WARNING The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(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.

Court File and Parties

COURT FILE NO.: FC-24-0000022 DATE: 2024/07/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FAMILY & CHILDREN’S SERVICES OF ST. THOMAS & ELGIN Applicant

AND:

H.G. Respondent

BEFORE: Justice M.A. Cook

COUNSEL: J. Dittrich, Counsel for the Applicant D. Pentz, Counsel for the Respondent

HEARD: April 25, 2024

Endorsement

[1] This is a motion by the Family & Children’s Services of St. Thomas and Elgin (the “ Society ”) for an order continuing the terms of the interim, without prejudice order of Justice T. Price dated January 30, 2024 placing the child, J.G. born January 25, 2024 in the temporary care of C.H., subject to the supervision of the Society, pending the outcome of this child protection application.

[2] The Respondent, H.G., is the child’s mother. The biological father is unknown. By her cross motion, the Respondent seeks an order returning the child to her care. In the alternative, the Respondent seeks expanded parenting time with the child.

Background

[3] The Respondent is a 31 year-old single woman. She was raised in Papua New Guinea and has spent many years living abroad doing Christian missionary work.

[4] The Respondent became pregnant after being sexually assaulted while she was working overseas. The Respondent returned to Ontario in November 2023, while in the third trimester of her pregnancy. She has lived in rental housing in St. Thomas since her return to Canada.

[5] On November 23, 2023, the Respondent attended hospital after experiencing pre-term labour contractions. The Respondent became very agitated during her hospital visit. Hospital staff recommended the Respondent seek psychiatric care. The Respondent accepted the referral and started seeing a perinatal psychiatrist, Dr. Sharma, at London Health Sciences Complex.

[6] In early December 2023, the Respondent sought assistance from the Children’s Aid Society of London and Middlesex (“ CAS-London ”) in relation to housing, mental health supports, funding, and medical care. CAS-London did not provide services to the Respondent and it closed its file on December 19, 2023.

[7] On December 21, 2023, the Society received an anonymous report that the Respondent was expecting her first child and that the Respondent would not be able to adequately care for the baby due to mental health issues. The Society contacted the Respondent in early January 2024 to investigate the report.

[8] On January 17, 2024, Society worker Jennifer Lewis spoke with the Respondent’s psychiatrist, Dr. Sharma. Ms Lewis says that she received information from Dr. Sharma that the Respondent had been diagnosed with bipolar disorder and that she was symptomatic despite taking medication. Ms Lewis states that the Respondent’s symptoms included mania, scattered thinking, impaired judgment, rapid talkativeness, depression, anxiety, and obsessive-compulsive behaviour. Ms Lewis further states that Dr. Sharma advised her that the Respondent was at “extreme risk” of suffering a psychotic episode after the birth of the child given her diagnosis of bi-polar disorder.

[9] The Society and the Respondent worked together to put together a care plan for the child. Several options were explored. The Respondent states that she enlisted friends who were prepared to provide her support and supervision 24 hours per day, 7 days per week, but that the Society was not satisfied with the plan. Another option discussed was a kin placement with C.H., a friend of the Respondent whom she had met through church. Yet another option discussed was a kin placement with the Respondent’s brother and sister-in-law in Alberta. The Respondent denies agreeing to a placement and says she kept working to satisfy the Society that she had the necessary supports in place to care for the child herself.

[10] The child was born on January 25, 2024. The Society removed the child from the care of the Respondent immediately following the child’s birth at the St. Thomas General Hospital. The child’s removal was driven by the Society’s belief that the Respondent suffered from poorly managed bipolar disorder and that the Respondent was at a high risk of psychosis after the child’s birth.

[11] On January 30, 2024, Justice T. Price made an interim without prejudice order placing the child in the temporary care of C.H., subject to the supervision of the Society. Justice Price’s order provided the Respondent supervised access with the child a minimum of five times per week for a minimum of two hours per visit, supervised at the discretion of the Society or its designate.

[12] Following the child’s birth and removal, the Respondent remained as a voluntary patient at St. Thomas-Elgin General Hospital, under the care of psychiatrist, Dr. Kwaku Poku. The Respondent remained in hospital for assessment and observation for fifteen days post-partum, from January 24, 2024 to February 9, 2024. There is no evidence that the Respondent suffered psychosis after the child’s birth.

[13] The Respondent acknowledges having mental health challenges in the period leading up to the birth of the child but denies the diagnosis of bi-polar disorder and further denies that there are reasonable grounds to believe that there is a risk to the child if they are returned to the Respondent’s care.

