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Children’s Aid Society of Hamilton v. E.O., 2009 CanLII 72087 (ON SC)

Date:
2009-12-29
File number:
C-186/07
Other citations:
[2009] CarswellOnt 8125 — [2009] OJ No 5534 (QL)
Citation:
Children’s Aid Society of Hamilton v. E.O., 2009 CanLII 72087 (ON SC), <https://canlii.ca/t/275bm>, retrieved on 2024-03-29

COURT FILE NO.:  C-186/07 (Hamilton Family)

DATE:  20091229

 

 

ONTARIO

 

SUPERIOR COURT OF JUSTICE

 

 

 

B E T W E E N:

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Children’s Aid Society of Hamilton

 

 

Applicant

 

 

- and -

 

 

E.O. and S.H.

 

 

Respondents

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M. Pannu, for the Applicant

 

 

 

 

 

 

 

S. Sullivan, for the Respondent, E.O.

 

D. Dauphney, for the Respondent S.H.

 

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HEARD:     October 13, 14, 15, 16

 

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                     19, 20, 21 and 27, 2009

 

 

D.J. Gordon J.

 

 

[1]              In its amended application, The Children’s Aid Society of Hamilton (the “Society”) seeks an order that the child, D.H., be made a ward of the Crown, without access, for the purposes of adoption.

[2]              The Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (“C.F.S.A.”), quite properly imposes significant standards in child protection matters.  This case involves two factors that impact on the “best interests, protection and well-being” of the child, namely:

i)           government’s failure to provide adequate funding to the Society and to the court renders meaningless the purpose of the time frame imposed by the legislation; and

 

ii)         failure of the Society to give due consideration to the “other purposes” and its role in providing “guidance, counselling and other services” to this family, both as defined in the C.F.S.A.

 

 

[3]              As hereafter discussed, delay and the litigation strategy of the Society unnecessarily cloud the issues requiring determination.  A child, apprehended at birth, should not have to wait 33 months before the court can address his future.

Background and Factual Overview

 

 

[4]              D.H. was born on 31 January 2007.  He was apprehended by the Society later that day at the hospital.  D.H. was placed in foster care and has been with the same foster family since birth.

[5]              E.O., mother, was born 21 August 1986.  S.H., father, was born 22 April 1987.  The parents reside in Hamilton and, early in this proceeding, moved to an apartment close to the Society premises.  They have attended every scheduled access visit.  There is no dispute, the parents have a genuine love for their son and a desire to raise him together.  The real issue in this case is with their parenting ability.

[6]              Both of the parents, as children, were involved with the Society, either in Hamilton or in the county of residence.  Mother has a child, A.O., born 25 October 2006.  She voluntarily delivered the child to the local Society for adoption.  This child was subsequently placed with the paternal grandparents.

[7]              In its initial application, dated 5 February 2007, the Society sought an order for wardship of six months.  The amended application, dated 27 June 2008, changed the claim to Crown wardship.

[8]              A parenting capacity assessment, on consent, was requested by order granted on 26 October 2007.  Dr. Walton-Allen conducted the assessment in February and March 2008.  Her report was delivered in September 2008.

[9]              There is no dispute that D.H. is non-Catholic and non-native or non-Indian, and I so find.

Litigation History

 

 

[10]           The court process has taken far too long.  The following chart outlines the delay (excluding conference dates):

5 February 2007         -      protection application issued

-           Society seeks six months wardship

 

5 February 2007         -      temporary order

                                    -      D.H. to remain in care of Society

                                          with access in its discretion

 

18 April 2007              -      answer and plan of care of mother, E.O.

                                    -      mother seeks order placing child with her

 

16 July 2007               -      plan of care of the Society with respect to

                                                     original application

 

20 August 2007           -      answer and plan of care of father, S.H.

                                    -      father seeks order placing child with him

                                          and the mother

 


26 October 2007         -      temporary order directing a parenting capacity

                                          assessment pursuant to s.54, C.F.S.A., to be

                                          conducted by Dr. Walton-Allen

 

27 June 2008               -      amended protection application issued

                                    -      Society seeks Crown wardship, no access,

                                          for purposes of adoption

 

10 July 2008               -      answer and plan of care of mother, E.O.,

                                          to amended protection application

                                    -      mother seeks order placing child with her

 

1 August 2008            -      temporary order dismissing Society’s motion

                                          to transfer to C.C.A.S., with costs fixed in the

                                          sum of $500

 

4 September 2008      -      parenting capacity assessment report of

                                                     Dr. Walton-Allen

 

15 September 2008     -      temporary order

                                       -      adjourned for trial at sittings commencing

                                             6 July 2009 – Society to advise parties in

                                             writing immediately upon determining its

                                             position regarding any kinship care assessments

 

19 December 2008      -      temporary order

                                    -      removing Ms. Sullivan as solicitor of record

for mother, E.O. (legal aid certificate had been cancelled)

 

30 March 2009            -      temporary order at trial management conference

                                    -      matter remains on trial list for sittings commencing

                                          6 July 2009 – parents reminded trial will have to

                                          proceed even if self-represented – all evidence

                                          to be presented orally

 

13 July 2009               -      trial commenced before me

                                    -      trial adjourned as I had concerns with parents’

                                          ability to represent themselves and requested

                                          attendance of representative from Public

                                          Guardian and Trustee – counsel subsequently

                                          retained – trial to begin afresh on new date to be set

 


7 August 2009            -      temporary order at trial management conference

                                    -      adjourned for trial sittings commencing 12 October

                                                     2009 – Society workers to present evidence in chief

                                                     by affidavits.

 

13 October 2009         -      trial commences before me

 

27 October 2009         -      trial completed

 

 

Affidavits

 

 

[11]           Before proceeding to review the evidence at trial, I feel obliged to address the deficiencies in the affidavits of Society workers, namely:

a)         hearsay evidence; and

 

b)        lack of disclosure.

 

 

[12]           It is standard practice in this jurisdiction for Society workers’ evidence in chief to be presented by affidavit.  The purpose is twofold.  First, the affidavits inform the parents and their counsel of the evidence in support of the Society’s position.  Second, the procedure is expected to expedite the trial.

[13]           Hearsay evidence in affidavits is a growing concern.  Unlike a temporary care and custody hearing where the court may admit evidence that is “credible and trustworthy” under Section 51, C.F.S.A., hearsay evidence is, for the most part, inadmissible at trial.

[14]           In this case, Ms. Sullivan presented a motion at the commencement of trial seeking an order to strike out numerous paragraphs in the proposed affidavits.  The request was appropriate.

[15]           Admissibility of hearsay evidence is determined by a principled approach, having regard to the twin test of necessity and reliability:  see R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787 (S.C.C.).  Hearsay evidence cannot be tendered to simply avoid calling other witnesses, save with the consent of counsel and approval of the court.

[16]           Counsel were able to resolve the motion.  Considerable editing of the affidavits occurred.  Valuable court and preparation time of counsel was utilized for this purpose.  This process ought to have occurred long before trial and should be addressed, if necessary, at the trial management conference.

[17]           As hereafter discussed, the Society adopted an aggressive litigation strategy early in the case.  This strategy, in my view, offends the provisions and intent of the C.F.S.A. and Family Law Rules and was contrary to the best interests of the child.  Given the education, training and experience of those individuals employed by the Society, a reasonable presumption is that they have a working knowledge of the C.F.S.A. and relevant case law.

[18]           One tactic involved deliberate non-disclosure in the affidavits.  The affidavits were drafted so as to present the parents in a negative manner.  Few positive factors or events were described.  Indeed, considerable detail was not provided.  This necessitated lengthy cross-examination by Ms. Sullivan and Mr. Dauphney.

[19]           At one point, Ms. Sullivan asked a witness to explain the content of her affidavit.  The response was most revealing.  The case supervisor had instructed the workers to draft their affidavits in a manner supportive only of the Society’s position and not that of the parents.  Further, the supervisor had informed the workers it was up to parents’ counsel to present the positive attributes of their clients to the court.  All of the affidavits complied with the supervisor’s instructions.  Of some interest, the supervisor was not called as a witness.

[20]           The Society is an agent of the State with considerable powers under the C.F.S.A.  In Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48 (CanLII), [2000] 2 S.C.R. 519 (S.C.C.), L’Heureux-Dubé J., in referring to the Society’s apprehension authority, made reference to the requirement that such be carried out in accordance with the principles of fundamental justice.  At para. 122, she described procedural fairness through “full and fair disclosure”.

[21]           The disclosure obligation is comparable to that of Crown counsel in criminal proceedings, as set out in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.).  The obligation includes all information gained in the course of an investigation and involvement with the family:  see for example, Children’s Aid Society of Cape-Breton-Victoria v. L.M., [2007] N.S.J. No. 349 (N.S.S.C.); and S.D.K. v. Alberta, 2002 ABQB 61 (CanLII), [2002] A.J. No. 70 (Alta. Q.B.)

[22]           Disclosure does not simply involve delivery of case notes to parents’ counsel.  The duty extends to disclosure to the court.  After all, the Society and the court are guided by the paramount purpose in the C.F.S.A..  The Society, as with Crown counsel in a criminal case, is not to focus on winning the case, but, rather, to seek a determination that is in the best interests of the child.  Further, the court has the responsibility of making that determination and is not to simply “rubber stamp” decisions of the Society.

[23]           I would have thought the duty to make full and complete disclosure in the Society affidavits was well understood.  In Children’s Aid Society of the City of Kingston and County of Frontenac v. J.M.S. (2004), 2004 CanLII 29645 (ON SC), 1 R.F.L. (6th) 56 (Ont. S.C.J.), Robertson J. addressed similar concerns with respect to disclosure and procedural fairness.  At paras. 7 and 8, she discussed the Society’s shortcomings in disclosure in the following manner:

7     The initial post-apprehension hearing and pleadings did not disclose the society’s in-house disagreement of opinion concerning C.  There was no internal follow-up within the agency to review the apprehension crisis and new plan.  The power to remove a child especially without a warrant is a grave remedy and must be carefully monitored.  In Winnipeg Child and Family Services v. K.L.W., supra, at paragraph [122], the Supreme Court described how procedural fairness through full and fair disclosure is meant to counter-balance the power of the society to apprehend children in an emergency situation:

 

… the seriousness of the interests at stake demands that the resulting disruption of the parent-child relationship be minimized as much as possible by a fair and prompt post-apprehension hearing.  In order to be fair, the hearing must involve reasonable notice with particulars to the parents, as well as an opportunity for them to participate meaningfully in the proceedings …

 

8     The initial court documentation should have disclosed the foundation of the agency emergency, which led to the apprehension of the child without a warrant.  Since the society knew the mother’s due date for several months, there was plenty of time to pre-plan the admission into care or obtain a warrant for apprehension.  I find the “emergency” aspect developed somewhere deep inside the agency was not addressed at trial.  The society witnesses did not testify about internal matters within their organization.  They were not qualified to give opinions about their peers or bosses.  It is unknown whether an officer superior to the apprehending worker and her manager authorized the removal of the baby contrary to the developed plan between the mother and her assigned worker as supervised by her manager.  After the child was admitted to care, plenty of access was arranged but there was no real discussion about reintegrating the baby with the mother.  The agency immediately moved toward an adoption path and never looked back.

 

 

[24]           At para. 9, Robertson J. referred to the duty of prompt, even handed disclosure by the Society to the parents and the court as follows:

9     Full and frank society disclosure is a necessity in child protection matters for justice to prevail.  Fair disclosure is not a new concept.  This includes evidence helpful to a parent defending a protection application.  The court should not read between the lines or fill gaps in the chronology.  The agency should clarify whether it initially made a mistake or changed plan on a whim.  The mother concluded that the society betrayed her.  The society’s U-turn was unfair to the mother and the child.  Although child protection matters wear a shroud of confidentiality, this privacy is to protect the child, not to protect the society from scrutiny.  The society owes the mother an explanation.

 

 

[25]           Robertson J. expanded on the Society’s duty in paragraphs 17-20, saying:

 

17   The first post-apprehension hearing is routinely little more than an administrative adjournment.  Parents generally need time to retain counsel and collect evidence.  The society has a duty of fair disclosure of relevant evidence in a timely manner.  This includes evidence helpful to the parent.  This mother was flabbergasted by the apprehension of C. despite a committed plan for community supervision.  The mother lacked the legal, intellectual, emotional and practical resources to respond quickly without full disclosure.  She had given birth the day before.  The agency immediately applied for Crown wardship without access.  Thereafter, the mother was excluded from the planning for her child and her trusted doctor was changed to accommodate the foster parents.  There is no issue of malicious intent or bad faith here, just frenzied circumstances within the agency.  The individual workers were credible and professional.  They were not prepared to testify about any inner agency conflict or the initial worker’s performance.  There is no evidence of mistake by the first worker.  No supervising manager or other superior officer testified about the internal discrepancy of opinion.  I conclude the problem rests with management, not with the individual social workers or the agency lawyer.

 

18   The society has a duty to ensure their pleadings are fair and well balanced.  The court is entitled to presume that sufficient resources are put in place by government to enable authorities to carry out this time-consuming and crucial legal step in the justice process.  The court cannot overlook bad pleadings as an administrative slip.  Pleadings are not a social work function or extension of case notes.  They form the foundation of the legal case for a parent to answer.  In this case, the relief sought was the permanent termination of a parent-child relationship.  Appropriate consequences for weak pleadings or inadequate disclosure are more difficult to assign in a protection case.  The child bears the penalty of every mistake regardless of fault.

 

19   Child protection proceedings are governed by the Child and Family Services Act, R.S.O. 1990, c. C-11 (as amended) (the “Act”).  The purposes of the Act are outlined in section 1.  They recognize not only the protection and well being of children but also the integrity of the family unit where possible.  A protection proceeding is not a criminal proceeding, although both the Crown and the society share a positive duty of disclosure.  In Winnipeg Child and Family Services v. K.L.W., supra, at page 522 [S.C.R.], the differences between criminal and child protection proceedings were summarized as follows:

 

The interests at stake in the child protection context dictate a somewhat different balancing analysis from that undertaken with respect to the accused’s s. 7 and s. 8 rights in the criminal context.  Moreover, the state’s protective purpose in apprehending a child is clearly distinguishable from the state’s punitive purpose in the criminal context, namely that of seeing that justice is done with respect to a criminal act.  These distinctions should make courts reluctant to import procedural protections developed in the criminal context into the child protection context.

 

20   Despite these differences, the society still must fairly disclose its case to the mother and this court.  In carrying out responsibilities, section 51 of the Act empowers the court to admit and rely on evidence that it considers credible and trustworthy.  This presupposes that the evidence of the society is not only true but also fair-minded and reliable.

 

 

[26]           Although the aforementioned except focuses on the post-apprehension hearing, the comments on disclosure and procedural fairness likewise apply at trial.

[27]           In failing to provide a full and complete presentation of the evidence by way of the affidavits, the Society has misrepresented the case and misled the parents and the court.

[28]           Fortunately, the evidence was extracted by the efforts of parents’ counsel although it necessitated the use of several extra days of cross-examination.  It is alarming to consider what evidence the court would have heard had the trial continued in July when the parents did not have counsel.

[29]           These comments are directed to the supervisor and management at the Society.  The Society workers were put in a difficult position.  No doubt, they felt obliged to follow the direction of the supervisor.  However, as the same witness referred to previously said, she was aware of her duty of putting the full picture before the court, the good and the bad, so as to be “fair” to the parents.

Evidence

 

 

i) Overview

 

[30]           In its amended protection application, the Society set out the following “brief statement of facts”:

The following is a brief statement of facts upon which the applicant is relying in this application.  (Set out the facts in numbered paragraphs.  If you need more space, you may use the other side or attach a page, but you must date and sign each additional page.)

