Jewish Family and Child Service of Greater Toronto v. N.D., 2021 ONCJ 369

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

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7) , 87(8) and 87(9) of the Act . These subsections and subsection 142(3) of the Act , which deals with the consequences of failure to comply, read as follows: 87.—

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

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

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

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. ONTARIO COURT OF JUSTICE CITATION: Jewish Family and Child Service of Greater Toronto v.

N.D., 2021 ONCJ 369 DATE: August 17, 2021 COURT FILE No.: 30224/19 BETWEEN: Jewish Family and Child Service of Greater Toronto Applicant , — AND — N.D. / Respondent Mother E[…] Child and Family Services, New Brunswick Respondent Father’s Band Before Justice Debra Paulseth Judgment released July 9, 2021; Amended August 17, 2021 [1]

Haley Gaber-Katz and Arthi Srivarapathy .............. counsel for the applicant society N.D. ..…………………………………………………………………….representing herself Tammy Law …………………………………………………………………...Amicus Curiae Paulseth J.: Overview: [ 1 ] The child, (S-L. or the child) was born on […], 2019. On February 14, 2019, the Applicant (society) brought the child to a place of safety because N. D. (the mother) had left the hospital without her and the child’s father was incarcerated. The society was involved voluntarily prior to the child’s birth.

The concerns were domestic violence between the parents and mother’s mental health that appeared to require significant medication. [ 2 ] The father of the child, D.J.L. (the father) pled guilty to several counts of assault and a breach of recognizance, all with respect to the mother. He was sentenced to 13 months in custody and was not released until shortly after the child’s birth. [ 3 ] A Protection Application, pursuant to the Child Youth and Family Services Act, 2017 , ( CYFSA or the Act ) was filed with the court.

The child was returned to mother under temporary supervision on April 25, 2019. [ 4 ] At that time, mother’s family doctor and her pain doctor indicated her medications would not prevent her from parenting. [ 5 ] On November 26, 2019, the parties resolved the case with a statement of agreed facts that supported a finding in need of protection under subsections 74(2) (b)(ii) and (

k) of the Act but with a disposition of no further protection order. [ 6 ] On August 15, 2019, the child’s father died of a drug overdose. [ 7 ] Father was a member of the E[…] First Nation. This Band was served with court documents for both protection proceedings and has not filed an Answer nor participated in either case. The Band advised the society that unless there was a plan by father in New Brunswick, they would not be involved. [ 8 ] On December 17, 2019, the society closed its file. [ 9 ] On May 7, 2020, S-L came into the care of the society again at the request of the mother.

A Temporary Care Agreement (TCA) for two weeks was signed by the society and mother; the purpose of which was to give mother an opportunity to adjust to new medication and address her mental health issues. An extension for two weeks was signed on May 20, 2020, at mother’s request.

On May 21, 2020, mother said she wanted S-L back on May 21 st but later agreed to a return on May 27, 2020. [ 10 ] On May 25, 2020, mother refused to enter a voluntary working agreement with the society which would be engaged once the child returned home. [ 11 ] A home visit on May 27, 2020 led to a disagreement between mother and workers about the suitability of the home for an infant.

The two parties could not agree upon a further TCA and the society decided to apply to the court for a protection order. [ 12 ] On that same day, mother contacted the foster parent, who became concerned about mother’s mental health and asked police to call on mother. Mother was taken to hospital by police but not admitted. [ 13 ] A Protection Application dated May 29, 2020 was filed with the court and on June 1, 2020, the child was temporarily placed with the society with access to the mother. A date for a contested motion was set but adjourned at the request of counsel for mother.

Subsequently, she did not oppose the society’s motion. [ 14 ] The Protection Application was amended twice and now seeks a finding in need of protection under subsection 74(2)(b)(ii) and (

h) of the Act and an order of extended society care without access. The society has changed its access position to an exchange of cards and letters 3 times a year with the child as the holder of access. The written plan has been filed. [ 15 ] Mother is opposed to the finding and disposition being sought by the society and wants her daughter returned to her. She indicates in her Answer of January 4, 2021 that, in the alternative, she would accept a supervision order with any terms and conditions requested by the society.

In her evidence at trial, mother sought an extension of the maximum interim society care order for a further three months as an alternative, and is seeking, if applicable, post extended care access for herself and her sister. [ 16 ] Mother is self-represented. The case management judge appointed an amicus curiae (amicus). The position of the amicus is that mother should have access. Issues for the court to decide: • Is S-L a child in need of protection? • If so, is a further order necessary to protect the child in the future? • If so, what disposition is in S-L’s best interests?

Should there be an extension to the maximum period of interim society care? What is the least intrusive order that would meet her best interests?

• If an extended care order is made; is access in the child’s best interests? If so, what access order would be in S-L’s best interests? Who would be the holders and recipients of that access? Assistance to the Self-Represented Parent: [ 17 ] A parent representing herself in a child protection proceeding has a number of challenges, which the court addressed in the following ways:

a) Counsel: Legal Aid Ontario provided mother with a certificate and two successive counsel represented her in the proceedings; the court then ordered amicus curiae counsel, also funded by Legal Aid Ontario. This counsel was invaluable in making the necessary procedural and evidentiary arguments often necessary in these trials; in particular, I refer to hearsay in affidavits, business records, medical reports and records.

b) Technology: The society had previously provided mother with a cell phone with zoom downloaded on it. For the purpose of the trial, the society was asked to provide the mother with a lap top computer and access to the internet, which it did.

c) Witnesses: mother wanted to call two previous social workers who are no longer with the society to give evidence on her behalf. The court asked the society to summons those witnesses and provide the witnesses with their case notes, which were also given to the mother as part of the disclosure. The amicus also assisted mother in organizing a time convenient for the maternal aunt to testify.

d) Witnesses for society: On several days, mother did not attend court and did not contact anyone. Expert medical evidence which had already been re-scheduled from another day when mother was ill and could not attend, was asked by the court to proceed. When mother next attended, the court made the audio recordings available for her at two different times, after court and before court.

e) Transcripts: After this trial started, mother referred to transcripts. She apparently had also mentioned transcripts during previous proceedings. No transcripts had actually been ordered. The court asked amicus to provide her with the forms and procedure for ordering transcripts. Part way through the trial, mother asked the court for transcripts of the trial as it progressed. The court did not want to delay the trial by suddenly ordering daily transcripts but offered to make the audio recordings available for mother.

f) Cross-examination: the court ensured that mother or the Amicus had the last cross-examination/re-examination time. When mother called previous society workers, the amicus raised as a preliminary matter, the issue of mother’s ability to cross-examine these witnesses. The court ruled that they were adverse in interest due to their previous position with the society, and permitted mother great latitude in her questioning.

g) The Court Day: The court knew that mother suffered form mental health challenges, as well as the normal stress associated with these court proceedings. Mother was asked whether early morning court starts (9:00 a.m.) or later times (sitting until 5:00 p.m.) were better for her and tried to accommodate those times when possible. If mother let someone know she was ill, the court delayed for mother, unless an expert doctor was scheduled, or re-scheduled in the case of her psychiatrist, whose records or reports were also being filed. Mother was often late for court. The court asked her to use her computer clock which was the same as the court’s computer clock.

h) Mother’s Evidence: The court advised mother that she could prepare some notes to guide her through her evidence, marking any important information she wanted to make sure she wouldn’t forget. Mother was also advised that she could take breaks when she wanted. Blended Hearing: [ 18 ] The court conducted a blended hearing. Subsection 93 (2) of the CYFSA provides that evidence related only to the disposition of the matter shall not be considered in determining if the child is in need of protection.

