), as is explained below.

Positions regarding protection findings

[58] The society argues that the child was in need of protection when apprehended in 2018 and that he continues to be in need of protection currently. Specifically, the society argues:

a. That at the time of the apprehension, the mother was unavailable to parent within the meaning of section 74(2)(k), as she had been admitted to a psychiatric ward and remained there for approximately one month;

b. That the presence of the adult child J. in the mother’s home poses a risk of physical harm to the child;

c. That the mother has an extensive history of largely untreated mental health concerns including paranoia and delusional disorder that impact her ability to parent safely. Those mental health issues have and continue to manifest in:

i. Exposure of the child to adult conflict between the mother and others, including the adult child J.;

ii. The mother’s unwillingness and inability to work cooperatively with the child’s school and third-party professionals such as physicians and other medical personnel who could otherwise support the child, due to her belief in wide-ranging conspiracy theories about the conduct of school officials, child protection staff, police, the courts, and others;

iii. The mother’s persistent behaviour in threatening others with serious physical harm, including death threats, and her inability to recognize the inappropriateness of such conduct;

iv. The mother’s unwillingness to accept medical advice that would be in the child’s best interests, such as ADHD medication; and

v. The mother’s consistently stated refusal to work with the society or follow court orders on the basis of her conspiracy theories and deep-seated distrust of government agencies.

[59] The mother’s position, supported by the father, is that the child is not and has never been in need of protection. She argues:

a. That she does not have mental health issues sufficiently serious to compromise her parenting. While she has complex post-traumatic stress syndrome [“CPTSD”] and situational depression, she does not have and has never had delusional disorder;

b. That as a child and as an adult, she has been exposed to and suffered traumas that make her acutely attuned to risks to the child. This, she says, does not amount to paranoia, but simply makes her a very protective parent;

c. That many of the historical “facts” relied on by the society, in terms of how her other children came to not be in her care, are false and inaccurate, and have unfairly “informed” the society’s perception of her ability to parent (or lack thereof); and, that to the extent there may have been child protection concerns in relation to those children, she is now an older and more mature parent;

d. That much of the negative information about her and her ability to parent was provided to the society by her abusive mother, who had a child protection history;

e. That the evidence is that she is a good parent, who maintains a clean and tidy home, provides nourishing food, is active and seeks out resources to meet the child’s needs, and is well able to parent the child without exposing him to either physical or emotional risk of harm;

f. That she has pursued some counselling and is open to further counselling with a professional she trusts;

g. That the child is at greater risk in the care of the society than in her care, as shown by injuries to the child A. while not in her care, and to this child while in kin care during the society’s involvement;

h. And finally, that the evidence about her access since G. was removed from her care confirms her parenting strengths.

The Law

Legislative Provisions

[60] The society’s amended child protection application seeks a finding that the child is in need of protection under section 74(2)(b), (f), (g) and (i) of the Child, Youth, and Family Services Act. In closing submissions, the society included an additional ground, namely s. 74(2)(k). The applicable subsections provide as follows:

74. Definitions

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

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s

i. failure to adequately care for, provide for, supervise, or protect the child, or

ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(g) the child has suffered emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and the child’s parent or the person having charge of the child does not provide services or treatment or access to services or treatment, or, where the child is incapable of consenting to treatment under the Health Care Consent Act, 1996, refuses or is unavailable or unable to consent to the treatment to remedy or alleviate the harm;

(i) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and that the child’s parent or the person having charge of the child does not provide services or treatment or access to services or treatment, or, where the child is incapable of consenting to treatment under the Health Care Consent Act, 1996, refuses or is unavailable or unable to consent to treatment to prevent the harm.

(k) the child’s parent has died or is unavailable to exercise their rights of custody over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unwilling to resume the child’s care and custody.

[emphasis added]

Risk of Physical Harm under s 74(2)(b)

[61] In cases where the society is alleging that the child is in need of protection due to physical harm or a risk of physical harm, the following principles have been applied:

a. The society must prove causation by act, omission, or pattern. It is not necessary to prove intention: Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, 2008 CarswellOnt 9306 at 28, affirmed at Jewish Family and Child Service v. K.(R.), 2009 ONCA 903, 2009 CarswellOnt 7908;

b. Physical harm caused by neglect or error in judgment is still physical harm. However, it must be more than trifling physical harm. C.A.S. Niagara v. P.T. 2003 (ON SC), 2003 CarswellOnt 403 at 59, 60; Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458, 2006 CarswellOnt 7548 at 17;

c. Harm caused by neglect or error in judgment comes within the finding: C.A.S. Niagara v. P.T. 2003 (ON SC), 2003 CarswellOnt 403 at 65;

d. The risk of harm must be real and likely, not speculative: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458, 2006 CarswellOnt 7548 at 19; Children’s Aid Society of Ottawa-Carlton v. T., 2000 (ON SC), 2000 CarswellOnt 2156 at 8. “Risk” means more likely than not. See Children’s Aid Society of Algoma v. JB., 2019 ONCJ 6, 2019 CarswellOnt 332 at 17.

e. Limited capacity of the parents may lead to harm or risk or harm if there is an inability to sufficiently acquire or improve parenting skills: Children's Aid Society of Hamilton v. O.(E.), 2009 (ON SC), 2009 CarswellOnt 8125 at 211-215.

Emotional Harm and Risk of Emotional Harm under s 74(f), (g), or (i)

[62] The allegation that a child is in need of protection due to having suffered emotional harm may be more difficult to establish than physical harm or risk thereof. To come within section 74(2)(f) or (g), the court must find that the child has suffered one of the specifically enumerated harms: anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development and that there are reasonable and probable grounds to believe that this results from action or inaction on the part of the parent or caregiver of the child.

[63] To show risk of emotional harm under s. 74(2)(i), the society must similarly show risk of the specifically enumerated harms and a link to the conduct of the parent. See for example Children’s Aid Society of Algoma v. A.B., 2018 ONCJ 831 at 13 and Chapman v. York Region Children’s Aid Society, 2021 ONSC 2620, 2021 CarswellOnt 5213. See also Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, 2019 CarswellOnt 332, in which the court stated at para. 16: “Although no actual emotional harm symptoms need to be shown, the society cannot rely on only the existence of reasonable grounds to believe that a risk exists. This ground requires the society to show that the risk does exist, and to do it on the balance of probabilities. ‘Risk’ has been said to mean ‘more likely than not.’”

[64] To show actual emotional harm or risk of emotional harm, expert evidence is often helpful to both to establish the specific harm or risk and draw the link to the caregiver. It may be that the evidence of a participant expert such as the child’s counsellor could suffice. Catholic Children’s Aid Society of Ottawa v. C.L., 2018 ONSC 1241, 2018 CarswellOnt 2894 at 26. The standard of proof for determining whether there is a causal connection between the emotional harm and the parental conduct or neglect has been established is a lesser standard than the balance of probabilities. Children and Family Services for York Region v. S.A. 2009 CarswellOnt 8751 at 20; S.(D.), Re 2001 (ON SC), 2001 CarswellOnt 733.

[65] There are two lines of authority regarding whether expert evidence is required to establish emotional harm or risk of emotional harm, and a link to parental conduct or neglect.