 

The Society has the following protection concerns:

 

a.         The mother has a prior history with the Society as a child involving her low intellectual functioning, poor hygiene, sexual abuse, early pregnancy and miscarriage following a physical altercation with another female, her previous hospitalization due to an overdose of ecstacy, as well as having been abandoned by her own mother.

 

b.        The mother was previously hospitalized for intoxication, which was when she found out that she was pregnant with her second child.

 

c.         Doctor Blake had expressed concerns regarding the mother’s previous pregnancy, her ability to parent a child, as the mother was of low intellectual functioning and had not attended prenatal care.

 

d.        Following the birth of the mother’s second child, it was reported that the mother required constant one on one instruction and was not supporting the child’s neck properly; the mother felt that the infant was purposefully being difficult; the mother needed to be corrected on how to make the infant formula; the mother had injured the child out of frustration; and that there were signs of poor attachment between the mother and the child.

 

e.         According to previous HNCAS records, the mother had previously attempted to give Angelina up for adoption.

 

f.         Since the private adoption was not on consent of the father, the child Angelina was subsequently apprehended and placed in the care of the paternal grandmother.  The paternal grandmother and father have legal custody of the child.

 

g.         The mother has not had access to the child Angelina since her placement with the paternal grandmother.  The mother did not maintain contact with Haldimand Children’s Aid Society and did not request access to the child.

 

h.         The mother has had very limited prenatal care.

 

i.    The mother reported that her support systems consist of the paternal family, her sister, as well as her street family.

 

j.         The mother failed to pre-register for the birth of her child at any hospital.

 

k.        The mother gave birth to her third child a week after her due date.

 

l.           Although the parents reported that they obtained the necessary baby supplies, when attempting to view these supplies, the father reported that he still had to obtain the bassinette and baby formula.

 

m.      The father reported that he still had to clean the home.

 

n.         The mother reported that she was unable to care for the child for six weeks due to having several stitches.

 

o.        The father reported that he would care for the child until the mother was able to recover from her stitches.

 

p.        The father was unable to explain how to make infant formula.

 

q.        The father reported that he could only read a few words.

 

r.         The mother reported that she was relying on the father to assist in caring for the child.

 

s.         Both parents presented with poor hygiene.

 

t.         The father reported that he previously used marijuana.

 

u.         The parents appeared to be under the influence of substances as their pupils were dilated and they seemed to be in a daze.

 

v.         The parents were refusing meconium testing on the child.

 

w.      Dr. Greenspoon reported concerns pertaining to the mother’s mental capacity as he considered the mother to be “low functioning”.

 

x.         The mother has recently failed to attend multiple appointments with Dr. Greenspoon in order to fill out her disability screening forms.

 

y.         Dr. Greenspoon reported that he observed the parents to have engaged in wheel chair races following the mother’s discharge from hospital and found this to be inappropriate.

 

z.         The father reported that he has a recent assault charge, which is still pending.

 

aa.     Dr. Greenspoon’s office reported having observed the father to be hostile.

 

bb.   The Society received an order to obtain a Parenting Capacity Assessment and the Society is awaiting the results of the assessment.

 

cc.     The parents attend the Society for access three times a week.  During access the parents come prepared and participate in access visits, however the parents require contact reminders to complete basic tasks.

 

dd.   The child has been in the care of the Society for approximately 17 months.

 

 

[31]           Many of these purported facts were not addressed in the Society’s evidence.  Other matters are overstated or not relevant.

[32]           The reference to mother’s history with the Society pertained to her parents and can hardly form the basis for apprehension.  Further, Ms. Verissimo acknowledged any conduct of mother involved “normal teenage issues”.

[33]           Similarly, the evidence with respect to mother’s first child, A.O., born 25 October 2005, is not persuasive.  E.O. was then 19 years of age and on her own for the most part.  The father of the child was abusive.  E.O. recognized she was not ready to be a parent and voluntarily delivered the child to the Society for adoption.  Court intervention was required only because the father refused to consent.  E.O. acted responsibly and in the best interests of the child.

[34]           The only relevant evidence in this case concerns the cognitive skills of E.O. and S.H. and their ability to parent.

[35]           In reviewing this evidence, it is to be noted E.O. and S.H. have positive attributes that are somewhat unique in a child protection case.  They attended every access visit with their child and, early in the proceeding, moved to an apartment close to the access centre.  E.O. and S.H., despite being upset with the situation, have been co-operative in terms of complying to the best of their ability, with the requests and instructions of society workers.  Indeed, they are genuinely appreciative of the assistance provided by the Society.  There is no dispute, the parents love their child and want to raise him on their own with family assistance.

[36]           Four of the Society workers and the assessor were called as witnesses on support of the application.  Other potential witnesses, such as Dr. Greenspoon, hospital nurses and social worker, and the foster mother did not testify.  The parents and five family members or friends gave evidence to support return of the child.

[37]           While a document brief was filed, on consent, as an exhibit, little reference was made to the items contained therein.  I propose to summarize the evidence of each witness.


i)         Sylvia Verissimo

 

 

[38]           Ms. Verissimo is a child protection worker with the Society.  She commenced this employment in 2002 after graduation from university.  Ms. Verissimo was an intake worker on 30 January 2007 when she was assigned case management responsibility for this family.

[39]           On 26 September 2006, the Society received a call from a nurse at Dr. Greenspoon’s office.  Dr. Greenspoon was the physician for E.O. and had been consulted with respect to the pregnancy.  Ms. Verissimo reports that a Ms. Grenier received that call.  Ms. Grenier contacted the Society involved with mother’s child, A.O., on 27 September 2006.  Ms. Grenier subsequently spoke to a public health nurse on 5 January 2007 and with a hospital employee on 30 January 2007, the latter event simply to report E.O. had been sent to the delivery room.

[40]           Ms. Grenier did not testify.  Other than the few telephone contacts mentioned, it appears no investigation was conducted by the Society until the birth of D.H., despite the initial referral some four months previously.

[41]           Ms. Verissimo commenced her investigation on 30 January 2007.  She received the assignment late in the day.  Ms. Verissimo conducted a partial review of the existing file, given the time available.  She was waiting on further information from the prior Society.

[42]           Ms. Verissimo met with the parents on 30 January 2007.  The parents were obviously tired, having been up all night.  Mother had given birth a few hours prior to this meeting.  The purpose of the meeting was to determine the parents’ plan for their child.

[43]           In this meeting, Ms. Verissimo determined that E.O. had not attended prenatal classes.  The parents had obtained baby supplies and S.H. indicated Ontario Works would provide a crib.  Ms. Verissimo inquired about drug use by E.O. and S.H.  The parents reported such use in prior years but had discontinued.  They offered to submit to a drug test but refused to have the baby’s meconium tested.  Subsequent testing with respect to the baby was directed by the Society, the results being negative.  Family members were identified as being available to support the parents in the care of the baby.

[44]           While Ms. Verissimo was investigating the parents’ situation, her supervisor, Vicki Pierce, called and reporting meeting with the Director of Intake Service, Sandra May, and that a decision had been made to apprehend the child “after further review of the mother’s history with the Society”.  Neither Ms. Pierce nor Ms. May testified at trial.

[45]           Ms. Verissimo met again with the parents on 31 January 2007 to advise as to the apprehension “due to concerns that Society had with the parents”, specifically “mother’s limited prenatal care, the mother’s history and concerns regarding the parents’ ability to care for the child”.  Ms. Verissimo also informed the parents that they would be able to have supervised access with the child at the Society premises and that the first court appearance was on 5 February 2007.

[46]           The parents requested to see the child before leaving the hospital.  The request was denied, supposedly for security reasons as the parents’ friends were present.  No attempt was made to ask the friends to leave or arrange the visit in another room.  Ms. Verissimo reported, quite expectedly, “the parents were visibly upset”.

[47]           Ms. Verissimo, in her affidavit, refers to advice offered to the parents at this meeting, saying, at para. 81:

81.  Prior to leaving the hospital, I explained to the parents that they could work with the Society to increase their parenting skills, and advised that the child could potentially return to their care, should they be able to provide a safe and secure environment for the child.  I further advised that the process would take time.  Both parents were agreeable, and the mother advised that she would leave the hospital that evening.

 

 

[48]           In cross-examination, Ms. Verissimo acknowledged having little time to investigate, having only received the file the day prior to the birth of the child.  She said that they had to rely on the recorded information, some of it not being persuasive, and limited contact with the parents.  No explanation was presented for the lack of investigation since the initial report received by the Society on 26 September 2007.

[49]           Although Ms. Verissimo speaks at length of access visits, much involved hearsay reports from other workers.  Ms. Verissimo supervised two such visits.  She did not have any real concerns regarding E.O. and observed attachment between E.O. and D.H.  S.H., she said, would become involved on E.O.’s request.  He seemed less interested but was making progress.

ii)              Fiona Koopal

 

 

[50]           Ms. Koopal is a family service worker with the Society.  She commenced this employment in 2006 after graduation from university.  Ms. Koopal was previously employed by another Society for five years as a child and youth and as a first response worker.   Ms. Koopal was assigned case management responsibility for this family in March 2007, taking over the file from Ms. Verissimo.  These duties continued to the present.

[51]           Ms. Koopal’s initial involvement with the parents was on 7 March 2007, during an access visit. She advised the parents of the Society’s requirement they attend a parenting course.  The parents participated in a nine week parenting course, commencing in March 2007, provided by the Society.  They attended a parenting group in 2008, at father’s request, that covered similar topics, namely nutrition, preparing baby formula, basic caregiving functions, developmental changes of the child and child activities.

[52]           On 13 March 2007, Ms. Koopal inspected the parents’ apartment.  She reported it to be “sparsely furnished, modest but clean”.  No complaints were recorded as to the apartment.  Ms. Koopal subsequently referred to the parents having secured “appropriate housing”.

[53]           The parents’ income was from Ontario Works.  Ms. Koopal encouraged them to apply for Ontario Disability Support Payment.  The parents chose not to do so, mother saying they wanted to prove they could do without O.D.S.P. and that they did not want to look “stupid”.  The Society did not take a hard line, Ms. Koopal said, although it is referred to throughout the Society’s evidence.  The source of income is of no concern in this case.

[54]           Ms. Koopal, from time to time, recommended parenting courses to the parents but no follow-up occurred.  Counselling and other services as recommended by the assessor were not considered by the Society, Ms. Koopal reporting such not being part of their plan.

[55]           On 14 March 2007, Ms. Koopal spoke to the parents as to a parenting capacity assessment.  No reference was made to discussing such with mother’s counsel at that time.  A motion followed in July 2007, but it was not referred to an assessor until October 2007.  The parents consented to the assessment.

[56]           A critical event occurred on 24 April 2007.  Ms. Koopal was invited to a Child Abuse Support Team meeting.  There was a discussion as to Crown wardship and a motion for summary judgment.  Funding for a parenting capacity assessment was approved.  Although the then application sought six months Society wardship, Ms. Koopal referred to Crown wardship as a “distinct possibility”.  Subsequent events indicate Crown wardship was now the focus.  The parents were not informed as to this discussion.  Indeed, the meeting was not disclosed in Ms. Koopal’s affidavit.

[57]           On 31 May 2007, father requested access visits take place at their residence.  Ms. Koopal discussed this proposal with her supervisor.  An e-mail exchange took place with Tory Reed, the children’s services worker, as to making the parents “work for home visits”, a “reward for gains” accomplished.

[58]           On 23 July 2007, Ms. Koopal informed the parents home visits would be approved if there was progress on visits, they provided supplies and the apartment was approved.  Notwithstanding the parents met the goals, visits in the home were denied.  Indeed, access visits were reduced from three to two per week in November 2008, purportedly at the request of the foster mother and interference with the child’s nap and lunch.  There was no reference to considering a change in the time of day for the visits to accommodate these matters.

[59]           On 19 March 2009, Ms. Koopal requested the parents to work on a “memory book” for the child; that is to prepare for Crown wardship even though the trial had not occurred.

[60]           This request, as with many other items, was made during an access visit.  For some unknown reason, Society workers routinely interrupted the visits rather than speak to the parents afterwards.

[61]           In her affidavit, Ms. Koopal refers to the access visits primarily in a negative manner and with few positive comments regarding the parents.  She spoke of the parents’ lack of basic understanding about child development, lack of stimulation, inability to complete basic caregiving tasks.  The only positive comments are as to the parents’ attendance on visit and bringing supplies.

[62]           This minimal description of access visits resulted in Ms. Sullivan cross-examining Ms. Koopal on Society case notes.  Cross-examination required three day’s trial time.  The case notes reveal much more than disclosed in Ms. Koopal’s affidavit.  Suffice it to say, there were numerous and consistent references in the case notes as to the parents’ positive attributes during access visits.  There is an improvement over time in their parenting ability.  The parents accepted direction from the access supervisors.  Appropriate care is often mentioned, such as feeding, diaper changes, providing baby supplies and play activities.  The parents also participated in group visit activities.  As Ms. Koopal conceded in cross-examination, the parents demonstrated appropriate care with respect to the “basic needs” of their child.

[63]           In later visits in 2008, workers note the child has developed a “strong attachment” to mother.  The parents are observed to be attentive to the child, work as a team and tend to the child’s needs with confidence.  They learn to respond to the child’s cues, are protective and understand hygiene needs.

[64]           Ms. Koopal, however, comments on the need for direction from the workers from time to time. 

[65]           Ms. Koopal prepared the plan of care for the Society, dated 16 July 2007, with reference to the initial protection application, namely Society wardship for six months with supervised access.  Paragraphs 4 and 5 of the plan of care are as follows:

4.   The services that the family and child(ren) need and that will be provided are as follows:  (Give details of the service needed, who needs it and who will be providing it.)

 

            The Family Service Worker shall assist the family with the following:

a)   Address ongoing protection concerns with the parents;

b)   Offer support, guidance or any other service to the mother that the Society deems appropriate.

 

The Children Service Worker shall assist the child with the following:

a)        Ensure that the child receive services to address his residential, medical, developmental, and emotional needs.

b)        Ensure that the child receives access to the parents according to his needs for safety and security during such visits.

 

5.   The children’s aid society expects the respondent(s) to carry out certain conditions before it would feel that supervision or wardship of the child(ren) is no longer needed.  Very serious consequences would result if those conditions are broken.  Those conditions are:  (Set out conditions and estimate the time needed to achieve them.)

a)   The parents shall maintain regular contact with the Society Worker and advise him/her of any change of address or telephone number;

 

b)   The parents shall cooperate with the Society Worker, inclusive of attendance at all prescheduled visits and entry into the home for all unannounced visits;

 

c)        The parents shall consent to the Society having ongoing communication with the facilitators of any group, medical, probation, counselling or assessment service that the parents may attend, which the Society deems necessary;

 

d)        The parents shall demonstrate age appropriate child management skills and parenting skills while the child is in their care.

 

e)        The parents shall follow through with any reasonable suggestions made by the Society Worker;

 

f)         The parents shall consent to the release/exchange/disclosure of all information between any service provider/medical professional and the Society, which relates to the child, as requested by the Society Worker.

 

g)        The parents shall attend and be consistent in their attendance at access visits with the child.

 

h)        The parents shall attend and participate in the Infant Parenting Group at the agency.

 

i)         The parents shall complete a parenting program and demonstrate the skills learned in access visits.

 

j)         The parents shall participate in drug testing as requested.

 

k)        The parents shall maintain a stable home that is free from hazards.

 

l)         The parents shall maintain a stable income.

 

 

[66]           Ms. Koopal was unable to explain why it took over five months to prepare a plan of care.  The document is to be served within thirty days from the start of the case as stated in Rule 33, Family Law Rules.  Ms. Koopal did not review the plan of care with the parents.  Despite the amended protection application seeking Crown wardship, no plan of care was prepared after July 2007.