Evidence relating to the family plans and the society’s long term plans was considered after the finding in need of protection was made. Previous Protection Proceedings : [ 19 ] On November 19, 2019, mother and the society signed a Statement of Agreed Facts , which included the following admissions by mother:

a) In the summer of 2018, mother was in a relationship with a violent partner (soon to be the father of S-L). She contacted the society for information. In June of 2018, mother made a suicide attempt but changed her mind and called 911 for help.

b) The father was incarcerated from August, 2018 to May, 2019 due to his violence against the mother. (see Toronto Police Service reports later in this decision).

c) Mother acknowledged mental health challenges and indicated she had been diagnosed as bipolar, with post traumatic stress disorder. She also suffers from significant physical pain, related to her menstrual cycles and in her legs. She takes a number of medications: opioids for the physical pain, and other medications for her disorders and anxiety and insomnia.

d) Prior to the child’s birth, mother was treated by Dr Martinovic, a psychiatrist at Women’s College Hospital, as part of a special program for mothers with complex needs. She was also seen by her family doctor, Dr Tam.

e) On October 7, 2018, mother was seen at the emergency department of Sunnybrook Hospital, reporting anxiety and insomnia.

f) The child was born on […], 2019 at Sunnybrook Hospital. Mother and child remained in hospital, due to medication complications for the mother. Mother was repeatedly advised not to have the child sleep with her because of the level of sedation Mother was under. Finally, the nurse was forced to remove the child from mother and bring her to the nurses’ station. Later that same night, February 13, 2019, mother left the hospital and couldn’t be located. The maternal grandmother brought her back to the hospital 12 hours later.

g) Father is Indigenous. His band is the E[…] First Nation in New Brunswick. Mother identified as Jewish so Native Child and Family Services (NCFS) transferred the matter to Jewish Child and Family Services (the society).

h) On February 14, 2019, the society brought the infant to a place of safety and initiated a Protection Application. Mother attended every visit and was very attentive to the child’s needs. She also appropriately requested feedback and incorporated the suggestions into her visit.

i) Visits transitioned to the mother’s home and on April 25, 2019, the temporary care and custody order was varied to place the child with mother under temporary supervision by the society.

j) Mother worked cooperatively with the society workers, the public health nurse and a support worker from Hospital for Sick Children. Mother also agreed to attend for grief counselling through Victim Services, following the death of the father from a drug overdose.

k) In May, 2019, the society had concerns about mother’s compliance with the terms of the temporary supervision order. The court declined to vary the order but told mother she must make herself available for home visits with the society workers.

l) The parties agreed to a finding in need of protection under subsections 74(2)(b)ii) and (

k) based on : concerns about the impact of mother’s mental health and medications on her ability to parent; the domestic violence , and the mother abruptly leaving the hospital without notice.

m) Mother was seeing her family doctor and psychiatrist regularly and no concerns were noted. Mother was working cooperatively with the society workers around home visits and financial assistance. The parties agreed that no further order was necessary. Overview on Credibility and Reliability: [ 20 ] The court did not find mother’s evidence to be credible or reliable. Some examples are in the following paragraphs. [ 21 ] Mother often complained that she did not receive emails from the society worker. On one occasion that was true.

On many other occasions it was patently false as mother would reply to email chains that she must have received. [ 22 ] Mother advised the society worker that she was at higher risk for covid due to her liver condition.

Her family doctor said this was not true. [ 23 ] Mother indicates that her vision and hearing is not 100% There is no medical evidence to support that. [ 24 ] Mother has stated in the past that she will cooperate with community resources and then terminated her involvement with them. [ 25 ] In the past, mother has told the worker that she was involved in two different counselling programs but refused to give consent for the worker to contact them. [ 26 ] Mother now says she will go to a 2 week in-patient program.

There are no details about this program [ 27 ] As many of mother’s doctors have noted, she is a challenging historian. Her tangential thoughts and actions have led to many inconsistencies in her evidence. She often presented in court as groggy, unkempt, and unable to look at the camera directly. Toronto Police Service have described her in similar terms during their contacts with her. [ 28 ] Mother is unreliable. She cannot be on time and is often sidetracked to other activities.

She forgets that she has told you her phone is completely broken and then is late for court as she had to take an important call on her phone. [ 29 ] Despite clear evidence to the contrary, mother will often say she has done her research and she “knows what she is doing”. [ 30 ] I found all of the social work, case assistant, and foster parent witnesses for the society to be credible and reliable. Wherever possible they consistently spoke positively about the mother and made every effort, including in the month before this trial, to work with mother and try to increase her access.

Where mother’s evidence is inconsistent with the society workers and foster parents, I prefer the society’s evidence. Evidence for the society Family service worker [ 31 ] On May 6, 2020, mother called the society and the assigned family service worker (the worker) phoned her back on May 7, 2020. This worker gave evidence in this hearing. [ 32 ] This worker testified that mother explained that she had not been feeling well, physically or mentally. She needed to sort out her medication with her family doctor and she didn’t have a psychiatrist.

Her family couldn’t help her due to the Corona virus -19 pandemic (covid). She wanted to go into a rehabilitation program for mood and anxiety disorders but didn’t want a hospital setting. A two week temporary care agreement (TCA) was signed by mother and the society. [ 33 ] On May 13, 2020, mother advised the worker that she needed an extension of the agreement because an increase in her pain medication was causing her to be drowsy but her psychiatric medication was improving her moods.

On May 14, 2020 mother advised she wanted S-L home on the expiry date of May 21, 2020. [ 34 ] On May 15, 2020, the society workers met with the mother, her sister, and the maternal grandmother to discuss supports for mother upon S-L’s return home. Mother said she was still experiencing a lot of pain and asked for a one week extension. On May 19,

2020, mother agreed to a two week extension. [ 35 ] The society said it had to confirm with her pain doctor and family doctor that she could manage a young child while on her medications. Dr Morgan, her pain doctor, recommended new medication, suboxone, as better than opioids, which become addictive and lose their potency over time [ 36 ] On May 20, 2020 mother was upset and crying throughout the home visit and signed the extension agreement. On May 21, 2020, mother sent an email terminating the agreement. [ 37 ] .

The society agreed to the return but asked mother for her voluntary cooperation with the society following the return of S-L. [ 38 ] Arrangements were made for a home visit on May 27, 2020 and a draft service agreement was sent to the mother. Mother wanted more time to consider the agreement and the society agreed. [ 39 ] The home visit of May 27, 2020 was scheduled for 1:30 pm.

When the worker and the case aid arrived at the home, Mother was still in her bathrobe and the apartment was extraordinarily cluttered; such as, multiple boxes piled high, a Christmas tree, a tree stump, no place for S-L to sleep, some of the floor boards removed, cigarette butts and a syringe on the kitchen counter. The condition of the apartment had deteriorated significantly since May 7, 2020.

When the two workers explained that the child could not be returned, mother locked the apartment door and would not let them leave. [ 40 ] Eventually the workers were able to leave but mother followed them to the parking lot, screaming at them the whole way. [ 41 ] Mother sought another extension of the TCA but mother and the society could not agree on the wording. The society decided to consider the child in a place of safety and to file an application with the court. [ 42 ] Mother then called the foster mother, who became concerned about mother’s health and asked the worker to call 911 for a well- being check.

Mother was taken by police to Humber River Hospital but not held involuntarily. [ 43 ] The court proceedings have been delayed by mother retaining different counsel and she is now self-represented. [ 44 ] The worker has had a difficult time communicating with mother. Mother often denies receiving e-mails.

There is evidence brought forward by the society that on one occasion an email was sent to mother at a wrong address, but a search of their files could identify no other instance. [ 45 ] Mother has repeatedly set up meeting times by phone or zoom and then not attended or asked to re-schedule and again did not attend. [ 46 ] The worker tried to ensure the plan of care meetings, mandated by the Regulations attached to the Act , were set up at mother’s convenience but mother never attended.

