Jewish Family and Child Service of Toronto v. Y.B., 2011 ONCJ 749

Toronto (North York) Registry No. C49619/09 DATE: 2011·XII·08 CITATION: Jewish Family and Child Service of Toronto v. Y.B. , 2011 ONCJ 749 ONTARIO COURT OF JUSTICE NORTH TORONTO FAMILY COURT 47 Sheppard Ave. E., 2 nd floor Toronto, ON M2N 5X5 B E T W E E N: ) ) JEWISH FAMILY AND CHILD SERVICE OF GREATER TORONTO, ) ) ) Sara M. Westreich and Haley S. Gaber-Katz, co-counsel for the applicant ) ) ) — AND — ) ) ) Ye.B., C.B., H.Si. and S.Si. ) ) ) ) ) ) Respondent father, Ye.B., representing himself Service on the respondent mother, C.B., dispensed with Allison M.

Kotler, counsel for the maternal grandparents, H.Si. and S.Si. ) REASONS FOR DECISION [ 1 ] JUSTICE H.P. BROWNSTONE:— These are my reasons for decision in an amended protection application regarding the children S.B., born November […], 2007 and Ya.B., born August […], 2009. The trial proceeded before me from November 21 to December 1, 2011. The trial was conducted as a blended proceeding, as I heard all of the evidence related to both the issues of finding and disposition.

I did not consider evidence that went solely to the issue of disposition in determining the issue of finding. [ 2 ] The Jewish Family and Child Service (“JFCS”) is seeking the following protection orders: • For Ya.B.: o an order under s.37(2)(a)(

i) of the Child and Family Services Act (“the Act”), that Ya.B. suffered physical harm inflicted by the father or caused by or resulting from his failure to adequately care for, provide for, supervise or protect Ya.B.; and o an order under s.37(2)(

e) of the Act, that Ya.B. required medical treatment to cure, prevent or alleviate physical harm or suffering and the father did not provide, or refused or was unavailable or unable to consent to the treatment.

• For Ya.B. and S.B.: o an order under s.37(2)(b)(

i) of the Act, that there was a risk that the children were likely to suffer physical harm inflicted by the father or caused by his failure to care for, provide for, supervise or protect the children adequately; and o an order under s.37(2)(b)(ii) of the Act, that there was a risk that the children were likely to suffer physical harm inflicted by the father or caused by his pattern of neglect in caring for, providing for, supervising or protecting them; and o an order under s.37(2)(

g) of the Act, that there was a risk that the children were likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the father. [ 3 ] In terms of disposition, the JFCS is seeking the following orders: • an order pursuant to s.57.1 of the Act granting custody of S.B. to her maternal grandparents, with access to her father; • an order making Ya.B. a Crown ward with no access for the purpose of adoption. [ 4 ] The grandparents concur with the JFCS in all respects. [ 5 ] The father is asking to have both children returned to his care. [ 6 ] The mother has been in a coma since suffering complications during the caesarian

section birth of Ya.B. on August […], 2009. As she is not expected to recover, service on her was dispensed with on October 6, 2011. 1: DECISION [ 7 ] For the reasons that follow, Ya.B. shall be found to be in need of protection under s.37(2)(a)(i), (b)(

i) and (

e) of the Act. S.B. shall be found to be in need of protection under s.37(2)(b)(i). The JFCS’s request for a finding that S.B. is in need of protection under s.37(2)(b)(ii) is dismissed, as her circumstances are more properly captured in s.37(20(b)(i), and the evidence does not establish a pattern of neglect sufficient to justify a finding under s.37(2)(b)(ii). The JFCS’ request for a finding that both children are in need of protection under s.37(2)(

g) is dismissed, as the evidence does not justify a finding that either child was at risk of emotional harm as of the date of the protection application. [ 8 ] In terms of disposition, I find that the least disruptive orders that will be in each child’s best interests are as follows: • Ya.B. shall be a Crown ward with no access; • S.B. shall be placed in the care and custody of her maternal grandparents, Mrs. H.Si. and Mr.