[67]           The Society considered potential community placements for the child, specifically with a maternal aunt, J.O., and a maternal cousin, K.B.  Ms. Koopal indicated J.O. was rejected as a potential caregiver due to the demands of her own family and prior involvement with the Society.  J.O. did not pursue her initial request and discontinued access visits with the child.

[68]           K.B., it appears, presented a plan of care.  The Society also rejected her as a caregiver.  Unfortunately, no explanation was provided for the Society’s position.

[69]           As a daughter of K.B. was employed by the Society, the C.C.A.S. was asked to conduct an assessment, namely a “kin service home study”.  For reasons unknown, the Society changed the request to a “kin child adoption study”, which imposes a much higher standard.

[70]           Ms. Koopal was not informed as to the nature of the assessment or the reasons for rejecting K.B. as a kinship provider.  The C.C.A.S. refused to disclose the report as it was an adoption study.  The parents’ counsel did not pursue the disclosure request although, in my view, it was clearly relevant to the issues in this case.

[71]           In the Summer of 2008, management at the Society proposed a transfer of the file to the C.C.A.S.  The parents, who are not Catholic, opposed the request.  On 1 August 2008, the motion to transfer was dismissed, with costs.

[72]           Ms. Koopal reported that the Society rejected K.B. for adoption purposes but could not say if K.B. was considered as a custody placement.  K.B did not pursue her plan of care.

iii)            Jamie Spence and Stephanie Haskins

 

 

[73]           Ms. Spence and Ms. Haskins supervised the parents’ access visits with the child.  Ms. Spence was involved from February 2007 to December 2007 and from December 2008 while Ms. Haskins was engaged from August 2007 to December 2008.

[74]           Ms. Spence is a visit facilitator with the Society.  She commenced this employment in 2006, having graduated from college in 2005.

[75]           Ms. Haskins is a foster parent support worker with the Society at present.  Previously, her employment was as a visit facilitator, which duties she commenced in 2007 after graduation from university.

[76]           The role of a visit facilitator is to provide a safe environment for access visits, to observe the interaction between participants and to provide input and guidance when necessary.

[77]           The affidavits of these two workers, as previously mentioned, describe the parents’ participation in access visits in a negative manner.  Extensive cross-examination by Ms. Sullivan and Mr. Dauphney was required to extract a “full and complete” presentation of the parents’ involvement.  A discussion of access visits, as indicated in the review of Ms. Koopal’s evidence, need not be repeated.  In summary, these two workers observed many positive events in terms of the parents’ care for and interaction with the child.  Some guidance or direction, however, was required from time to time.  The parents were co-operative and grateful for advice provided.

iv)      Tory Reed

 

 

[78]           Ms. Reed is a children’s services worker with the Society.  She has been employed by the Society since 1999 and in her present position since 2000.  Ms. Reed graduated from university in 1997 and 1998, obtaining a bachelor and master’s degree in social work.  She was involved with the child since his birth, save for a parental leave in 2008.

[79]           Ms. Reed’s involvement was primarily with the child and the foster parents.

[80]           The child is described as a happy and healthy baby.  There are no health issues.  No concerns have been identified by the family doctor or the pediatrician, save for some language delay.  A referral was made to Early Words to assist on this issue.

[81]           The child has been in the same foster home since birth.  Ms. Reed reports the child being easy to parent and is not demanding on the foster mother.  No concerns were identified in the foster home, although reference was made to the child falling out of a high chair when the foster mother left the room.  The child was taken to the hospital for medical attention regarding a cut and bruise.

[82]           Ms. Reed describes the child’s progress in foster care, and her conclusions with respect to the child, in paragraphs 65-67 of her affidavit, as follows:

65.  D.H. is doing well in care.  He has been meeting most of his developmental milestones; except some speech and language concerns, which are currently being addressed.  D.H. presents as secure and content in his placement and he has engaged well with his foster parent during my home visits.  D.H. is a very good sleeper, he, eats well and enjoys all of his routines at his placement.

 

66.  I have worked with D.H., since birth until April 2007, and again since October 2008, approximately 15 months.  During the period of my involvement with D.H., he has continued to make progress in meeting most of his development milestones, except some speech and language concerns which is being addressed.   D.H. is a contented, good-natured toddler.

 

67.  During my visits to the foster home, and during medical appointments, I have observed that the foster parent is providing the child with a structured environment and consistent routine.  I have observed the foster mother consistently responding to the child’s needs.  The foster mother provides stimulation in order to encourage the child’s development.  I have observed that D.H. is thriving in the environment provided by his foster parents.

 

 

[83]           The foster parents have three other children of their own, some being adopted.  On the day before the trial commenced, the foster mother expressed an interest to Ms. Reed in adopting D.H.  This request, Ms. Reed said, was unexpected given prior statements by the foster mother to the contrary.

[84]           Ms. Reed had some involvement with the parents.  Most events involved interrupting an access visit to obtain information.  Although in her affidavit the description of the parents is primarily negative, Ms. Reed acknowledged in cross-examination that she only met with the parents on six occasions since February 2007 and that the meeting would be brief so as to not unduly interfere with the access visits.

[85]           The foster mother was not called as a witness.  No evidence was tendered by the Society regarding adoption.

v)         Dr. Nicole Walton-Allen

 

 

[86]           The parties requested Dr. Walton-Allen to conduct a parenting capacity assessment pursuant to section 54, C.F.S.A.  A consent order in this regard was granted on 26 October 2007.  The assessment occurred in February and March 2008.  Dr. Walton-Allen presented a report on 4 September 2008.

[87]           On pp. 10-11 of her report, Dr. Walton-Allen refers to the instructing letter from the Society as follows:

 

On January 18, 2008 the Society requested that this assessor conduct a parent capacity assessment to examine the child, D.H’s emotional, developmental and psychological needs and the ability of each of his parents, E.O and S.H. to individually and/or jointly meet those needs.  The parents are currently living common-law.  In their letter, the Society indicates that they would like to receive Dr. Walton-Allen’s recommendations on the following issues:

 

1.         In the context of their past parenting history and length of time the child has been in care, is E.O. or S.H., either individually or jointly capable of caring for the child in a way that will meet his physical and emotional needs and not place him at risk?

2.         If E.O. or S.H. are not capable of the above, could the difficulties which prevent that be resolved in a reasonably foreseeable period not to exceed eighteen months from when the child came into care?  We specifically require the issues of psychological and emotional health, and parenting ability to be addressed.

 

3.         If these difficulties could be resolved in a reasonable foreseeable period not to exceed eighteen months from when the child came into care:

 

a)   What services would be necessary in order to resolve them?

b)   What indicators would demonstrate that the problems were, in fact, resolved to the point that placement of the child to their care would be indicated?

c)   What time period would likely be required to reassess their response to services?

 

4.         If E.O. or S.H. are capable of caring for the child, at this time, would supports be required and if so, what supports?  How long would those supports be necessary?  If you would propose a supervision order, please note what specific requirements or terms that might be of assistance to them to ensure the child’s protection?

 

5.         What kind of special supports and services are needed for the parents to successfully meet the child needs?

 

6.         What, if any, are the treatment needs of the parents?

 

7.         Does E.O. or S.H. suffer from any intellectual deficit or cognitive delays that may impact on parenting, and if so, to what extent?  Similarly, are there any impairment to problem-solving or other basic life skills that may impact on parenting?

 

8.         Does E.O. or S.H. suffer from any mental health issues, including, but not limited to, psychological, emotional or behavioural concerns, which may impact their ability to care for the child.

 

9.         Are there any past issues that may have an impact on E.O.’s or S.H.’s ability to parent the child?

 

10.     Are there any cultural issues which need to be considered when assessing the parents’ ability to care for the child?

 

11.     Are there any specific attachment issues that may have an impact on E.O.’s or S.H.’s ability to parent the children?

 

 

[88]           Dr. Walton-Allen received a number of documents from the Society, many of which were not tendered in evidence.  Similarly, some of the purported facts relied on in the assessment process were not proven at trial.  Dr. Nicholas Triantafillou, an associate of Dr. Walton-Allen, concluded the psychological and related tests.  He also spoke to Society workers.  Dr. Triantafillou did not testify.

[89]           On consent, Dr. Walton-Allen was qualified to provide opinion evidence with respect to the parenting capacity assessment, cognitive functioning and child development.  Dr. Walton-Allen is a clinical psychologist with extensive experience and academic training.  She is also an associate professor at several universities and is active in research and academic writing.

[90]           The assessment process involved a review of documentation, interviews with the parents, testing and a home observation of an access visit.

[91]           From her review of the Society’s access visit case notes, Dr. Walton-Allen, at p. 50, comments “the couple has been noted as being generally able to complete basic child care tasks and routines”.  At pp. 59-61 she wrote:

In summary, S.H. and E.O. remain quite committed to the long-term plan of caring independently for their son, D.H.  They have attended all scheduled access visit during this reporting period.  In fact, they have attended all access visits with their child since his apprehension.  The parents typically provide their son with appropriate greeting and also bring along necessary supplies including baby food.  The structure and routines involved during these access visits are well established.  The couple has been noted as being generally able to complete basic child care tasks and routines.  While E.O. may tend to take the lead in this regard, S.H. does actively share in the completion of these tasks as required and as directed.  The goals for the access visits remained focused on having the supervised access worker continue to monitor all interactions and provide safe visiting environment for D.H. and also to encourage and role-model for the parents age-appropriate floor play and positive interactions.  The parents continue to require education around normal childhood development and related care giving skills.  As well, encouraging positive parent child interactions and developmentally appropriate play was essential for both parents, but particularly for S.H. who tends to be more withdrawn and hesitant I his interaction towards the child.  In this regard, the parents continue to benefit from their access workers consistent level of direct supervision, education, prompting and support.  Within the limited duration of the supervised visits the parents are capable of demonstrating instances in which they are positively interacting with D.H. both in terms of play and also acting in manner that encourages his further development in terms of gross motor movement and language.  S.H. and E.O. are consistently affectionate in their interactions with their child throughout the access visit.  The parents have also done well caring for the child during brief period of time (five to ten minutes) during the access visit in which they were left unsupervised.  There are also no reports of the couple having interpersonal difficulties during access visits.

 

Within this prescribed context of a brief one to one-and-a-half hour supervised access visits, twice a week with their child, D.H., the parents S.H. and E.O. appear to respond well to the consistent input of their supervised access workers and have demonstrated an ability to provide basic care for their child and interact with him in a positive manner.  Based on a review of these access visits during this reporting period, it is clear that the next step for the parents would be to participate in a gradual increase in the amount of unsupervised time they have in their access visits caring for their child.  However, S.H. and E.O. do appear to continue to rely heavily on the educational inputs, encouragement, modeling of care giving skills, problem solving and direct supports offered by their access supervisors.  As such, there has been no decision to extend the frequency and duration of the couple’s access visits with their son, D.H.

 

In summary, the review of the supervised access and the parenting group reports, it appears that S.H. and E.O. have not yet been able to demonstrate the degree of confidence and flexibility required to independently establish the timing and execution of childcare routines, be able to identify and respond to their son’s behavioural cues in a timely and sensitive manner, and effectively and consistently structure interactions so as to meet their baby’s developmental needs for cognitive stimulation, play, language development and gross motor developmentThe parents have to make a much more concerted effort at reducing the amount of prompting and input they require from the access worker in this regard.  As their access workers have suggested, E.O. and S.H. would continue to benefit further from participation in a formal parent training and educational processes with their son that emphasizes obtaining further child developmental knowledge along with the practical application of those skills in a systematic manner.  However, given the extent of verbal support and direct feedback the couple has received on their instrumental parenting skills over the last year, their continued reliance on the supervised worker to affirm their interactions with their child, or assist them in problem solving about their child’s momentary and long term developmental needs (ranging from promoting language, play skills, dietary needs, gross motor skills), does indicate that the couple is not yet in a position to have unsupervised visits.  It is concerning the E.O. and S.H. have not demonstrated confidence in their parenting skills or taken the initiative to independently improve these skills through accessing other parenting groups, or personal development programs (such as budgeting, assertiveness or anger management training) so as to demonstrate to the Society that they can independently manage their personal lives, and therefore, effectively parent their son.

 

 

[92]           As previously mentioned, Dr. Triantafillou conducted the psychological testing. Dr. Walton-Allen indicated she attended to the interpretation of the test results.  Several recognized tests were performed, including those that address intellectual capacity and academic ability.

[93]           Dr. Walton-Allen reports mother’s intellectual functioning to be in the second percentile, placing her in the mild mentally deficient range.  Father’s test results were slightly lower.  Dr. Walton-Allen indicates it is almost statistically impossible to improve such rankings.  Academic ability of both parents was said to be borderline to deficient range.  Father is considered to be functionally illiterate.

[94]           Psychological functioning was evaluated. At. p. 117 Dr. Walton-Allen provides a summary regarding mother’s test reports, saying:

 

In summary, E.O.’s MMPI-2 profile identifies that she is emotionally stable, usually self-reliant, pragmatic, and adaptable.  She can also be shy and cautious, has difficulty recognizing and acknowledging psychological problems, tends to be naïve, expresses her anger indirect manner and has some relative difficulties with antisocial attitudes and practices.  Despite her relative difficulties, E.O. does appear to have the ego-strength to tolerate a considerable amount of stress and continue to organize her life effectively.  However during periods of severe stress E.O. may demonstrate occasional breakdowns in the effectiveness in her coping mechanisms.  It would be at these times that E.O. would be most susceptible to acting-out.  She also likely suffers from occasional moodiness and, under stress, may have difficulty labeling, and expressing her feelings.  E.O. does not appear to be exhibiting any extreme expression of normal traits or symptoms characteristic of significant psychopathology.  This would be commensurate with the medical reports provided by Dr. Blake over the period of 2002 and 2005.  Aside from noting the possibility of attention difficulties, there are no other indications that E.O. was suffering from any other significant psychopathology or specific mental disorder.  There are also no medical reports indicating E.O. was taking any related prescribed psychotropic medications.

 

 

[95]           At p. 128, the summary for father was as follows:

 

In summary, as a result of his defensive test-taking approach, S.H.’s MMPI-2 profile is not interpretable.  In light of the fact that the assessment was conducted in the context of determining his ability to parent his children, it is certainly understandable that S.H. would want to present himself in the most favourable manner.  This may indeed reflect S.H.’s limited and somewhat naïve problem-solving abilities in an attempt to minimize any past neglectful behaviour towards his child and deny serious psychological disturbances.  As well, S.H.’s limitation in terms of his intellectual abilities, particularly his very poor language processing abilities are likely a factor that contributed to this defensive pattern emerging, however, in light of the fact that on other measures S.H. also presented as defensive and “faking good” it would appear that S.H.’s primary motivation is to minimize or deny his experience of any personal or mental health issues.

 

[96]           In other test reports, mother is described as “having little or no problems with her self-concept”, was “emotionally stable and did not express a negative self-view” (pp. 117-118).  In terms of the intensity of her current angry feelings, mother’s scores were in the average range; however, at p. 118, Dr. Walton-Allen goes on to say “[E.O] would be expected to be overly sensitive and prone to attributing malevolent meaning into neutral situations or the motives of others”.  Further, at p. 119, Dr. Walton-Allen says that mother “would particularly benefit from assertiveness training, along with other anger management techniques, aimed at helping her manage her experience and expression of her anger”.

[97]           Father’s test scores on psychological functioning were similar to mother’s, save that issues involving anger are of greater concern.  At. p. 130, Dr. Walton-Allen says:

In summary, S.H.’s STAXI-2 profile suggests that, while he views his (sic) himself as being quick tempered, he notes that this is situational dependant.  He also prefers to see himself as being able to express his anger in some situations as a way of affecting change.  However, S.H’s cognitive profile would indicate that he is prone to misunderstanding people’s intentions or statements, which has (sic) to interpersonal difficulties and episodic temper outbursts.  It was also the assessor’s experience in the testing sessions that S.H. is quite impatient, irritable temperamental and easily frustrated.  He appears to get quite easily overwhelmed, has difficulties persevering through the demands of situations leading to him being impatient, abrupt and dismissive.  Case file information also indicates that past medical health providers have indicated that he does present as being hostile.

