Catholic Children’s Aid Society of Toronto v. C.S., 2010 ONCJ 656

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 48(7) , 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85. —

(3) Idem. — A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Toronto (North York) Registry No. C2319/01 DATE: 2010·XI·29 CITATION: Catholic Children’s Aid Society of Toronto v. C.S. , 2010 ONCJ 656 ONTARIO COURT OF JUSTICE BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — C.S. and L.H.B., Respondents. Before Justice Harvey P. Brownstone Heard on 22-25 November 2010 Reasons for Judgment released on 29 November 2010

CHILD PROTECTION — Evidence — Past conduct — General — Limits on using older evidence of past conduct — Despite broad language of subsection 50(1) of Child and Family Services Act , courts must approach evidence of past parenting with particular caution and care, lest it overwhelm parent even before case starts — In this case, court decided status review primarily on basis of evidence of mother’s conduct during course of status review proceeding but used “past conduct” evidence largely as informative backdrop against which to understand and measure her more recent conduct — Where that “past conduct” included circumstances that had resulted in Crown wardship of her previous children, mother had to expect that court would focus on evidence of sufficient remedial measures that she had since taken to eliminate or at least to reduce those unacceptable previous circumstances — In end, court concluded that mother failed to demonstrate sufficient degree of sustained and meaningful change to justify child’s return to her care because risk involved in such return was still far too great.

CHILD PROTECTION — Form of order — Crown wardship — Grounds — Least restrictive option to protect child — Child (now 20 months old) had been apprehended at birth by local children’s aid society and had been in foster care since then — Mother’s previous children had been made Crown wards as result of her association with abusive partner who proved to be paedophile (which association she repeatedly tried to hide from society) and her resistance to professional help and advice — In this case involving this child, mother had benefit of 20 months within which to address her past deficiencies — Evidence did indeed show that she had made praiseworthy progress through psychotherapy, counselling and community programs — Unfortunately, in midst of those efforts and despite insights that should have gained in those programs, she again took up relationship with much older man who, almost from outset, was physically abusive towards her and she turned deaf ear to advice from those who were trying to help her — Even though she had now broken free of that relationship, court found that her exercise of poor judgment at this critical time when she knew that she was under court scrutiny demonstrated her inability to put child’s needs ahead of her own — Mother had failed to convince court that she had sustained capacity to make necessary changes in her life to ensure safety of any child who might be placed in her care — Protection concerns that gave rise to court’s finding that child was in need of protection continued to exist — Returning child to mother now would place him at great risk of harm — Because statutory ceiling on temporary foster care had expired long ago, court’s only dispositional option that served child’s best interests was Crown wardship without access for purposes of adoption.

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], clause 37(2) ( b ), clause 37(2)( d ), clause 37(2) ( g ), subsection 37(3) , subsection 50(1) , subsection 59(2.1) , subsection 70(1) , clause 70(1)(

a) and subsection 70(4) . CASES CITED Catholic Children’s Aid Society of Toronto v. L. (Jean) and R. (Willard) (No. 3) , 2003 CanLII 57514 , 39 R.F.L. (5th) 54, [2003] O.J. No. 1722, 2003 Cars​well​Ont 1685 (Ont. C.J.). Children’s Aid Society of Niagara Region v. P.(D.) and B.(S.) (No. 3) , 2003 CanLII 1932 , 36 R.F.L. (5th) 265, [2003] O.J. No. 619, 2003 Cars​well​Ont 574 (Ont. Fam. Ct.). Children’s Aid Society of Waterloo Region v. C. (Rachele) and S. (Merlyn) , 1994 CanLII 4520 , 52 A.C.W.S. (3d) 84, [1995] W.D.F.L. 193, [1994] O.J. No. 2955, 1994 Cars​well​Ont 2132 (Ont. Prov. Div.).

Chris Andrikakis ........................................................................... counsel for the applicant society Binu Alex Mathews ............................................................ counsel for the respondent mother, C.S. Leroy A. Crosse ............................................................... counsel for the respondent father, L.H.B. [ 1 ] JUSTICE H.P. BROWNSTONE:— These are my reasons for decision in a status review regarding the child T.J.C.J.S. (“T.”), born on […] March 2009.

The Catholic Children’s Aid Society is seeking an order making T. a Crown ward with no access for the purpose of adoption. The mother, Ms. C.S., is seeking an order placing T. in her care and custody under society supervision. The father, Mr. L.H.B., was initially seeking an order placing the child in the care of his partner but, midway through the trial, he withdrew his plan and decided to support the mother’s plan.

The trial was held from 22 to 25 November 2010. 1: DECISION [ 2 ] For the reasons that follow, I have determined that the least disruptive order that will be in T.’s best interests is to make him a Crown ward with no access for the purpose of adoption. 2: BACKGROUND FACTS [ 3 ] A great deal of the society’s evidence relates to the past parenting of the parties’ two older children, [1] S. (born August […], 2001) and C. (born July […], 2003), who were made Crown wards with access on 12 June 2009. Virtually all of the society’s concerns stem from the mother’s relationship with Mr.

L.H.B., who was convicted of sexually assaulting his step-daughter and her female friend, ages 10 and 13. [2] These offences, which took place between 1994 and 1998, involved forced oral sex, genital fondling and anal intercourse. Mr. L.H.B. was sentenced to 3½ years incarceration and was released on parole in 2002 after serving 18 months in a penitentiary.

[ 4 ] Ms. C.S.’s involvement with the society is longstanding. [3] After suffering much abuse and neglect as a child, [4] she was placed in foster care and made a Crown ward on 4 November 1998. The society apprehended S. very soon after her birth [5] due to Ms. C.S.’s fragile mental health, but Ms. C.S.’s health quickly improved and S. was returned to her. [6] S. was re-apprehended 14 months later [7] by reason of unhygienic living conditions and conflict between Ms. C.S. and her room-mate. During the next year Ms. C.S., then 19 years old, began a relationship with Mr. L.H.B., who is 23 years older than her.

On July […], 2003 their son C. was born. Once the society learned of Mr. L.H.B.’s criminal convictions, [8] a protection application was commenced [9] and C. was placed in Ms. C.S.’s care under society supervision with a condition that she not reside with Mr. L.H.B. and not permit him to have any contact with C. Mr. L.H.B.’s access to C. was to be supervised by the society. During this time, Ms. C.S. was having increased access to S. as part of a reintegration plan to return her to her mother’s care. Throughout this time, Ms. C.S. repeatedly assured the society that she was not living with Mr.

L.H.B. or allowing him to have any access to either child. The society, believing this to be true, returned S. to Ms. C.S. [10] under a supervision order with conditions prohibiting Ms. C.S. from living with Mr. L.H.B. or from allowing him to have any contact with either child. [ 5 ] Nine months later, [11] S. and C. were apprehended after it became increasingly evident to both the police and the society that Mr. L.H.B. was residing in the home. On the day that the children were apprehended, Ms. C.S. admitted that she had been lying to the society and that Mr.

L.H.B. had indeed been living with her and the children. Three weeks later, [12] the court ordered that the children be returned to Ms. C.S. provided that she live in a shelter. She was again bound by a series of supervision orders [13] with conditions that she not allow Mr. L.H.B. to reside in the home and that she not allow him to have any contact with either child. Again, the society relied on repeated assurances from Ms. C.S. and Mr.