S.Si., under the supervision of the JFCS for 12 months, with access to the father. 2: BACKGROUND FACTS [ 9 ] Although every child protection case has tragic components, the circumstances in this case are tragic in epic proportions. Until August 10, 2009, it would appear that Ms. C.B. and Mr. Ye.B. were raising their daughter S.B. without difficulty. On August 10, 2009, Ms. C.B. was to give birth to a son, Ya.B. She lapsed into a coma due to complications resulting from the caesarean

section delivery, and she is not expected to recover. [ 10 ] Mr. Ye.B. suddenly became the single parent of a newborn baby and a 2-year-old. He was understandably overwhelmed by the trauma of losing his wife’s functional presence, wanting to be at her bedside as much as possible, seeking precise answers from hospital personnel to explain the catastrophe that had befallen his wife during childbirth, managing a household, and of course, the enormity of his parental responsibilities. He was not working and so he also had financial pressures to contend with. [ 11 ] Mr.

Ye.B. had no family in Toronto, and a poor relationship with his parents-in-law due to longstanding conflict between himself, his wife and her parents. He had limited funds and few community supports [1] . He decided to hire nannies to provide 24-hour care for the children. At first, this did not go well. He found the first four nannies to be unsuitable and fired them. Then he hired two nannies: a weekday nanny, Ms. M.D., recruited by the Rabbi’s wife; and a weekend nanny, Ms. A.So., whom he hired after posting an ad in NOW magazine. Mr. Ye.B. and Ms. A.So. began a romantic relationship almost immediately. Ms.

A.So. was never paid for her services as a nanny. [ 12 ] From August 10 to November 20, 2009, the children spent most of their time with one of the nannies, or visiting at their grandparents’ home, and their father spent as much time with them as he could given his strong desire to be at his wife’s bedside, doing what he could in the hopes that she might regain consciousness. There is no question that the father’s emotional resources were stretched to the limit during this period, but the children seemed to be doing well.

In fact, the JFCS made contact with the family after receiving an anonymous call on October 8, 2009 expressing concern about the children’s wellbeing, and worker Gene Chodos concluded that the children appeared well cared for. 3: FINDINGS THAT THE CHILDREN ARE IN NEED OF

PROTECTION 3.1: Ya.B.’s Unexplained Injury [13] On November 20, 2009, Mr. Ye.B. took Ya.B. to the Toronto Hospital for Sick Children (“HSC”). The medical team atHSC determined that Ya.B. was suffering from “inflicted head injury” comprised of multiple subdural haemorrhages, brain injury, retinalhaemorrhages and retinoschisis in both eyes. He also had a fractured wrist. These injuries were determined by the medical team to benon-accidental and inconsistent with the explanation provided by the father.[2] Dr.

Emma Cory, paediatrician at the Suspected ChildAbuse and Neglect (SCAN) unit at the HSC, called JFCS intake worker Amy Zak. The police were also contacted and they commenceda criminal investigation into the offence of aggravated assault. [14] All parties in this case agree that the injuries suffered by Ya.B. were intentionally inflicted and non-accidental, althoughthe father is less certain of this than the other parties. In any event, the testimony and medical report by Dr.

Cory has satisfied me on abalance of probabilities that Ya.B.’s injuries were intentionally inflicted. [15] There were three adults identified as possible perpetrators because they were the only adults who had the opportunity tobe alone with Ya.B. during the relevant time that the injuries were inflicted: Mr. Ye.B., Ms. A.So. and Ms. M.D.

Unfortunately, thepolice investigation was inconclusive[3], as it was not possible to identify which of the three people committed this monstrous act ofviolence on a helpless 3-month old baby who had already lost his mother. [16] In some “unexplained injury” cases where the cause of the injuries is determined to be non-accidental, the issue ofidentifying the perpetrator(

s) is a necessary component of determining whether the child is in need of protection. However, this is notalways the case. As a general rule, where the person(

s) who had exclusive opportunity to inflict the injury have not provided asatisfactory explanation for the injury, this has almost always justified a protection finding and a refusal to return the child to suchperson(s): Children’s Aid Society of London and Middlesex v. Kathryn W., , 60 A.C.W.S. (3d) 314, [1996] W.D.F.L.512, 9 O.F.L.R. 162, [1995] O.J. No. 4104, 1995 Cars​well​Ont 634 (Ont. Fam. Ct.); Children’s Aid Society of the Region of Peel v. JamesL., , 109 A.C.W.S. (3d) 742, [2001] O.J. No. 4422, 2001 Cars​well​Ont 3967 (Ont. C.J.); Children’s Aid Society of theDistricts of Sudbury and Manitoulin v.