 

[98]           Parent capability was tested.  At. p. 119, Dr. Walton-Allen reports as to mother’s test results as follows:

E.O.’s capabilities as a parent and her perception of her relationship with her child. D.H., were identified on the Parent-Child Relationship Inventory (PCRI).  E.O.’s scores on the validity scales indicate that she understood the items, answered them consistently and responded in a valid manner.  In terms of her relationship with the child, E.O. identified that she felt comfortable in her role as a mother and in the enjoyment she experiences in her role as a parent.  She clearly perceives the decision to have this child as being a good one.  E.O.’s PCRI profile also indicated that she has average degree of parental attitudes consistent with the sharing of parental responsibilities and the loosening of expectations based on parental gender alone.  E.O. also indicated an average rating in terms of her satisfaction with the amount of practical help and emotional support she receives.  Individuals who perceive themselves as having enough emotional and practical support are in a better position to provide adequate care to a child than those who do not.  E.O.’s PCRI profile further indicated that she is feeling confident in her limit setting abilities with her child.

 

[99]           At. pp. 130-131, similar test results for father are described as follows:

S.H.’s capabilities as a parent and his perception of his relationship with his child, D.H., were identified on the Parent-Child Relationship Inventory (PCRI).  S.H.’s scores on the validity scales indicate that he understood the items, answered them consistently and responded in a valid manner.  In terms of his relationship with the child, S.H. identified that he felt comfortable in his role as a father, his ability to communicate and empathize with the child in a variety of situations and in the enjoyment he experiences in his role as a parent.  He clearly perceives the decision to have his child as being a good one.  S.H.’s PCRI profile also indicated that he has average degree of parental attitudes consistent with the sharing of parental responsibilities and the loosening of expectations based on parental gender alone.  S.H. did indicate an above average rating in terms of his satisfaction with the amount of practical help and emotional support he receives.  S.H. has been described by the access supervisors as reluctant to engage his son or tentative in his physical administrations.  During the home visit, S.H. noted to be the secondary care provider, allowing E.O. to take the lead in most of the interactions.  S.H.’s PCRI profile further indicated that he is feeling confident in his limit setting abilities with his child.  This result is in sharp contrast to the assessor’s own impression during the structured home visit and the supervised access notes.  As noted, during the home observation S.H. and E.O. were observed to have displayed significant difficulty in coping with their child’s crying, and were limited and ineffective in their attempt to problem solve as to the etiology of D.H.’s distress..  They required significant prompting and assessor intervention in that regard.  It was the assessor’s impression that left on their own the parents would like try and appease the child in some manner or structure situations so that they do not have to deal with any crying or potential child protest behaviour.  S.H.’s average rating in terms of limit setting may reflects (sic) a preference to have others view him as having little or no trouble managing his child’s behaviour.  Alternatively, S.H.’s elevated score in this area may actually suggest a lack of insight and need for self-improvement and change in terms of his actual limit setting abilities.  S.H. also identified that he feels confident in his ability to promote his child’s expressions of age-appropriate signs of independence.  Finally, S.H. identified that he is satisfied with the degree of involvement that he has in his child’s life and that he is able to manifest an interest in his child’s activities.  Overall, S.H.’s PCRI profile scores do not reveal any serious problems with his attitudes towards parenting, although there is a discrepancy in terms of what S.H. reports and what he has been observed to do during his visits with his son.  The consistency that S.H. has shown in attending his three weekly access visits are likely to have played an important role in helping ensure the continued positive development of his relationship with his son, D.H.

 

[100]       Family functioning and relationship dynamics were also subjected to tests.  The test results were somewhat inconclusive, it appears, as the parents were perceived to be defensive.  Generally, no areas of relationship or family weaknesses were identified in the test scores although Dr. Walton-Allen reports there may be areas of relationship difficulties and family functions that the parents are not willing to admit.

[101]       Testing as to stress in the parenting role was conducted.  Mother’s test scores indicate “she is not experiencing clinically significant levels of stress as a parent” (p. 121).  Similar results were attained by father.

[102]       Lastly, testing was performed as to risk to the child of physical abuse.  At p. 122, Dr. Walton-Allen describes mother’s test scores as follows:

In terms of the risk to the child of physical abuse, E.O. was administered the Child Abuse Potential Inventory (CAP).  This test provides a screening measure for the potential of physical child abuse.  The primary clinical scale is the 77-item Child Abuse Scale.  This scale is subdivided into 6 factor scales:  distress, rigidity, unhappiness, problems with child, problems with family, and problems with others.  E.O.’s response pattern on the 3 validity scales (lie, random response, inconsistency) indicate that she was dishonest in her approach to taking this test.  In addition, E.O.’s response pattern indicates that she was “faking good” in an attempt to present herself in a positive light.  As a result, her Total Abuse Score of 40 was well below the 215 cutoff score demarcating potential controlling and abusive individuals.  A factor analysis of her results also failed to identify significant elevations in several areas including distress, rigidity, unhappiness, problems with child and self, problems with family and problems with others.  However, given the E.O. obtained these results by lying and presenting herself in the most favourable light, she cannot be excluded from the conclusion that she has some characteristics similar to known active physical child abusers.

 

[103]       Similar test scores for father were reported at p. 132, Dr. Walton-Allen saying:

In terms of the risk of the child of physical abuse. S.H was administered the Child Abuse Potential Inventory (CAP).  This test provides a screening measure for the potential of physical child abuse.  The primary clinical scale is the 77-item Child Abuse Scale.  This scale is subdivided into 6 factor scales:  distress, rigidity, unhappiness, problems with child, problems with family, and problems with others.  S.H.’s response pattern on the 3 validity scales (lie, random response, inconsistency) indicate that he was dishonest in her approach to taking this test.  In addition, S.H.’s response pattern indicates that he was “faking good” in an attempt to present himself in a positive light.  As a result, his Total Abuse Score of 47 was well below the 215 cutoff score demarcating potential controlling and abusive individuals.  A factor analysis of his results also failed to identify significant elevations in several areas including distress, rigidity, unhappiness, problems with child and self, problems with family and problems with others.  However, given the S.H. obtained these results by lying and presenting himself in the most favourable light, he cannot be excluded from the conclusion that he has some characteristics similar to known active physical child abusers.

 

[104]       Dr. Walton-Allen provided the following summary of mother’s testing, at p. 122, saying:

In summary, the overall results of the parenting capacity assessment, including direct observation of E.O.’s parenting skills, clinical interviews, psychological assessment, would indicate that there are significant issues, which in totality, increase E.O.’s risk of potentially neglecting the welfare of her son.  The most salient factors that negatively impact on the parenting competency of E.O., and raise the risk associated with her caregiving are as follows:

           previous history of being unable to protect and meet the needs of her first child, including poor judgment and possible inappropriate handling of her child

           social immaturity, naivety and poor psychological insight.

           Limited social supports, and demonstrated lack of initiative or willingness to pursue community supports that would benefit her parenting and financial status

           Significant learning deficits including poorly developed capacity for verbal reasoning, limited verbal and auditory comprehension skills and deficiency in arithmetic concepts

           overly concrete mode of thinking and deficient generalized problem solving abilities;

           limited parenting abilities as evidenced by lack of knowledge with respect to child development including children’s nutritional needs, appropriate feeding and sleeping schedules;

 

 

[105]       The summary for father, at p. 133 says:

           The results of the psychological assessment and the parenting skills assessment revealed that S.H. is a young man, who although thrilled with the birth of his son, is hampered in his parenting efforts by constitutional, temperament and familial issues.  S.H. has a mild intellectually delay, is functionally illiterate, and has difficulty independently managing his daily life events including personal care and budgeting.  S.H. has been reluctant to accept, and even overtly hostile, to obtaining social and community supports.  In addition to S.H.’s defensive and hostile attitude towards authority he is unwilling to consider that he requires support to parent his child.  It is S.H.’s cognitive and emotional rigidity, emotional regulation issues, and general social immaturity that most significantly compromise his efficacy as a parent.

 

[106]       A component of the assessment process involved Dr. Walton-Allen attending the parents’ home to observe an access visit.  This occurred on 25 March 2008.  It is to be noted, this was the first occasion the child had been at the apartment and would be considered a disruption to the prior routine.

[107]       Dr. Walton-Allen commented positively in terms of many parenting tasks.  She refers to the parents as “quite adept at physically handling their then fourteen month old son” and “both parents were verbally engaging, playful, animated and affectionate in their interaction with their son” (p. 89).  A diaper change was successfully completed.  Some concern was expressed regarding the feeding routine, particularly as to knowledge of proper nutrition, understanding the child’s cues and establishing an eating schedule (p. 90).  At p. 91, Dr. Walton-Allen commented further, saying:

Thus while the parents may be instrumentally capable of feeding their child, their limited understanding of nutrition, poor understanding of child development, unresponsiveness to their child’s hunger cues, poor problem solving abilities, and cognitive inflexibility are all factors that interfere with their ability to complete routines in a responsive and effective manner.

 

[108]       The parents were instructed to give their child a bath.  Such a task had never occurred on prior access visits and in result, the parents were not prepared.  Problems developed, Dr. Walton-Allen, at p. 92, reporting:

In fact, this routine was not completed by the parents in a calm and efficient manner.  Their difficulties started when they initially undressed the child, which resulted in him crying.  The parents were not able to adequately soothe the child and, in fact, became very upset themselves.  Their difficulties continued as E.O. did not ensure the temperature of the bath water she was setting was luke-warm.  Rather the water she used was too cold, resulting in the child screaming.  Neither S.H. nor E.O. were able to recognize or correct this situation.  Rather they proceeded with completing the routine, trying their best to persevere and verbally soothe their child.  This did not work and E.O. was becoming very upset in response to the child’s distress.  She became flustered and began asking for some help.  It was the assessor’s observation that other than giving her son a toy and telling him, ‘Sh’, E.O. did not have any idea of what to do further in order to soothe her child at this moment.  While she completed the routine, she did not do well in terms of emotionally persevering through her son’s crying and mild protest behaviours.  S.H. did attempt to distract D.H. with a toy while the couple was dressing him.  However, D.H. continued to cry and the parents had significant difficulties understanding the child’s cues and responding to his behaviour.  By this time, the child was crying because he was hungry.  Even with the assessor’s prompting the couple had significant difficulties problem solving in a manner that would lead to appropriate child care response.  Their lack of responsiveness in this area again highlights significant concerns about their limited understand (sic) of child development and related age appropriate parenting practices.

 

[109]       At pp. 92-93, Dr. Walton-Allen commented further on this home visit, saying:

Routines are important strategy parents use to ensure that their children’s nutritional needs, safety needs, and need for age appropriate activity are met each day through the consistent implementation of basic practical child care practices.  As children become older, it becomes increasingly more difficult for the parents to impose such a routine.  It was the assessor’s impression that E.O. and S.H. demonstrate an instrumental understanding of the steps involved in the completion of many basic routines (i.e. feeding, diapering, dressing).  However, they lack an understanding of nutrition, feeding and sleeping schedules.  They also clearly lack a coherent understanding of normal childhood development and related child cues.  The parents appeared baffled with simple child cues such as recognizing when the child is hungry, requiring significant problem solving and prompting from the assessor. It is the parents’ responsibility as caregivers to understand their child’s development and related needs and recognize his cues.  With this knowledge they can then be proactive and structure or change the timing and completion of routines in a manner that consistently and efficiently meet their child’s basic needs.  In this respect, E.O and S.H. exhibit significant uncertainty about how they should respond in terms of a care giving role at any given time, particularly if the child is crying or engaging in mild protest behaviour.  When the parents are unable to immediately soothe the child or recognize and respond to his cues, E.O. becomes easily flustered, overwhelmed and teary eyed.  S.H. does intervene to try and calm both mother and child down, but his own repertoire of child care responses are limited.  As such, he also can get upset with the child’s crying.  Over time, the couple’s inability to handle and persevere through such mild crying and protest behaviours, along with their limited knowledge of child development is likely to result in them structuring interactions and routines in such a manner as to appease the child, so that they do not have to deal with any potential child protest behaviour.  This parent-child interactional dynamic would result in a reactive parenting approach in which the initiation and completion of tasks and routines, and the related meeting of child’s needs, would be determined primarily by the potential for possible protest behaviour.  Under such circumstances, the emergence of compliance and behaviour management issues are also greater.

E.O. and S.H.’s difficulties in this regard do not appear to be as a result of a lack or caring or interest in their child.  It was certainly the assessor’s impression that E.O and S.H. were physically attentive, verbally engaging, playful, animated and affectionate in their interaction with their son, D.H.  They were able to engage and sustain their child’s interest.  E.O. and S.H. were also clearly aware of hazards for the baby and acted in a manner that ensures the child’s safety at all times.  The parents’ abilities in terms of engaging their son, stands in marked contrast to their lack of knowledge and understanding of normal child development and parental actions and interactions that would promote this through the completion of routines, stimulation and play.  The current knowledge that E.O. and S.H. have about child development and parenting appears to have been gained predominantly through their involvement with the supervised access workers.  At this point, D.H. is a child with a fairly good temperament and disposition.  Daily life events, along with the variability in the child’s temperament and developmental needs, inevitably demand the E.O. and S.H. develop a greater degree of confidence and flexibility in taking the lead in the timing and executing of routines, structuring interactions and managing their child’s behaviour.  This will continue to be a central issue as D.H. grows up.  Any other possible stress or emotional health issues that either E.O. or S.H. may experience would significantly impact their respective abilities to maintain consistent and effective parental roles.

 

[110]       Dr. Walton-Allen addressed the parent-child interactions, in terms of test results and the home visit.  At p. 95, she offer this summary:

Upon review, it would appear that E.O. and S.H.’s respective desire and intent to assume a full-time parental role towards their son, D.H. is deeply sincere.  E.O. and S.H. appear to be affectionate parents, who love their son D.H., and enjoy being with him.  Despite their best intentions, E.O. and S.H. demonstrates difficulties setting into place the routine, structure and activities necessary to improve their quality and consistency of interactions with their son, D.H. and also improve their overall sense of competence as parents.  E.O. and S.H.’s primary areas of difficulties within their parental role are in the following areas:

(a)     limited understanding of childhood development

(b)   difficulties identifying and responding to child’s cues

c) limited child care taking knowledge and abilities beyond what has been repeatedly practiced

(d)  significant difficulties effectively responding to D.H.’s normal crying or mild protest behaviour

(e)  cognitive inflexibility and poor problem solving abilities

(f) feelings of being stressed or emotionally overwhelmed in their parenting approach and

(g) inability to maintain structure and complete basic child are routines in a manner that is able to ensure that their child’s basic needs are consistently met.

 

[111]       The parent/child attachment was addressed in Dr. Walton-Allen’s report.  At p. 133, she defines attachment as follows:

Bowlby (1969 cited in 1988) used the term “attachment” to describe the emotional bond that develops between an infant and a primary caregiver.  In the case of child-to-adult relationships, the child’s tie is the “attachment” and the caregiver’s reciprocal equivalent is referred to as the “caregiving bond”.  Bowlby believed that the “attachment behavioral system” was one of four behavioral systems that are innate and evolutionarily function to assure survival of the species.  Attachment theory proposes that needs for safety, security and protection underlie attachment; hence, as this need is paramount in infancy and childhood, the theory predicts that the nature of the child-to-adult caregiver bonds will be evident in the child’s behaviour and mood, as well as asymmetric, in terms of the relatively importance of the adult caregiver’s emotional responsivity.  The process in which the parent is sensitive to the verbal and non-verbal cues of the child, and is able to put himself/herself into the mind of the child has been referred to as “mutual regulation” (Tronick, 1989) or attunement (Stern, 1989), and this process is central to the child’s emotional development.