L.H.B. that they were complying with these conditions and the supervision order was eventually terminated. [14] [ 6 ] The society remained involved on a voluntary basis and, over the next 9 months, it again became increasingly evident to the society, C.’s day-care provider and S.’s school, that the children were having frequent contact with Mr. L.H.B. On 10 April 2007, a protection application was commenced and both children were placed in the mother’s care and custody under society supervision with the same no-contact conditions that had been previously ordered.

On 23 July 2007, on consent, both children were found to be in need of protection under clauses 37(2) (

b) and (

d) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (“the Act”), and a 6- month supervision order was made with the all-important above-mentioned no-contact conditions relating to Mr. L.H.B. [ 7 ] Four months later, on 7 November 2007, the children were once again apprehended, as it had become abundantly clear that Mr. L.H.B. was having unauthorized contact with the children. This time, the situation was much more serious. On 10 January 2008, S. made disclosures of sexual abuse by Mr. L.H.B.

Although she subsequently recanted these allegations and no further investigatory action was taken, S.’s sexualized and highly problematic behaviour since that date, as described in society worker Marsha McCarthy’s very disturbing affidavit (paragraphs 13-33) gives rise to a strong suspicion that S.’s initial disclosures were true. Ms. C.S. also believes that Mr. L.H.B. sexually assaulted S. [ 8 ] In January 2008, Ms. C.S. admitted to her society worker that she and Mr. L.H.B. had taught the children to lie to society workers about Mr. L.H.B.’s presence in the home.

Over the next few months, she repeatedly maintained that she had terminated her relationship with Mr. L.H.B. but, in July 2008, Ms. C.S. could no longer hide the truth: she was pregnant with his child. That child is T., who is the subject of this proceeding. [ 9 ] On 5 August 2008, Ms.

C.S. met with her society worker to develop a plan to regain custody of S. and C. and to be able to raise T., who was due to be born in 7 months. [15] The mother was to accomplish 4 tasks: (1) obtain suitable stable housing [not accomplished, as she has been transient over the past 2 years and at this time is living in a shelter]; (2) participate in a parenting capacity assessment [accomplished]; (3) continue counselling [accomplished]; and (4) terminate her relationship with Mr. L.H.B. This last goal appears to have been accomplished at least as far back as the date of T.’s birth.

The society is not alleging that Ms. C.S. has maintained a relationship with Mr. L.H.B. since T. was born. [ 10 ] T. was born on […] March 2009 and has been in foster care since then. For the past year, Ms. C.S. has been having semi- supervised access 3 times per week for 3 hours per visit. Mr. L.H.B. has been having once weekly supervised access visits at the society’s office. [ 11 ] On 12 June 2009, the following consent orders were made:

(1) S. and C. were made Crown wards with access;

(2) T. was found to be in need of protection under clause 37(2)(

g) of the Act and he was made a society ward for 3 months, with the parents continuing the access referred to in the preceding paragraph. [ 12 ] Prior to the expiry of the 3 month wardship order, the society brought a status review application on 13 August 2009 seeking a further 3-month period of society wardship. At that point, the society was prepared to give Ms. C.S. more time to show that she had changed her life, because she had: commenced counselling at the Wraparound Program at Oolagen Youth Mental Health facility in April 2009; begun receiving psychotherapy from her psychiatrist, Dr.

Robinson in May 2009; begun engaging in sexual abuse counselling at Women’s Habitat in July 2009; and begun therapeutic access at the Regent Park Child Access Centre on 12 August 2009. However, soon thereafter, Ms. C.S.’s progress became seriously derailed. [ 13 ] On 15 September 2009, Ms. C.S. told society worker Era Khaykin that she was in a new relationship and living with a 46- year-old man, [16] Mr. R.G., whom she had known for only 3 weeks. On 19 November 2009, Ms. Khaykin went to visit Ms. C.S. in the home she was sharing with Mr. R.G., and Ms. C.S. requested overnight access with T. Ms. C.S. brought Mr.

R.G. to a Christmas party at the access centre and introduced him to T. She knew early on in the relationship that Mr. R.G. would not be a good parental figure for T. because he was becoming progressively abusive, but she continued to live with him until April 2010, when Mr. R.G. threatened to kill

her with a knife and then kill himself. At that point, Ms. C.S. left Mr. R.G. and moved into a shelter, where she has remained. Although the mother has recently mentioned to her society worker that she has become friends with a man she met on the subway, she says that they are just friends and not involved in a romantic relationship. [ 14 ] On 9 and 16 November 2009, Ms. C.S. participated in a parenting capacity assessment conducted by Dr. Kershner, whose report was provided on 27 January 2010. The report concluded that Ms. C.S. did not have the capacity to parent T.

This report was baffling, given the fact that, on 23 October 2009, the staff at the Therapeutic Access Centre praised Ms. C.S.’s parenting skills and referred to her as a “model parent”. [ 15 ] At a permanency planning meeting held on 11 March 2010 at which the society informed the parents that they would now be seeking Crown wardship without access, the mother disclosed that she had been actively participating in the counselling and therapy referred to in paragraph [12] above.

The society workers claimed to have been unaware that the mother had been making such effective use of community resources. [17] The society correctly considered itself obliged to take some action in response to the information that Ms. C.S. provided regarding the progress that she was making to overcome her past parenting issues, particularly given the fact that she had been consistently demonstrating good parenting skills throughout a lengthy period of generous loosely supervised access. Accordingly, the society decided to re-engage the services of Dr.

Kershner, who had conducted the parenting capacity assessment. Dr. Kershner was provided with letters from the mother’s psychiatrist and counsellors, as well as the records from the Therapeutic Access Centre. She was asked to update her report and reconsider her conclusions about Ms. C.S.’s parenting capacity in light of the new information about Ms. C.S.’s counselling and therapy. [ 16 ] Despite the fact that Dr. Kershner’s update report was not yet available, the society filed an amended status review application on 16 August 2010 seeking Crown wardship with no access for the purpose of adoption.

By then T. had been in foster care for 17 months, well beyond the statutory time limit set out in subsection 70(1) of the Act . [ 17 ] On 25 October 2010, Dr. Kershner’s update report was provided. She reaffirmed her original conclusions. 3: THE LAW RELATING TO PAST PARENTING EVIDENCE [ 18 ] Subsection 50(1) of the Act permits the court to consider the past conduct of a person toward any child, and any oral or written statement or report that the court considers relevant to the proceeding is admissible into evidence.

In this case, 10 statements of agreed fact entered into between the parties over a period of 10 years, relating to their children S. and C., were admitted into evidence. In addition, a trial brief that formed the basis of orders made on 12 June 2009 relating to S., C. and T., was admitted into evidence. All of these documents were admitted into evidence on consent of all parties. [ 19 ] Notwithstanding the clear legislative direction provided by subsection 50(1) of the Act , the jurisprudence makes it clear that past parenting evidence should be approached with particular caution and care.