[14] The Society urges that it is premature to place the child with the Respondent due to the limited psychiatric care that the Respondent has received, the need for medication management, her limited supports and instability, and because she is a flight risk.

Temporary Custody and Care

[15] The paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children: CYFSA, s. 1(1). To that end, the CYFSA authorizes the state, in the form of the Society, to intervene in a family if a child is in need of protection as described at s. 74(2) of the CYFSA.

[16] There has been no finding that the child is in need of protection at this time.

[17] The provisions for interim temporary care and custody pending final disposition of a child protection application are found in s. 94 of the CYFSA:

Custody during adjournment

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

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

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

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

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

[18] The court shall not make an order under ss. 94(2) (c) or (d) of the CYFSA unless the court is satisfied that reasonable grounds exist to believe that there is a risk that the child is likely to suffer harm in her mother’s case, and that the child cannot be protected adequately by an order under clause (2) (a) or (b): CYFSA, s. 94(4).

[19] On this motion, the onus is on the Society to establish, first, that there is credible and trustworthy evidence that there are reasonable grounds to believe that there is real possibility that, if the child is returned to the Respondent, it is more probable than not that the child will suffer harm. Second, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order.

[20] The CYFSA provides additional guidance to the Society and to this Court in considering the most appropriate temporary care and custody order. In particular, s. 1(2) of the CYFSA sets out additional purposes of the CYFSA to the extent that they are consistent with the best interests, protection and well-being of children. Among the ones that are applicable in the motions presently before the court are the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.
3. Services to children and young persons should be provided in a manner that, i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons, iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, iv. takes into account a child’s or young person’s cultural and linguistic needs, v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.
4. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.
5. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

[21] On a motion for temporary care and custody, the court may admit and act on any credible and trustworthy evidence on this motion in order to determine what interim order is appropriate in all of the circumstances: CYFSA, s. 94 (10).

[22] Finally, subsection 94 (6) of the CYFSA allows the court, when making a supervision order in respect of a child, to impose terms and conditions on any person proposing a plan for care and custody, a plan for access or any person would participate in one of these plans.

Analysis

[23] On this motion, there is sufficient credible and trustworthy evidence to meet the first part of the test under s. 94(4) of the CYFSA. I am satisfied that reasonable grounds exist to believe that there is a risk that the child is likely to suffer harm in the Respondent’s care.

[24] There is little dispute that the Respondent has suffered and continues to suffer from mental health challenges which have the potential to impair the Respondent’s ability to safely parent the child. These concerns relate both to the Respondent’s mental health concerns but also to difficulties she has experienced with medication management.

[25] The Respondent has presented two letters from her treating psychiatrist, Dr. Poku. First is Dr. Poku’s memo dated February 7, 2024 outlining his involvement in the Respondent’s care. In that memo, Dr. Poku states that:

a. The Respondent was in Dr. Poku’s care from January 25, 2024 until the Respondent’s discharge from hospital; b. The Respondent was diagnosed by Dr. Sharma with bi-polar disorder and was started on Olanzapine; c. The Respondent’s hospitalization was voluntary for the purpose of social support and monitoring after the child had been removed from her care; d. The Respondent was not detainable under the Mental Health Act at any time during her hospitalization; e. The Respondent was distressed when her child was removed by the Society but did not demonstrate manic symptoms or symptoms of depression; f. Based on his assessment of the Respondent, including daily observation and follow-up assessments, collateral information from allied health professionals, nursing staff, the Respondent’s family (including siblings and parents) and the Respondent’s CMHA worker, Dr. Poku opined that: i. there is an insufficient evidentiary basis to make a diagnosis of bi-polar disorder; ii. the Respondent did not have current symptoms of mania, depression or mixed symptoms; g. Dr. Poku further opined that the Respondent’s presentation and history were more consistent with developmental trauma with insecure attachment and complex personality traits, including borderline personality traits; h. There was no evidence to suggest that there was any safety concern for the child if placed in the Respondent’s care; i. The Respondent was seeking supports on her own initiative and had been pre-approved for Michael House Pregnancy and Parenting Support Services in Guelph, Ontario; j. Dr. Poku was amenable to working with the Respondent on an outpatient basis for psychiatric monitoring and treatment.

[26] Second is Dr. Poku’s letter dated February 21, 2024, in which Dr. Poku states that he was not prepared to provide an affidavit for the court proceeding because doing so was not considered a standard of practice. Dr. Poku affirmed that the hospital medical records should stand as the official record of all assessments and his opinion as the most responsible provider during the Respondent’s stay in hospital. In his letter, Dr. Poku affirms that, from a psychiatric standpoint, there is no evidence to suggest that the Respondent represented or represents a danger to herself or to others.