[66] In A.C. v. V.A., 2012 ONCJ 7, Phillips J. cited Linhares de Sousa J. in S.(D.), Re (cited above) and Steinberg J. in Catholic Children’s Aid Society of Hamilton-Wentworth v. L. (C.), at 4, 2002 CarswellOnt 3713, concluding at para. 69 that “the weight of the caselaw is clear that in order for the court to be satisfied of the sufficiency of evidence for a finding of emotional harm there must be evidence offered beyond the competence of lay persons. Judges need the existence of expert witnesses.” Similarly, Kukurin J. stated in Chatham-Kent Children’s Services v. C.P., 2014 ONCJ 395 at para. 23 that to show risk of emotional harm in that case, the society would need “fairly heavy duty” expert evidence from a mental health professional, preferably one who had assessed or at least spoken with the child. (In that case, the argument regarding risk of emotional harm was a “last minute argument” advanced by the society.)

[67] However, numerous other cases establish that expert evidence of emotional harm or risk of emotional harm is not a pre-requisite. It is simply one form of evidence in any given case which may assist in establishing the harm or risk of harm, and the link to parental conduct or behaviour.

[68] Thus, in Children’s Aid Society of Ottawa v P.Y. and A.S., 2007 CarswellOnt 2635, the court held that while expert evidence would have been useful, it was not required. While in that case there was no expert evidence tendered on that issue, there was other evidence confirming risk of harm. The court noted that terms such as “withdrawal” and “aggression” are not only psychological terms but also commonly understood. See also Catholic Children’s Aid Society of Toronto v. E.S., 2016 ONCJ 279, 2016 CarswellOnt 7840 at 94 in which Murray J. stated that expert evidence is “usually” required, but also stated that sometimes, a child’s distressed reactions to parental behaviour are sufficiently clear that a finding of a risk of emotional harm can be made without the opinion of an expert.

[69] Further, in Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, 2019 CarswellOnt 5568, on appeal, Horkins J. held that it is not an error to find emotional harm or risk of emotional harm in the absence of expert evidence. See para 59. See also Chukwunomso v. Ransome, 2017 ONCJ 121, 2017 CarswellOnt 3332 in which Spence J. stated:

Courts will often make decisions about emotional harm — or risk of emotional harm — to a child based on panoply of evidence. That panoply may include an expert's report. But an expert's report is only one piece of evidence. In my view, the presence or absence of an expert's report regarding harm, or potential harm to a child, is neither conclusive nor, in many cases, even mandatory in order to permit the court to arrive at a correct conclusion. For example, in Simcoe Muskoka Child, Youth and Family Services v. V. (L.), 2016 ONSC 7039 (Ont. S.C.J.), Quinlan, J. stated at paragraph 18: "Expert evidence will sometimes [my emphasis] be required to establish a risk of emotional harm, but it is not a necessary prerequisite". As well, see paragraphs 31 and 32 of the decision of Parfett, J. in Children's Aid Society of Ottawa v. Y. (P.) [2007 CarswellOnt 2635 (Ont. S.C.J.)], 2007 (ON SC) for a similar opinion. Furthermore, courts are required to consider not only the available evidence in any case — expert or otherwise — but, as well, Judges should employ intelligence and common sense in drawing logical inferences from their general understanding of life itself.

Unavailability of a Caregiver under s 74(k)

[70] The unavailability of a parent has been held to be a basis of a protection finding. See Kenora-Patricia Child and Family Services v. A.M., 2005 ONCJ 39, 2005 CarswellOnt 1208 at 116. See also Jewish Family and Child Service v. K.S., 2015 ONCJ 246, 2015 ONCJ 6824 at 210. As mentioned, the society added this ground in closing submissions as a basis for the protection finding.

[71] That the specific subsection was not pled is not fatal to advancing the ground in closing submissions, where such finding is justified by the evidence, the parent had disclosure of the evidence, is not caught by surprise and has had full opportunity to test that evidence. See Durham Children’s Aid Society of Durham v. R.S. v. J.M., 2005 CarswellOnt 10570 at 24.

Mental Health Issues and Finding of Need of Protection

[72] A determination that a parent experiences mental health issues will not necessarily translate into a protection finding. See for example CAS of Toronto v. R.S., 2019 ONCJ 866, in which the court held:

[113] It does not automatically follow that a child will be in need of protection just because a parent has mental health challenges. Many parents with mental health issues parent their children well – others can’t. There is a wide range of mental illnesses that affect parents differently and, by extension, affect their children differently.

[114] The court needs to assess several factors to determine if a parent’s mental illness places a child at risk of harm and if so, whether a child can still be placed in the parent’s care. These factors include:

a. The type of mental illness the parent has.

b. The severity of the mental illness.

c. The frequency of the parent’s mental illness symptoms – whether they are situational or chronic.

d. The impact of the mental illness on the parent’s functioning.

e. The impact of the mental illness on the parent’s parenting.

f. Other risk factors impacting on the mental illness, including substance abuse, difficulties with interpersonal relationships, domestic violence and other stressors such as unstable housing and financial problems.

g. The impact of the mental illness on the children.

h. The insight of the parent into their mental illness.

i. The ability of the parent to meaningfully engage with supports to address the mental health issues.

j. Whether the parent is compliant with treatment recommendations.

k. The strength of the parent’s support system, the insight of those support persons into the parent’s mental health issues and the ability of those persons to prioritize a child’s needs to those of the parent’s and to protect the child.

l. Whether the children have any needs that make them more vulnerable to compromised parenting.

[73] See also Valoris v JW., C.R. Muskeg Lake Cree Nation, 2022 ONSC 2901, 2022 CarswellOnt 6964 in which Desormeau J. recently stated: “The fact that the mother suffers from mental health disorders does not automatically lead to a finding. People with mental health disorders are entitled to become irritated, upset, impatient and angry without their conduct being pathologized as symptomatic. See Re: Sim, 2020 ONCA 563…” See para 554.

[74] Rudeness and verbal abuse to a society worker is not in and of itself a basis for finding a child in need of protection unless taking place in front of the child. See Children’s Aid Society of London and Middlesex v A.W. 2015 ONSC 2224, 2015 CarswellOnt 20493 at 78, 79. The same would apply to rudeness to the court.

Timing of Finding in Need of Protection

[75] Courts have held that the time to which the finding in need of protection relates is flexible. That is, the finding can be made in relation to circumstances at the time the application was brought, up to and including the time of the hearing, so long as adequate disclosure is made to all parties. This is because the risk that is identified at outset of a case may be under control or resolved when the protection hearing proceeds but may return. A risk that is not present on the day of the hearing may nevertheless justify a protection order. See Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, 2019 CarswellOnt 5568 at 90 - 96; Children's Aid Society of London and Middlesex v. T.Y., 2017 ONSC 3460, 2017 CarswellOnt 11825 at 94.

[76] The court must assess the extent to which any need for protection has been resolved over the course of the litigation or whether other grounds for protection have emerged. Even if the need for protection at the initial stage has been resolved, that does not change the court’s ability to make a finding in need of protection. See Catholic Children’s Aid Society of Toronto v N.N., 2019 ONCJ 8, 2019 CarswellOnt 334 at 129.

The Role of Past Parenting

[77] Under the CYFSA, the court may consider past parenting. The court may also consider any statements and documents that the court considers relevant. Section 93 provides as follows:

93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

Analysis

[78] Having considered the law set out above and the evidence, I make the following findings.