These important meetings, focused on S-L, were held on June 4, 2020, September 29, 2020, November 17, 2020, and February 18, 2021. [ 47 ] The worker tried to set up a

schedule of access as soon as possible after the agreement was terminated but there was some miscommunication between the worker, mother’s counsel, and mother. Mother initially missed several scheduled visits with S-L, claiming she didn’t know when they were.

When she complained, she replied to an email that actually set out the visit details. [ 48 ] The worker in her sworn affidavit and in her courtroom testimony said that she was always polite to mother and always apologised for any miscommunication. [ 49 ] Mother sent a list of seven demands for S-L’s care while in the foster home.; for example: limited electronic time; no meat; no vaccines (the court later ordered the child to be vaccinated); a child psychologist; no emergency hospital visits for the child unless advised to do so by a physician or Telehealth Ontario; and the continued use of the Russian language.

Two foster mothers for the child testified that they were familiar with the requests and tried to follow them. The worker responded in writing to all the requests in a most respectful manner. [ 50 ] The worker also put in writing the concerns of the society and what they were requesting to be done before they would agree to return S-L to mother’s home. The initial concerns related to the safety of the mother’s home. The society offered concrete assistance in terms of cleaning, storage, and child proofing.

In fact, since May 27,2020, the society has not been permitted back in the mother’s home. [ 51 ] Initially the child was returned to her earlier foster home. The mother and the first foster mother have a very positive relationship and the foster mother continued to provide support to the mother. In August of 2020, the child was moved to another foster home, which can, if appropriate, provide a permanent home for S-L. [ 52 ] Concerns developed around the mother’s inconsistency in exercising access. In the last 16 months, mother often failed to attend scheduled visits.

Mother would confirm one day and still not attend the next day. She could not give a reason for missing these visits. The visits were only scheduled weekly. On at least two occasions, the society tried to increase them to twice a week, if mother would be consistent for a short period of time. Mother could not do it. [ 53 ] Despite early efforts by the society worker to confirm an access

schedule as soon as possible after S-L officially came into care May 27, 2020, the first visit was virtual and not until June 9, 2020. Mother would not agree to an in person visit for five months until October 29, 2020. [ 54 ] From June 1, 2020 until October 22, 2020, mother was offered 37 virtual visits and only attended 12. [ 55 ] From October 29, 2020 until May 12, 2021, mother only attended 9 of the weekly in person visits: October 29, November 5, and 12, December 3, 2020, January 26, 2021, February 25, and March 11, 18, and 22, 2021. Various mechanisms were attempted to ensure

the child was not disappointed. At first mother was to confirm before 9 am the day of the visit; then she had to arrive before the driver left the foster home. These visits were scheduled to be weekly for 2 hours in length supervised at the society [ 56 ] By the end of 2020, the society was concerned about the negative impact on S-L of the inconsistent visits. [ 57 ] A meeting was scheduled with mother to review this issue but she failed to attend and then changed lawyers.

The court set out the new expectations on January 8, 2021 – mother must confirm the day before and must arrive at the office before the child is brought. Once mother attended 4 visits in a 5 week period (allowing for one missed week) the visits would be increased to twice a week. Later that day, mother accused the society of violating her human rights and insisted that the society pay for her transportation to and from the visits, due to her disabilities.

The mother’s visits never increased to twice a week. [ 58 ] The society asked mother several times to complete a Wheel Trans application and offered to assist her with the form. The mother had the forms to apply for ODSP and the case aid offered to help her to complete them. Mother did not trust the society and would not let them help her with these forms. [ 59 ] Again, mother was inconsistent in attending visits, even when she did confirm in advance. An example of the chaos around mother’s visits is S-L’s birthday in February, 2021:

a) On February 3, mother asked if her family could attend an access visit for S-L’s birthday on […]. The worker agreed but asked her to celebrate it on the scheduled visit date of February 4 th rather than on the weekend.

b) Mother wanted to send a video which was also fine. After the confirmation deadline, mother eventually confirmed the visit for the next day.

c) Mother then asked for the foster parents to provide a cake and decorations and they agreed to do this, despite the lateness of the request. Later that evening, mother cancelled the cake and decorations.

d) On the morning of February 4 th , mother emailed to say she would not be making the visit and she never sent the video. She then asked for a video call on the actual day of S-L’s birthday, the following Saturday.

e) The worker arranged for that with the Emergency After Hours Service. Mother did attend without incident. Her family did not. [ 60 ] For 5 weekly visits from February 25, 2021 until March 22, 2021, mother attended regularly as she was given a ride from the former foster mother. [ 61 ] On March 30, 2021, mother attended about an hour late for the visit. The visit had been cancelled. The worker noticed how mother’s appearance had deteriorated: matted hair and pants falling down such that her pubic area could be seen.

Mother had brought bags of toys, despite being advised not to do so on several occasions due to the covid cleaning protocols for visits. [ 62 ] Mother did not attend for the next two visits but sent word she had been rollerblading and couldn’t get there on time. She next saw S-L on June 3, 2021. [ 63 ] On April 15, 2021, mother advised that she could not attend for her visit despite having confirmed the day before. She then sent a lengthy email to the two workers, their manager and to security at the society building.

The email can best be described as a lengthy, rambling but intense rant with threats and antisemitic attacks. The matter was referred to the police. Building security would not permit mother to come into the building until the police investigation was completed. Virtual visits were offered to mother. In the end, no charges were laid but new security protocols were conditions of mother’s visits. Case aid worker [ 64 ] The case aid worker gave evidence. Her role was to provide support to mother, including financial assistance and advocacy for community supports.

She also supervised visits She was involved both during the earlier time that S-L spent in care and in the current time period.. [ 65 ] During the first period that S-L was in care, mother grew in confidence during the visits. Mother would seek advice and support from the case aid and follow her tips. As access expanded into the home, the case aid would help mother by making medical appointments for the child regarding a superficial growth on the S-L’s hand and provided financial support in the form of gift cards for baby supplies.

Mother was resistant to the case aid advocating for Ontario Works financial support, even though she was in arrears in rent payments. [ 66 ] When S-L came back into care in May of 2020, the same case aid was re-involved for support. Mother told her she was “unravelling” due to her doctor being on maternity leave. Mother said she wanted to go into a rehab centre for her depression and anxiety but couldn’t do that with S-L in her care. This worker provided mother with a cell phone with video capacity for virtual visits. [ 67 ] This case aid described the ongoing issues with mother attending visits.

For example on June 25, 2020, mother did not attend for the visit and the visit was ultimately cancelled. Mother phoned this worker at 11:45 a.m. and said she would have been there by 10:05 a.m. but she had gotten off the bus to get a Starbucks coffee. The worker said it was now 11:45 a.m. and S-L had waited but then been driven back to the foster home.

Mother said she had arrived by 11 a.m. but then had to return to Starbucks as she had forgotten her phone there. [ 68 ] Again, the worker tried to help mother with her rent arrears but the mother put her off until the next visit. [ 69 ] On July 2, 2020, the date for the next visit, mother did not attend. This worker tried to reach mother, unsuccessfully, by phone and also by calling mother’s neighbour. On July 9, 2020, mother had not arrived by 1020 a.m., and the visit was cancelled.

[ 70 ] On October 29, 2020, mother finally attended her first in person visit since the termination of the TCA in May of 2020. Upon arrival, S-L appeared to recognize mother and smiled. The child brought toys to mother and responded to mother. Sadly, mother spent more time on her phone taking pictures than in engaging with the child. S-L would follow mother around, but mother was not responsive. In the end, mother talked to foster mother. [ 71 ] In the visit of November 5, 2020, the foster mother had to settle the child down at the start of the visit. Mother wanted to just hold and snuggle the child.