 

[112]       Dr. Walton-Allen, at pp. 133-134, expands on this concept, saying:

Attachment relationships evolve over the first two years of life and beyond.  The quality of attachment evolves over time as the infant interacts with his/her caregivers.  The type of attachment, or attachment status of the infant toward the caregiver is partly determined by the interaction between the two and partly by the state-of-mind of attachment (vis a vis their own attachment figures) of the caregiver.  Based on the nature and quality of early attachments, children develop and internal working model of relationships that serves as a template for future relationships.  These working models of relationships can be positive (ie, people can be trusted, confided in, helpful in distress) or negative (i.e, no one can be trusted, people are not caring, one is all alone in the world).  Infants internalize their parents (and other attachment figures) as a secure base.  This allows infants to feel internally safe and to confidently explore the world around them and allows them to experience positive interpersonal exchanges with other children.  The infant can come back to the caregiver to refuel emotionally before proceeding with further explorations.

 

[113]       The conclusions on attachment are set out at p. 134, namely:

The data gathered from the evaluation of the Pattern of Care Giver/Child Relationship, would suggest D.H. demonstrates a weak but positive attachment relationship to his mother E.O., and a more tenuous relationship with his father, who has not had a prominent parenting role.  D.H. has a consistent but very time limited access to his biological parents, and thus he has not established a primary attachment relationship with either S.H. or E.O.  This was evidence by D.H.’s appearance of confusion, and very quiet demeanour during the first half of the home visit.  He was not initially reassured or animated by the physical presence of parents, despite their obvious excitement to see him.  Given D.H.’s young age, and the fact that he has had a stable foster home placement since birth, a permanent separation from S.H. and E.O. would not have a deleterious affect on his capacity to establish a primary attachment relationship with a new parental figure.  Given the documented issues with the parenting abilities of E.O. and S.H., and the very young age of D.H., it is imperative that permanency planning of this child occurs immediately.

 

[114]       After reviewing and responding to the questions posed in the Society’s initial correspondence, at pp. 145-146, Dr. Walton-Allen provided her recommendations, saying:

The results of parenting capacity assessment would indicate that at this time, E.O. and S.H. have not presented a viable plan of care for their 21 month old son.  The evidence would indicate that while the parents genuinely love their son and have demonstrated their commitment through their consistent attendance at the supervised visits, at this time E.O. and S.H. do not possess the necessary emotional, psychological or parenting skill set to effectively meet her young son’s development needs.

While E.O. has demonstrated that she can learn and implement basis instrumental parenting skills, she lacks the social supports, emotional stability and general life skills to consistently sustain and enhance the life of young developing child.  Similarly, S.H. has had difficulty making functional and necessary changes to his day to day living so that he may provide a stable and enriched home environment for his son, and he has been significantly impaired by his emotional volatility and his suspicion and hostility towards those professionals who become involved in his family life.

Thus, while E.O. and S.H. are sincere in their love for this son, they do not have the instrumental supports and resources, or the cognitive or emotional skills sets, to safely and securely meet the developing needs of their child.  As noted earlier in the report, E.O. and S.H. exhibited significant uncertainty about how they should respond in terms of their care giving role at any given time, particularly if the child is crying or engaging in mild protest behaviour.  When the parents were unable to immediately soothe the child or recognize and respond to his cues, E.O. became easily flustered, over whelmed and teary eyed.  Both E.O. and S.H. continue to rely heavily on the direct supervision, prompting and encouragement provide by their access worker during visits.  This is both a function of their learning deficits, their limited life experiences and lack of positive parent models, social immaturity and paucity of general knowledge about child development.  Although with intensive 1 – 1 parent training and hands on experience it is possible that S.H. and E.O.’s instrumental parental skills may improve gradually, the difficulty is that there must be a commensurate growth in their general knowledge about child development, and an enhancement in their respective social maturity, emotional regulation and anger management skills to ensure that any child in the care of the couple would  be raised in a nurturing, stimulating and stable home environment.  It is the assessor’s opinion that it is unlikely that S.H. and E.O. will be able to overcome the significant limitations associated with their cognitive delays, learning deficits, emotional regulation issues such that they are able to demonstrate an effective, responsive and generalized parenting skill set within the immediate future (12 months).

Given the young age of D.H., and his relative good adjustment, it would be in his best interest to be made a crown wardship for the purpose of adoption.

 

[115]       In her evidence at trial, Dr. Walton-Allen commented on the parents’ limited cognitive ability, offering the opinion they did not have the capacity to move forward.  If the child was returned to the parents’ care, Dr. Walton-Allen was of the view they did not have the capacity to keep up with a developing child.

[116]       Dr. Walton-Allen also spoke of research she has been conducting with respect to parents with development delay.  Children with a higher intellectual level than the parents, she said, will become challenging to manage.  Parents are unable to adapt and provide the necessary structure and support or to keep up with the child’s development in such families.

[117]       Dr. Walton-Allen spoke as to the importance of permanency for this child, a stable, nurturing environment.  She does not support a return of the child to his parents.  While removing him from the foster home would be problematic to some extent, Dr. Walton-Allen was of the view the child is young enough to re-establish attachment with other primary caregivers.  Accordingly, she supports the plan for adoption.

[118]       Despite the delay in reaching trial, Dr. Walton-Allen was not asked to update her report or conduct another home visit.

[119]       Dr. Walton-Allen felt the home visit was representative of the parents’ capabilities and, therefore, did not see the need to re-attend.  The parents, she said, were struggling and had difficulty in problem solving.  Dr. Walton-Allen said such would not likely change.

[120]       In re-examination, Dr. Walton-Allen commented that a resolution of cases normally occurs within one year after the assessment report is delivered.  Such, of course, has not occurred in this case and Dr. Walton-Allen added the foreseeable future of her report is one to two years

iv)      E.O and S.H.

 

 

[121]       The parents have been in a stable relationship for four years.  They reside in a one bedroom apartment in Hamilton and will obtain a two bedroom apartment if D.H. is returned to their care.  The parents’ income is from Ontario Works.  Father also has employment income doing maintenance services in their building.  Ontario Works will increase the monthly payment when there is a child to support.

[122]       Mother’s pregnancy was a planned event.  The parents were looking forward to raising their son and were upset when the apprehension occurred.

[123]       Mother described her son as a loving, caring and happy child and said “I love him so much”.  The child, they both said, has favourite foods, such as macaroni and cheese, and does not like squash.  They indicate being able to care for their son on access visits, including feeding, diaper changes and age appropriate activities, such as reading to him and play.

[124]       The parents attended every scheduled access visit.  While father comments on being uncomfortable with Society workers watching, both parents expressed gratitude for the advice and direction provided.

[125]       The parents participated in two parenting courses offered by the Society.  They felt the courses were helpful, particularly as they knew the workers providing instruction.  They did not attend other recommended courses due to lack of financial resources.

[126]       E.O and S.H. are confident in their ability to care for their son.  They recognize the need for assistance and want the Society to continue to provide services.  Their plan involves father’s family and friends, many of whom reside in the same apartment building, to provide advice or babysitting.  Both parents spoke of working together “as a team” in their care of their son and in the future plans.

[127]       Mother spoke of using daycare to engage their son in social activities.  A public school is in the neighbourhood.  They anticipate Dr. Greenspoon would be their family doctor, failing which they will find another doctor or use a local clinic.

[128]       The parents are receptive to participation in further parenting or other courses.  As mother said, they will abide by any terms imposed by the court if their son is returned to their care.

[129]       With reference to the home visit with Dr. Walton-Allen, mother and father spoke of being excited as well as nervous.  This was the first time D.H. had been in their residence.  The parents felt they did “pretty well” on this visit in terms of caring for their son.  Mother said she “messed up at the end” of the visit when giving her son a bath for the first time.  She went on to say she does not normally get upset on visits. Father also made the comment such was not typical of mother’s behaviour.  They are confident on moving forward without further difficulty.

[130]       Mother was asked about her son’s language and speech delay.  She is aware of D.H.’s need for assistance and has worked with him on the access visits by reading and engaging him in specific activities.  Mother recognizes the need to continue to address this matter and, if required, would enroll him in speech programs.

vii)         Support Persons

 

 

[131]       Five witnesses testified as to their commitment in assisting the parents if D.H. is returned to their care.

[132]       M.H. is the mother of S.H.  She has eight adult children and was involved with the Society many years ago.  She reported alcohol problems in the family at that time.  M.H. resides in the same apartment building as the parents.

[133]       M.H. was informed of the apprehension immediately after the event.  She has spoken to the parents to offer support while her grandson was in care and indicates she will assist in the future.  M.H. proposes assistance will include some financial help, babysitting services and advice.  She attended one visit on her grandson’s birthday, 31 January 2009, but was unable to participate in other visits due to employment commitments.

[134]       In her cross-examination, M.H. indicated she was not aware as to the reason for apprehension.  The parents, she said, have not indicated when they would need her to babysit but she will be there as needed.

[135]       M.H. reports having a good relationship with the parents, and other family members.  She is aware the parents have been babysitting nephews and nieces.

[136]       M.F. is father’s sister-in-law.  She also resides in the same apartment building.  M.F. has three children.  One child was born with cerebral palsy and was placed in foster care, and later adopted, because of her special needs and as special services required were only available with such a placement.  She regularly attends access visits with her daughter.

[137]       M.F. was aware of the apprehension of D.H. at the time such occurred.  She has discussed access with the parents and, in future, offers to babysit and provide advice and some financial aid.  M.F. attended several access visits with her nephew.

[138]       In cross-examination, M.F. reported being unaware the parents have cognitive delays or that they need assistance.  She said the parents are “perfectly fine”.  M.F. allows the parents to babysit her two children, ages four and six, and indicates having no concerns with their involvement.

[139]       T.B. lives in the same apartment building as the parents.  She has three children, two residing with her and one living with his father.  The son has learning problems and a parent support worker provides assistance.

[140]       T.B. has offered to assist the parents, such as running errands, babysitting, advice and emotional support.  She said she is available if the parents need help.

[141]       J.S. also resides in the same apartment building as the parents.  She is seventy-five years of age.  Her family includes five adult children, seventeen adult grandchildren and eighteen great-grandchildren.  J.S. is still actively employed.

[142]       J.S. reported a brief period of involvement with the Society when her children were young and she needed help.  She sees her extended family members frequently and reported raising eight of her grandchildren.  J.S. routinely assists her grandchildren by providing parenting advice.

[143]       J.S.’s offer of assistance to the parents includes advice, babysitting and cooking and related activities.  She is aware of the parents’ learning limitations and indicates she can be of help to them.  J.S. was a teacher’s aide previously and has worked with children on individual programs for reading and spelling.  She could use her knowledge and experience in helping D.H.

[144]       T.G. is father’s sister-in-law.  She has six children.  Three are in her care.  T.G. was involved with the Society when, she said, she was young and inexperienced.  Her first three children were taken into care and later adopted after being made Crown wards.

[145]       T.G.’s residence is a twenty minute bus ride from the parents’ apartment.  She sees the parents every weekend.

[146]       T.G. has assisted the parents since D.H. was apprehended, providing advice and emotional support.  She has offered to provide advice in the future along with babysitting as neeed.

Plan of Care

 

 

i) Society

 

 

[147]       As previously mentioned, the only formal plan of care presented by the Society was in connection with the original protection application seeking six months Society wardship.  Despite the provisions of section 56. C.F.S.A., the Society neglected to prepare a plan of care with respect to the amended protection application.

[148]       The Society’s plan, presumably, is to pursue adoption for D.H. if the application is granted.  No evidence was tendered on this point, save for the reference to the foster mother’s announcement of her interest in adoption.

ii)      Parents

 

 

[149]       The parents presented a joint plan of care, consistent with their intention to continue cohabitation and raise their child as a team.

[150]       Their plan is set out in mother’s pleadings as follows:

What placement and terms of placement do you believe would be in the child(ren)’s best interest?  (You should include in your plan of care at least the following information.  If your plan is not the same for a particular child, then complete a separate plan for that child.)

(a)      Where will you live?

(b)      Who, if anyone, will live with you?

(c)      Where will the child(ren) live?

(d)      What school or daycare will the child(ren) attend?

(e)      What days and hours will the child(ren) attend school or daycare?

(f)        Are you enrolled in school or counselling

(g)      If you are enrolled in counselling, where do you attending counselling?

(h)      What support services will you be using for the child(ren)?

(i)        Do you have support from your family or community?

(j)        If you have support from your family or community, who will help you and how will they help you?

(k)      What will the child(ren)’s activity be?

(l)        What will your source of income be?

(m)   Do you go to work or school?

(n)      If you go to work or school, what are the details, including the days and hours you work or go to school, and who will look after your child(ren) while you are there?

a.      714-45 Barlake Avenue, Hamilton,ON

b.      S.H.

c.      With us.

d.      Not applicable

e.      Not applicable

f.        No.

g.      Not applicable

h.      Those reasonably recommended by the Society.

i.         No.  But S.H.’s family is supportive.

j.        Assistance as required.

k.      Age appropriate activities.

l.         Ontario Works

m.     No.

n.      Not applicable.

 

State why you feel that this plan would be in the child(ren)’s best interest.

I am able to meet the child’s ongoing needs on a consistent basis.  I am his mother.  It is in his best interest that he be placed with me

 

 

Views and Wishes of the Child

 

 

[151]       Given the age of D.H., his views and wishes cannot be ascertained.  A children’s lawyer appointment was not requested by either party in this case.

Issues

 

 

[152]       The primary issues requiring determination are:

(i)            is D.H. in need of protection? and

 

(ii)           if so, what plan of care is in his best interests.

 

 

[153]       Secondary issues arising form the evidence, and relevant to a discussion of the primary issues, include cognitive ability of the parents, bonding, delay, opinion evidence and the role of the Society, particularly in regards to services provided, litigation strategy, community placement and failure to present a formal plan of care.

Legislation – C.F.S.A.

 

 

[154]       The Society seeks an order finding D.H. to be in need of protection.  Section 37 (2), (b), (f) and (g) are relevant to this issue and state:

     37 (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 emotion 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)   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) resulting 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;

 

 

[155]       If a finding is made under section 37 as asked, section 57 sets out the available orders, namely:

     57.  ORDER WHERE CHILD IN NEED OF PROTECTION – (1)  Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:

1.  That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

2.  That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3.  That the child be made a made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

4.  That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

     (2)   COURT TO INQUIRE – In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

     (3)     LESS DISRUPTIVE ALTERNATIVES PREFERRED – The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

     (4)   COMMUNITY PLACEMENT TO BE CONSIDERED – Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

     (8)   TERMS AND CONDITIONS OF SUPERVISION ORDER – If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a)   reasonable terms and conditions relating to the child’s care and supervision;

(b)   reasonable terms and conditions on,

(i)      the child’s parent,

(ii)      the person who will have care and custody of the child under the order,

(iii)         the child, and

(iv)         any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c)   reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

     (9)     WHERE NO COURT ORDER NECESSARY – Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

 

[156]       The available orders in this case are limited by section 70, as D.H. has been in foster care for over thirty-three months.  Section 70 (1) says:

     70.   TIME LIMIT – (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a)   12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b)   24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

 

[157]       The “best interests of the child”, as referred to in section 57, includes those items set uot in section 37 (3), as follows:

     S. 37 …

 

     (3)   BEST INTERESTS OF CHILD – Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

 

1.         The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2.         The child’s physical, mental and emotional level of development.

3.         The child’s cultural background.

4.         The religious faith, if any, in which the child is being raised.

5.         The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6.         The child’s relationship and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

7.         The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8.         The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9.         The child’s views and wishes, if they can be reasonably ascertained.