C.C., , 115 A.C.W.S. (3d) 807, [2001] O.J. No. 5802, 2001 Cars​well​Ont 5125(Ont. C.J.); Children’s Aid Society of Toronto v. Persida A., , 121 A.C.W.S. (3d) 1082, [2002] O.J. No. 5344, 2002Cars​well​Ont 4935 (Ont. C.J.); Catholic Children’s Aid Society of Toronto v. Marlene De S., 2005 ONCJ 336, 140 A.C.W.S. (3d) 669,[2005] O.J. No. 2914, 2005 Cars​well​Ont 2932 (Ont. C.J.); Director of Child Welfare for Prince Edward Island v. J.C.D., 2009 PECA19, 71 R.F.L. (6th) 26, 289 Nfld. & P.E.I.R. 45, 890 A.P.R. 45, [2009] P.E.I.J.

No. 39, 2009 Cars​well​PEI 43 (P.E.I.C.A.). [17] In child protection cases, the onus is always on the applicant Children’s Aid Society to prove that the child is in need ofprotection.

However, in “unexplained injury” cases, the tactical onus to provide a satisfactory explanation for the injury shifts to theparent if two necessary preconditions exist: (1) that the evidence is sufficient to establish on a balance of probabilities that the child’sinjury may have been caused by that parent; and (2) that the evidence is not sufficient to establish on a balance of probabilities that theinjury was caused by someone else: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. Lauren N., Vincent M. andDavid M., 2011 ONSC 6521, [2011] O.J. No. 5016, 2011 Cars​well​Ont 12356 (Ont.

S.C.). [18] In this case the above preconditions have been met because: I am satisfied on a balance of probabilities that the fathermay have been the perpetrator; and there is insufficient evidence to establish on a balance of probabilities that Ya.B.’s injuries werecaused by Ms. A.So. or Ms. M.D.[4]. Accordingly, the “unexplained injury” principle applies. As none of Ya.B.’s caregivers haveprovided a plausible and credible explanation for Ya.B.’s injuries, Ya.B. should on that basis alone be found to be in need of protectionpursuant to s.37(2)(a)(

i) and (b)(

i) of the Act. Similarly, because S.B. was in the care of the same caregivers as Ya.B., she is also foundto be in need of protection pursuant to s.37(2)(b)(

i) of the Act. 3.2: Alternate Grounds for Finding Based on Father’s Conduct from the Date ofthe Injury to the Date of the Protection Application [19] Quite apart from the above legal analysis, I have concluded that both children were in need of protection because of thefollowing events which occurred prior to the commencement of the protection application on December 10, 2009. I have made thefollowing factual findings after having carefully considered and weighed all of the evidence, including a lengthy video interview of Mr.Ye.B. conducted by the police[5] on November 23, 2009, as well as the father’s evidence.

It should be noted that the father’s testimonyregarding the crucial events leading up to December 10, 2009 differs in some material respects from what he told the HSC staff, theJFCS staff and the police. However, I am satisfied on a balance of probabilities that Mr. Ye.B.’s memory of the events in question wasmuch better and more reliable in the days immediately following Ya.B.’s injuries than it is now, some two years later. I found Mr.Ye.B.’s testimony setting out his version of the events leading up to December 10, 2009 to be self-serving and not entirely credible.

Accordingly, wherever there is a discrepancy between Mr. Ye.B.’s testimony about those events and the version of events he gave to thepolice in his video statement, I prefer the version he gave to the police in his video statement. 3.2(a): Leaving the Children in the Care of a Sick Caregiver [20] Mr. Ye.B.’s normal routine with the children was to have them cared for by two nannies. Ms. M.D. looked after themduring the week and Ms. A.So. looked after them on weekends. On the evening of November 18, 2009 Mr. Ye.B. and Ms. A.So.decided to spend the night together at Ms. A.So.’s home. Mr. Ye.B. asked Ms.

M.D. to take care of S.B. and Ya.B. for the night, eventhough he knew that Ms. M.D. was sick with the flu and had a fever. Mr. Ye.B. told the police, “I put Ms. M.D. in this stupid position,asking her to take care of the kids when she was sick…She could have been a little delirious….Here she was not well and I’m leavingher with two kids….I shouldn’t have let Ms. M.D. take care of the kids in the first place because I knew she was sick.” He testified thatupon further reflection he did not believe she was too sick to take care of the children, but as indicated above, I reject this evidence and

accept Mr. Ye.B.’s recollection of events as related to the police on November 23, 2009. In this regard it is noteworthy that Mr. Ye.B. also told Dr. Perlman that Ms. M.D. was “not well” when he left the children with her on November 18, 2009. [6] [ 21 ] Mr. Ye.B. should not have left his children in the care of an ill caregiver on the night of November 18, 2009. There was no reason to do so. His desire to spend the night with Ms. A.So. should not have taken priority over the well-being of his children.