As Provincial Judge Heather L. Katarynych stated in Children’s Aid Society of Waterloo Region v. Rachele C. and Merlyn S. , 1994 CanLII 4520 , 52 A.C.W.S. (3d) 84, [1995] W.D.F.L. 193, [1994] O.J. No. 2955, 1994 Cars​well​Ont 2132 (Ont. Prov.

Div.)., “front-end loading of a case . . . presents a formidable hurdle for a parent who cannot undo the past.” Her Honour drew the following boundaries (at paragraph [20]) around the use to which a court should put “past conduct” evidence when considering it in the context of the entire trial evidence: • “Past conduct” evidence must not be permitted to suffocate evidence of a parent’s current conduct, circumstances and functioning. • The real relevance of “past parenting” evidence is the extent to which it provides a reliable backdrop against which to measure the extent to which the parents’ abilities and circumstances have changed. • Factors bearing on the reliability of that “backdrop” evidence include the following: 1.

The completeness of the particular piece of evidence at issue. (For example, if a report filed in the prior trial is made part of the evidence in the current trial, it is proper to consider whether the content can stand alone as reliable information. If its author gave oral testimony in the prior trial to supplement, qualify or update his or her involvement, the extent to which the author’s findings survived cross-examination is important.

If oral testimony did supplement a report filed in evidence in the prior trial, and a transcript of that testimony does not accompany the report that is filed as past conduct in the current trial, the report itself has minimal value for the court charged with assessing the impact of the “past conduct” on another child’s need for protection from the same or substantially similar “past conduct”). 2. The extent to which information set forth in the “past conduct” evidence is supported by the direct observation of and interaction with the parent whose conduct is impugned. 3.

The age of the information. [ 20 ] Additional criteria were set out by Justice Penny J. Jones in Catholic Children’s Aid Society of Toronto v. Jean L. and Willard R. (No. 3) , 2003 CanLII 57514 , 39 R.F.L. (5th) 54, [2003] O.J. No. 1722, 2003 Cars​well​Ont 1685 (Ont. C.J.), which reflect the same concerns set out by Judge Katarynych with the additional concern of the appropriate use of trial time. [ 21 ] It is clear that the admission of past parenting evidence does not necessarily mean that it will be accepted as persuasive by the trial judge or determinative of the result.

However, where a parent’s previous children have recently been made Crown wards, there is a tactical burden [18] on the parent to show that he or she has taken sufficient remedial action to eliminate or at least reduce the need for protection that was found to exist in relation to the earlier children. See. Children’s Aid Society of Niagara Region v. D.P. and S.B. (No. 3) , 2003 CanLII 1932 , 36 R.F.L. (5th) 265, [2003] O.J. No. 619, 2003 Cars​well​Ont 574 (Ont. Fam. Ct.). [ 22 ] In this case, applying the principles enunciated above, I find that the “past conduct” evidence regarding the mother’s

relationship choices and judgment in her parenting of S. and C. served as an informative backdrop against which to understand her conduct throughout this status review proceeding, and assisted in my consideration of the best interests analysis which I am mandated to conduct pursuant to subsection 37(3) of the Act .

I wish to make it clear, however, that the most important and determinative evidence upon which this decision is based is not her past conduct; rather it is the evidence of her conduct during the course of this status review proceeding, which has led me to conclude that she has not demonstrated a sufficient degree of sustained and meaningful change to justify returning T. to her care. The risk to this child of doing so is far too great. 4: THE MOTHER’S JUDGMENT [ 23 ] Ms. C.S. loves T. and has proven herself capable of meeting his instrumental physical needs and giving him love and affection.

Her access visits with T. have gone well. In fact, the Therapeutic Access Program staff told the society on 23 October 2009 that she is a “model parent”. Access supervisor Roberta Boardman testified as to Ms. C.S.’s strong bond with T. and strong parenting skills. Her observations were corroborated by the evidence of society access supervisor Lydia Piecyk. Ms. C.S. is to be commended for the progress that she has made in learning to respond appropriately to T.’s physical needs and emotional cues. [ 24 ] Unfortunately, Ms.

C.S.’s strengths as a parent are overwhelmingly outbalanced by her poor judgment, which is an ongoing problem that would place any child in her care at great risk of harm.

Her past conduct is extremely serious: she knowingly allowed a paedophile, who was convicted of sexually abusing his step-daughter, to have unrestricted contact with her daughter (who was also a stepdaughter to the paedophile), and violated 3 court orders [19] in doing so, causing her children to be apprehended 3 times over a period of 5 years. [20] She knew that it was this past conduct that caused the society to apprehend T. at birth and she knew that the only way to be given an opportunity to parent T. would be to demonstrate markedly improved judgment in terms of her relationship choices.

In my view, any parent with this background of past conduct should reasonably expect a fairly narrow margin of error in moving forward. Ms. C.S. has been given 20 months — 8 months longer than the law [21] allows — to demonstrate a sustained period of good judgment, to show the court that her previous pattern of exposing her children to risk by reason of her involvement with abusive partners, is truly a thing of the past. It is most regrettable that she has been unable or unwilling to do so. [ 25 ] Ms.

C.S. has definitely made solid and sincere efforts to overcome the emotional trauma of her abusive childhood and to gain insight into the reasons for her past conduct and choice of partners and to develop an understanding of the impact of such conduct on her children. I heard evidence about the following community resources that Ms. C.S. has accessed since T. was born. 4.1: Wraparound Program [ 26 ] Since April 2009, she has been participating in the Wraparound Program at Oolagen Youth Mental Health facility.

This is a planning process that works with individuals to identify their strengths and goals and to establish a plan to achieve those goals. This resource has been instrumental in enabling Ms.

C.S. to develop a plan of care for T., which includes: obtaining suitable housing after completing a reunification program at Robertson House, registering T. in a subsidized day-care program, continuing with counselling and therapy, upgrading her education with a view to obtaining gainful employment, and continuing to work on her parenting skills by participating in a number of programs including the Mothers in Mind program at the Child Development Institute and the Watch, Wait and Wonder program at Massey Centre. The mother’s Wraparound facilitator, Heather Ibbott, testified that Ms.

C.S. never misses her monthly meetings and, in a letter dated 26 May 2009, she described Ms. C.S. as “above all determined, committed and resourceful.” 4.2: Women’s Habitat [ 27 ] Since July 2009, Ms. C.S. has been engaged in counselling at Women’s Habitat, which is a community program to assist women who have experienced domestic violence in their past relationships. These services use counselling, education and advocacy to help women understand how domestic violence has impacted their lives. Ms.

C.S. attends a weekly support group that is focussed on teaching women the necessary coping mechanisms and problem solving techniques to deal with domestic violence situations in their lives. She also attends individual counselling sessions once or twice per week. Her counsellor, Munice Wright, swore an affidavit stating that she believes that “[Ms. C.S.] has developed the necessary skills to identify domestic violence situations and to make the appropriate choices for the benefit of herself and [T.].” In a letter dated 15 September 2010, Ms. Wright wrote that Ms.

C.S. has been able to explore her thoughts and feelings, and that she is using tragedies in her life as learning tools and taking positive steps forward to manage her feelings and her responses to them. She believes that Ms. C.S. “has also learned when dealing with feelings, to acknowledge and identify her own behaviour, how to prioritize and strategize to implement consistent problem solving skills.” [ 28 ] Ms. Wright testified at the trial. It was clear that she knew little about Ms. C.S.’s relationship with Mr. L.H.B. and her involvement with the society. Ms.