10.     The effects on the child of delay in the disposition of the case.

11.     The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12.     The degree of risk, if any, that justified the finding that the child is in need of protection.

13.     Any other relevant circumstance.

 

 

[158]       The Society also seeks an order for Crown wardship with no access for the purposes of adoption.  Section 56 addresses the Society’s plan of care, as follows:

56.     SOCIETY’S PLAN FOR CHILD – The court shall, before making an order under section 57, 57.1, 65 or 65.2, obtain and consider a plan for the child’s care prepared in writing by the society and including,

 

(a)      a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection;

(b)      a statement of the criteria by which the society will determine when its wardship or supervision is no longer required;

(c)      an estimate of the time required to achieve the purpose of the society’s intervention;

(d)      where the society proposes to remove or has removed the child from a person’s care,

(i)        an explanation of why the child cannot be adequately protected while in the person’s care, and a description of any past efforts to do so, and

(ii)      a statement of what efforts, if any, are planned to maintain the child’s contact with the person;

(e)      where the society proposes to remove or has removed the child from a person’s care permanently, a description of the arrangements made or being made for the child’s long-term stable placement; and

(f)        a description of the arrangements made or being made to recognize the importance of the child’s culture and to preserve the child’s heritage, traditions and cultural identity.

 

[159]       Access in a proposed adoption is addressed in section 58, 59 and 141.1, as follows:

      58.   ACCESS ORDER – (1)  The court may, in the child’s best interests,

(a)   when making an order under this Part; or

(b)   upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

(7)   NO APPLICATION WHERE CHILD PLACED FOR ADOPTION – No person or society shall make an application under subsection (2) where the child,

(a)   is a Crown ward;

(b)   has been placed in a person’s home by the society or by a Director for the  purpose of adoption under Part VII (Adoption); and

(c)   still resides in that person’s home.

       59.   ACCESS:   WHERE CHILD REMOVED FROM PERSON IN CHARGE – (1)  Where an order is made under paragraph 1 or 2 of subsection 57(1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with him or her would not be in the child’s best interests.

(2)   TERMINATION OF ACCESS TO CROWN WARD – Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

(2.1)   ACCESS:  CROWN WARD – A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a)   the relationship between the person and the child is beneficial and meaningful to the child; and

(b)   the ordered access will not impair the child’s future opportunities for adoption.

(3)   TERMINATION OF ACCESS:  CROWN WARD – The court shall terminate an access order with respect to a Crown ward if,

(a)   the order is no longer in the best interests of the child; or

(b)   the court is no longer satisfied that the requirements set out in clauses (2.1) (a) and (b) are satisfied.

      141.1 LIMITATION ON PLACEMENT BY SOCIETY – A society shall not place a child for adoption until,

      (a)   any outstanding order of access to the child made under subsection 58 (1) of Part III has been terminated; and

      (b)   if the child is a Crown ward,

      (i)     the time for commencing an appeal of the order for Crown wardship under subsection 57 (1) or 65.2 (1) has expired, or

      (ii)   any appeal of the order for Crown wardship has been finally disposed of or abandoned.

 

 

[160]       A discussion of the issues involves consideration of the paramount and other purposes of the legislative regime as well as the role of the Society in protection cases.  Sections 1 and 15 provide the following direction:

1.   (1)  PARAMOUNT PURPOSE – The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2)  OTHER PURPOSES – The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

1.   To recognize that 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.   To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3.   To recognize that children’s services should be provided in a manner that,

i.   respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

ii.   takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

iii.   provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

iv.   includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.

 

15.   (3)   FUNCTIONS OF SOCIETY – The functions of a children’s aid society are to,

(a)   investigate allegations or evidence that children who are under the age of sixteen years or are in the society’s care or under its supervision may be in need of protection;

(b)   protect, where necessary, children who are under the age of sixteen years or are in the society’s care or under its supervision;

(c)   provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

(d)   provide care for children assigned or committed to its care under this Act;

(e)   supervise children assigned to its supervision under this Act;

(f)   place children for adoption under Part VII; and

(g)   perform any other duties given to it by this or any other Act.

 

 

Analysis

 

 

[161]       As stated previously, the focus of this case is the cognitive ability of the parents.  The parents have demonstrated a genuine love for their son and are committed to his care.  They recognize, to some extent, the need for assistance, have co-operated with the Society and are most grateful for the advice and direction provided by Society workers.  As a result, the decision-making process in this case is difficult.  Unfortunately, such is made even more challenging as a result of delay and the conduct of the Society.

(i)            Approach

 

 

[162]       Regardless of the commentary in some of the case law, the burden of proof is on a balance of probabilities:  see, for example, Children’s Aid Society of the Niagara Region v. P.R., 2005 CanLII 11791 (ON SC), [2005] O.J. No. 1421, at paras. 20-33 (Ont. S.C.J.).

[163]       The principles of fundamental justice apply to child protection proceedings.  In New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.), at paras. 69-70, Chief Justice McLachlin, offered these comments:

69        While relieving a parent of custody of his or her child restricts the parent’s right to security of the person, this restriction may nevertheless be in accordance with the principles of fundamental justice.  The principles of fundamental justice “are to be found in the basic tenets of our legal system”:  Re B.C. Motor Vehicle Act, 1985 CanLII 81 (S.C.C.), [1985] 2 S.C.R. 486, at p. 503.  It is a time-honoured principle that the state may relieve a parent of custody when necessary to protect a child’s health and safety.  Rand J.’s judgment in Hepton v. Maat, 1957 CanLII 18 (SCC), [1957] S.C.R. 606, is the classic statement of this principal in Canadian law.  At pp. 607-8, he wrote:

 

It is, I think, of the utmost importance that questions involving the custody of infants be approached with a clear view of the governing considerations.  That view cannot be less than this:  prima facie the natural parents are entitled to custody unless by reason of some act, condition or circumstance affecting them it is evident that the welfare of the child requires that that fundamental natural relation be severed.

 

The view of the child’s welfare conceives it to lie, first, within the warmth and security of the home provided by his parents; when through a failure, with or without parental fault, to furnish that protection, that welfare is threatened, the community, represented by the Sovereign, is, on the broadest social and national grounds, justified in displacing the parents and assuming their duties.

 

This, in substance, is the rule of law established for centuries and in the light of which the common law Courts and the Court of Chancery, following their differing rules, dealt with custody.

 

70        More recently, La Forest J., writing for three others in B. (R.) held at para. 88 that

 

the common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being, basing such intervention on its parens patriae jurisdiction; see, for example, Hepton v. Maat, supra; E. (Mrs.) v. Eve, 1986 CanLII 36 (S.C.C.), [1986] 2 S.C.R. 388.  The protection of a child’s right to life and to health, when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long, of course, as it also meets the requirements of fair procedure.

 

Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural.  The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination.

 

 

[164]       This concept of fundamental justice is of particular importance when the C.F.S.A. creates a conflict of interest for the Society.  The dual purpose, protection of children and supporting families, often results in Society workers collecting evidence for the former while attending to the latter.  Due to the special powers granted under the Act to the Society, the Society has a duty to act with fairness and reasonableness and must always exercise good faith and respect the rights of all persons:  see, for example, Children and Family Services of York Region v. E. (P.) O.J. No. 4884 (Ont. S.C.J.); and Children’s Aid Society of London and Middlesex v. S. (E.V.P.) 2004 CanLII 34346 (ON SC), 2004, 1 R.F.L. (6th) 68 (Ont. S.C.J.).

[165]       Great care must be taken when considering the evidence so as to avoid reliance on middle class standards.  The following comments from Stortini J. in Re Brown (1976), 1975 CanLII 547 (ON SC), 9 O.R. (2d) 185 (Ont. Co. Ct.), at pp. 189-190, still apply:

      In attempting to establish what is best for the children, I must accept the realities and accidents of life and refrain judging the needs of the children and the parents’ ability to satisfy them on an unfair or unrealistic basis.

 

      In the case of Re Warren (1973), 1973 CanLII 1929 (ON SC), 13 R.F.L. 51, His Honour Judge Matheson commented on

 

… a contest between the right of a subsocio-economic family to subsist together and the right of the public, represented by the Children’s Aid Society, to insist upon higher standards of parental care than the couple in question were capable of offering.

 

At. p. 53 he goes on to say:

 

… this Court must not be persuaded to impose unrealistic or unfair middle class standards of childcare upon a poor family of extremely limited potential.

 

      In other words, the community ought not to interfere merely because our institutions may be able to offer a greater opportunity to the children to achieve their potential.  Society’s interference in the natural family is only justified when the level of care of the children falls below that which no child in this country should be subjected to.  In deciding on such intervention the Court must consider the best interests of the children in respect of their biological, social, emotional, cultural and intellectual development.

 

 

(See, also, Children’s Aid Society of Hamilton-Wentworth v. M.M., [1992] O.J. No. 1704 at p. 17 (Ont. U.F.C.); and Catholic Children’s Aid Society of Hamilton-Wentworth v. L.G., [2002] O.J. No. 2577 at para. 10 (Ont. S.C.J.).

 

(ii)           Opinion Evidence

 

 

[166]       Opinion evidence is often helpful, particularly with respect to issues such as parenting ability.  Dr. Walton-Allen was asked to conduct a parenting capacity assessment pursuant to section 54, C.F.S.A.  Ms. Koopal referred to the need for direction although, quite frankly, they already had ample evidence on the cognitive ability of the parents and concerns expressed by the physician and other social workers.

[167]       There is no dispute as to Dr. Walton-Allen’s qualifications.  She is well known and respected in her field.  There are concerns with respect to the process.

[168]       At the outset, the four part test as to admissibility of opinion evidence was established in  R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.), namely:

(i)            relevance;

 

(ii)           necessity in assisting the trier of fact;

 

(iii)         the absence of any exclusionary rule; and

 

(iv)         a properly qualified expert.

 

 

[169]       Mohan emphasized the role of the trial judge as a “gatekeeper” with respect to the admissibility of opinion evidence.  Child protection cases focus more on the issue of weight, distinguishing Mohan as a criminal case:  see, for example, Children’s Aid Society of Owen Sound and County of Grey v. A.C., 2005 ONCJ 563 (CanLII), [2005] O.J. No. 783 (Ont. C.J.); and Children’s Aid Society for the Region of Peel v. S.R., [2002] O.J. No. 3501 (Ont. C.J.).

[170]       The gatekeeper role, in my view, cannot be ignored.  Far too frequently, the use of opinion evidence in child protection cases is being treated far too lightly.  While the best interests of the child is a broad approach, neglect in following the accepted procedure in obtaining opinion evidence may well have serious consequences beyond the issue of weight:  see, for example, Children’s Aid Society of Halton v. R.R.N., [2008] O.J. No. 870 (Ont. C.J.); and Nicholas Bala, “Mental Health Professionals in Child Related Proceedings:  Understanding the Ambivalence of the Judiciary” (1998), 13 Can. Fam. L.Q. 261.

[171]       There are a number of concerns in the assessment process.

[172]       Dr. Walton-Allen devoted a significant part of her report to a review of the parent’s history and Society documents.  Her associate, Dr. Triantafillou spoke to Society workers, presumably to review information.  Similar contact with parents’ counsel did not occur.

[173]       Although Dr. Walton-Allen indicated the history and other matters were only one part of the analytical process, the practical difficulty is that much of the purported factual information was not proven at trial.  This shortcoming conflicts with the direction in The Queen v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 (S.C.C.) and indicates a careless approach.  Admissibility of the opinion evidence was not challenged.  Nevertheless, when the recognized safeguards are ignored, there is a danger in the opinion being less than independent and the assessor, in some cases, being seen as an advocate.

[174]       The assessment process involved one access visit.  This event was not consistent with prior visits in that D.H. had never been in his parents’ residence.  The setting, in my view, was appropriate; however, I have some difficulty in accepting Dr. Walton-Allen’s view that a further visit would not have been of assistance.  I accept her comment the visit was representative of the parents’ ability but would place more reliance on a report involving further observation.  This is particularly the case when exposing a child to a different environment. 

[175]       Given the delay in reaching trial, in my view, the assessment report should have been updated.  Here, nineteen months have passed by since the initial assessment.  The evidence reveals an improvement in parenting ability.  The improvement would have been greater had the Society acted upon the recommendations of Dr. Walton-Allen.

[176]       In the circumstances described, weight of the opinion evidence is compromised.  Although of assistance, the opinions of Dr. Walton-Allen must be considered in the context of the factual circumstances at trial and, of course, with reference to the best interests of the child.

(iii)         Delay

 

 

[177]       There can be no justifiable explanation for the delay in this case.  Thirty-three months is an unacceptable time period for a child to wait before his future placement is determined.

[178]       The refusal of the provincial and federal governments to provide adequate funding for the Society and the court renders meaningless the statutory direction in terms of the paramount and other purposes of the Act.

[179]       When the window of opportunity, as prescribed by section 70, is twelve months, a trial must occur within six months of apprehension.  Failure to comply with the established timelines is to ignore the best interests test by limiting available remedies.

[180]       Adequate funding is required by the Society to investigate and prosecute its case.  Similarly, the court must have the resources to be able to schedule trials in a timely manner.  The principles of fundamental justice demand these types of cases be treated much better than in the past.  After-all, we are dealing with children, the future of our society.

[181]       As well, delay is often prejudicial to the parents.  They experience difficulty in overcoming parenting issues, particularly when not provided with appropriate assistance, and are faced with dealing with a long established status quo.

(iv)         Access

 

 

[182]       Temporary orders for access in the discretion of the Society are routinely granted.  In result, the majority of families are required to attend access centres.  This is an artificial setting and of minimal benefit to child or parent.  Access structured in this manner is routinely used as a means to gather evidence against the parents.

[183]       Access centres are meant to be used only for problematic or security cases.  While funding, no doubt, is a concern, access should occur, in most cases, in a family setting.  Supervision by Society workers can easily occur in the parents’ residence if there is a will and desire to make the access visits meaningful and beneficial to the child and the parents.

[184]       No serious complaint was presented regarding the parents’ performance on access visits.  Their parenting skills improved with the advice and direction provided by the access facilitators.  Basic child care needs were met in this controlled setting, including feeding, diaper change, safety, age and appropriate activities.  Affection was spontaneous.  The parents, as requested, brought supplies despite their limited financial resources. Stimulation of the child through play and reading became a regular event.

[185]       Despite meeting the criteria set by Ms. Koopal, the parents were denied the opportunity of access visits in their apartment.  Such access visits, according to Ms. Koopal, envisaged returning the child to the parents’ care.  That was not the Society’s plan!

[186]       In this regard, the Society failed to reassess its position as circumstances warranted over time:  see Children’s Aid Society of the Niagara Region v. D. (W.) (2004), 2004 CanLII 66347 (ON SC), 1 R.F.L. (6th)  84 (Ont. S.C.J.); Children’s Aid Society of the Niagara Region v. B. (C.), 2005 CanLII 32915 (ON SC), [2005] O.J. No. 3878 (Ont. S.C.J.); Children and Family Services of York Region v. E. (P.), [2003] O.J. No. 4884 (Ont. S.C.J.);  and Children’s Aid Society of London and Middlesex v. S. (E.V.F.) (2004), 2004 CanLII 34346 (ON SC), 1 R.F.L. (6th) 68 (Ont. S.C.J.).

[187]       I am not prepared to find that a misrepresentation was made by Ms. Koopal as I am satisfied she genuinely cared and was attempting to assist the family.  Rather, the decision was made by Society management.  Unfortunately, the decision was not challenged by motion for further and different access.

[188]       The evidence tendered supported moving the access to the parents’ residence.  Supervision, if necessary, could have been arranged.  Access in a normalized family setting would have allowed the parents to improve their child care skills and, as well, strengthen the child-parent relationship.  Simply put, it was in the best interests of the child.