He ought to have realized that a person who was so sick that she “could have been a little delirious” was in no position to provide adequate care for a 2-year old and a 3-month old. Mr. Ye.B.’s poor judgment in this regard constitutes neglect and justifies a finding that Ya.B. and S.B. are in need of protection pursuant to s.37(2)(b)(i). 3.2(b): Unacceptable Delay in Getting Ya.B. to the Hospital [ 22 ] The next day (Nov. 19, 2009), when Ya.B. was back in Mr.

Ye.B.’s care, he noticed that Ya.B. “wasn’t himself”: he was lethargic, may have had a fever [7] , vomited his meal, was making unusual twitching arm movements on at least three occasions, and his eyes were rolling to the far right. Mr. Ye.B. was so concerned about Ya.B.’s unusual arm movements that he made a video of it when it happened for the third time, so he could show the video to the doctors. [8] [ 23 ] Mr.

Ye.B. admitted to the police that upon seeing Ya.B. “do the arm thing” — which were in fact seizures — he adverted his mind to the possibility that Ya.B. might have suffered brain damage, and even discussed this with Ms. A.So., but they couldn’t bear to fathom such a thought and so they discarded it. He preferred to speculate that perhaps Ya.B. was somehow communicating with his comatose mother telepathically. He called Ms. M.D. and asked if anything unusual had happened to Ya.B. while in her care the previous night; she responded that S.B. had stepped on Ya.B. during the night. Mr.

Ye.B. told the police, “I’m pretty sure, certain, that when I got to the house, something was wrong.” However, he convinced himself that there was nothing seriously wrong with Ya.B. other than perhaps the flu. He testified that he believed Ya.B.’s arm twitches were “just an artefact of his stomach flu”. He said he didn’t want to take Ya.B. to the hospital because he had developed a mistrust of hospitals after the catastrophe that had befallen his wife while giving birth to Ya.B. in a hospital. Mr. Ye.B. told the police, “His (Ya.B.’

s) eyes went to the far right and that’s when I began to think about brain damage, but I still assumed it was a fever and I was afraid to take him to the hospital.” [ 24 ] The next day (Nov. 20, 2009) Mr. Ye.B. went to visit his wife at Mt. Sinai Hospital and took Ya.B. with him. He told his sister-in-law N. about Ya.B.’s rolling eyes and strange arm movements, and she told him Ya.B. should be seen by a doctor. He also showed Ya.B.’s unusual arm movements to a nurse, who advised him to take Ya.B. to the emergency ward at the HSC, which he did.

Ya.B. was finally taken to the hospital at 3:30pm on November 20, 2009, 1½ days after suffering traumatic head injuries. [ 25 ] Mr. Ye.B. exercised extremely poor judgment in failing to seek medical attention for his 3-month-old son who was showing symptoms that ought to have triggered immediate and urgent concern in any reasonable parent. Mr. Ye.B. knew or ought reasonably to have known that Ya.B. needed to be taken to a doctor the first time he witnessed Ya.B.’s arm twitching.

There is no way to know whether Ya.B.’s colossal and permanent disabilities caused by the injury could have been prevented or minimized by earlier medical intervention. However, it is certainly true that Ya.B.’s brain, which continued to haemorrhage for 1½ days after the inflicted injury, did not in any way benefit from the delay caused by Mr. Ye.B.’s inaction. [ 26 ] Ya.B. is found to be in need of protection under s. 37(2)(

e) of the Act by reason of Mr. Ye.B.’s failure to obtain prompt medical attention for him. 3.2(c): Father’s Unavailability to Consent to Medical Treatment for Ya.B. [ 27 ] Following Ya.B.’s admission to the intensive care ward at the HSC, the medical team determined that an MRI was necessary to ascertain the extent of the injuries and to assist in developing a treatment plan. Dr. Cory testified that the MRI was specifically needed to assist the medical team in deciding whether to operate. [9] Mr. Ye.B.’s consent was needed for the baby to be anaesthetized so the MRI could be conducted.

Throughout the day on November 21, 2009, the hospital staff, JFCS staff and the police were frantically trying to contact Mr. Ye.B. to obtain his consent. Numerous telephone messages were left for him, without reply, until he was finally located at 6:30pm. He finally arrived at the HSC at 8:00pm. Mr.