Wright also appeared to be unaware of the extent of Ms. C.S.’s post-separation contact with Mr. R.G. [ 29 ] In a letter dated 15 September 2010, Ms. Wright stated that “it is because of the work [Ms. C.S.] has done that she was able to identify the warning signs, early on, in her most recent relationship and take the necessary steps to protect herself, make good choices and leave the situation”. This statement, which refers to Ms. C.S.’s relationship with Mr. R.G., amply demonstrates that Ms. Wright was clearly unaware of the reality of the situation: yes, Ms.

C.S. did identify the warning signs early on, but she did not take the necessary steps to “protect herself, make good choices and leave the situation” until Mr. R.G. threatened her with a knife, saying that he was going to kill her and kill himself. If the whole point of identifying the warning signs early on is so that the victim can take proactive steps to extract herself from the relationship before she is confronted with a threat to her life, then with great respect to Ms. Wright, I am of the view that Ms.

C.S. failed miserably in heeding those warning signs and taking the necessary action, despite the extensive counselling she was receiving. What would have happened to T. if he had been living in the home at that time? 4.3: Church Participation

[ 30 ] Ms. C.S. has begun attending a church regularly and has reached out to her pastor and fellow parishioners for support. In September 2010, she began participating in a healing group called Pathways to Peace — A Twelve Step Spiritual Journey. She has found this to be of assistance and plans to participate in other church programs designed to assist single mothers. 4.4: Psychiatric Care [ 31 ] Since 1 May 2009, Ms. C.S. has been seeing a psychiatrist, Dr. Gail Erlick Robinson, who assessed her as being depressed and prescribed anti-depressant medication. Ms. C.S. receives psychotherapy from Dr.

Robinson every two weeks. Dr. Robinson provided an affidavit and 2 letters and also testified at the trial. [ 32 ] Dr. Robinson was a compelling witness who advocated passionately for her patient. She states in her affidavit, With respect to [Ms. C.S.’s] position regarding the return of T. to her care, it is my belief that [Ms. C.S.] has made great changes in her life that would help her to parent T. She has gained great insight into her past relationships and the need to place her child’s needs as a priority. In her letters and testimony, she referred to the progress that Ms.

C.S. has made from her initial attitude of defensiveness and blaming the society and others for her problems, to one of accepting responsibility for her actions and developing a great deal of insight into her behaviour, her many mistakes and their consequences. She wrote, [22] Over the time that I have been seeing [Ms. C.S.], I have seen great changes in her. Whereas with her first two children, she seemed to put her needs ahead of theirs, she now has been focused on doing whatever she can to keep T. from being taken away. She asserted with great conviction that Ms.

C.S. has made major progress in her self-awareness and acceptance of full responsibility for the poor judgment she showed throughout her relationship with Mr. L.H.B. [ 33 ] Dr. Robinson remained adamant throughout a vigorous cross-examination that Ms. C.S.’s relationship with Mr. R.G., which lasted from September 2009 to April 2010, is not reflective of her current judgment or ability to keep T. safe. She did not perceive Ms. C.S.’s relationship with Mr. R.G. to be an indicator of insufficient progress in terms of her readiness to assume care of T. To the contrary, she praised Ms.

C.S.’s ability early on in the relationship, to recognize Mr. R.G.’s unsuitability as a partner for her and parent figure for T. It did not seem to concern her that Ms. C.S. moved in with a man whom she barely knew without first asking for advice from her psychiatrist, her counsellors or her society worker. She saw Ms. C.S.’s exit from the relationship as a sign of success, notwithstanding that it took a threat of death at knifepoint for this to happen. She minimized the fact that Ms. C.S. chose to stay with Mr.

R.G. for at least 5 months after realizing that this unhealthy relationship was detrimental to her parenting plan for T., and in blatant disregard to the advice she was getting from her psychiatrist and counsellors. She explained that Ms. C.S.’s relationship with Mr. R.G. was a “slip”, which is not uncommon for a person with Ms. C.S.’s history who is engaging in the lengthy learning process of psychotherapy. She did not seem to appreciate the risk to a young child in the circumstances of this case, of having to pay the consequences of such “slips”. She was dismissive of the society’s suggestion that Ms.

C.S.’s relationship with Mr. R.G. was similar enough to her relationship with Mr. L.H.B. as to suggest a continuation of her previous pattern — i.e. , both men are significantly older than she, both men are abusive, both men have children from prior relationships with whom they are not allowed contact. She minimized the serious disconnect between her assertion that Ms. C.S. had over the past 18 months been totally focussed on getting T. back and the indisputable reality that Ms. C.S. spent 7 of those months in a totally inappropriate relationship. [ 34 ] There is no question that Ms.

C.S. has made much progress since T. was born. She has kept away from Mr. L.H.B. She has amassed an impressive support network and demonstrated a sincere commitment to overcoming her past trauma, developing insight and learning from her past mistakes. Her parenting skills and attitude towards the society have improved greatly, as consistently demonstrated at access visits. However, with great respect to Dr. Robinson, I am of the view that the best evidence of a person’s level of insight is not what she tells her psychiatrist, but rather, how she lives her life. Ms.

C.S.’s decision to become involved with a totally unsuitable partner occurred at a crucial time. She was “under the microscope”, being scrutinized by the society and the court. She was trying to prove that she had changed. She was claiming that she was totally focused on getting T. back. If this was truly the case, she should have exercised extreme caution before embarking on any romantic relationships, given her track record of poor choice in partners.

If she felt it was absolutely necessary to start a new relationship during this time, she most certainly should not have moved in with anyone without at least discussing this beforehand with her support team.

She knew that, quite apart from her poor choice in romantic partners, she had on 2 occasions in recent years moved in with people whom she barely knew, with bad outcomes. [23] She knew full well that the central issue in this case was her ability and willingness to keep her child safe from abusive people, and yet she diverted from this all-important goal for 7 months while lingering in a relationship that she knew almost from the outset was doomed to fail. These choices were more than mere “mistakes” from which she could learn valuable lessons on her journey towards self- improvement.

Cumulatively, they are manifestations of colossal poor judgment, which have led to the sad conclusion that, despite her commendable progress, Ms. C.S. has not yet acquired the necessary degree of insight and good decision making skills to keep a child safe. [ 35 ] I greatly appreciate Dr. Robinson’s commitment to her client and optimism for her future. Ms. C.S. is indeed fortunate to have such a dedicated mental health professional to help her. It was clear from Dr. Robinson’s testimony that she has worked very hard to bring Ms. C.S. a long way to the level at which she is currently functioning.

There is every reason to hope that, with Dr. Robinson’s ongoing help, Ms. C.S.’s psychotherapy will ultimately lead her to exercise better judgment and make better choices on a sustained, long- term basis. Sadly, at this point in time, I must conclude that Ms. C.S. has not as yet arrived at that point in her treatment process. [ 36 ] Dr. Robinson’s testimony made it clear that she has allied herself with her patient and has lost some objectivity in assessing Ms. C.S.’s readiness to assume care of T. This was evident not only in the ways that she rationalized and minimized the import of Ms.