There were some positive moments. This worker encouraged mother to play with the child but she couldn’t consistently engage her. They went outside, but mother was still unresponsive to the child’s play. [ 72 ] On November 12, 2020, mother arrived for the visit and tried to insist to the security staff that she did not need to wear a mask. This worker provided her with a mask. There was minimal interaction between mother and the child. Mother wanted to talk with this worker about setting up the child’s room at home.

The worker kept re-directing mother to engage with the child and offered to discuss the home plans after the visit. The child was quiet. [ 73 ] Mother did not attend for the December 24, 2020 visit and did not contact the society. Thereafter the new confirmation protocol was put in place [ 74 ] On February 25, 2021, mother arrived early for the visit and ran through the lobby screaming “I’m here”. She told this worker she was planning for the child’s return and had read books on pain treatment and registered with three different agencies for mental health supports and treatment.

She could not, however, provide the names. [ 75 ] On this same day, when the child arrived for the visit, mother picked her up and danced around the room. For the remainder of the visit, mother could not engage with the child for more than a few minutes at a time, and only when the child prompted the play. [ 76 ] On March 4, 2021, mother was much more engaged in the virtual visit, and could remain focused on the child. On March 11, 2021, however, mother reverted to the previous style and could only engage for a few minutes at a time.

When the child remained unengaged, mother asked the worker “what am I supposed to do?” [ 77 ] On March 18, 2021, mother brought 7 pairs of children’s boots for the child to grow into. She would occasionally play with the child for short bursts of energy, but she changed the toys so frequently, the child could not follow and was left standing there. [ 78 ] Mother arrived for the March 22, 2021 visit very upset about the death of a relative and her inability to straighten out her medications between her family doctor who was still on maternity leave and the covering doctor.

She said she was trying to connect to a professional through CAMH. The visit was similar to the others in that mother could engage for short periods of time only. [ 79 ] The case aid described mother’s appearance as much more unkempt and dishevelled. [ 80 ] Mother did not attend another visit until June 3, 2021. Child in care workers [ 81 ] Two child in care workers gave evidence.

A child in care worker is responsible for the child while in the care of the society. [ 82 ] The first child in care worker was involved from May, 2020 until January 2021, She was responsible for the child while in foster care and supervised some access visits. She was responsible for the child’s speech therapy, developmental assessment and the support of the attachment specialist. [ 83 ] The previous foster family was not a long term placement so S-L was transferred on August 5, 2020 to another home.

After two weeks, unfortunately, this home could not manage her behaviour and she was moved to the current foster home on August 31, 2020. Both foster families have provided photos and videos to the mother. [ 84 ] In all of the plan of care meetings, the foster parents discussed how they were encouraging the child’s Russian and First Nations’ heritage. The foster parents asked for assistance from mother with lists of Russian words, music, videos or anything the foster home could use with S-L. None were ever provided. [ 85 ] Following an assessment, S-L began having weekly speech therapy in the foster home.

If mother was visiting regularly, the goal was to include her and do the therapy during the virtual visits.

This could not happen. [ 86 ] Throughout the fall of 2020, S-L was exhibiting some concerning behaviour in the foster home : • Aggression towards the other child in the home; • Being hard to console; • Difficulty eating; • Difficulty transitioning back to the foster home after visits or missed visits – crying for long periods, refusing to eat, struggling at bedtime; • Calling out for her “mama”; kissing and/or throwing the picture of her mother. [ 87 ] An attachment specialist was consulted and provided suggestions to the foster family. [ 88 ] This worker supervised several virtual visits in the spring and summer of 2020.

Mother failed to appear on several. In those she attended, she would speak Russian to S-L.

[ 89 ] When in-person visits resumed in October of 2020, mother asked for a white board so she could teach S-L her Russian letters. When this worker suggested she might not know those but suggested animals, mother ignored her. Mother arrived for the December 3, 2020 visit wearing a shirt that did not cover her stomach. She said it was S-L’s. The visit was delayed as mother was resisting putting on her covid personal protection equipment (PPE) The child started to cry. [ 90 ] When the child asked for a snack, it took mother 45 minutes to respond, as mother was so easily distracted.

Mother told the child they were going outside and the child even got her boots, but mother forgot and they didn’t go outside. Because the child had been upset at the start of the visit seeing the foster mother and her mother together, the worker asked mother to stay in the access room while she transferred the child to the foster mother.

Mother deliberately failed to respond and over the transition period, mother repeatedly ignored the worker’s requests to pass the child to her. [ 91 ] On the few occasions that mother did attend in-person visits, she ignored the rules relating to: • Wearing PPE; • Not bringing toys to the visits, due to covid; • Not bringing toys for the child to take to the foster home; • Trying to take toys home with her; and • Not leaving at the end of the visit; after 15 minutes security had to ask her to leave. [ 92 ] Although mother had some lovely affectionate moments with the child, she needed prompting on how to respond to the child’s cues. [ 93 ] The second child in care worker had been S-L’s worker when she was in care in 2019 and then again since January of 2021.

When the mother wanted a psychologist for S-L, due to the child’s dysregulation, this worker followed up with the family doctor and obtained advice from the Child Development Institute (a children’s mental health resource). The foster parents were using strategies such as: narrating reality, soothing and comforting her, and being present for her. These seemed to be the best approaches, given the child’s age.

No further referrals were made. [ 94 ] This worker was scheduled to supervise access on February 11 and April 5, 2021 but mother did not attend. [ 95 ] This worker has contacted NCFS to initiate obtaining Native status for the child. [ 96 ] Both foster mothers gave evidence in the hearing. They both spoke positively about the mother and always found her to be pleasant and polite. Foster parents [ 97 ] The first foster mother cared for S-L during her first admission to care and from May until August of 2020. She continued to support the mother after the child left her home.

She gave mother rides to some visits and tried to listen to her when she needed support. She would also be prepared to help mother with any future visits. This foster mother has also stayed in touch with S-L. [ 98 ] The current foster mother has a background and experience working with children and working with special needs children. She is a full-time parent while her spouse works (although currently working from home). S-L moved to their home on August 30, 2020.This foster mother also has a grandfather who was of Ukrainian Jewish heritage.

She and her spouse make many efforts to support both sides of the child’s background: Jewish Russian and First Nations. Sometimes mother identifies as Orthodox Christian and these foster parents are also happy to include those types of celebrations. [ 99 ] Efforts were made to support the child’s Russian and First Nations heritage. Mother was asked for a list of Russian words she uses with the child and any videos or music she has shared with the child. Mother has never provided any of these items. [ 100 ] A worker from the society contacted a knowledge keeper at NCFS to request a contact for the foster parents.

This was done and the foster parents have been in touch with this person. A medicine pouch has been requested with special items. There will also be an effort by NCFS to connect the foster family with an elder from the M’igmaw community. [ 101 ] Contact has been made with father’s First Nations community in New Brunswick, requesting communication from a community member. [ 102 ] The foster home is filled with Russian and First Nations books and videos. There is also a photo of the mother and father in the child’s room. [ 103 ] Mother has not always been content with the foster care provided to S-L.

She complained that the first foster mother caused bruising on the child through misuse of the child safety car seat. When asked for more details to allow an investigation, she did not. [ 104 ] Mother has complained that the current foster family does not always send the child with clean clothes to the visits and she has on occasion not liked the snacks sent with the child. In her evidence, foster mother explained that they try to keep S-L in clean clothes but she occasionally gets dirty at the park before the visit and she also likes to choose her own clothes.