The mother’s strengths

[79] There is evidence that supports several aspects of the mother’s position regarding protection findings.

[80] The mother maintains a clean, appropriate, and stable residence, and that she is capable of providing acceptable instrumental care. Her photos, tendered in the trial, show a loving relationship between her and the child.

[81] When the child was younger, she ensured he had regular medical care, and completed a Nipissing screen to track the child’s development. This is consistent with the records of Dr. Finnegan in respect of her adult child J. Society worker Tonya Beattie closed the society file when involved in 2013 on the basis that the child was well cared for. Worker Laura Birceanu similarly found the mother to be attentive.

[82] The evidence is that for the most part, the mother conducts herself appropriately during parenting time with the child. Ed Gruszka, who supervised a number of visits in 2020 and 2021 stated he had no difficulties with the mother and that this was consistent with visits he supervised in relation to the child A. “10 or 12 years ago.” Society workers report no concerns regarding her parenting time other than the child’s exposure to conflict between the mother and the adult child.

[83] I accept the mother’s evidence and that of Steven Martin that she had a difficult relationship with and was likely abused by the grandmother, that the grandmother had her own child protection history, and that the grandmother may have behaved inappropriately with the mother’s children, not just with the subject child. I also accept that the grandmother may have provided inaccurate information to the society about the mother at times. I accept the position that this could inform the mother’s perception of the world and the manner in which she engages with others.

[84] There is evidence that at times, the mother is able to follow medical advice even when she initially disagrees. The evidence is that currently, although the mother disagrees vehemently with ADHD medication, she administers it when he is in her care.

Evidence regarding the child’s well-being

[85] There were several sources of evidence about the child’s mental and physical state leading up to his removal as well as since the proceeding commenced in 2018.

[86] The medical evidence is that the child is physically healthy with no particular physical health challenges. He was regularly taken to the family doctor, Dr. Saban, while in his mother’s care, and continued to be seen regularly while in his grandmother’s and sister’s care.

[87] While there was some confusion in the evidence about whether the child was diagnosed with ADHD by Dr. Saban or the child psychiatrist, Dr. Gavett-Liu, it appears that he was put on ADHD medication in early 2020 by Dr. Saban and the diagnosis was subsequently confirmed by Dr. Gavett-Liu. Over the course of 2020, the child saw Dr. Gavett-Liu who also diagnosed Opposition Defiant Disorder in addition to the ADHD. Depression and PTSD were queried but not confirmed. Dr. Gavett-Liu’s notes confirmed reports of significant impulsivity as well as anger issues seen at school.

[88] Shannon Simmons, the Children’s Service Worker, did not observe evidence that would suggest mental health issues on the part of the child. She did report the foster parent’s statements that the child is often “hands-on” at school, and that he is argumentative at home in her care and during transitions. She also reported the foster parent’s statements that the child has difficulty with routines and rules and displays “attitude,” often coming home from visits with his mother in a bad mood.

[89] In October 2021, the society made a referral for the child to receive services from Peter Holden, a trauma therapist. Shannon Simmons testified that this was to assist the child in processing the losses in his life and to give him a place to express his feelings. Mr. Holden testified that the child had been to 16 sessions with him for “trauma focused behavioural therapy” and that the therapy was ongoing. Mr. Holden noted that G. is a child who has experienced various forms of dislocation, including removal from his mother’s care, the death of his grandmother and then transfer to his sister’s care, removal from his sister’s care, and then transition into foster care. He stated that this may or may not have caused trauma. Throughout, there have been changes in the amount and circumstances in which he could spend time with each parent. Peter Holden could not diagnose but did not believe the child is depressed or withdrawn. While the child shows some anxious behaviours during the therapy this seemed to be related to the therapy itself.

[90] The court was not made aware of any current diagnosis of depression, anxiety, or other mental health issues of the child. The ADHD, however, is persistent and serious.

Risks and Protection Concerns

[91] Notwithstanding the mother’s strengths and her evidence about how her difficult experiences have affected her worldview and interactions, there is significant concerning evidence relevant to harm and risk of harm to the child at the time of removal and presently. This includes the following:

i. Unavailability to care for the child

[92] The evidence is that the mother was unavailable to care for the child when he was removed and placed in the grandmother’s care. The mother had been admitted to Grand River Hospital on a Form 1 and remained at the hospital for 34 days. The mother testified that she did not consent to and did not support the child’s placement with the grandmother, thus the society’s court intervention was well grounded at that time.

ii. Risk of physical harm arising from adult child in the home

[93] While the focus of the trial was largely on the mother’s mental health issues, there is a serious concern with respect to the adult child residing in the home with the mother, and the extent to which he poses a physical risk to the child. This risk came to light through medical records tendered by the mother in relation to J., which were entered into evidence at her request.

[94] J. is currently 27 years old. He has developmental disabilities. He currently resides with the mother and there was no evidence in the trial that the mother intends to change the arrangement.

[95] While residing in the group home, J. was found to display inappropriate sexual behaviours and aggression. He was referred for a psycho-sexual needs assessment which was included in the medical records. The assessment, dated December 20, 2016, states that J., among other things, has paraphilic disorder (an obsession with the phallus), vorarephilia, anti-social personality disorder, and concerning sexual interests and behaviours. The report makes various recommendations, including limiting J.’s access to the internet, and not leaving him unsupervised with vulnerable peers and children. A phallometric assessment is recommended.

[96] In February 2017, a further assessment was completed through the Centre for Addiction and Mental Health, which noted long-standing difficulties with aggression and anger, vorarephilic sexual interest, and stated that J. systematically compromised social boundaries with others to satisfy sexual fantasies, although there was no evidence that he had engaged in inappropriate sexual touching. It was recommended that he participate in a more fulsome psychological assessment, and a phallometric assessment was “strongly recommended.” It was again recommended that he have no unsupervised contact with children under 16.

[97] J.’s physician, Dr. Finnegan, stated that he does not believe J. would be violent or aggressive and has seen nothing that would suggest that J. is a sexual predator. However, to his knowledge, the recommended further assessments had not been completed, and he had not seen enough to know whether the “sexual desires” issue is a risk concern. Dr. Finnegan said the recommended testing could help put that issue to rest.

[98] While I found Dr. Finnegan to be forthright, thoughtful, and credible, in my view his testimony minimized the issues raised in the two assessments. He seemed to suggest that the concerns were dated, being linked to puberty, J. now being 27 years of age. In fact, J. was 21 when the 2016 assessment took place, and the 2017 assessment is even more recent. Those assessments were conducted by experts in the field of sexual behaviour and clinical and forensic psychology. It gives the court concern that the recommendations in both assessments do not appear to have been followed.

[99] The evidence of the mother’s understanding of any risks to the child arising from J.’s sexual interests is mixed. On the one hand she stated that she recognizes the issue and would be protective, and she even took J. to the police station for a discussion about appropriate behaviour. Yet, the mother had no plan to ensure that the recommended further assessments be undertaken. When the issue of a phallometric assessment was raised in evidence, she blurted out comments about the “anti-men agenda” and the “disgusting” nature of such testing. She did not recognize that both the 2016 and 2017 assessments stated that J. should not be unsupervised around children.