C.S.’s relationship with Mr. R.G. as an indicator of her progress to date. It was also evident in her

interpretation of Dr. Kershner’s parenting capacity report. In a letter responding to Dr. Kershner’s first report, Dr. Robinson wrote, “I do not believe in the statement made in the earlier parenting assessment that, because she had an unhappy childhood, she is incapable of ever parenting.” This statement

was a complete distortion of Dr. Kershner’s assessment and contributes to my conclusion that Dr. Robinson’s opinion regarding the degree to which Ms. C.S. has changed, must be viewed with caution. With respect, her opinion that “Ms. C.S. has made enough progress to deserve another chance” has not been borne out by the rest of the evidence in this case. In particular, I find that the mother herself, in her testimony, did not demonstrate a degree of insight anywhere near approaching that described by Dr. Robinson. 5: THE MOTHER’S TESTIMONY [ 37 ] It should go without saying that a great deal was at stake for Ms.

C.S. in this trial. Her counsel urged me in his closing submissions to be mindful, when weighing her testimony, that she was nervous and stressed and I have done so. This being said, I can only describe Ms. C.S.’s testimony as disappointing and indicative of a person who still has much work to do before coming to terms in a genuine, sincere, sustained way with the role that she has played in the destiny of her children’s lives. [ 38 ] After hearing Dr. Robinson’s testimony and reading Ms.

C.S.’s affidavit, [24] I was expecting to hear her take unequivocal responsibility for the poor judgment that she showed in the distant past (regarding the impact on her children of her relationship with Mr. L.H.B.), as well as the recent past (regarding her relationship with Mr. R.G.). Instead, she minimized and rationalized her past mistakes. She conveyed a rather indifferent matter-of-factness about the choices that she had made. [ 39 ] Ms. C.S. was argumentative and minced words in an attempt to portray herself in a favourable light.

For example, the society’s counsel asked her why she refused to be moved into alternate housing along with the other residents after Robertson House (where she’d been living) had a fire. Her response was, “I didn’t refuse. I said no.” She was asked whether it was true that she had moved in with a friend after the fire at Robertson House. Her response was, “I didn’t move in with a friend. I stayed with her.” Ms. C.S. has moved at least 10 times in the past two years and is still living in a shelter but she refused to concede that she had been transient. When asked whether she saw Mr.

R.G. as a potential parent figure for T., she said, “No, I saw him as a good role model but not a father figure”, but was unable to explain the difference in terms of the potential risk to T. of having any kind of relationship with Mr. R.G. [ 40 ] When asked whether her relationship with Mr. R.G. was a “romantic relationship”, she said, “It was based on roommates but we were also together”.

When asked to clarify this, she said, “We were roommates and friends and we were dating,” but in her view, this was not a romantic relationship. [ 41 ] When asked whether she would agree that a decision to move in with someone in a romantic relationship could be characterized as a large step in someone’s life, she answered, “Yeah, I guess”. [ 42 ] When asked why she moved in with Mr. R.G., a man she barely knew, without first discussing this with Dr. Robinson, whom she’d been seeing every 2 weeks for 4 months, she responded that she was not really sure and that it was a “question of bad timing”.

When asked why she did not first seek advice from Ms. Wright at Women’s Habitat, she said that she had “only just begun” counselling with Ms. Wright, even though she had been seeing Ms. Wright since July 2009 and did not move in with Mr. R.G. until September 2009. When this was pointed out to her, she said, “I guess it was a bad judgment call.” [ 43 ] She admitted to realizing early on in the relationship with Mr. R.G. (which began in September 2009), that this was a bad decision. She knew that Mr. R.G. was going to be neither a long-term partner for her nor a parent figure for T.

She admits to having been advised by Dr. Robinson and her counsellors to terminate this relationship as soon as she told them about it. She admits to having seen “red flags” of abuse during the course of the relationship — important warning signs for which she had been taught to look out and upon which act through her domestic violence counselling. When asked why she did not move out, she responded that “there were no immediate issues” and “the red flags weren’t that bad”. This astonishing lack of insight demonstrated that Ms.

C.S. still does not seem to understand that the whole purpose of learning to recognize “red flags” is so that she could take proactive steps to leave an abusive relationship before the mounting abuse culminated in a burst of violence, which is precisely what happened when Mr. R.G. threatened to kill her at knife point. [ 44 ] As her cross-examination progressed, it became clear that Ms. C.S.’s primary reason for moving in with Mr. R.G. was that she wanted to get out of the shelter, and that the primary reason that she stayed with him so long was that she did not want to go back to a shelter. Ms.

C.S. said that her reasons for staying with Mr. R.G. were primarily economic. This raises a very serious concern for any child who might be in her care, given that Ms. C.S. is currently living in a shelter. With whom will she move in the next time she decides that she no longer wishes to live in a shelter? [ 45 ] I appreciate Ms. C.S.’s desire to obtain independent housing and I understand that her social assistance income did not permit her to obtain the kind of housing that she wanted, but it ought to have been clear to her that the better option would have been to try to get a job and become self-supporting.

Ms. C.S. is a presentable, polite, articulate, healthy young woman who could have tried to secure at least some form of minimum wage employment to earn enough money to move out of Mr. R.G.’s home. [ 46 ] Ms. C.S. said that she did not want to get a job because it would have interfered with her generous access schedule. This is understandable, but I have no doubt that the society would have made efforts to adjust the access

schedule if Ms. C.S. had asked that this be done to accommodate her job. This happens all the time. Frankly, even if the access had been reduced because of Ms. C.S.’s employment obligations, this would have been preferable if it was the only way out of an abusive relationship. [ 47 ] Alternatively, if Ms. C.S. did not want a job to interfere with her access, then she should have moved back into the shelter. The record discloses at least 2 occasions when she had custody of S. and C. while living in a shelter, with the court’s knowledge and consent. In fact, on 6 October 2004, Justice Waldman granted Ms.

C.S. temporary care and custody of the children on condition that they reside in a shelter. However inconvenient Ms. C.S. may have found living in a shelter to be, she ought to have had the good judgment to go back there. She testified that, had T. been returned to her while she was living with Mr. R.G., she would have moved back into a shelter immediately. She does not appear to have understood that her chances of having T. returned to her were non-existent so long as she was residing with Mr. R.G. and that her smartest option was to move to a shelter. She finally did so, but only after being

threatened at knifepoint, after turning a blind eye to the “red flags” of abuse that endured for 7 months, and after ignoring the advice she was receiving from her psychiatrist and counsellors. [ 48 ] Ms. C.S. gave no indication in her testimony that, even looking back at the situation in hindsight, she exercised extremely poor judgment in considering her options and utilizing the problem solving skills she had supposedly acquired through therapy and counselling. Frankly there was no indication that, if the same situation were to arise again, she would handle things differently. [ 49 ] Ms.

C.S.’s insistence that her relationship with Mr. R.G. was temporary right from the start and that she did not intend for him to ever become a parent figure for T., does not mesh with the rest of the evidence. On 19 November 2009, she asked her society worker for overnight access while living with Mr. R.G. Obviously, she wanted T. to begin to integrate into her home life with Mr. R.G. The following month, she brought Mr. R.G. to a Christmas party at the access centre and introduced T. to him. What was the point of doing this if she was truly planning to leave Mr. R.G.?