Unless it is extremely dirty, they try to comply with her choices. [ 105 ] If the court orders access, the current foster mother will also completely cooperate. Medical evidence:

The Family Doctor [ 106 ] Dr Tam has been the mother’s family doctor since 2018. Prior to then, mother had been seen by specialists, including a psychiatrist at Ryerson University, Dr Barlas. When Dr Tam was on maternity leave from February of 2020 until April of 2021, another doctor covered her practice. She identified her notes as business records and gave evidence. [ 107 ] Dr Tam explained the 10 different prescriptions mother is taking currently.

They are prescribed for both mental health issues; such as bipolar disorder, anxiety, insomnia, depression, personality traits, and attention deficit hyperactivity disorder and for physical pain during her menstrual cycle and pain in her knees. [ 108 ] Dr Tam has suggested to mother some alternative treatments and referrals for investigations in order to better understand the underlying issues, but mother has not been agreeable. She described mother as narrowly focused on her medications. [ 109 ] Generally, mother has been a long term user of opioids for her physical pain.

Dr Tam has discussed with mother the dangers of this use as the patient could develop a dependency and a tolerance for the drugs. This would lead to higher and higher doses. For patients with narcotic medication, Dr Tam testified that the patient must have regular follow up appointments with the doctor and be open to other treatments and investigations for the underlying causes of the pain. Generally, mother has been resistant to other treatments or referrals. [ 110 ] On several occasions, mother has complained that the pharmacy will not give her the prescription early.

Usually, Dr Tam testified, she would simply change the date of the prescription. At no time did Dr Tam see any reason to believe mother was abusing or selling her prescriptions. [ 111 ] Dr Tam wanted to refer mother for an electronic consultation with a community psychiatrist, but mother declined. In May, June and September of 2020, Dr Tam referred mother for psychiatric support to Women’s College Hospital, but the referral was declined as they were closed for referrals and mother’s post partum support with Dr Martinovic was only for the 12 months following the child’s birth.

Sunnybrook declined as it is outside mother’s local catchment area. Humber River is the local hospital for mother and in February of 2021, Dr Tam obtained mother’s agreement to make a referral there. She is now on their waiting list, which was 18 months at that time. [ 112 ] Mother agreed to a referral to the CAMH anxiety disorder unit, but she believed the unit would only accept referrals through their emergency department and mother refused to go there .Mother’s psychiatrist disagrees with this and testified that it needed a family doctor referral. [ 113 ] Dr Tam agreed that mother’s mental health fluctuates.

Dr Tam approaches mother using a trauma-based approach which supports mother and gives mother space to make choices. [ 114 ] In terms of past traumas, Dr Tam knew that mother had witnessed one bad motorcycle accident and maybe another accident. Mother had liver surgery in 2013 but that does not impact her day to day functioning now or make her more vulnerable during covid. [ 115 ] Dr Tam has usually found mother to be polite and civil. Mother apologises for being late or missing appointments.

She sees mother quite frequently; for example, in a nine month period during 2019, she saw mother 27 times for mother’s own health issues. She also saw mother with S-L for the child’s appointments. She observed mother to be affectionate with the child and had no concerns about her parenting. [ 116 ] The reasons given by mother for requesting placement of S-L with the society in May of 2020 was in order to get her medications under control and to attend rehabilitation.

Dr Tam had not heard about that and was not approached by mother for a referral to rehabilitation centres. [ 117 ] Dr Tam provided a written note that mother saw her virtually on June 9, 2021 to complain about not sleeping and vomiting, which mother associates with stress and the heat in her apartment. Mother did not attend the trial on June 9, 2021. [ 118 ] Mother said that her hearing and eyesight are not 100% but there is no medical evidence to support that, nor any mention of it in the medical records.

Previous Psychiatrist [ 119 ] Dr Martinovic was mother’s psychiatrist through the Women’s Reproductive Life Stages program at Women’s College Hospital. This program was for a 12 month period of time after the birth of a child.

Mother was referred there due to her complex psychiatric history with past diagnoses of bi-polar type 2, mood and anxiety disorder with panic attacks, history of dysfunctional substance use and suicide attempt, as well as significant psychosocial stressors during pregnancy and post partum. [ 120 ] Mother was described as guarded in giving her history but with fair insight and judgment, except when mother changed her medication on her own and cancelled important meetings. [ 121 ] Dr Martinovic described mother as having difficulty engaging with her due to the contact between Women’s College Hospital and the society.

This contact broke the trust between mother and the doctor. The doctor understood, however, that mother appeared to connect well with community supports, through public health nurse, her family doctor, and a therapist, provided by Victim Services. [ 122 ] Mother missed appointments and did not return calls to re-book. The plan was for mother to see her every 3 weeks. In total mother met with the doctor 14 times. As part of this doctor’s trauma informed approach, she gave the mother therapy options such as dyadic therapy or continuation with her victim service’s counsellor. Mother chose the latter.

The doctor invited the patient’s voice into the treatment recommendations and goals

[ 123 ] In her discharge

summary in May of 2020, Dr Martinovic recommended follow up through CAMH or mother’s local hospital for psychiatric services. CAMH could be accessed through the family doctor referral, she said. This doctor assessed that a large component of mother’s mental health challenges came from a very traumatic early childhood, that included verbal, physical and sexual abuse. Mother also experienced intimate partner violence with a man who was S-L’s father. [ 124 ] After the one year limitation, mother contacted her several times and she was redirected to her family doctor.

On one occasion, mother left a message for the doctor that she needed a psychiatrist as the judge wanted one for her. This doctor left information for the family doctor about a clinic available for mother with a doctor’s referral. [ 125 ] In this doctor’s opinion, mother could become more stable if she could see a connection to her conduct and adhere to both medication and counselling. The Pain Specialist [ 126 ] Dr Morgan specializes in anaesthesiology and pain management.

The mother was referred to him for pain management around the time of the child’s birth, as he is part of the complex care team with Dr Martinovic from Women’s College Hospital. He continued to see the mother following the child’s birth until her family doctor returned from maternity leave. He tried to transition the mother away from the opioid use for pain and onto another drug called suboxone, starting in May of 2020. Mother tried it but then stopped taking it, without telling him. In January 2021, she asked to be prescribed the opioids she had before and he agreed.

Humber River Hospital [ 127 ] On May 27, 2020, mother was brought to the hospital by police, under the Mental Health Act. She was seen by the emergency physician, Dr Henry. She was understandably upset about the society not returning her child, and slightly unkempt, but he did not find her suicidal or psychotic. He did not certify her. [ 128 ] On October 13, 2020, mother attempted suicide by cutting herself and then phoned the former foster mother who contacted police. She was taken to Humber River Hospital and held involuntarily until October 16, 2020.

Throughout her stay she was described in the business records as demanding and rude to the staff. She was also described as irritable, easily agitated, and asking for medications every 30 minutes. She refused social work involvement. [ 129 ] Dr Papadopoulos, the senior psychiatrist saw her on October 16, 2020 and recommended she remain in hospital in order to investigate her medical concerns, connect her with outpatient resources, and monitor her treatment plan. Mother discharged herself against medical advice.

At that time she claimed “ I am going to kill myself just not anytime soon.” She was once again described as a difficult historian, due to her tangential thoughts and the challenge of keeping her on track. Police Reports [ 130 ] On June 10, 2018, in the evening, police were called to mother’s home after she attempted suicide by drugs and by injecting herself with air. Mother was taken to Sunnybrook Hospital and held involuntarily. [ 131 ] On August 29, 2019, mother contacted police reporting a threatening phone call from one of the father’s cousins.

Father had died from an overdose of drugs on August 8, 2019 and his extended family had excluded mother from the funeral arrangements. Officers gave mother some safety related advice. [ 132 ] On May 27, 2020, TPS went to mother’s home after the foster mother reported mother threatened suicide over the phone. Mother appeared very distraught because the society refused to return her child. She said the society gave her a deadline to clean up her apartment. Officers observed the apartment to be in complete disarray and not fit for a young child.