Ye.B. then refused to consent to the administering of a general anaesthetic, insisting on a different form of sedation, causing further delay until this issue could be resolved on November 27, 2009 when the MRI was finally conducted as recommended by the doctors under general anaesthetic. [10] The results indicated that Ya.B. had fluid around his spine and an injury to his neck ligaments. As a result, Ya.B. was required to remain in a neck brace for twelve weeks. [ 28 ] Mr. Ye.B.’s 3-month old son had just been admitted to the hospital, and was in the intensive care unit suffering from extremely serious injuries.

At a time when Mr. Ye.B., as Ya.B.’s only available parent, ought to have been at the hospital conferring with the medical team and showing concern for his baby, he was nowhere to be found all day. When asked where he had been and why he had been unreachable for so long, his response at the time was that he had been “meditating”. Mr. Ye.B. gave more detail in his testimony: he spent the day at a restaurant, and then walking around the city, and then meditating. He admitted receiving three telephone messages from the hospital and one message from the police.

He did not respond to these messages until 6:30pm because he didn’t feel “strong and grounded enough to go in and deal with the pressure to make the decisions that the doctors were asking me to make.” Dr. Cory testified that she has worked in the SCAN Unit since 2005 and this was the first time that she had ever had difficulty locating the parent of a child in intensive care. [ 29 ] Mr.

Ye.B.’s unavailability throughout the day on November 21, 2009 and refusal to consent to the form of sedation recommended by the HSC medical team constituted extremely poor judgment, because he caused further delay in the proper diagnosis of Ya.B.’s injuries. This conduct further justifies a finding that Ya.B. is in need of protection pursuant to s. 37(2)(

e) of the Act. 3.2(d): Father’s Immediate Plan Creating More Risks [ 30 ] Following Ya.B.’s admission to the hospital on November 20, 2009, S.B. went to stay with her maternal grandparents.

On December 8, 2009 Mr. Ye.B. and Ms. A.So. met with JFCS intake worker Amy Zak, at which time Mr. Ye.B. announced that he and Ms. A.So. were in a “committed relationship” and planned to raise the children together. Considering that at that time:

(1) Mr. Ye.B. had barely known Ms. A.So. one month;

(2) Mr. Ye.B. and Ms. A.So. were suspects in an ongoing police investigation for the offence of aggravated assault of Ya.B.; and

(3) Ms. A.So. had also witnessed Ya.B.’s seizures on November 19, 2009 but did nothing to get Ya.B. to a doctor, it is deeply disturbing that Mr. Ye.B. would have believed that this plan was appropriate and in his children’s best interests. His plan to expose his children to such a risk constitutes further justification for a finding that both children are in need of protection pursuant to s. 37(2)( b )(

i) of the Act. Furthermore, this final demonstration by Mr. Ye.B. of poor judgment, viewed in the context of the circumstances set out in sections (

a) to (

c) above, gave the JFCS no choice but to apprehend the children (which occurred on December 8, 2009) and commence a protection application (which occurred on December 10, 2009). On December 11, 2009, Justice Zuker made an order placing both children in the temporary care and custody of the JFCS, with supervised access to the father. 3.3: Disposition [ 31 ] If it can be said that the children were found to be in need of protection because of Mr. Ye.B.’s lack of insight, good judgment and proactive parenting, the same can be said for the disposition. Unfortunately, in the almost two years since this case began, Mr.

Ye.B. has continued to demonstrate these same deficits, which constitute intolerable risk factors for the children’s well-being. While he has assured the court that his judgment will improve as he continues to overcome the traumas he has suffered, the children have been in foster care almost twice the length of time permitted by s. 70(1)(

a) of the Act, and they cannot wait any longer for a permanent plan that will meet their needs. [ 32 ] I have concluded that Mr. Ye.B.’s poor judgment has precluded him from being permitted to raise his children. The following paragraphs provide the basis for this conclusion. 3.3(a): Mr. Ye.B.’s Vacillating Plan of Care and Refusal to Consent to an Assessment of his Proposed Co- Caregiver [ 33 ] Having regard to the facts set out above in paragraph [30], it should have been obvious to Mr. Ye.B. that any plan of care that included Ms.

A.So. would be problematic and would necessitate thorough investigation by the JFCS. The JFCS made it clear to Mr. Ye.B. at the outset that if he was seriously going to propose that the children be raised by two of the three suspected perpetrators of Ya.B.’s injuries, a parenting capacity assessment of both himself and Ms. A.So. would be necessary. Although Mr. Ye.B. did consent to an assessment for himself, he ultimately refused to consent to an assessment of Ms. A.So. because he did not agree that the assessor should be allowed to interview the S.s.