After what happened with S. and C., on what basis could she justify exposing yet another child to an abusive partner? What does this say about how much Ms. C.S. had changed as of last December? Ms. C.S. was evasive in the way that she dealt with these issues. Her nondescript and non-definitive responses left the impression that she is herself somewhat baffled by the choices that she made during this crucial time in her quest to obtain custody of T.

Moreover, and much more importantly, I was left with the impression that she has yet fully to understand the risk that her relationship choices would necessarily pose to any child in her care. [ 50 ] Ms. C.S. was equally evasive in explaining why she did not ask Mr. R.G. about his relationship with his own child, to whom he had been denied access. She lived with him for 7 months and was prepared to expose her son T. to him as a “good role model”, and yet she did not make the slightest effort to obtain any information about Mr. R.G.’s parenting history. In the face of what Ms. C.S. went through with Mr.

L.H.B., this demonstrates a stunning absence of judgment. When asked why she had not asked Mr. R.G. to tell her about his parenting history, she said, “I never asked him about it because he didn’t want to talk about it.” Was this not a gigantic “red flag” in terms of a potential risk to T.? More to the point, it seems to have been a repeat of the same wilful blindness that she showed throughout her relationship with Mr. L.H.B., who managed to convince her that he had been wrongly convicted of sexually assaulting his step-daughter. [ 51 ] Her poor judgment in relation to Mr.

R.G. did not end when the relationship ended. She did not call the police to report the incident of domestic violence he perpetrated on her, despite the fact that she went to a shelter and had access to counselling and support. When asked why she never reported Mr. R.G.’s conduct to the police, she answered, “I’m not sure.” [ 52 ] The society made much of the fact that Ms. C.S. admitted to having some post-separation contact with Mr. R.G. through text messaging and Facebook. I accept Ms.

C.S.’s evidence that the relationship ended when she said it did and that her several communications with him since they broke up were related only to her attempt to retrieve her belongings and to let him know that someone (possibly a collection agent) had been calling her trying to reach him. [ 53 ] Ms. C.S. took the unusual step of presenting her evidence-in-chief by way of affidavit, which allowed her to carefully prepare and express her thoughts in her own way and in her own time, without the stress of doing so in the witness box.

In her affidavit, she set out her plan for T. and explained the steps that she has taken to change so that she does not repeat the mistakes she made in the past. However, there were two troubling comments in her affidavit: 1. At paragraph 37, she states, “It is important for me to point out that I have made mistakes in the past; however, I have never directly harmed any of my children.” I could not disagree more. By lying to the society and the court and hiding the fact that she was allowing a known paedophile to live in her home, she most certainly was directly harming her children.

She was an enabler, and the consequence was serious: she believes that Mr. L.H.B. sexually abused his step-daughter S. When asked about this, she deflected the blame to Mr. L.H.B. and said that she was under a lot of pressure and influence from him, and also that she had no community supports when all of this occurred. It was clear from her testimony that, even when questioned about the degree of responsibility she bears for the damage done to her children, Ms. C.S. is not yet ready to rethink her assertion that she did not cause “direct harm” to her children.

Before she can reasonably expect a court to trust her to keep a child safe, she should reconsider her assertion that she did not cause direct harm to her children. She must stop minimizing her past conduct if she truly wants to change. 2. At paragraph 14, she states, “I also learned that I had a tendency to jump into relationships. I know now that it is okay to try to be in a relationship but it is best to wait and take a cautious approach before making any type of serious commitment.

I have learned that the appropriateness of a partner has a direct impact on my well being and a child’s well being.” In my view, Ms. C.S. did not go far enough here. Given: (1) her repeated incidents of poor judgment in choice of partners and roommates; (2) what was at stake in this trial; and (3) she ought to by now have been aware that any relationship she enters into will be a testimony to her judgment — given all of those factors, I would have expected Ms.

C.S. to say in her affidavit that it is not okay to try to be in a relationship, at least in the near future, and that it would be best to make no commitments to anyone for at least the near future if she is going to have T. in her care. I would also have expected her to volunteer to abide by a condition, as part of a supervision order, that she not reside with anyone or expose T. to any new friend without the society’s written approval.

This would at least have given the court some assurance that the society would do some investigation (police and criminal record checks, children’s aid society checks) before allowing Ms. C.S. to expose her child to someone new. No such suggestion was made by Ms. C.S. or her counsel; however, when I raised this point during her counsel’s submissions at the end of the trial, he advised that his client would be prepared to abide by such conditions and Ms. C.S. herself repeated this assurance. This suggestion should not have had to come from the judge. The fact that Ms.

C.S., who has an impressive support network to assist her, did not propose this possible term of supervision is noteworthy. [ 54 ] On 20 October 2010, Ms. C.S. told her society worker that she had met a 33-year-old man in the subway. This was said in the context of a discussion about whether Ms. C.S. had truly ended her relationship with Mr. R.G. Ms. C.S. testified that this person, who is named Destiny (she was unable to provide his last name) is simply a friend and that they are not romantically involved. There is no evidence to the contrary. However, I find it somewhat puzzling that Ms.

C.S. would feel the need to mention a casual friend to her society worker in the midst of a conversation about whether she was still involved with Mr. R.G. Throughout the course of her

relationship with the society, which goes back 9 years, this seems to be the only instance where Ms. C.S. volunteered to the society that she had made a new friend. In every other instance, she has mentioned people with whom she had decided to live as either a roommate or romantic partner. There is reason to suspect that Ms. C.S. has once again embarked, albeit more cautiously (she is not living with this person) on what may well become another romantic relationship with an older man. [ 55 ] In

summary, I find that, although Ms. C.S. has made great efforts to make the important changes that she knows must be made, she is not yet at the point where T. could safely be placed in her care. 6: PARENTING CAPACITY ASSESSMENT [ 56 ] Dr. Kershner conducted a parenting capacity assessment on 9 and 16 November 2009 and delivered her report on 27 January 2010. She updated her report on 25 October 2010 after having taken into consideration the mother’s aggressive counselling and therapy regime as well as the notes from the Therapeutic Access Centre. Her conclusion remained the same: Ms.

C.S. lacks the capacity to parent T. [ 57 ] Dr. Kershner conducted psychological testing and found that Ms. C.S. is “very weak in what information she absorbed despite having a good average memory, suggesting that she is closed to input from outside.” In her opinion, “[Ms. C.S.] is restricted in her ability or her willingness to accept information or advice from others.” She writes, [Ms. C.S.] either does not absorb or does not remember what she hears or is told, despite the ability to do so. [Ms. C.S.] herself told me that she figures things out on her own and is not interested in advice from others.

She is closed to input of what could be helpful information. She does not want to hear it, does not absorb and does not remember it. She may be able to repeat it back: she has that ability and it is in her interest to say the right thing. But she does not make it her own. What is noteworthy about these findings is that Dr. Kershner was not aware that at the same time she was conducting her assessment, Ms. C.S. was receiving advice from her psychiatrist and counsellors to terminate her relationship with Mr. R.G. Ms. C.S. was ignoring this advice. This corroborates and validates the conclusion that Dr.