Mother was taken to hospital for an assessment but later released. [ 133 ] On October 5, 2020, mother contacted police. On arrival they found a 43 year old male, deceased, with whom mother had been spending the evening. Mother tried to revive the man with some of her own drugs. The coroner found evidence of heart disease and that death was caused by an enlarged heart. [ 134 ] On October 13, 2020, TPS attended at mother’s home to find her in bed and covered with blood from an attempted suicide with a pair of scissors. Mother had stabbed her arm.

Observations from the officers and photographs of the apartment indicate: a large quantity of prescribed medication, a crack pipe, tremendous disarray. Mother was taken to Humber Wilson Hospital and was involuntarily admitted under Form 1 of the Mental Health Act. [ 135 ] On May 2, 2021, police were called to the mother’s building, after she and a friend, Dmytro, moved a dead body from her apartment to the stairwell. Dmytro called 911. Mother said she had let a homeless man into the building the previous evening and later found him in the stairwell.

She let him sleep on her couch but became nervous and invited a few other friends over. She needed Dmytro to help her, because she said she was under stress because of the recent death of a loved one. Dmytro was found by police on her balcony, He was groggy and unsteady on his feet. He didn’t know how long he had been there. He said he came to visit mother about 4 a.m. At around 12:20 p.m., Dmytro and mother checked the man’s pulse which appeared weak. They later moved him to the stairwell. Mother and Dmytro agreed to vacate the apartment for the police investigation.

Mother and Dmytro told police that two family members had already died in that apartment. Toronto Community Housing (TCH) Records: [ 136 ] The records, from November of 2020 until May of 2021, indicate that mother has repeatedly resisted the annual unit inspection. In the most recent inspection encounter, mother was upset and made homophobic statements about the staff person. [ 137 ] Mother has been referred to the complex tenancies team.

[ 138 ] Due to the two recent deaths in her apartment, in October of 2020 and May of 2021, the TCH asked mother what they could do to support her. She has a two bedroom apartment and is seeking a three bedroom, so that she can have a caregiver live in to support her disabilities. [ 139 ] On multiple occasions, mother has asked staff for food supplies and money. Although TCH cannot provide those items, she was referred by them to a number of resources. Access Visits: [ 140 ] The evidence is clear from 4 different workers that mother did not often show for visits, whether virtual or in person.

At times, months would go by without a visit. [ 141 ] Generally, when the visits occurred, there were positive features; such as:

a) Mother would be very animated, playing music to the child;

b) The child would seem delighted;

c) Mother was affectionate; and

d) Mother would speak English and Russian to child. [ 142 ] However, there is also consistent evidence that:

a) Mother would often be distracted by reading her phone;

b) Mother would not pick up on the child’s cues;

c) The child would be quiet and withdrawn; and

d) Mother was not keeping up with the child’s developmental stage. [ 143 ] Mother has not learned any insight into the impact that her inconsistency in visits has had on the child, specifically: S-L became aggressive with the other child in the home, was hard to console, had difficulty eating; had difficult transitions after visits or missed visits, crying for long periods. S-L would ask for “mama”.

S-L had a picture of mother and would kiss it or throw it or both. [ 144 ] The society and foster parents had a consultation with an attachment specialist to obtain suggestions for managing S-L and an additional resource was provided on 4 occasions so that the foster mother could focus all her attentions on S-L. [ 145 ] The evidence of the foster parent was very striking about the tremendous security the child derives from routine and consistency. Evidence for Mother [ 146 ] Mother had difficulty organizing her evidence for this trial. Her witness list changed twice and was accommodated.

She was often late for court and on several occasions later sent a message that she was ill so court was halted early for those days. She told the court that she had been sleepless for 72 hours at one point and on another day that she had been vomiting constantly for the better part of two days. She later told the court she had been sick for another two days and had fallen down unconscious and hit her head. She did not contact her family doctor until several days later. After one recess, mother was more than 15 minutes late returning and said she had been on the phone with paramedics.

This was after telling the court her phone was completely broken and couldn’t be used for the court audio. Maternal grandfather [ 147 ] The maternal grandfather (grandfather) gave evidence with the assistance of a Russian interpreter. He identifies as orthodox Jewish. He immigrated here from Israel in 1996, but was originally from the Ukraine in the former Soviet Union. He was clearly unhappy with the involvement of the society.

When he saw the society worker at the hospital at the time of S-L’s birth, he felt like it was a prison. [ 148 ] When the society kept following the mother, grandfather said it made the mother and the family nervous and caused upset amongst all of the family members. He saw the society as not helping mother but looking to take the child away from mother. [ 149 ] Grandfather testified that mother had to have an epidural for pain during the birth because of her previous liver surgery. A few years before the birth, mother had part of her liver removed due to a tumour.

The society was at the hospital insisting she care for the baby and, in his view, this caused mother to have a nervous breakdown. [ 150 ] Grandfather believes that during the pandemic mother’s pain got worse and worse and she had no access to doctors. He believed that no visits were possible because of the pandemic, but also had been told by mother that wearing face masks scared the child and child didn’t recognize the mother. [ 151 ] After this trial grandfather would like to visit the child but only in his own apartment or the mother’s apartment.

He is not putting forward a permanent plan for the child because he does not want to be part of a plan to deprive the mother of her child. He would like “this mockery to stop”. Maternal step-grandmother [ 152 ] Maternal step-grandmother also testified. She too identifies as Orthodox. She was never aware of any parenting problems on the

mother’s part. She believes that some of mother’s symptoms have been misinterpreted. She thinks the society caused the mother to become negative and depressed. [ 153 ] Step-grandmother testified that mother’s hospitalization after her attempted suicide in October of 2020 was only one incident and not a concern. She knew she could have visited the child but did not because of the pandemic. She works and wanted to limit her contacts. She knew virtual visits would be possible but thought those would be of little benefit to the child. [ 154 ] Mother wanted to call her 11 year old half-sister to give evidence.

This sister is the daughter of the grandfather and step grandmother. The family lives in Richmond Hill. The parties agreed that, in the alternative, the following would form a statement of agreed facts: this “sister”, C., was present when S-L was born and has seen her with the mother. She misses S-L very much and loves her very much. Maternal aunt [ 155 ] The maternal aunt , mother’s 39 year old sister gave evidence. She lives mostly with her boyfriend but still has some belongings at maternal grandmother’s home.

The maternal grandmother and maternal grandfather divorced some years ago and cannot be in each other’s presence. [ 156 ] Maternal aunt works full time as a compliance manager for a bank. She works Monday to Friday, 9 or 9:30 a.m. to about 6 p.m. or 6:15 p.m. At the beginning of the pandemic she would go into work but now she works from home. She has a car. [ 157 ] Maternal aunt testified that their first language is Russian and they are of the Orthodox faith. After her parents’ divorce, she lived with her mother and helped her. She has a half sister through her father’s second marriage.

She is close with her mother and sister and they celebrate all the holidays together. Her sister, the mother of S-L, also sees the father. [ 158 ] When asked about her relationship with the father of S-L, she said that she and her sister took a break from each other during that period of time. [ 159 ] This aunt was at the hospital for the birth of S-L and couldn’t understand why the child was apprehended. She wanted to help mother but didn’t want to interfere. She came when mother called her. She and the maternal grandmother used to take S-L for a few days at a time to give mother a break.