[100] I conclude that the presence in the home of the adult child J., without a plan for his supervision and for follow through on the recommended further assessments, poses a real risk of physical harm to the child. The issues raised in the assessments are serious and must either be addressed or ruled out. The mother has no plan in this regard.

iii. Risks related to the mother’s untreated mental health issues

[101] Although the mother minimizes her mental health challenges there is significant evidence that she suffers from serious, longstanding, and largely untreated mental health issues:

a. In 2002 the mother was diagnosed with borderline personality traits and adjustment disorder by the Homewood Health Centre.

b. A Parenting Capacity Assessment completed in 2008 by D. Nitza Perlman, admitted on consent, describes the mother as a young person as having been diagnosed with adjustment disorder, anxiety, and attention deficit disorder. While Dr. Perlman did not find evidence of psychotic processes or psychiatric disorders, she concluded that the mother had fragile coping strategies and a lack of insight and did not believe the mother could safely parent on her own.

c. In 2010, the mother requested that her then-physician, Dr. Karl, write a letter stating that he had no concerns about her mental health. Dr. Karl responded with a letter stating “I don’t know if I can comply with your request to state that I have no concerns about your mental health.”

d. In February 2018, following the mother’s admission to Grand River Hospital, Dr. Banjo diagnosed the mother on discharge after her 34-day stay as having “delusional disorder, paranoid type.”

e. Also in 2018, the mother was assessed by psychiatrist Dr. Okonkwo, who found her to have Cluster B personality disorder, noted the ADHD history, and assessed “quasi psychotic disorder of delusional type secondary to Cluster B personality disorder.” He noted that the mother described “some paranoid ideations… and believing that there is a conspiracy against her.” He noted the mother’s belief that she has telepathic powers. He described her as unstable and recommended dialectical behavioural therapy.

f. I note that while Dr. Wittenberg also concluded that the mother suffers from serious mental illness, I place little weight on his evidence as discussed below.

[102] The evidence does not support a finding that the mother has even modest insight into the nature of her mental health issues or that she would follow through with treatment as recommended by Dr. Okonkwo and others:

a. The mother did produce some certificates related to attendance at a mood disorder clinic in 2010 and parenting programs taken in 2008 and 2010. In the course of this proceeding, she also attended several counselling sessions with Qualia Counselling in 2018. However, she did not continue those sessions.

b. While the mother stated that she likes and trusts Steven Martin who counselled her when she was younger and whom the society is prepared to pay privately to provide the recommended DBT therapy, she has neither permitted the society to pay for that service for her, nor pursued that or other services on her own. This is unfortunate. Mr. Martin presented as very kind and supportive of the mother, and the society is satisfied that he is qualified to provide the recommended therapy;

c. When asked directly by the court whether she would engage in counselling if ordered to do so, the mother asked why that would be necessary. She repeatedly made clear during the trial that she does not believe she has mental health issues that require treatment;

d. During the trial, arrangements were made for the mother to meet with Peter Holden, who provides therapy to the child, with a view to involving her in that work. It was unclear whether the goal would be to simply support the child or also to work on the mother’s mental health issues. It appeared that the meeting took place. However, when the mother testified she was not asked about the outcome of the meeting or about the plan going forward with respect to her involvement, if any, with Mr. Holden.

[103] A stated concern of the society is the mother’s mental health issues and conduct have and will continue to result in alienating professionals such that they will not be available to work with and support the child’s needs – professionals such as teachers, principals, and medical professionals:

a. While there is evidence that the mother can conduct herself appropriately – such as observed by access supervisor Ed Gruszka, or her friends R. L. and M. B., evidence is that when the mother meets resistance, or hears something with which she does not agree, she has overwhelming difficulty conducting herself acceptably. This is certainly consistent with what the court observed during the trial.

b. Dr. Shireen Saban, the child’s physician, stated in her testimony that the mother’s conduct in court supported her earlier conclusion that she would not continue to provide services to the child if the child were returned to the mother’s care. (The mother had been rude and abusive to Dr. Saban in a meeting held in November 2021 the purpose of which was to explain the diagnosis and the medications to her.) Among other things, while the physician was testifying, the mother held up a piece of paper which read “child perp vulture.” The mother stated during trial that she believes Dr. Saban has fake credentials and should be investigated.

c. During trial, the mother acknowledged having been “banned” from the child’s school after having made repeated allegations that the teachers and administration are pedophiles.

d. The mother also acknowledged having threatened Dr. Gavett-Liu after she examined the child’s penis, apparently causing some discomfort. The mother commented that the physician was lucky she had not thrown her through the wall.

e. There was significant evidence of the mother having repeatedly threatened society workers with serious bodily harm, including threatening to slit Sharlene Jones’ throat and to gouge Katie Thomas’ eyes out with her car keys. The mother showed no remorse for these and other threats when asked about them at trial, indicating only that they were fortunate that she did not follow through. Asked whether she would continue to threaten people, the mother responded that “it depends.” She showed no insight whatsoever that this is inappropriate behaviour.

[104] The mother’s testimony and presentation during trial appeared consistent with the conclusions of multiple medical professionals referred to above:

a. For example, the mother made sweeping, unsupported, and repeated allegations and references to: pedophile rings and child traffickers having infiltrated the child protection agencies, schools, the police, and other institutions and being somehow linked to organized crime. She made repeated references to conspiracies. She stated her belief that one of the child protection workers is a Russian spy, stating that the workers should all be investigated “like in China.”

b. Consistent with her belief that conspiracies abound, when asked whether she would follow a court order, she stated that courts are fraudulent organizations. She had previously told society workers that the courts are part of organized crime networks.

c. The mother was unwilling to provide the court (even when asked directly by the Judge) what her source of income is and how she would support the child, stating that she is “not at liberty” to say. She testified about a range of business plans including starting a men’s shelter, bringing mixed martial arts to Canada, and working on various un-named small business enterprises. She stated that she proposed a business plan to Grand River Hospital in 2018 when she was an in-patient in an effort to negotiate her way “out”, and that she could help Peter Holden, the child’s therapist, write books.

d. As noted above, during the trial, the mother demonstrated a significant issue with impulse control. Notwithstanding having counsel and being routinely instructed regarding courtroom conduct, she interrupted repeatedly. She held papers with statements for witnesses to see up to the camera, notwithstanding direction not to, and made wholly inappropriate hand gestures when hearing testimony that displeased her. When witnesses were testifying in her own case, this behaviour was moderated somewhat, but not entirely. (To be clear: rudeness is not the child protection concern here: the issue is inability to moderate behaviour even in a highly consequential setting with repeated guidance.)

[105] While as set out above, at times the mother can follow medical advice, she made it clear during the trial that notwithstanding clear medical advice that the child experiences serious ADHD and benefits from his medication, and notwithstanding advice regarding long-term consequences of taking the child off that medication, if returned to her, she would take him off the medication. She explained during trial that ADHD medication is a narcotic that is frequently used to “control” children, referring to CIA experiments after World War II and war crimes against human subjects. While it is difficult to fully square these statements with the fact that the mother currently ensures that the adult child’s ADHD prescription is filled and administers ADHD medication to the subject child on access as required, the mother consistently stated that she will take the child off the medication if returned notwithstanding advice to the contrary. While the court acknowledges that there are differing views with respect to treatment of ADHD, in this specific case, the mother’s approach to the issue, for this child, seems to fit within her broader conspiracy theories rather than on any understanding of his best interests.