[27] Further medical evidence was presented by way of letter dated February 8, 2024 from Dr. Ramona Urian. Dr. Urian was the Respondent’s obstetrician attending at the birth of the child. Dr. Urian stated in her letter that the Respondent behaved appropriately throughout her labour and delivery, and did not demonstrate any hypomanic or manic symptoms. Dr. Urian noted that the Respondent was appropriately upset when the child was removed from her care and agreed to a voluntary admission to hospital for further assessment in light of the disputed bipolar diagnosis.

[28] The Respondent has also filed an affidavit dated March 6, 2024 from Lindsay Pettitt, a transitional case manager with Canadian Mental Health Association’ Thames Valley Addiction and Mental Health Services (“CMHA”). Ms Pettitt deposes that the Respondent referred herself to CMHA in January 2024, prior to the birth of the child, for assistance with system navigation and support in maintaining her mental health in the perinatal period. Ms Pettitt deposes that she has not observed any delusional or manic thoughts or behaviours in the Respondent while in service with CMHA. Ms Pettitt further deposes that the Respondent has been attending a perinatal support group and has demonstrated herself to be open and receptive to suggestions for further counselling and supports.

[29] For the purpose of these motions, I accept Dr. Poku’s letters of February 7, 2024 and February 21, 2024, Dr. Urian’s letter dated February 8, 2024 and CMHA transitional care worker Lindsay Pettitt’s affidavit as credible and trustworthy evidence regarding the Respondent’s mental health status at the time of and following the birth of the child.

[30] In contrast, I do not consider the hearsay evidence presented by the Society about the Respondent’s psychiatric diagnosis, or her mental health status, to be credible or trustworthy for the purpose of this motion. The Society has not presented any medical records or reports. Rather, the Society’s evidence consists of Society worker Jennifer Lewis’s affidavit evidence of what she says Dr. Sharma told the Society. In any event, Dr. Sharma’s apparent concern that the Respondent would become psychotic post-partum did not materialize. There is no evidence that the Respondent became psychotic at any time after childbirth.

[31] I am satisfied that the nature and chronicity of the Respondent’s mental health challenges constitute reasonable grounds to believe that there is a risk that the child is likely to suffer harm if placed in the Respondent’s care. The Respondent herself has acknowledged needing mental health support and assistance in parenting the child.

[32] Importantly, the diagnosis and treatment of the Respondent’s mental health challenges is at an early stage. It appears that the Respondent has struggled with mental health issues for several years, but it was not until December 2023 that she accepted the referral to Dr. Sharma. I accept the Respondent’s evidence that she felt deceived by Dr. Sharma about the medications prescribed to her, and that she struggled with side effects. The therapeutic relationship with Dr. Sharma unfortunately broke down before the child was born. Happily, the Respondent has developed a more productive and positive relationship with Dr. Poku, and she intends to remain in his care. This is all good progress, but it is recent.

[33] Several Society workers have expressed concern that the Respondent has a distorted perception of reality. While I am not prepared to make any findings in this respect on contested affidavit evidence, particularly in light of Dr. Poku’s evidence, I find that the evidence before me raises real concern that the Respondent’s reporting is inconsistent and the truth of the Respondent’s history and circumstances are not yet well understood. There is evidence that the Respondent has asked people to help her and then accuses them of going behind her back or acting without her authority when they do as she has asked. The Respondent appears to have become somewhat estranged from friends and family as a result of her challenging behaviour and reactivity. The Respondent has also expressed a desire to leave Canada and has repeatedly stated that she has a work visa for Australia that will expire if she does not return soon. The Respondent’s expectation to leave Canada with the child is unrealistic in all of the circumstances, including the pressing need for her to receive mental health care and support so she can safely and appropriately parent her child.

[34] During the hearing of these motions, the Respondent became agitated and she vigorously shook her head to communicate disagreement with submissions being made by the Society’s lawyer. She then sent an email to the court to make submissions in response. The reactive and impulsive behaviour that I witnessed in the Respondent is consistent with some of the behaviour described by the Society workers in their respective affidavits. The Respondent’s limited ability to self-regulate creates a risk of harm to the child in the event that the Respondent’s reactivity or impulsivity were to override her focus on the child’s needs and safety.