As can be seen in the following chronology, much time was wasted while Mr. Ye.B. vacillated between including and not including Ms. A.So. in his plan of care: • On December 8, 2009 Mr. Ye.B. and Ms. A.So. advised the JFCS that they were in a committed relationship and planned to raise the children together. • On May 31, 2010 Mr. Ye.B. submitted an Answer and Plan of Care and affidavit proposing joint caregiving by himself and Ms. A.So. • On November 16, 2010, at a case conference before Justice Sherr, Mr. Ye.B. and Ms. A.So. agreed to an assessment of their joint plan to be conducted by Dr.

Perlman (the same psychologist who conducted the assessment of Mr. Ye.B.). • On November 17, 2010 Mr. Ye.B. sent an email to JFCS worker Yael Greenwood stating that he and Ms. A.So. had changed their minds, and would no longer be consenting to an assessment. • On February 3, 2011 Mr. Ye.B. sent a Plan of Care by email to the JFCS stating that he was now proposing himself as sole caregiver for the children (this Plan of Care was never filed with the Court). • On February 8, 2011 Mr. Ye.B. told Ms. Greenwood that he and Ms. A.So. were no longer dating and that their breakup was permanent. • On February 18, 2011 Mr.

Ye.B. told Ms. Greenwood that he was not sure he wanted to be separated from Ms. A.So. • On February 22, 2011 Mr. Ye.B. told Ms. Greenwood that he and Ms. A.So. were in the midst of reconciling. • On March 10, 2011 the JFCS brought a motion before Justice Sherr seeking an order for an assessment of Mr. Ye.B. and Ms. A.So. as joint caregivers. The transcript of that court appearance was filed as evidence in this trial. Mr. Ye.B. made it very clear and gave specific undertakings that Ms. A.So. would NOT be a part of his plan of care for the children, and that if the children were returned to him, Ms.

A.So. would not live in the home. On that basis, the court dismissed the motion for an assessment. Justice Sherr went on to state that if Mr. Ye.B. had not made those undertakings, he most definitely would have ordered an assessment. • On March 23, 2011 Mr. Ye.B. sent an email to Ms. Greenwood stating that, although Ms. A.So. was not a part of his plan, she was now willing to have an assessment conducted. • On June 1, 2011 Mr. Ye.B. sent an email to JFCS counsel Lorne Glass, stating that Ms.

A.So. would submit to an assessment but only if it does not have a parenting capacity component. • On June 10, 2011, at a meeting at the JFCS office, Mr. Ye.B. agreed that Dr. Perlman should conduct an assessment of Ms. A.So., but he would not agree to the questions that were to be submitted to the assessor. • Over the next three months the JFCS made repeated attempts to negotiate mutually agreeable assessment questions that were consistent with the questions used in the assessment already conducted for Mr. Ye.B. Mr. Ye.B. and Ms. A.So. consistently refused to

agree to any of the JFCS proposals. On October 6, 2011 I conducted a trial management conference. Mr. Ye.B. advised that he now wanted an assessment of Ms. A.So. to be conducted, as his plan now included her. Although two weeks of valuable court time commencing November 21, 2011 was scheduled for this trial, and it was extremely unlikely that an assessment could be completed in time for the trial, I agreed to permit Mr. Ye.B. to bring a motion for an assessment. The motion was scheduled to be heard by the case management judge (Justice Sherr) on October 18, 2011. • On October 17, 2011 Mr.

Ye.B. sent an email to JFCS counsel stating that he was “not ready and will deal with all these issues at the trial”. • On October 18, 2011 Mr. Ye.B., having served and filed no motion materials, did not appear in court. • On October 26, 2011 Mr. Ye.B. told Ms. Greenwood and JFCS counsel that he and Ms. A.So. had broken up two weeks earlier. • On November 4, 2011 Mr. Ye.B. provided Ms. Greenwood with another Plan of Care proposing that he be the sole caregiver for the children. [ 34 ] It seems clear that, at a time when Mr.

Ye.B. ought to have been focusing exclusively on the needs of his children, he was preoccupied with his on-again-off-again relationship with Ms. A.So. Mr. Ye.B.’s apparent inability or unwillingness to present a consistent plan for his children is indicative not only of poor judgment, but of an unacceptably ambivalent level of sustained commitment to his children. Mr. Ye.B. testified that he and Ms. A.So. had agreed from the outset that his children would be his top priority. Unfortunately, Mr.