Kershner drew regarding Ms. C.S.’s unwillingness to accept advice from others. [ 58 ] Dr. Kershner found that Ms. C.S.’s personality protocol “suggests a degree of impulsivity and poor planning. Ms. C.S. has a tendency to be oppositional: to do things her own way and to be inclined to want to do them differently than what others may want from her.” She described Ms. C.S. as a person who “can react impulsively, based on her emotions, ignoring what is really happening around her, acting on what she feels from inside herself.

She can be fully irrational.” Once again, this finding is substantiated by the evidence of Ms. C.S.’s calamitous and hasty decisions to move in with roommates on 2 different occasions, as well as her impulsive decision to move in with Mr. R.G., whom she had known only 3 weeks. [ 59 ] Dr. Kershner writes, “it is highly likely that [Ms. C.S.] would repeat her poor choice of partner and expose any children to future hardship, danger or damage. It is highly likely that she will fail to provide appropriate supervision to protect them from others.” Although Dr. Kershner was not aware of Ms. C.S.’s relationship with Mr.

R.G. when she conducted this assessment, she succeeded uncannily in identifying and articulating the precise concern that arises from that relationship. I agree with Dr. Kershner’s summation at the end of her testimony, “[Ms. C.S.] is extremely vulnerable to men who could create a great risk to herself and any child in her care.” [ 60 ] In terms of Ms. C.S.’s mental health, Dr. Kershner found Ms.

C.S. to have low self-esteem and to be “upset, depressed and confused”, and that she “often feels isolated and alone in her own world”, feeling “a strong sense of depression and oppositionality with a sense of morbidity.” Ms. C.S. “tries to counter her depressive feelings by trivializing them”, because she “lacks the normal defences for dealing with life’s difficulties.” She described Ms. C.S. as having “a strong sense of general dissatisfaction with her life but a lack of the skills needed to do anything about it.” She concluded by describing Ms.

C.S. as “closed to input and not motivated to change other than in superficial appearance.” In my view, these particular findings should be treated with caution for 3 reasons: (1) they reflect Ms. C.S. as she was in November 2009, and she has benefitted from an entire year of psychotherapy and counselling since then; (2) although Dr. Kershner updated her report in October 2010, she did not meet with Ms. C.S. to see for herself whether Ms. C.S.’s mental state, personality or degree of insight had changed; and

(3) Dr. Robinson persuaded me that Ms. C.S. has indeed made much progress since meeting with Dr. Kershner, albeit nowhere near enough to eliminate the inherent risk of harm to a child by reason of her poor judgment. [ 61 ] In terms of Ms. C.S.’s parenting skills, Dr. Kershner’s findings were baffling and not at all corroborated by the rest of the evidence in this case. She found that Ms.

C.S. ranked “extremely high” on the Abuse scale, which is part of the Child Abuse Potential Inventory, “suggesting that she is extremely similar in her responses to known child abusers.” Using the Parent Awareness Skills Survey, she found that “Ms. C.S. tended to be mostly uninterested in the child’s point of view, feelings or motivations.” She observed Ms. C.S. at an access visit and found Ms. C.S. to be “overly brusque”, unaffectionate at the beginning and end of the visit, and frequently unresponsive to T.’s cues. She concluded that Ms.

C.S.’s parenting style “is likely to cause children to focus on her, on how to meet her needs, rather than for her to focus on meeting their needs.” She writes, The needs of a child threaten [Ms. C.S.], reminding her of her own unmet childhood needs. She doesn’t want to think about that, leading her to try to avoid seeing what her child needs. In my opinion, she would come to resent a child in her care, feeling jealous that they were having a better time of it than did she as a child. She would come to resent her own child. In her opinion, Ms.

C.S. lacks parenting capacity because “she is not able to pay consistent attention to a child, is prone to ignore or trivialize emotional needs, is not reliably able to supervise and protect and is not able to provide a secure attachment relationship.”

[ 62 ] Dr. Kershner observed Ms. C.S. at one access visit and found her to lack parenting ability. This is in direct contradiction to the evidence of numerous society workers who observed Ms. C.S. with T. over many months at dozens of access visits. In addition, the staff at the Therapeutic Access Centre praised Ms. C.S.’s parenting skills and called her a “model parent”. When asked about this discrepancy, Dr. Kershner stated that, because of her training and experience, she has the ability to perceive nuances and details that most access supervisors would fail to detect.

I appreciate and greatly respect the depth of knowledge and expertise that Dr. Kershner applies to her observations of parent-child interactions. However, I am of the view that her impressions, stemming from a single occurrence, are not as reflective of Ms. C.S.’s true instrumental parenting skills at visits, as those made repeatedly and longitudinally by numerous others who, although not as highly trained as Dr. Kershner, are also in the business of observing access visits. [ 63 ] It is also fairly obvious that the society itself did not agree with Dr. Kershner’s opinion of Ms.

C.S.’s instrumental parenting skills. It received the assessment report in February 2010 and continued to allow generous unsupervised access up to the present time. The society was correct in taking this position. [ 64 ] In

summary, I found Dr. Kershner’s report very helpful in understanding Ms. C.S.’s psychological makeup and personality, and her conclusions in those respects were highly corroborated by the rest of the evidence, especially by Ms. C.S.’s own testimony. The elements of Ms. C.S.’s personality that are likely to put a child at risk, as described by Dr. Kershner, were borne out by Ms. C.S.’s relationship with Mr. R.G. However, her conclusions regarding Ms. C.S.’s current level of insight and willingness to change were given only minimal weight, having regard to the fact that she has not seen Ms.

C.S. in over a year, during which time Ms. C.S. has made some progress through psychotherapy and counselling. In particular, I do not agree with her conclusions in her update report that Ms. C.S. is a “good liar and con artist” who is “apt to put on a show to achieve what she wants.” I feel certain that, if Dr. Kershner could have witnessed Ms. C.S.’s testimony, she would have reconsidered her characterization of Ms. C.S. in this way, as Ms. C.S.’s testimony was anything but the work of a good actress. Finally, Dr. Kershner’s conclusions regarding Ms.

C.S.’s ability to provide a child with consistent love and affection, and to meet a child’s instrumental physical and emotional needs, are not accepted, as they are not corroborated by the consistent observations of numerous access supervisors over a period of 20 months. 7: SOCIETY’S EFFORTS TO ASSIST THE FAMILY [ 65 ] The society has provided the parents with generous access. [25] It arranged and paid for a parenting capacity assessment, and when it obtained new information about the mother’s rehabilitative efforts, it arranged for the assessment to be updated.

In my view, the update should have included a meeting between the assessor and the mother, as it seems to me that Dr. Kershner did not, by simply reviewing letters and reports, obtain a full and fair picture of how much Ms. C.S. had improved over the past year. Moreover, the society knew as early as 10 September 2009 that Ms. C.S. was seeing a psychiatrist, [26] but it clearly forgot about it, because Dr. Kershner was not put in touch with Dr. Robinson until after the first assessment report was written. [ 66 ] The society apprehended T. at birth by reason of Ms. C.S.’s past parenting.