[35] I am also concerned about medication management at this early stage of the Respondent’s treatment. The Society reports that the Respondent has fallen asleep during parenting time on three separate occasions. The Respondent denies falling asleep, but states that, if she did, it was because medications were making her drowsy. The Respondent insists that the medication management issues are now resolved. There is no medical evidence before me to answer the concern about medication management.

[36] All of that being said, I am not satisfied that the child cannot be adequately protected by terms and conditions of a supervision order made under s. 94 (2)(a) or (b): CYFSA, s. 94(4).

[37] This is not a case where there is a history of neglect or abuse. The Respondent was not involved with the Society until the last weeks of her pregnancy when the Society received an anonymous report regarding the Respondent’s alleged inability to appropriately care for her child. At that time, the Respondent was under the care of Dr. Sharma, and she was seeking supports through CAS-London. Once the Society became involved, the Respondent worked hard to put together a 24/7 care plan to satisfy the Society before the removal. The Respondent’s brother, B.G., attests to the energy the Respondent put into preparing for and caring for the child.

[38] The Respondent is bonded to her child. She is alert to the child’s needs and concerned about the child’s safety and well-being. The Respondent has engaged in supervised parenting for several months. Supervisors report that the Respondent engages appropriately with her child, cuddles her, attempts to breastfeed in challenging circumstances, appears to have bonded appropriately to her infant and is seeking expanded parenting time. The Respondent has received parenting direction well and has taken steps to improve her parenting capacity through her participation in a parenting support group through CMHA.

[39] The Respondent has a number of informal supports in the London and St. Thomas community. In support of her motion, the Respondent presented affidavit evidence from C.B., E.C., F.R., H.V., and R.S. Each of these individuals are friends of the Respondent who indicate a willingness to provide supervision of the Respondent’s parenting time and, more generally, appear able to support the Respondent in parenting the child. Another friend, L.P., initially provided a similar affidavit offering housing and assistance with supervision, but then filed a later affidavit indicating that she was having difficulty setting appropriate boundaries and expectations with the Respondent and stating that she needed more time with the Respondent before knowing how she might be able to help.

[40] Very importantly, the Respondent has sought out mental health and social supports during her pregnancy and since the birth of the child. The Respondent has indicated a willingness to remain under Dr. Poku’s care and follow his treatment recommendations. She is receiving services from CMHA and appears to enjoy a positive relationship with her CMHA worker. Her sustained efforts to receive mental health and parenting services are good indicators that the Respondent will work cooperatively with the Society in the child’s best interests.

[41] In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the CYFSA.

[42] On the basis of all these considerations the least restrictive alternative consistent with the safety, well-being, and best interests of the child is that an order be made returning the child to the Respondent’s care pursuant to s. 94(2)(b) of the CYFSA, subject to supervision by the Society and the conditions set out below.

[43] Prior to the child returning to the Respondent’s care under an interim supervision order, the Respondent shall sign consents permitting Dr. Poku and the CMHA to share information with the Society. The parameters of the consents are to be made in consultation with counsel.

[44] The consents are to be signed by July 18, 2024, after which the child is to be returned to the Respondent on the interim supervision order with the following conditions:

a. The Respondent, H.G., shall ensure that the social, physical, educational and psychological needs of the child, J.G., are met; b. The Respondent, H.G., shall meet with a Society worker or designate as requested a minimum of once per week; c. The Respondent shall allow a child protection worker from the Society independent access to the child at home or in the community on a scheduled or unannounced basis; d. The Respondent shall notify the Society in advance of any change to her address or telephone number and shall provide the Society with her new contact information forthwith; e. The Respondent shall work with the Society to obtain a family physician for herself and for the child; f. The Respondent shall not remove the child from Ontario without the prior written approval of the Society; g. The Respondent shall engage in outpatient psychiatric services with Dr. Poku, attend all scheduled appointments with Dr. Poku and follow any counselling and treatment recommendations made by Dr. Poku and other mental health care providers; h. The Respondent shall continue to actively participate in the parenting support program through CMHA until such time as the program ends or CMHA recommends in writing that she discontinue; i. In the event that the Respondent experiences a mental health crisis which requires hospitalization, she shall immediately notify the Society; j. The Respondent shall attend and successfully complete such parenting programs as may be requested by the Society; k. The Respondent shall sign consents for the Society to speak to and obtain written updates from Dr. Poku, the CMHA and any other persons as the Respondent may have been directed to by Dr. Poku.

[45] The application is to return TBST on September 5, 2024 at 10:00am as previously scheduled.

Justice M.A. Cook Date: July 12, 2024