Ye.B.’s conduct and choices throughout the many months leading up to the trial are not indicative of a parent who consistently put his children’s needs ahead of his own. Mr. Ye.B. testified that he loved Ms. A.So. then, and he still loves her now even though they have terminated their relationship. He expressed regret that he did not agree to have her assessed. He appeared to understand that the absence of an assessment of his proposed co-parent, in the circumstances of this case, negatively impacted on his chances of resuming custody of his children. He stated that he has learned a lot during the trial.

It is astonishing that any parent should need a 9-day trial in order to acquire basic insight into the consequences of putting a romantic relationship ahead of one’s children’s needs. [11] 3.3(b): Mr. Ye.B.’s Unco-operative Attitude towards the JFCS [ 35 ] Given the circumstances triggering this protection application (and in particular the fact that he remains a suspect in the brutal assault on his baby), Mr. Ye.B. ought to have had the insight and maturity to appreciate that he should fully co-operate with the JFCS.

He needed to gain their trust by treating them with respect, accepting their guidance and assistance, and demonstrating an eagerness and ability to work with the plethora of service providers required to meet Ya.B.’s special needs. It should have been obvious to Mr. Ye.B. (as it would be to any reasonable person), that adopting a co-operative attitude towards the professionals who were trying to assist him and his children, would have greatly facilitated the return of his children, and was therefore in his own best interests. Unfortunately, Mr.

Ye.B. preferred to see himself as a victim, and demonstrated repeated acts of disrespect, defiance and unco- operativeness towards the JFCS staff, often in the presence of his children and to their detriment. This was evidenced in the following incidents: • On January 27, 2010, Mr. Ye.B. was asked by JFCS worker Ms. Grund to sign medical consents for his children. He refused, and asked why he should have to sign anything if the JFCS was supposed to be the legal guardian of his children. He went on to say that he believed the JFCS just wanted to cover itself if they were sued.

Again, on November 9, 2011, when asked by Ms. Greenwood to consent to his wife’s medical records to confirm her mental health diagnosis, Mr. Ye.B. refused. • On September 7, 2010, at an access visit and in the presence of both children, Mr. Ye.B. refused to take direction from JFCS worker, Ms. Ilana Segal, on how to position Ya.B. in accordance with the instructions given by Ya.B.’s therapists at Bloorview. He persisted in shouting at Ms. Segal even though S.B. was putting her hands over her ears and tried to “shush” him.

He left the visit ten minutes early and then sent the JFCS an email stating that he would not attend future access visits at which Ms. Segal would be supervising. In cross-examining Ms. Segal, he further demonstrated his lack of insight into his conduct by saying to her, “Don’t you think I had the right to tell you that you are irritating, annoying and patronizing?” The fact that the incident in question happened in front his (almost) 3-year-old daughter, who was showing visible signs of distress, was completely lost on him even though he has had more than a year to reflect on the incident.

Even more astonishing was Mr. Ye.B.’s comment to Ms. Segal in cross-examination that the purpose of his access visits with his children was to maintain a bond with his children, “not for me to prove to you that I can do whatever it is you want me to do to parent my children”. Mr. Ye.B. seems to be unwilling or unable to understand that supervised access visits have a dual purpose: to permit, promote and maintain the parent-child bond AND to give parents the opportunity to demonstrate to the society that they have the ability to properly care for their children.

This latter purpose is especially important in the case of special needs children like Ya.B., who is legally blind, severely brain damaged and developmentally delayed. Mr. Ye.B.’s cross-examination of Ms. Segal regarding the incident on September 7, 2010 was highly indicative of his ongoing failure to understand the role of the JFCS and his obligations as a parent. • On September 21, 2010, Mr. Ye.B. refused to permit Ms. Sascha Gurwitz, a therapeutic social worker, to observe an access visit with his children. Despite being told the purpose of Ms. Gurwitz’s presence — to help Mr.

Ye.B. utilize helpful parenting strategies and manage the children’s behaviour — Mr. Ye.B. insisted that Ms. Gurwitz not be present. He accused the JFCS of bringing Ms. Gurwitz to the visit for the sole purpose of gathering evidence against him in court, as a court date was coming up. • On January 14, 2011, at an access visit, Mr. Ye.B. refused to help get S.B. ready to leave at the end of the visit. He became verbally abusive to JFCS worker Teena Grund, and said to her, “Just because your husband died, you think you can come back…”.