[106] There was evidence that the mother is verbally abusive to the adult child J. during the subject child’s access visits. She acknowledged calling him names in front of the child. Peter Holden, the trauma specialist, stated that the child has expressed concern about this in therapy. Asked about the names she calls the brother, the mother stated she called him “asshole” or “moron.” Asked what impact she thought this might have on the child, she stated that she didn’t “give a shit” and that if one thinks swearing is worse than child abuse one can “go to hell.”

[107] The mother believes strongly that her children have been harmed and are at risk of further harm – from society workers, from pedophiles, from human traffickers, and others. She believes that the society permits that harm. She does not easily accept evidence to the contrary. This was evident for example in her insistence that the child’s sister B. injured him, when he presented at access with bruises which he stated were from falling off his bicycle. Despite a medical opinion from the Child Advocacy and Assessment Program (CAAP), in Hamilton, Ontario, that the photos provided were consistent with a fall off a bicycle, she continued to state at trial that the bruises were a result of abuse. This was notwithstanding that the police also spoke with the child and saw his bruising, finding no basis for further action.

[108] In summary, the mother’s mental health issues are serious, largely untreated, and significantly impact how she interacts with others with whom she is not in agreement. This risks alienating professionals who would work with the child, risks exposing the child to conflict, risks denying the child medication which benefits him, and is likely to lead the mother to make decisions for the child based on conspiracy theories rather than facts and medical information. Her failure to recognize the concerns or pursue treatment leaves little hope for improvement.

[109] While the evidence of the mother’s mental health issues is voluminous and concerning, I recognize that in this case the court does not have expert evidence to confirm that the manner in which those issue manifests will cause one of the enumerated emotional harms: namely, anxiety, depression, withdrawal, destructive behaviour, or developmental delay in the child.

[110] However, this is a child who already has challenges of serious ADHD and ODD. He has experienced many dislocations and losses. The evidence is that his current behaviours at school are aggressive and that he demonstrates behavioural issues in the foster home. He tells Peter Holden that he is upset by how his mother treats the adult child who lives in the home (the mother acknowledging she calls him names and yells at home). The mother demonstrates no ability to control her statements or behaviour even in court, knowing that she is in trial. She shows no remorse for repeatedly making death threats. If she is unable to control her behaviour in court, I have little difficulty concluding that she would be unable to control her behaviour in the presence of the child.

[111] This is a case, as is referred to in Chukwunomso v. Ransome, above, where there is, a “panoply” of evidence which supports the conclusion that there is a risk of emotional harm to the child, in one or more of the enumerated forms. It is a logical inference that her conduct and behaviour will result in emotional harm.

[112] In reaching this conclusion I have carefully considered the case law provided by the mother’s counsel on the issue of emotional harm and risk of emotional harm. A number of the cases cited are distinguishable on the basis of involving parents who show insight into their mental health issues, who are actively involved in treatment, and who demonstrate stable mental health. Others show a consistent ability to work with the Children’s Aid Society and follow orders of the court.

[113] Finally, it is important to distinguish between a finding based on emotional harm having been demonstrated, and a risk of emotional harm. I agree that no finding can be made that an enumerated emotional harm has been shown or can be attributed to the mother. The evidence of risk of such harm, however, is in my view amply demonstrated.

iv. Past Parenting

[114] As is set out above, the court may consider past parenting, and may rely on a range of statements which might not otherwise be admissible under the Evidence Act.

[115] Entered into evidence on consent were a variety of documents that related to the mother’s past parenting, including consents, statements of agreed facts, and decisions of the court in relation to child protection issues which arose with respect to her other four children. Those statements document, in admissible form, facts including but not limited to the following: That the mother consented to a finding that the child A. was in need of protection due to risk of physical harm in 2008; that she was charged with assault and assault with a weapon in 2008; that the mother failed at previous points to engage in programming when required to do so; that she was hostile and uncooperative with society workers; that she believes she is psychic; and that she states that she is connected with the Mafia.

[116] The mother takes great exception to some of the historical facts presented in the society’s materials. Indeed the society, during trial, corrected statements in its trial affidavits regarding J. having been removed from her care after suffering brain damage. It was shown during trial that he was in fact in the care of his father when removed, and that his disabilities were congenital, and in no way caused by a parent. Apparent “malnutrition and dehydration” amounted to difficulties establishing breast-feeding. Similarly, it also became clear during trial that although the child A. was apprehended at birth by the society, there was at least some evidence that one Guelph society worker had recommended that the child not be apprehended at birth.

[117] I have four comments about past parenting in this case:

a. First, statements in the admissible documents that speak to past parenting confirm that the mother’s mental health issues are long-standing, as is her difficulty in working constructively with the society. Those documents also confirm that her belief in wide-ranging conspiracy theories, her lack of insight into her mental health challenges, and her failure to follow through with consistent programming to address those issues is also not new.

b. At the same time, I accept the evidence of child protection worker Laura Birceanu that when the society initially became involved in the current case, the society was not focused on past parenting difficulties. When this child was born, the mother worked with the society, and the file was closed in 2014 because she was doing well, and the child was similarly doing well in her care. When Ms. Birceanu became involved, the starting point was that this was a mother who – whatever the previous circumstances – had been assessed to be able to care for the child. This is further confirmed by the evidence of Michael Buckley who became involved in late 2017 and then in February 2018. Again, the starting point was that the mother was able to care for the child. It was only mid-February 2018 that the mental health concerns manifested in a manner that raised an alarm and lead to the current proceeding.

c. Thus, while past parenting evidence may be considered, in my view, it is not central to this case, except to confirm that the mental health concerns are not new, and have previously warranted society intervention. The facts that lead to this protection finding, however, are from February 2018 onwards.

d. I do acknowledge, however, that the mother’s experience of having some facts related to past parenting have been misstated by the society – in the case of the adult child J. – very seriously so – would affect her level of trust of the society and her view that they are ‘against’ her. That is not to suggest that this justifies her conduct or threats, makes her behaviour appropriate, or mitigates the effect of that conduct on others including ultimately the child. It does, however, provide context for understanding her perspective.

v. The Parenting Capacity Assessment

[118] As indicated, Dr. Wittenberg prepared a parenting capacity assessment, following an argued motion. I qualified him as an expert in child psychiatry and parenting capacity assessments. As indicated, Dr. Wittenberg concluded that the mother does not have the capacity to raise the child safely and securely.

[119] I am unable to give much weight to Dr. Wittenberg’s evidence. He reached sweeping conclusions about the mother’s parenting abilities although he spent very little time with her, only having met with her on one occasion, and declined to interview any collaterals. He stated that he reviewed the materials provided by the CAS, but declined to review materials provided by the mother. He testified that it would not add to his opinion, because it had already been formed. He said he did not need to speak with collaterals because he felt he had the information he needed. He did not see the mother more than once because he felt he did not need to do more.

[120] There were inaccuracies in the report, some minor, but also the statement that the mother had suffered from delusional disorder for “many years” when the evidence was that while she had mental health issues for “many years”, she was diagnosed with delusional disorder in 2018. (Dr. Wittenberg prepared his report in 2019.) In my view, Dr. Wittenberg was also very likely impacted by some of what were shown to be inaccurate facts provided by the society regarding how the oldest child came not to be in the mother’s care. Finally, there was a nine-month gap between when Dr. Wittenberg conducted the assessment and when the report was finalized. I find it likely that the assessment was not as fresh in his mind as it would have been if prepared on a timely basis.