                  (v)     Role of The Society

 

 

[189]       In considering the role of the Society, the point of commencement is with the paramount and other factors set out in section 1, C.F.S.A.  The C.F.S.A. is child focused and recognizes the importance of keeping the family unit together as a means of fostering the best interests of children where possible:  see Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.) (1994), 1994 CanLII 83 (SCC), 2 R.F.L. (4th) 313 (S.C.C.).

[190]       Section 15, C.F.S.A., defines the functions of the Society.  This statutory provision is said to establish a number of components in the role of the Society, namely:

i)           investigate before apprehension;

 

ii)         continue investigation after apprehension;

 

iii)        consideration of all appropriate protective measures;

 

iv)      formation of a fair and defensible position;

 

v)         reassessment of that position as circumstances warrant;

 

vi)      use of properly trained workers; and

 

vii)      access to independent experts in the field of child psychology.

 

(See, for example, Children’s Aid Society of the Niagara Region v. D. (W.), supra.)

 

 

[191]       It has long been recognized that the Society, as an agent of the State, is not an ordinary litigant and the adversarial concept of winning and losing does not apply:  see Re Catholic Children’s Aid Society of Metropolitan Toronto and P.M. (1982), 1982 CanLII 1317 (ON CJ), 36 O.R. (2d) 451 (Ont. Prov. Ct.).

[192]       The Society must act with “fairness and reasonableness”, exercise good faith, due diligence and reason:  see, for example, Children and Family Services of York Region v. E. (P.), supra.

[193]       The provision for services in section 15, C.F.S.A., is an important function in the development of parenting skill.  The parents attended two parenting courses provided by the Society.  Another course was recommended by the Society but not pursued by the parents.  Little detail was provided as to the possible benefits of this course and, in any event, the matter was not pursued by the Society.

[194]       In her report, Dr. Walton-Allen recommended a number of programs or services for the parents, including individual counselling and assertiveness training.  The Society ignored the assessor’s suggestions.

[195]       The Society’s role in providing services has been addressed in prior cases.  Two decisions are from the court in Hamilton.

[196]       In Catholic Children’s Aid Society v. M. (L.), [1989] O.J. No. 659 (Ont. U.F.C.), at p.5, Wallace J. spoke of services as follows:

 

The Court recognizes that the Society’s requirement to provide services is not an ongoing obligation to hold the hand of its clients and the Court recognizes that the Society often operates under budgetary and staffing constraints but when such an obvious and specific problem exists with a particular client, the Society must provide an individually – appropriate service in order to satisfy its mandate.

 

 

In Catholic Children’s Aid Society of Hamilton-Wentworth v. L.G.,  [2002] O.J. No. 2577 (Ont. S.C.J.), Statshyn J. expanded on this comment, at paras. 13-16 saying:

13   I am aware that the Society has a statutorily mandated obligation to provide services to families for both the protection of children and the prevention of circumstances requiring the protection of children.  Services also need to be implemented to maintain the integrity of the family unit.

 

14   I further note that the duty to provide services is an integral part of determining whether or not the risk to a child can be adequately addressed if that child were to remain with or be returned to his parents.  Without having made efforts to provide such services, and availing parents of every reasonable opportunity to take advantage of those services, their ability to benefit from them cannot be assessed.

 

15   In this regard, case law is replete with dicta supporting the proposition that the Society’s obligation to provide services has a broader component than merely pointing out to a parent that a particular service exists.

 

16   Moreover, it may be that the essence of a Society’s duty to provide services is to create a unique agenda that is sensitive and responsive to an individual parent’s needs.  If necessary, this entails setting aside a worker’s own agenda, reaching beneath a parent’s refusal to accept services and “walking with” them “through the assistance”.

 

[197]       There is a presumption Society workers, supervisors and management have a working understanding of the C.F.S.A. and relevant caselaw.  Delivery of necessary services for these parents, as with other components of the Society’s role, was not pursued.

[198]       Nevertheless, issues pertaining to services should not be left for trial.  The Society and parents’ counsel must review such matters early in the proceeding.  Failing resolution, a motion would have been appropriate.  If there are funding problems through the Legal Aid Plan, a Rowbotham application may be necessary to satisfy the principles of fundamental justice:  see, for example, New Brunswick (Minister of Health and Community Services) v. G. (J.), supra.

[199]       A critical meeting at the Society took place on 24 April 2007.  Although referred to as a discussion, subsequent conduct of the Society clearly indicates a decision was then made to pursue Crown wardship.  This plan was not disclosed to the parents or their counsel.  Obviously, there was no invitation extended to the parents or their counsel to participate in the discussion.

[200]       Subsequently access was not expanded to the home.  Rather, the number of weekly visits were reduced. Services were not provided.  A parenting capacity assessment was requested.  The Society was looking for evidence to support a decision already made.  Indeed, it is to be noted the amended protection application was issued in June 2008, three months before the assessment report was received.  Delay appears to be a component of the plan.

[201]       This aggressive litigation strategy conflicts with the Society’s statutory obligation.  Tunnel vision is hardly in the best interests of the child and fails to take into account the ability or potential ability of the parents.

[202]       A comparison to events in Children’s Aid Society of Halton Region v. R.R.N., supra, is helpful.  At paras. 154-155, Zisman J. said:

154   Subsection 37(3) concludes with:

 

            13.   Any other relevant circumstance.

 

In this regard, I wish to examine the society’s obligation to provide services to the mother, which I find to have been severely lacking in this case.  I find that the society, despite the mother’s compliance with all of the conditions in the original supervision order, was completely “blindsided” by Dr. Benoit’s parenting assessment and could simply not see beyond that assessment and did not assist the mother.  The society restricted the mother’s access in my view, in anticipation of the Crown wardship application. I adopt Provincial Judge Heather L. Katarynych’s comments as set out in the case of Catholic Children’s Aid Society of Metropolitan Toronto v. Pier Angelii M., 1998 CanLII 14476, 82 A.C.W.S. (3d) 714, [1998] O.J. No. 3766, 1998 CarswellOnt 3659 (Ont. Prov. Div.), where she noted that, in that case, the child had been in care for about 33 months, almost from birth.  The mother had successfully addressed her drug addiction problems but the agency sought an adoption placement.  The court commented that the agency had ignored opportunities to help mother to improve her parenting skills and restricted her access in anticipation of a wardship application.  In ordering the child returned to the mother, Judge Katarynych remarked as follows (at paragraph [22]):

 

To cut back access in preparation for a possible success in its Crown wardship application and then to argue “limited relationship” between a child and a parent strikes this court as a frank attempt to use its discretion regarding access to design the outcome of the trial.

 

155   In this case, the society inappropriately cut back the mother’s access in her home over an alleged threat to Ms. Hardy, which I find were merely the remarks of an upset mother at having learned that the children’s aid society intended to place her child for adoption.  After the mother made remarkable improvements and entered into a new relationship with a stable individual and, despite Mr. D.N.’s letter to the society on 18 April, 2007, the society took no steps to investigate this plan.  Both Ms. Harrison and Ms. Cummings testified that, when the society has a Crown wardship plan, access is never allowed in a parent’s home.

 

 

[203]       Further, in C.B. v. Alberta (Director of Child Welfare) (2008), 2008 ABQB 165 (CanLII), 50 R.F.L (6th) 124 (Alta. Q.B.), Martin J. spoke of the Society’s failure to reassess its position.  The comments at para. 44 are relevant here:

44      The Director argues it was “under no obligation to change its position to one that is contrary to the Director’s view of the best interest of the child.”  However, with the powers the Director exercises over children and families, there is a concomitant obligation to proceed carefully and to constantly reassess, reconsider and re-evaluate.  The Director is required to take changed circumstances into consideration at every relevant juncture.  It cannot merely adopt one position and maintain it, as it did through two trials and two appeals despite evidence this child no longer was in need of protection.  The Director must be mindful of tunnel vision and the miscarriages of justice known to result from this form of restricted thinking.

 

 

[204]       An aggressive litigation strategy has no part in child protection cases and is contrary to the Society’s role.  The Society must understand it is the court that determines the child’s future, relying on the Society to present all relevant evidence.  The court does not “rubber stamp” decisions previously made by supervisors or management at the Society.

[205]       In my view, the Society comes up well short of meeting its obligations in this case.  The court is left with the difficult decision as a result.

(vi)     In Need of Protection?

 

 

[206]       Section 72, C.F.S.A., imposes a duty to report a suspicion a child may be in need of protection.  The Society relies on community service providers in this regard.  On 26 September 2006, such a report was provided by a nurse at Dr. Greenspoon’s office.  The Society failed to perform its due diligence investigation and, on 30 January 2007, another call was made to the Society, this time from the hospital as mother was going into delivery.

[207]       Ms. Verissimo commenced an immediate investigation.  Before completing same, management at the Society instructed her to apprehend the child.  In hindsight, this was the correct decision.  It is unknown what alternate arrangements might have been arranged had the Society been involved prior to the birth of the child.

[208]       Although this was a planned pregnancy, the parents were not prepared adequately to take their child home from the hospital.  They had not attended prenatal classes and mother missed many required medical appointments.  Given past problems in their homes as children, there was minimal opportunity to acquire parenting skills.  No consideration had been given to establishing a support system, a necessity due to their limitations.

[209]       In result, the child was at risk within the meaning of section 37 (2) (b) and (g) and I so find.  Regrettably, the situation remains the same as of the date of trial.  Despite significant improvement in their parenting skills, the child remains at risk if placed in care of the parents unless an adequate plan is put in place.

[210]       Although there is some challenge as to the methodology utilized in the parenting capacity assessment, I accept the findings of Dr. Walton-Allen resultant from the psychological and related tests.

[211]       Cognitive ability has been addressed in prior cases.  The starting point is the standard of parenting expected under the C.F.S.A.  In Catholic Children’s Aid Society of Hamilton-Wentworth v. L.G., supra, Stayshyn J., at paras. 17-19, repeated well established principles, saying:

17      I am mindful of the fact that the appropriate standard of parenting is not perfection.  Rather, it is the minimum allowable standard of parenting to be met in order to ensure the best interests of the child are met and that the child is protected in the sense intended by the provisions of the Child and Family Services Act.

 

18      I am as well aware that in Re Brown 1975 CanLII 547 (ON SC), 9 O.R. (2d) 185 at 189, it was indicated that “Society’s interference with the natural family is only justified when the level of care of [the child] falls below that [to] which no child in this country should be subjected …” (Catholic Children’s Aid Society of Hamilton-Wentworth v. G.(J.), 23 R.F.L. (4th) 79, p. 93.

 

19      It would appear therefore that the authorities have indicated that the court should not be persuaded to permanently sever the parental tie merely because Crown Wardship without access, and subsequent adoption, may be able to offer T.L.G. a greater opportunity to achieve his potential.

 

 

[212]       One of the earlier decisions on this issue is Children’s Aid Society of Kingston v. F.R. (1975), 1975 CanLII 223 (ON CJ), 23 R.F.L. 391 (Ont. Prov. Ct. – F.D.).  Thomson J. reviewed the development of legal principles pertaining to “low parental intelligence” within the framework of child protection and, at para. 8, said:

8     It is my opinion that the court should take the following approach when faced with cases such as the one now before me.  First of all, the fact of low parental intelligence should not be taken as determinative in itself of the child’s need for protection.  Rather, the question should be one of deciding whether, in light of their individual capabilities, these parents are able to meet their parental responsibilities.  If the answer to this question is no, then the judge should decide whether, given the proper assistance and intervention, the parents can be provided with the tools necessary to care adequately for their child.  This issue should not be resolved by simply noting the difficulties involved in securing the needed help when the child remains within the home.  The actions of the persons involved in this case show that, with a co-ordinated effort, extensive assistance can be given to parents such as the R.  Only if it is felt that the risk to the child is too great, even with outside help, should the court remove the child from the home.  If such removal is necessary, it would seem to me that in most cases this would require an order of Crown wardship, at least if the child is young, highly adoptable and not too closely attached to his or her natural family.  I think that it should also be noted that the risk to the child need not be physical; it would seem to be understandable that if a child lives in an environment which is grossly deficient in stimulation and emotional involvement, he or she may be damaged or at least may fail to develop to the extent to which he or she is capable.  It is difficult to apply this known fact to individual cases but clearly the court’s perspective should be broader than a simple examination of the child’s physical health.  It may be that the child’s intelligence and capabilities, if known, would be relevant information when deciding whether the parents are able to care adequately for the child.  If, even with outside help, it appears to the judge that they are not able to perform the task, an order removing the child would be indicated.

 

 

[213]       L.C. v. Catholic Children’s Aid Society of Metropolitan Toronto, [1993] O.J. No. 1823 (Ont. C.J.), involved a status review hearing.  Although addressing the plans of care, Beaulieu J. addressed the issue of cognitive ability that is instructive on the threshold issue as here, at para. 97 saying:

Counsel for the Society contended that the statutory criteria that applies on the status review application, applies equally to intellectually-challenged parents.  The issue of what services and less intrusive alternatives are made available to intellectually-challenged parents prior to the child’s removal is generally more appropriately dealt with in considering an initial order of removal rather than the status review proceeding where the child is already in care.  The examination of what services have been provided prior to the status review hearing can be examined but generally for no other purpose than to assist in the evaluation and assessment of an appropriate determination to be made at the status review hearing and not for the purpose of relitigating the issue of the services that were provided in the first instance.  I accept the submission of counsel for the Society that in applying the best interest criteria to a child of intellectually-challenged parents, particularly in comparing the competing custodial plans and in assessing the degree of risk to the child if returned to the parents’ home, the court should consider, among others, the following factors:

 

a)   that more than an expression of love is required to fulfil the duties of parenthood;

b)   that one of the requisite skills of adequate parenting is an ability to absorb information and instruction and then to judiciously apply what has been learned in appropriately coping with new situations presented by a child;

c)   that any comparison of competing custodial plans must be firmly rooted in the existing capabilities of both the parents and the present child welfare system.  Substituted parenting by a “committee of professionals” or “surrogates” is not a realistic reference point, nor is it necessarily in the child’s interests; and

d)   that the good intentions of a parent are not sufficient and a parent should not be given another chance where the end result would be to give the child “one less chance in life”.  See Children’s Aid Society of Winnipeg v. Redwood (1981), 1980 CanLII 3654 (MB CA), 19 R.F.L. (2d) 232 (Man. C.A.) at 234, Catholic Children’s Aid Society of Metropolitan Toronto and Linda F. et al. [unreported], (Ont. Ct. Prov. Div.), Main J., (December 12, 1985), and Children’s Aid Society of the County of Simcoe and Marjorie P. et al. [unreported], (Ont. Ct. (Prov. Div.)), Dunn J., (November, 1985).

 

[214]       The issue is not cognitive ability alone.  Rather, the focus is on the parents’ adaptation to their limited capacity and, in particular, the acquisition or improvement in their parenting skills.

[215]       Despite their best efforts, the parents have not yet acquired sufficient skills to eliminate or minimize the risk of physical or emotional harm.  They can meet basic child care needs.  The bathing incident observed by Dr. Walton-Allen demonstrates a legitimate concern as to the parents’ ability to cope with unexpected events.  Child care does not occur in a controlled setting and it is the response to a new situation that exposes the level of risk.

     (vii)   Plan of Care

 

 

[216]       Having made a finding D.H. is in need of protection, section 70, C.F.S.A., limits the available remedies to:

a)   return of the child to the parents with supervision of the Society, and

b)   Crown wardship with or without access.

[217]       The Society failed to present a plan of care, in violation of section 56, C.F.S.A., and Rule 33, Family Law Rules.  This neglect with respect to its statutory duty can hardly be an oversight.  No explanation was provided.

[218]       I am asked to assume the Society’s plan is consistent with its amended protection application and that the parents have been aware of it since June 2008.  A bold assumption in the circumstances of this case.