This would happen every week or two and she and grandmother would take turns. She described S-L as a well-behaved baby; she enjoyed walks and fresh air, playing games, and when they read Russian books to her. [ 160 ] On one occasion, maternal aunt and maternal grandmother had S-L with them for 6 or 7 days. When cross-examined about this period, the maternal aunt quickly changed her evidence to ‘maybe only two or three nights every two weeks or so.” [ 161 ] When the pandemic hit in the spring of 2020, she knew that mother needed help because of the pain in mother’s knees.

It was very difficult for her to help mother. Mother needed more help than the family could provide. Mother told her that she had agreed for S- L to be in the care of the society for one week only. [ 162 ] In June of 2020, the maternal aunt asked for visits with S-L but was told by the society that mother had to agree. There were several requests for mother’s consent and finally mother agreed. The society was only offering virtual visits to extended family members at that time, reserving in person access for parents. The maternal aunt didn’t like the virtual visit proposal as she wanted to hug S-L.

The society asked her for a regular day and time to

schedule the virtual visits. Maternal aunt couldn’t organize her work

schedule for a regular day and time each week. Finally, the maternal aunt agreed to Fridays at noon, but mother withdrew her consent. Mother said it might be confusing for the child. [ 163 ] The maternal aunt was very surprised in April of 2021 to receive a telephone call from the society about planning for the child. She thought S-L was returning home. She complained that the society had not called her earlier. She ultimately had to decline. [ 164 ] Maternal aunt would love to see the child if she remains in the care of the society but only if the mother agrees.

She testified that the maternal grandmother is 65 years old and retired and would love to see the child. The maternal family has a rich history and follow the Jewish religion. [ 165 ] Two days before giving evidence in this trial, the mother told the maternal aunt that if the child remains in care permanently, she does not want her family to have contact with the child. [ 166 ] The maternal aunt claims to have never seen any mental health issues with the mother. Even when mother attempted suicide in October of 2020, the aunt thought it was because she couldn’t live without her daughter.

Mother did say she needed help with her apartment, but the maternal aunt didn’t know what she needed. The neighbour [ 167 ] Mother called her neighbour G.S. to give evidence. G.S. is an older woman from Guatemala who testified with the assistance of a Spanish interpreter. She lives in the apartment below the mother. She has lived in this same building for 30 years and has known the mother for the fifteen years mother has lived there. G.S. has children and grandchildren. G.S. is very fond of S-L and mother. Mother and S-L used to spend time with G.S. G.S. was very teary eyed throughout her evidence.

She believes the society is evil and she thinks mother was always a very good parent to S-L. [ 168 ] At mother’s request, the society produced two social workers who had been involved with mother during the 2019 proceeding. Two society workers [ 169 ] The initial intake worker who went to the hospital when S-L was born in February of 2019 gave evidence. She worked for the

society for about one year from December of 2018 until November of 2019. She saw her role as supporting the mother and the society.

She wrote a letter for the court, undated, setting out the mother’s strengths; which included: • Attending each and every access visit; she would promptly call to explain any delays or illness; • Came to every visit prepared and with extra clothing or diapers; • Appropriately engages the child; speaks to her in gentle voice and rocks and holds her; • Asks appropriate questions about how to care for a newborn; • Always comes to visits alert and coherent and ready for visit; • Corresponds with foster mother through the logbook; • Followed up with the society regarding medical appointments for child; • Signed all requested consents for release of information to the society; • Honest and transparent with the worker, including when she believed maternal grand mother could no longer be a viable caregiver for child; • Able to multi-task during visit, watching time and using logbook, and preparing child for end of visit; and • Aware of hazards that need to be changed in the home before return of child; [ 170 ] The case was transferred to an experienced ongoing family service worker who has since retired.

This worker gave evidence. In her evidence she was very clear that mother had a strong need to be in control and not directed by the society. Although it was clear that mother loved her child, she minimized or dismissed any concerns this worker had. [ 171 ] This worker reviewed all of the safety concerns in the apartment with mother and the maternal grandmother. [ 172 ] Eventually, this worker thought that her ongoing involvement was just a lightening rod for mother to react negatively.

This worker confirmed that public health, the domestic violence counsellor from Victim’s services, and Dr Tam were all involved so she sought a court finding in need of protection and no further court order. [ 173 ] This worker discovered that mother had not permitted the public health nurse into the home for several months over the summer of 2019. By the fall of 2019, every contact with mother became confrontational. [ 174 ] During her involvement, the worker was aware that father’s family did not support the mother and were critical of her.

Mother [ 175 ] On the morning that mother was to give evidence, she did not appear. The court waited until after 2:00 pm for mother to testify. She spoke for some time about her teen years and early twenties – leaving home, obtaining her high school diploma and starting at Ryerson University. She saw a psychiatrist at Ryerson University, Dr Barlas, for what she thought were panic attacks. Her medical issues are now mostly controlled by medications.

She has lived in the same subsidized community housing for 15 years – a two bedroom apartment. [ 176 ] Mother said she had known the father of S-L 14 years ago and reconnected with him in 2017. She advocated for resources for him and his addictions. When the abuse began, she thought he could change. [ 177 ] In mid June of 2018, she attempted suicide, following a bad assault by father. He was charged and pled guilty to 4 counts of assault on her. She wanted him to get treatment.

He was sentenced to 13 and a half months incarceration. [ 178 ] Mother complained that a corrections officer was to blame for father not getting the treatment he wanted.

She criticized the probation officer for using information from her Victim Impact Statement in criminal court to contact Native Child and Family Services with concerns for her mental health. [ 179 ] Mother said she has been living for 22 years as a Jewish person so she decided not to work with Native Child and Family Services and contacted JFCS. [ 180 ] Mother noted a lot of pain when giving birth to S-L and blamed the hospital staff for mistreatment. She was given an epidural for the pain but it didn’t help her. She was begging staff for opioids but they wanted her to take suboxone or nothing at all.

Further, her pain doctor was out of the country. In her words, “things went south quickly”. The nurse told her not to sleep with the baby, as a health risk. Maternal grandmother had to ask for more formula as the baby was hungry. Mother was upset as the hospital invited the society to a planning meeting rather than asking mother how to help with her pain. Mother was pleading with the pharmacist for the opiates. The child was sleeping on the mother, despite her being told not to sleep with the child. Mother said she was overly medicated and groggy from the suboxone. The nurse took the baby to the nurses’ station.

The mother took her coat and walked out of the hospital. She stumbled home and maternal grandmother screamed at her “they took your baby”. [ 181 ] After the apprehension, the court gave mother access of 3 days one week and 4 days the next week. Mother’s plan was to have maternal grandmother support her, but that changed. The visits moved to home visits. Mother was fine with that as “I know what I am doing”.

[ 182 ] Mother testified that the father died of an overdose in August of 2019. [ 183 ] Mother said she started her meds again and called the case aid on May 6, 2020 seeking a respite stay for S-L. She said that two people had died in her apartment. She didn’t want to risk the help of her parents during covid so she called the society.

The society told her about a temporary care agreement. [ 184 ] Mother had numerous complaints about the society: • They cancelled visits when she was only 1 or 2 minutes late; “10 minutes tops”. • They told her the computer the society bought for her to use for the zoom hearing was worth about $750.

She looked it up and it was only worth $350. • The case aid had yelled at her in front of the child and she had to tell her to stop. • The family worker does not have any children of her own. • They called her anti-semitic and homophobic. [ 185 ] Mother refused to do the ODSP application as she believed the society would use it against her. [ 186 ] According to mother, there was a meeting two weeks ago called by TCH and paramedics are going to help her move some things in her apartment.

She has seen online that Ontario Works might give her a personal support worker and/or a caregiver to help her given her disability, so she has asked TCH for an extra bedroom for that person. [ 187 ] Mother showed the court several video clips of her holding the child and singing during visits. [ 188 ] Mother said she has only ever given the child to the maternal aunt or maternal grandmother to babysit, once for over a week when mother had the flu. [ 189 ] Mother agreed that she had told the society she would continue the counselling and the involvement of the public health nurse.