[121] Thus, while I find below that there is a basis for a protection finding in this case, I do so having placed very little, if any, weight on the PCA.

Conclusion regarding protection findings

[122] Based on the foregoing:

a. I find, on a balance of probabilities, that the child was in need of protection under section 74(2)(k) on the basis that at the time of the removal from the mother’s care, she was unavailable to parent, having been admitted to Grand River Hospital on a Form 1.

b. I find, on a balance of probabilities, that the child is in need of protection under section 74(2)(b), there being a risk of physical harm arising from the presence of the adult child in the mother’s home, with no plan for that individual either to live elsewhere, or for how the child’s time would be supervised as recommended in the two assessments.

c. I am unable to find that the child has suffered emotional harm within the meaning of section 74)(2)(f) or (g) attributable to the mother’s actions, lack of actions, or neglect. The child has not been in the mother’s care for over four years. While the child has been referred to a counsellor to have a space to talk about losses in his young life, there is little evidence that he suffers from the enumerated issues in section 74(2)(f) or (g) or that any such issues, if experienced, could be attributed to the mother’s conduct in any event.

d. I find, on a balance of probabilities, that there is a real and serious risk that the child will suffer emotional harm within the meaning of section 74(2)(i) in one or more of the enumerated forms, resulting from the mother’s actions, inaction, or neglect, if he is returned to her. The seriousness of the mother’s mental health issues, her lack of insight into her challenges, her failure to take meaningful steps to address those issues, and her clear inability to control her behaviour and conduct are likely to cause one or more of those harms. The mother’s pattern of alienating professionals such as teachers and physicians who are essential to the child’s well-being cause further risk. That the mother cannot control her impulses, even in a courtroom under repeated direction from her counsel and the court, amplifies these concerns. In reaching this conclusion, I have considered that I do not have expert evidence, but find that the evidence of the mother’s challenges in regulating her conduct is overwhelming. This will very likely lead to emotional harm to the child if in her full time care.

D. DISPOSITION

The Law

[123] Once a protection finding has been made, the first step for the court is to satisfy itself whether intervention through a court order is necessary to protect the child. If no court order is necessary, the child is returned to the person who had charge of the child immediately before the removal, in accordance with section 101(8).

[124] In determining whether a court order is necessary to protect the child, the court may consider protection concerns other than those that resulted in the child initially coming into care. See Children’s Aid Society of Toronto v S.A.P., 2019 ONSC 3482, 2019 CarswellOnt 9259 at 28.

[125] Sections 101 and 102 of the CYFSA set out the orders available to the court where a finding in need of protection has been made and where the court is satisfied that intervention through a court order is necessary to protect the child in the future.

[126] Section 101(1) provides the option of a supervision order for a period between three and twelve months, as well as for interim society care for a period not exceeding 3 and 12 months. Section 102 provides the option of a custody order which is deemed to be a custody order under section 28 of the CLRA.

[127] In determining whether a supervision order may be appropriate, the court must have regard to principles including the following:

a. The parent must meet a minimum threshold of co-operation and reliability; there needs to be a trusting relationship between the parent and the society; there needs to be clear and accurate information exchanged between the parties; there should be demonstrable evidence that the parent would be compliant with the terms; there needs to be evidence that the society could monitor a parent’s compliance; and a supervision order should not be imposed if a parent is ungovernable. See: Catholic Children’s Aid Society of Toronto v. L.R., 2020 ONCJ 22, 2020 CarswellOnt 441 at 620.

b. The question is whether the parenting that could be provided with a return of the children is below the minimum standard tolerated by the community, not whether the children will be “better off” with parents other than their own. Family and Children’s Services of St. Thomas and Elgin v. C. (A.), 2013 ONCJ 453, 2013 CarswellOnt 11701 at 158.

c. Courts must recognize that families living in poverty may face challenges. Parents are not to be judged by a “middle class yardstick… provided that the standard used is not contrary to the child’s best interests.” Children’s Aid Society of London and Middlesex v. J.D., 2018 ONSC 6193, CarswellOnt 19221 at 79; C.C.A.S. of Hamilton v. I.(J), 2006 (ON SC), 2006 CarswellOnt 3510 at 38.

d. “A supervision order requires some element of confidence that the parent being supervised shows awareness of the alleged problems and a real commitment to cooperate and ensure that problems do not re-occur… The likelihood of a supervision order adequately addressing concerns about a parent must be considered in the context of that parent’s past and present behaviours.” Children’s Aid Society of Hamilton v. R.(A), 2011 ONSC 7248, 2011 CarswellOnt 14519 at 20, 22.

[128] Interim society care is available where a supervision order or custody order is not appropriate. For children over the age of six on the day the court makes the order, the time-limit is 24 months for such an order.

[129] Section 101(2) provides that the court must inquire as to what efforts were made by the society to assist the child before the intervention. The duty to provide services is a fundamental issue in determining whether or not the risk of return to a parent can be addressed or mitigated. If parents are not provided with adequate services, then the parent has not been given a reasonable opportunity to engage and the ability of the court to assess the parent is hampered. Services include connecting parents with external resources, mental health supports, and making adjustments to access over time. Children’s Aid Society of Toronto v. C. (L.)., 2016 ONCJ 432, 2016 CarswellOnt 11174 at 24, 25; Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, 2020 CarswellOnt 2829 at 155, 156.

[130] Section 101(3) states that the court shall not make an order removing a child unless it is satisfied that less disruptive alternatives would be inadequate to protect the child.

[131] The governing factor when considering the placement of a child is in the child’s best interests, as set out in section 74(3) of the CYFSA. In determining best interests, the court must consider children’s views and preferences. The court must also consider any other relevant factor, including the child’s needs and a parent’s ability to meeting those needs; the child’s physical, mental, and emotional development, the child’s heritage, the child’s relationships with a parent, sibling, or other relative; continuity in the child’s care; the merits of a plan of care proposed by the society compared with the child returning to the parent; the effects of delay on the child; the risk to the child in respect of options being considered; and the degree of risk that justified the protection finding.

[132] Before making any order under section 101 or 102 of the CYFSA, the court must consider the society’s plan of care for the children, which must include information including the services to be provided; an explanation of why the children cannot be protected by the parents(s); statement regarding efforts planned to maintain the children’s contact with parent(s); a description of the proposed arrangements for the children’s long term care and placement and a statement of arrangements being made to maintain the children’s connection to their culture, and to preserve their heritage, traditions, and cultural identity. The court also reviews and carefully considers the plans of care filed by responding parties.

Analysis

Need for a Protection Order

[133] The protection finding made herein has been made on several bases: unavailability of the caregiver at the time of the removal; risk of physical harm; and risk of emotional harm.

[134] The immediate risk at the time of the removal stemmed from the unavailability of the mother due to being hospitalized under a Form 1 in the context of lack of agreement that the grandmother would have care of the child until her release. That concern has been addressed and the mother is now available.

[135] However, the risks of physical harm and emotional harm set out above persist, and necessitate an order to protect the child.