[219]       Failure to file a plan of care was considered in T.S. v. Alberta (Director of Child Welfare) (2002), 2002 ABCA 46 (CanLII), 26 R.F.L. (5th) 415 (Alta. C.A.).  The court held the filing was mandatory and, at para. 43, stated the requirement was substantive, not merely administrative.  At para. 44, Hunt J.A. referred to the plan of care as describing to the family what is to happen after the order is granted and what they must do to regain custody.  In result, the court held that the existing order became void on the 31st day.

[220]       The legislation may be somewhat different in Alberta, however, the underlying purpose and philosophy is the same as in Ontario.

[221]       In E.B. v. Children’s Aid Society, District of Temiskaming, [1994] O.J. No. 1959 (Ont. Gen. Div.), Bolan J. considered the impact of the Society’s failure to present a plan of care.  The issue had been raised on appeal.  With reference to the evidence at trial, Bolan J. determined the plan of care had been established and, at para. 8, concluded “… the technicality of non-compliance pursuant to section 56 of the Act should not interfere with what is in the best interest of the child”.

[222]       Children’s Aid Society of Algoma v. R.M. (2001), 2001 CanLII 25594 (ON CJ), 18 R.F.L. (5th) 36 (Ont.C.J.) addressed the issue of costs following trial.  A substantial cost award was made in favour of the paternal aunt and uncle who were successful in obtaining a placement order in a Crown wardship proceeding.  Kukurin J. referred to the Society’s failure to present a complete plan of care, at paras. 91 and 92, saying:

91      Second, the society filed a plan of care dated 24 April 1996.  This plan related to its status review application seeking Crown wardship.  This plan, once filed, was never changed, withdrawn or replaced.  While the plan complied with clauses 56(a), (b), (c) and (d) of the Child and Family Services Act, it completely neglected to address the requirements in clause (e).  This might appear to be a mere oversight, but not when one considered the provisions of clause (e) and the importance of the information required by that clause to the issues in this case.  The relevant parts of clause 56(e) are:

 

The court shall … consider a plan for the children’s care prepared in writing by the society and including,

 

     …

 

(e)   where the society proposes to remove or has removed the child from a person’s care permanently, a description of the arrangements made or being made for the child’s long-term care.

 

92      The plan of care provided no description or details of any such arrangement.  If one reads the plan, the logical conclusion is that the society was going to embark on a search for an adoptive home placement once it obtained an order of Crown wardship without access.

 

[223]       To allow the Society to ignore its obligations is to render the mandatory provisions in the C.F.S.A. meaningless.  Nevertheless, given the delay already in this case, it would not be in the best interests of this child to declare the proceedings a nullity.  In other cases, such a ruling would be appropriate.  Relying on the paramount purpose of the legislation and the parans patriae jurisdiction of the court, it becomes necessary to render a final decision.  In so doing, I feel compelled to say I am not persuaded the society informed the parents of the steps to be taken in order to return the child to their care.

[224]       In the amended protection application, the Society makes reference to adoption.  No evidence was tendered on adoption, save for an unsolicited comment from the foster mother as to her interest in same.

[225]       Evidence of adoptability has been said to not be essential:  see Children’s Aid Society of Niagara Region v. P. (D.), 2003 CanLII 1932 (ON SC), [2003] O.J. No. 619 (Ont. S.C.J.); and Children’s Aid Society of Niagara Region v. C. (J.), 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.).  Nevertheless, in my view, some evidence is required and would assist the court in meeting its obligation under section 56 (e), the child’s long-term stable placement.

[226]       The foster mother did not testify.  Again, I am to assume adoption would meet the child’s need for permanency.  In this regard, there is some evidence from Ms. Reed and Dr. Walton-Allen.  Ms. Reed refers to D.H. as easy to parent and said he has made progress in foster care.  Dr. Walton-Allen expressed the opinion that the child can still establish a primary attachment to another parental figure given his age.

[227]       Bonding, or party child attachment relationship, was previously referred to in connection with the report of Dr. Walton-Allen.  Bonding is a factor to consider in terms of permanency planning although the science appears to be inconclusive.  Certainly, minimal evidence was tendered by the Society.

[228]       Evidence as to bonding with foster parents in a long term placement as in this case, was considered by Vogelsang J. in Children’s Aid Society of London and Middlesex v. J.M., 2000 CanLII 22887 (ON SC), [2000] O.J. No. 331 (Ont. S.C.J.).  Such evidence led to the conclusion, at para. 32, that “… a significant and untoward disruption of their lives would be occasioned if they were returned to J.M. …”.  The plan of care was for adoption by the foster parents, who Vogelsang J. referred to as the only parents the children had ever known.

[229]       In Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.) (1994) 1994 CanLII 83 (SCC), 2 R.F.L. (4th) 313 (S.C.C.), L’Heureux-Dubé J.at pp. 344-5, spoke of psychological bonding with foster parents as follows:

      Within the realm of best interests, perhaps the most important factor in the present case, as probably in many others, is regard to the psychological bonding of a child to her or his foster family.  Section 37(3) imports such considerations as the relevance of a child’s emotional needs, the significance of continuity of care, and the child’s views.  In Catholic Children’s Aid Society of Metropolitan Toronto (Municipality) v. H.(K.) (1987), 1987 CanLII 2811 (ON CJ), 6 R.F.L. (3d) 1 (Ont. Fam. Ct.), reversed (1988), 1988 CanLII 8682 (ON SC), 21 R.F.L. (3d) 115 (Ont. Dist. Ct.) affirmed (1989), (sub nom. G.(C.) v. H.(J.) 1989 CanLII 8899 (ON CA), 23 R.F.L. (3d) 300 (Ont. C.A.), in reversing the trial judge’s finding, the District Court concluded that the judge of first instance had failed to give sufficient weight to the evidence of the potential for long-term psychological harm that may arise from the child’s being separated from his psychological parents.  In G.(A.) v. Catholic Children’s Aid Society of Metropolitan Toronto (Municipality), 1990 CanLII 7015 (ON SC), [1990] O.J. No. 1726, Ont. Gen. Div., No. Toronto 205/89, September 19, 1990, summarized at [1990] W.D.F.L. 1222, Matlow J., dismissing the appeal of the child’s birth mother from an order for Crown wardship without access, relied on the fact that harm would be caused to the child by removing him from his foster family.  Such considerations are not limited to child welfare cases, nor are they new.  In fact, this court examined the importance of bonding to psychological parents in R.(A.N.) v. W.(L.J.), supra, at p. 188, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173:

 

The real issue is the cutting of the child’s legal tie with her nature mother. This is always a serious step and clearly one that ought not to be taken lightly.  However, adoption – given that the adoptive home is the right one and the trial judge has so found in this case – gives the child secure status as the child of two loving parents.  While the court can feel great compassion for the respondent, and respect for her determined efforts to overcome her adversities, it has an obligation to ensure that any order it makes will promote the best interests of her child.  This and this alone is our task.

 

 

[230]       This concept, however, is subject to some challenge.  Professor Bala, in his paper “Mental Health Professionals in Child-Related Proceedings:  Understanding the Ambivalence of the Judiciary”, supra, at p. 290, offered this commentary:

         The decision in M.(C.) may well be correct, especially as regards to the child involved.  The very different attitude towards mental health professionals in comparison to the two 1993 decisions is noteworthy.  In M.(C.), the Supreme Court regarded the experts’ assessment of the facts as very important evidence.  Further, Justice L’Heureux-Dubé placed enormous, and quite uncritical weight on “psychological bonding”, a concept developed by the very behavioural scientists whose “values and biases” she had challenged in her 1993 decision in Young.

         It is disappointing that nowhere in her judgment in M.(C.) does L’Heureux-Dubé J. even acknowledge the controversial aspects of concepts like “psychological parents” and “bonding”, apparently relying on her own research to establish the validity of these concepts.  There is a significant body of opinion among mental health professionals that returning a child from psychological parents with whom the child has bonded to biological parents is not harmful, provided that the biological parents are able to care adequately for the child and the transfer back to the biological parents is carefully arranged.  Indeed, American courts dealing with situations like those in M.(C.) have returned children to their biological parents, albeit with much fuller discussions of the competing psychological theories.

 

 

[231]       A more complete evidentiary record would have been helpful.  Given the time D.H. has been in the same foster home, it is expected a bond has been established with the foster family.  Evidence with respect to the access visits also demonstrates a child-parent connection which, in my assessment, is somewhat stronger than identified by Dr. Walton-Allen.  In part, this results from the passage of time since her report.

[232]       Section 57 (4), C.F.S.A., requires the court to consider community placement of the child.  In practice, the Society investigates any plans presented by family members and reports to the court.  While it appears an investigation was completed by the C.C.A.S., no evidence was presented other than to say the proposed placement was rejected.  This is unacceptable.

[233]       For some unknown reason, the proponent of this alternate plan did not pursue her request.  As well, the parents did not propose placement with a family member and, as well, it appears mother’s family members are not relied on for assistance.

[234]       In Children’s Aid Society of Peel v. W. (M.J.) (1995), 1995 CanLII 593 (ON CA), 14 R.F.L. (4th) 196 (Ont. C.A.), Osborne J.A., at paras. 52-53, spoke of alternate plans as follows:

52      On a status review hearing, if the child’s mother wishes to advance a competing plan or proposal, there is no statutory requirement that the plan or proposal be in writing.  Nonetheless, in my view, there is an obligation on a parent proposing a competing plan for the care of a child to lead some cogent evidence with respect to that plan.  The C.A.S. is not required to investigate any and every placement proposal.  It is in the interests of those advocating a competing plan to advance the most persuasive alternative that they can formulate.  It is then incumbent upon the C.A.S. to challenge that proposal through cross-examination or otherwise.  That was done in this case before the B.C. placement proposal was abandoned.

 

53      It may well be that a plan or placement proposal different from that advanced by the C.A.S. will require further investigation and perhaps the preparation of a home study report.  However, not every placement proposal will require such a response.

 

 

[235]       In result, there is no evidence under section 57 (4) to consider.  The decision is only in regards to the two placements previously mentioned.

[236]       The parents’ written plan of care lacks detail and appears to be only a generic response to the Society’s original application.  Evidence tendered at trial was not helpful in establishing a necessary comprehensive plan.

[237]       I am satisfied the parents have a genuine desire to raise their child.  They have the potential, despite cognitive limitations, to acquire parenting skills with reasonable assistance.  Unfortunately, they are not in a position to parent alone at this time.

[238]       The support system presented on behalf of the parents is best described as a passive network of family and friends.  It relies on the parents asking for advice and direction.  In my view, the parents, at present, require active participation by support persons.  Such could only be accomplished by a resident advisor.  Otherwise, the child remains at risk as the parents have not acquired the ability to respond to his unexpected needs.  Basic child care skills do not protect the child.

 

[239]       Further, I am not persuaded the parents will acquire the minimal parenting skills required within a reasonable time period.  Their status remains essentially as described by Dr. Walton-Allen in 2008.  Despite their best efforts, little has changed in the intervening time period other than with basic skills.  They are unable to meet D.H.’s future needs.

 

[240]       Accordingly, the only viable option for D.H. is Crown wardship.  He requires permanency and his needs will only be met by permanent removal from the parents’ care.

[241]       The issue of access in Crown wardship has been discussed in prior decisions.  Children’s Aid Society of Niagara Region v. J.C. (2007), 2007 CanLII 8919 (ON SCDC), 36 R.F.L. (6th) 40 (Ont. Div. Ct.), at paras. 22, 23 and 29, provides a helpful summary on access as follows:

22      Section 59(2) of the Act creates a presumption against access where a child is a Crown ward.  (See New Brunswick (Minister of Health and Community Services) v. L.M., 1998 CanLII 800 (SCC), [1998] 2 S.C.R. 534, 41 R.F.L. (4th) 339; 1998 CarswellNat 1755 at para. 44; Children’s Aid Society of Niagara Region v. M.J., 2004 CanLII 2667 (ON SC), [2004] O.J. No. 2872, 4 R.F.L. (6th) 245 at para. 44 (S.C.J.); Windsor-Essex Children’s Aid Society v. E.S., [2004] O.J. No. 5824 (O.C.J.) at para. 21; Children’s Aid Society of Ottawa v. D.K., 2002 CanLII 47078 (ON SC), [2002] O.J. No. 2483 (S.C.J.)).  Once there is an order for Crown wardship, the focus of the Child and Family Services Act shifts to establishing a permanent and stable placement – preferably through adoption.  This is clear from the wording of s.140(1) of the Act which requires the Society to make all reasonable efforts to secure a Crown ward’s adoption.  Only Crown wards that are not the subject of an access order are eligible for adoption (see s.140(2)(a)).  Therefore, there is a presumption against court ordered access for a Crown ward in order to facilitate permanency planning through adoption (Children’s Aid Society of Ottawa v. D.K., supra, para. 24-25).

 

23      The onus is on the persons seeking access to a Crown ward (in this case the mother and aunt of the children) to prove on a balance of probabilities that (1) the relationship between the person and the child is meaningful to the child, (2) the relationship between the person and the child is beneficial to the child, and (3) access will not impair the child’s future opportunities for a permanent or stable placement.  These three factors must be proven on a balance of probabilities by the person seeking access before the court goes on to consider whether an access order would be in the best interests of the child.  (See Children’s Aid Society of Owen Sound and County of Grey v. T.T., 2005 CanLII 24909 (ON SC), [2005] O.J. No. 1875 (S.C.J.) at para. 20; Children’s Aid Society of Ottawa-Carleton v. T.C., 2002 CanLII 46172 (ON SC), [2002] O.J. No. 3711 at para. 7).

 

29      “Beneficial” has been held to mean “advantageous”.  “Meaningful” has been held to mean “significant” (Children’s Aid Society of the Niagara Region v. M.J., supra, at para. 45).  The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child.  The only positive factors which the trial judge identified in regard to the mother’s relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives.  Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was “beneficial” within the meaning of s. 59(2)(a) of the Act.  More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various factors impacting on the children’s emotional health, were identified.

 

 

[242]       There is some attachment or bond established over time; however, it appears to be one developed out of routine and not from parenting.  D.H. enjoys time with his parents and there is obviously some benefit to him.  The parents have not met the evidentiary onus.  At this point, permanency planning is of greater importance in the child’s best interests.  D.H. deserves a forever family.  The parents’ access is terminated.

      (viii)   Summary

 

 

[243]       For the foregoing reasons, I find D.H. to be a child in need of protection pursuant to section 37 (2) (b) and (g).  I also find, on consent, that he is non-Catholic and non-native or non-Indian.  An order is granted making D.H. a ward of the Crown, without access, for the purposes of adoption.

[244]       In closing submissions, mother’s counsel urged the court to hold the Society accountable for their conduct in this case.  The complaints are numerous.  There is merit in the request; however, this is not the proper forum.  In a child protection case, the ultimate test is the best interests of the child.  Returning him to his parents care, as a result of mistakes made by the Society, is not appropriate.  As Fleury J. said in Children’s Aid Society of Hamilton-Wentworth v. E.D., [1999] O.J. No. 5779 (Ont. Gen. Div.), at para. 8:

To penalize the society by returning a child to a situation of danger would be the most ridiculous result that I can imagine.  It would bring the entire administration of justice into disrepute.

 

 

[245]           I am most grateful for the able assistance provided by all counsel.

 

 

 

 

___________________________

D.J. Gordon J.

 

 

Released:       December 29, 2009


COURT FILE NO.:  C-186/07 (Hamilton Family)

DATE:  20091229

 

ONTARIO

 

SUPERIOR COURT OF JUSTICE

 

 

B E T W E E N:

 

Children’s Aid Society of Hamilton

 

 

- and -

 

 

E.O. and S.H.

 

 

 

 

 

REASONS FOR JUDGMENT

 

 

 

 

D.J. Gordon J.

 

Released:          December 29, 2009