She stopped both of these services before the end of 2019. [ 190 ] Mother knew that the one year post partum program with her psychiatrist would end in February of 2020. She hadn’t seen that doctor since November of 2019.She had no other supports. [ 191 ] Mother agreed that the society kept her informed about the child but they didn’t seek her input which really upset her. She did not want S-L vaccinated but the court ordered it. [ 192 ] Mother has not been vaccinated for covid.

She said she doesn’t believe in vaccines. [ 193 ] Mother recalls being asked for Russian words, a Hebrew name or words, any Russian videos or practices, and for a good night video for the child. She did not provide any of these. She didn’t like the worker and wanted a new worker, but she wouldn’t follow the complaints process and meet with the manager. She wanted to have a direct line of communication with the foster mother. She was invited by the foster family to participate in a virtual Channukah, but she didn’t respond.

She felt all the shots were being called by the foster mother and she wanted to deal directly with her. [ 194 ] Mother testified that she has enrolled in two different counselling programs: one was once a week and the second one had 12 modules and was once a week by phone or video. On January 13, 2021, the worker asked for consents to speak with these service providers, but mother refused. [ 195 ] With respect to the visits, mother did not think the society helped her at all. Instead they punished her by cancelling the visit if she was one minute or 6 minutes late.

Her disabilities prevented her from taking transit for the visits and she asked the society for the money for TTC. They gave her an application for Wheel Trans and offered to help her complete it. [ 196 ] Mother explained how she had let a homeless man with an empty bottle of liquor into her apartment in May of 2021, so he could sleep on her lounger. He then passed away and a friend helped her to move him to a stairwell.

The friend called 911. [ 197 ] Mother’s plan is to seek a 3 month extension to the maximum time period allowed for young children to be in the temporary care of a society so she can participate in a two week in patient program and be more consistent in her access visits. [ 198 ] Mother would like visits if the child stays in care and she would include her family members. Her family want the child with her which is why they haven’t put forward a plan for S-L. She would also agree that the maternal aunt could attend visits without her.

She agreed that she had in the past revoked her consent for the maternal aunt to visit the child, because mother wasn’t seeing the child and with covid she didn’t think it was safe. [ 199 ] Regarding the state of her apartment, mother said she had sealed up S-L’s room. She would now allow the worker into her home but only with a police escort. [ 200 ] Regarding her medication, mother said she had done the research and knows what she needs. [ 201 ] Ultimately, mother believes she was lied to and that laws protecting people with disabilities have been broken. Statutory Findings:

[202] Statutory findings deal with the important identification information about the child. These findings were also made by the courton November 26, 2019, based on a Statement of Agreed Facts, signed by the mother and the society. As there is no evidence indicating amistake or a change, the court makes the same findings. [203] Pursuant to section 90(2) of the Act, the following are the statutory findings: 1. The full legal name and age of the child is : S-L […], born […], 2019; 2. The parents are: N.D., born […] 1987, and D.J.L., born […], 1983 and died August 15, 2019. 3.

Father is a member of the E[…] First Nation in New Brunswick 4. The child is identified as First Nations from E[…] First Nation; 5. The child came into the care of the society on May 7, 2020, in Toronto. Legal Framework Finding in need of protection [204] When an application is made to the court, the court must direct a hearing to determine if the child is in need of protection due toone or more of the reasons set out subsection 74(2) of the Act. [205] The finding can be based on circumstances at the time of the application up to and including the time of the hearing.

A childprotection proceeding is unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence arising atany time up to the date of the court hearing. See CAS Brant v. T (JA.) 2005 ONCJ 302 and CAS of Hamilton-Wentworth v. K.R. andC.W. 2001 O.J. No. 5754. In the latter decision, Justice Czutrin set out these principles:

a) Only facts related to disposition are statutorily excluded at the finding phase

b) Best interests are paramount. Child welfare legislation is different from general legislation and litigation in this regard.

c) This approach facilitates an accurate assessment of present circumstances

d) To be overly technical could put the child at risk.

e) It prevents multiplicity of proceedings

f) Could bring the administration of justice into disrepute

g) Allows parents as well to bring in evidence

h) Rigid approach makes it more of a game [206] This approach was endorsed as child focused and consistent with the remedial purposes of the Act in Children’s Aid Society ofToronto v. R.M., 2019 ONSC 2251. [207] A finding in need of protection under clause 74 (2) (

b) of the Act involves a risk of physical harm to the child. The risk is that thechild is likely to suffer physical harm. “Likely” to suffer has the implied connotation of “more probable than not”. There are threeseparate circumstances which may qualify for a finding on (

b) grounds. The risk may be a likelihood that

a) the physical harm is inflicted by the person having charge of the child; or

b) the physical harm is as a result of the failure of the person having charge in adequately caring for, providing for, supervising orprotecting the child; or

c) the physical harm is a result of a pattern of neglect by the person having charge in caring for, providing for, supervising, orprotecting the child. [208] Some of the examples from the caselaw include: • The Society must prove causation by act, omission, or pattern. It is not necessary to prove intention: Jewish Family and ChildService v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903 , 2009 ONCA 903(Ont. C.A.). • Physical harm caused by neglect or error in judgment is still physical harm. The harm must be more than trifling physical harm.CAS Niagara v.

P.T. (2003) (ON SC), 35 RFL 290; Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458. • Harm caused by neglect or error in judgment comes within the finding: Children’s Aid Society of the Niagara Region v T.P. (ON SC), [2003] O.J. No. 412 (Ont. Fam. Ct.). • The risk of harm must be real and likely, not speculative: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458

; Children’s Aid Society of Ottawa-Carlton v. T. and T., (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.). ). • A child may be at risk even if the conduct is not directed specifically towards that child: Catholic Children's Aid Society ofMetropolitan Toronto v. O.(L.M.), (ON C.J.). • Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addictions,inadequate shelter/food are common circumstances leading to findings of physical harm/risk of physical harm. See: Children’s AidSociety of Oxford County v.

E.M.T., 2019 ONCJ 767. • Limited capacity of the parents if there is an inability to sufficiently acquire or improve parenting skills: Children's Aid Society ofHamilton v. O.(E.), (ON SC), [2009] O.J. No. 5534, at paras. 211-215. [209] The society is also seeking a finding under clause 74(2)(h): risk of emotional harm. The Society must establish prescribedsymptoms of emotional harm and must show a real likelihood of harm on a balance of probabilities. The degree of harm must be seriousand must be connected to the parenting. Children's Aid Society of Rainy River v.

B.(C.), 2006 ONCJ 458 and Children’s AidSociety of Algoma v. A.B., 2018 ONCJ 831 [210] The fact that mother suffers from mental health disorders does not automatically lead to a finding. People with mental illness areentitled to become irritated, upset, impatient and angry without their conduct being pathologized as symptomatic. See: Re: Sim, 2020ONCA 563. [211] In Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, the court reviewed the relevant factors to be considered: [113] It does not automatically follow that a child will be in need of protection just because a parent has mental health challenges.

Manyparents with mental health issues parent their children well – others can’t. There is a wide range of mental illnesses that affect parentsdifferently and, by extension, affect their children differently. [114] The court needs to assess several factors to determine if a parent’s mental illness places a child at risk of harm and if so, whethera child can still be placed in the parent’s care. These factors include:

a) The type of mental illness the parent has.

b) The severity of the mental illness.

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

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

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

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

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

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

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

j) Whether the parent is compliant with treatment recommendations.

k) The strength of the parent’s support system, the insight of those support persons into the parent’s mental health issues and theability

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