Services provided

[136] The evidence is that for the duration of the society’s involvement since 2018, the mother has resisted efforts to connect her with services that would assist her in addressing the underlying protection concerns. As she does not recognize the significance of her mental health challenges, she has largely not been receptive to efforts to connect her with services. Thus, multiple workers have attempted to discuss services with her – Katie Thomas, Laura Birceanu, and Sharlene Jones. The evidence is that she has not been receptive to being provided with referrals.

[137] For example, even though the mother knows that dialectical behavioural therapy has been recommended, and even though the society has indicated that it would pay for that service with a provider that she trusts (Mr. Steven Martin), she has not consented.

The mother’s current circumstances and approach

[138] The mother provided the court with little information about her current circumstances, even when asked directly by the Judge. The evidence is, however, that she has maintained a stable and appropriate home and that her instrumental care of the child, when he is with her, is acceptable.

[139] The mother would not disclose her source of income, even when it was explained that this helps the court assess her plan for the child. It does appear that she has been able to make ends meet and there was no suggestion that she could not physically house the child if returned.

[140] The mother called several support people to testify. While each presented as kind and well meaning, none were what the court would consider close supports who could be relied on in a concrete way on a regular basis. R. L. was a support to the mother before the child was removed and supervised a few visits afterwards. She stated they had not seen each other during Covid. S.R. is a friend in California who has never met the mother in person. She and the mother have only spoken online and by telephone. M. B. is also a friend of the mother who supervised several visits and stated that she is in sporadic touch with her.

[141] The mother does not appear to have a supportive family. This appeared to cause her distress during the trial. She called an aunt and an uncle to testify. The aunt stated that she did not have a close relationship with the mother, and could not describe anything positive or negative about the mother’s parenting. Her uncle also had limited knowledge of the mother, in particular as an adult, and stated that he had seen the mother with the child “maybe twice.” It did not appear that either of these individuals would be sources of support for the mother if the child were returned. The mother’s relationship with the child’s adult sisters also appeared to be strained, or perhaps “on-again/off-again.”

[142] The mother repeatedly stated her belief that children’s aid society workers should be registered with the social work college and that she will not work with them unless the society is “reformed.” She stated that she will not allow workers into her home, and will not cooperate even if ordered to do so. She repeatedly stated that she believes that children’s aid societies are infiltrated by pedophiles and somehow linked to human trafficking and organized crime.

[143] As seen, the mother has ruptured the relationship with the child’s physician who will not work with her if the child is returned. Asked by society counsel whether she would provide the name of a new physician for the child to the society, the mother stated that she would not.

[144] The mother was also clear that she has no use for court orders and stated that courts are fraudulent organizations. She demonstrated no respect for the authority of the court. Asked by the father in cross-examination whether she would follow court orders or cooperate with the society, she stated that “if they get shut down I don’t have to do what they say.”

The father’s current circumstances

[145] The father testified in an open and straightforward manner and I found his evidence credible. It is clear that he has had a difficult past, including issues with drugs, gambling, and violence. His unchallenged evidence was that he has addressed those issues and has worked hard to learn to manage his temper and anger. He has a loving relationship with the child, and his parenting time takes place on an unsupervised basis. He nurtures a relationship between the child and the child’s older brother M., as well as with the child’s step-sibling in the Philippines. The father appears to have a close and loving relationship with his own parents.

[146] The father has struggled with housing when he is in Kitchener. He expects to have independent housing when he returns to Canada. It appeared that his plan is to sponsor his partner so that she can immigrate to Canada. The father has physical disabilities which prevent him from participating in paid employment. He receives disability benefits.

[147] The father did not put forward a plan for the child, but testified that if the mother is not successful in having the child returned to her, he wants to be considered. The society’s materials indicate that if the father’s housing issues can be resolved, it would seriously consider placement with him. I encourage the father to do what he can to obtain stable housing in Canada.

[148] The father stated that he would be a support to the mother if the child is placed with her and would assist in any way he can. He was respectful of society workers at trial and apologized to them, during his testimony, for past displays of temper. He would like to have parenting time weekly on an overnight basis once he has a residence.

Plans of Care

[149] The society states that the child cannot be adequately protected through a return to the mother, even under terms of supervision, and that no viable kin placements are presently available. The society therefore seeks an order for interim society care for a period of 6 months. During that time, the child would continue to reside in a foster home. The expectations are that the mother would cooperate with the society through allowing workers to attend her home, successfully complete counselling approved by the society; and reduce chaos in the home in order to protect the child from “unsuitable” acquaintances. The plan states that one could expect the child protection concerns to have been addressed when the mother completes a mental health assessment, follows through on treatment recommendations, signs consents for the society to access information, and shows that she is able to meet the child’s educational needs.

[150] The mother seeks the return of the child to her care. She does not specify in her Answer whether this should be through a custody order or supervision order, but states that she would do “anything” required by the court to have G. returned to her care. She states that she and her son love each other very much and that she wants to continue to take care of him. She receives the support of her church, that she would work from home, and scheduled activities around G.’s needs. The mother testified, however, that she would not allow CAS workers to have the access they seek to the home, and indicated that she would not work with the society until they have been “reformed.” It was clear from her evidence that she would struggle greatly to work with the society to comply with a court order requiring her to do so.

[151] As noted, the father supports the mother’s position in terms of disposition. He wants parenting time, irrespective of where the child is placed.

[152] The child’s adult sister, B. W. previously had interim care of the child but was unable to continue in that role, resulting in the child coming into society care in August 2021. During the trial, B. W. brought a motion to be added as a party to the proceeding for the purpose of having a plan for the child considered by the court. That motion was withdrawn on terms. There is no plan before the court that G. be placed with B. W. It is the court’s understanding that neither parent would presently support such placement.

[153] The father confirmed that there are no individuals that he is able to put forward to care for the child.

Disposition

[154] I find that the appropriate disposition in the case is an order for interim society care, for a period of six months. This is so for reasons including the following:

a. The child cannot be safely returned to the mother at this time. The mother has no plan for how the risk of physical harm arising from the presence of the adult child in the home would be managed. She has had ample time to make such a plan and to connect the adult child with the recommended assessments, but has not done so. It does not appear that she fully understands the nature of the concerns or would support services for the adult child to address them.

b. The mother’s serious mental health issues remain unacknowledged and untreated. This proceeding has been ongoing for over four years. Services have been recommended including with a professional she trusts. Funding has been offered. Still, the mother questions why services are required at all. She does not appear to have any understanding that it is her mental health issues that drive her inappropriate conduct (such as serious indiscriminate threats against others), or that the conduct which she displays poses risk to the child.

c. In the circumstances, there is no question that a custody order in favour of the mother is not appropriate at this time.

d. It is also not appropriate to place the child with the mother under a supervision order. She has candidly testified that she will not work with the society, even if ordered to do so, unless they are “reformed.” She stated “I will never let them tell me how to run my life. Not unless hell freezes over.” She has equally candidly stated that she will not follow court orders. The requisite level of cooperation and reliability is simply not present. The mother has given the court no reason to expect that any terms included in a supervision order would be followed. The evidence is that she is largely “ungovernable.”

e. This court has little confidence that the mother understands the child protection concerns, has any insight into their basis, or has any intention to address them. Without treatment for the mental health issues, I am unfortunately of the view, based on her conduct in the trial, that she is simply unable to do so.

f. Regrettably, an order for interim society care is the only viable plan before the court at this time. In the absence of a plan by the father, or other kin, a six-month interim care order is the least disruptive plan available at this time.

g. In reaching this conclusion I have carefully considered the evidence of the mother’s ability to provide instrumental care to the child and the evidence regarding access visits. Regrettably, this evidence is outweighed by the risks and the mother’s demonstrated inability or unwillingness to take steps to address those risks.

h. I have also carefully considered and applied all elements of the best interests test which apply to this case. The conclusion is necessarily a balancing of the factors which the court is directed to consider. I find that while the mother can likely meet the child’s physical needs, the risks associated with his return, both physical (in relation to the adult child J.) and emotional, outweigh the benefits associated with a return. Although the child’s views regarding a return, that is not determinative for a child of this age, nor would it in any event outweigh the risks as set out above.