Prior to T.’s birth, there was one planning meeting to identify the tasks that Ms. C.S. would have to accomplish if she wanted to have T. in her care. This is the meeting referred to in paragraph [9] above. It is true that the only task remaining unaccomplished is to obtain suitable stable housing, and this is not a problem, as I would have had no hesitation in allowing Ms. C.S. to live at Robertson House with T. if there were no other protection concerns. [ 67 ] In terms of any other efforts made to assist Ms. C.S., there were not many.

The society did not trust her and was not prepared to believe that she would ever change sufficiently to obtain custody of T. Nevertheless, the society did not initially seek Crown wardship in this status review application. The original status review application filed on 13 August 2009 sought a further period of 3 months wardship to give Ms. C.S. another opportunity to make gains, in recognition of the impressive support network of therapists and counsellors that she had established. [ 68 ] The society should have followed up with Dr. Robinson after Ms.

C.S. told her worker in September 2009 that she was receiving psychiatric care. However, this is not entirely the society’s fault. Once the status review proceeding commenced, Ms. C.S. did not mention her psychiatrist again until a planning meeting on 11 March 2010. Moreover, it was not until that meeting that Ms. C.S. gave any real detail about the other counselling services in which she was engaged. It is clear from the evidence of society workers Ms. Khaykin and Ms. McCarthy that, prior to the meeting in March, Ms. C.S. was closed and not forthcoming with information in her interactions with the society.

By that point, T.’s time in care had reached the 12-month limit and the mother’s involvement with Mr. R.G. did not bode well for her parenting plan. [ 69 ] The society has investigated the possibility of placing T. with a family member. Neither parent has proposed any potential caregivers. Prior to the trial, the father was proposing to place T. with his partner and the society completed a criminal record check for her.

However, this plan was withdrawn mid-way through the trial. [ 70 ] In all of the circumstances, I am satisfied that the society made reasonable and appropriate efforts to assist the parents and to explore the least disruptive and intrusive option that would be in T.’s best interests. 8: T.’S BEST INTERESTS [ 71 ] In reviewing the factors that must be considered under subsection 37(3) of the Act in determining T.’s best interests, I consider the most important factors in the circumstances of this case to be: 1.

The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. [ 72 ] By all accounts, T. is a happy, healthy child who is meeting all of his developmental milestones. Ms. C.S. is capable of

meeting T.’s needs so long as she is not involved with an abusive partner. To date, over the past 20 months, she has not demonstrated a sustained commitment to put T.’s need to be kept safe from potentially abusive men ahead of her own need to form hasty relationships. 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. [ 73 ] T. urgently needs a permanent placement with loving, responsible caregivers with good judgment. 6.

The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. [ 74 ] T. has never lived with his mother and only knows her as a visitor, not a primary caregiver. He visits with his mother 3 times per week for 3 hours, mostly unsupervised. He enjoys these visits but is not strongly bonded to her. He has little difficulty detaching from her at the end of visits. Although sometimes he cries (as occurred on 4 October 2010), most often the visits end without any apparent impact on T.

For example, on 25 October 2010, T. was “full of smiles, leaving willingly.” A similar departure was observed by Dr. Kershner. [ 75 ] T. visits with his father once a week. Sometimes the father’s partner attends the visits. All visits are fully supervised by society staff. The father and his partner have demonstrated good parenting skills and T. has enjoyed these visits. However, there is no evidence to suggest that a serious bond has formed between T. and his father or between T. and his father’s partner. [ 76 ] T. has a half-sister, S., and a brother, C. S. and C. are Crown wards.

They have very severe special needs. They do not reside together. Each child resides in a therapeutic, structured long-term placement. The parents exercise monthly access visits, and the siblings see each other infrequently. T. does not know these siblings and, at the present time, it is not in his best interests to become acquainted with them. For that matter, there was no suggestion in the evidence or submissions that it was in his siblings’ best interests to get to know T. No mention of sibling access was made by anyone at the trial. 7.

The importance of continuity in the child’s care and 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’s remaining with or returning to a parent. [ 77 ] T. has lived in the same foster home since birth. No evidence was presented as to the foster parents’ willingness to adopt him. Obviously, this should be considered, as he has done very well in that home.

If this is not possible, there will be little difficulty finding an equally suitable home for him. All parties have agreed that this child is adoptable. Although there will be some disruption for him in having to detach from his foster parents and form a bond with his adoptive parents, T. is a happy, well adjusted child who should have no difficulty overcoming this initial disruption.

In all of the circumstances of this case, and having considered the mother’s plan of care as set out in paragraph [26] above, and having found it insufficient to meet T.’s best interests, I find that the disruption concomitant with adoption is unavoidable and ultimately in T.’s best interests. 10. The effects on the child of delay in the disposition of the case. [ 78 ] T. has been in care for 20 months, well in excess of the 12 month time limit set out in subsection 70(1) of the Act . He urgently needs and deserves a long term permanent family placement.

No one suggested at the trial that an extension of time under subsection 70(4) be considered, and therefore I have not addressed the appropriateness of granting an extension. However, at the end of her testimony, when I asked the mother whether she had anything else she wanted to say, she said, “I wish I had more time.” I asked her how much time she would want, and she did not answer me. Instead, she said that she did not really mean to suggest that she wanted more time.

Had I been asked to give her more time to prove that she has changed sufficiently to have T. placed in her care, I would have had no hesitation in concluding that an extension of time would not be in T.’s best interests. He has waited long enough for his mother to develop the necessary insight and judgment to keep him safe and well cared for. He can wait no longer. Ms. C.S. can have more relationships and might even have more children, but T. will not get a second childhood. He needs a forever family now. 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. [ 79 ] In my view, the circumstances of this case make the above two factors the most important in the analysis of T.’s best interests. As I have indicated throughout these reasons for decision, Ms. C.S. has made considerable efforts since T.’s birth to get the assistance she has needed for many years.

Her commitment to psychotherapy, counselling and community programs is to be commended and encouraged. She has made some progress in addressing her childhood traumas and developing the insight to understand the reasons for and consequences of her past choices. Unfortunately, the protection concerns that gave rise to the finding that T. was in need of protection continue to exist. [ 80 ] Sadly, she exercised very poor judgment in her relationship with Mr. R.G. Her troubling conduct lasted from September 2009 to April 2010. This was a most crucial time during which Ms.

C.S. was supposed to be demonstrating improved insight, decision- making skills, receptivity to advice from those who were trying to help her, and most of all, the ability to put T.’s needs ahead of her own. Regrettably, Ms. C.S. has failed to demonstrate a sustained capacity to show that she has made the necessary changes in her life to ensure the safety of any child who might be placed in her care. I have therefore concluded that T. would be at great risk of harm if placed with Ms.

C.S. at this time. [ 81 ] Accordingly, having regard to all of the circumstances and factors referred to above, I find that the least disruptive alternative that is in T.’s best interests is to make him a Crown ward. Further, I find that neither parent has discharged the onus under subsection 59(2.1) of the Act to enable the court to make an access order.

9: ORDER [ 82 ] For all of the above reasons, there shall be an order making T. a Crown ward, with no access. [ 83 ] I want to thank all three counsel for the professional, sensitive, child-focussed and efficient way in which they conducted this trial.