[155] Accordingly, there shall be an order that the child be placed in interim society care for a period of six months.

E. ACCESS

[156] Section 105(1) of the CYFSA provides that where an order is made under section 101(1), or (2) removing a child from a person who had charge of the child before the intervention, the court shall make an access order by that person unless access is not in the child’s best interests.

[157] The court has held that it is an error to order access entirely in the discretion of the society, as it delegates to the society a decision that is properly within the authority of the court. J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630, 2021 CarswellOnt 982 (Ontario Divisional Court). Decisions as to type, frequency, and duration of access are decisions to be made by the court.

[158] The society seeks an order that access to both parents be in the society’s discretion and supervised in its discretion. The society states that it has demonstrated that it can work with the mother to arrange safe access, and that given the father’s fluid situation in terms of housing and residence (Canada or the Philippines), discretion in that context is also most appropriate.

[159] The mother did not make submissions about access in the event that the child is not returned. In his evidence, the father made clear that he seeks specified access, rather than access in the society’s discretion.

[160] The evidence before the court is that the child enjoys his time with his parents and that they are both loving with him when he is in their care. The evidence is also that the current quantity of access is appropriate to balance the risks found above with the benefit the child derives from spending time with the mother.

[161] The child’s therapist, Peter Holden, testified that the child is generally enthusiastic about and likes his time with his mother. He looks forward to overnights. Mr. Holden also stated that the child likes his conversations with his father. Shannon Simmons, the Children’s Services Worker also testified that the child’s visits have largely been positive.

[162] The child has experienced many losses: the removal from his mother’s care; the death of his grandmother; the move to his sister’s home; and then the move from his sister’s home to foster care. Maintaining the child’s relationships with both his mother and his father is important to his sense of identity. Whatever the mother’s challenges, she loves him dearly. So too, the father.

[163] For the following reasons, I make the following determinations regarding access:

a. With respect to the mother: The child shall continue, at a minimum, to have unsupervised access to his mother on alternate weekends from Saturday at 9:00 a.m. to Sunday at 4:00 p.m., and one evening per week from 4:00 p.m. to 7:00 p.m.

b. With respect to the father: When the father is in Kitchener or Waterloo, Ontario, and if the father has suitable accommodation to facilitate overnight access, the child shall, at a minimum, have access unsupervised access to his father on alternate weekends from Saturday at 9:00 a.m. to Sunday at 4:00 p.m., and one evening per week from 4:00 p.m. to 7:00 p.m. If the father is unable to accommodate the child overnight, the child shall have access alternate Saturdays or Sundays from 9:00 a.m. to 4:00 p.m., instead of the overnight access. When the father is not in Canada, he shall have access by telephone or video a minimum of four times per calendar month for a minimum of 30 minutes per call.

[164] The access to each parent may be expanded, at the discretion of the society, but the matter must be returned to court if the society seeks to reduce either parent’s time with the child or to impose a renewed supervision requirement.

F. CONCLUSION AND ORDER

[165] For all of the reasons set out above, this court makes the following order:

a. The child, G. N. W. [date of birth redacted], who is not a First Nations, Inuk, or Métis child, is in need of protection under section 74(2)(b); 74(2)(i); and 74(2)(k) of the Child, Youth, and Family Services Act;

b. Access to the child by the mother, P. A. W., shall be unsupervised and take place a minimum of alternate weekends from Saturday at 9:00 a.m. to Sunday at 4:00 p.m., and one evening per week from 4:00 p.m. to 7:00 p.m.

c. Access to the child by the father, M. T., shall be unsupervised as follows:

i. If the father is in Kitchener or Waterloo, a minimum of alternate weekends from Saturday at 9:00 a.m. to Sunday at 4:00 p.m., and one evening per week from 4:00 p.m. to 7:00 p.m.

ii. If the father is in Kitchener or Waterloo but has not secured accommodation, alternate Saturdays or Sundays from 9:00 a.m. to 4:00 p.m. and one evening per week from 4:00 p.m. to 7:00 p.m.

iii. When the father is not in Canada, and so long as he provides contact information for telephone or video access, he shall have access by telephone or video a minimum of four times per calendar month for a minimum of 30 minutes per call.

d. Access to either parent may be expanded by the society without the need to return the matter to court. If the society seeks to reduce either parent’s access or a impose supervision requirement, the matter must be returned to court.

e. Approval of this order by unrepresented parties is dispensed with.

A Final Comment

[166] It is clear to the court that the mother loves the child deeply. As seen above, she has strengths, including stable housing and acceptable instrumental care of the child. As was stated during the trial she has been her own worst enemy.

[167] I strongly encourage the mother to consider the following:

a. This order is for six months, towards the end of which the society will be obliged to bring a “status review application.” At that time, the society will most likely seek extended society care (formerly “Crown Wardship”). I can say with certainty that this is not the outcome the mother wants.

b. If the mother wishes to improve the possibility of having the child returned to her, she must take steps to address the evident mental health concerns which significantly affect how she engages with others. Even the difficult path that she has walked does not make it acceptable to make indiscriminate death threats, for example. The mother must, if she wishes to have her child returned, learn to interact with others in responsible and acceptable ways.

c. The mother trusts and likes Steven Martin, who worked with her as a child. He is qualified to conduct Cognitive Behavioural Therapy, which has been recommended for her by qualified psychiatric professionals. The society has offered to pay for such services. Now is the time to agree to those services and to commit to engaging in them. She should engage in a mental health assessment and follow any further recommendations made to assist her in engaging productively with others and being the best parent she can.

d. The mother is also encouraged to make a plan for the adult child J. who resides with her and have him participate in the recommended assessments. She should be able to explain how she will manage risk if he continues to reside in her home.

[168] Finally, the father also has much to offer. He is encouraged to do what he can to stabilize his housing in Kitchener, Ontario, either to enhance the quantity of access, or to provide a placement option for the child. The society is encouraged to assist the father to be in a position to put forward a plan.

[169] I thank counsel for their written submissions which were helpful to the court.

L. Madsen J.

Date: July 28, 2022

of Waterloo v. P. W. and M. T., 2022 ONSC 4340

COURT FILE NO.: FC-18-FO-109

DATE: 2022/07/28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO

Applicant

– and –

P. W.

Respondent Mother

– and –

M. T.

Respondent Father

REASONS FOR JUDGMENT

L. Madsen J.

Released: July 28, 2022