This cruel and insensitive comment, made in front of the children, coming from a man whose own wife was lying in a coma, speaks volumes about Mr. Ye.B.’s immature and self-absorbed, impulsive personality. What is even more surprising and disappointing about this incident is that, after cooling down and having time to reflect on the situation, Mr. Ye.B. did not come to realize the inappropriateness of

his behaviour and offer an apology. Instead, he sent e-mails to the JFCS on January 14 and 18, 2011 stating that he would no longer attend access visits if Ms. Grund was going to be present. On a positive note, Ms. Grund did continue to supervise Mr. Ye.B.’s access visits, without incident. • At paragraphs 108 and 109 of her affidavit, Ms. Greenwood describes a disturbing example of Mr. Ye.B.’s failure to co-operate: In or around the winter of 2011, I had explained to Mr.

Ye.B. that Ya.B. was not to be fed food during the visits without proper training, as per instructions from his occupational therapist, because of the risks of gagging and choking (Ya.B. has issues with his oral motor development). Mr. Ye.B. then accused me and the JFCS of depriving him of a bonding experience with Ya.B.…Several times he ignored these instructions, and fed Ya.B. small pieces of fruit and/or pancake, that he had brought for S.B., despite Ya.B. not being in a proper high chair, and despite the fact that Mr. Ye.B. was not properly trained in feeding Ya.B.

This particularly disturbing event demonstrates that:

(1) Mr. Ye.B. did not appear to appreciate the extent of his son’s special needs; and (2) he was prepared to defy specific instructions and put his own needs ahead of his child’s, even to the extent of subjecting his severely disabled son to a health risk. This is inexcusable. • On April 28, 2011, at an access visit being supervised by JFCS worker Jodi Rishikof, Mr. Ye.B. stated that he wanted to videotape the children. When Ms. Rishikof asked for more information about Mr. Ye.B.’s intentions in this regard, he began shouting at her in front of the children.

He did not appear to understand that: (1) a child protection agency would need to have thorough information as to the purpose, extent and intended use of any filming of children in their care; and (2) it was not appropriate to engage in an argument with JFCS personnel in the presence of his children. • On September 1, 2011, Mr. Ye.B. refused to permit JFCS workers Ms. Grund and Ms. Greenwood to enter his home on an unannounced visit. The purpose of their visit was to ascertain whether Mr. Ye.B.’s home would be suitable for the children. However, to Mr. Ye.B.’s credit, he did allow JFCS workers Ms.

Greenwood and Ms. Ferrazzo to enter his home on November 9, 2011. • Ms. Greenwood, who has been Mr. Ye.B.’s Family Service Worker since May 2010, stated in her affidavit (paragraphs 74-77) that her role has been difficult “as Mr. Ye.B. has, at times, demonstrated a tendency to belittle me during our discussions…” He has also questioned the morality of the JFCS staff and accused them of abusing power and having little regard for the welfare of his family. On August 2, 2011 he sent an email to the JFCS threatening to sue them. • In his testimony Mr.

Ye.B. stated that he believes “there is something wrong” with JFCS worker Amy Zak. He criticized several other workers and said that he does not trust the JFCS. He suggested that the management structure of the JFCS should be reorganized so that a second Director who is a psychologist should be in charge of the social workers. His disdain for the JFCS was made even more evident by his frequent rude, argumentative and disrespectful responses to JFCS counsel when he was being cross-examined. [12] [ 36 ] Unfortunately, Mr.

Ye.B.’s unco-operative attitude towards the JFCS does not bode well for him, given the enormity of Ya.B.’s special needs and the necessity that his caregiver(

s) work co-operatively with numerous medical and therapeutic specialists. Ya.B.’s caregivers must be willing and able to accept direction, feedback, and constructive criticism in a non-defensive way. It is crucial that Ya.B.’s caregiver(

s) have this capacity because Ya.B. is likely going to require specialized caregiving for the rest of his life. Mr. Ye.B.’s personality, as demonstrated over the past two years in dealing with the JFCS, most definitely does not meet this important requirement. 3.3(c): Further Examples of Mr. Ye.B.’s Poor Judgment [ 37 ] The following incidents provide further examples of Mr. Ye.B.’s poor judgment throughout the history of this case. All of these incidents impact unfavourably to some extent on his ability and/or willingness to put his children’s needs ahead of his own.

Also of concern is the fact that some of these incidents indicate that Mr. Ye.B. has an as-yet unaddressed anger management and/or impulse control problem. • Mr. Ye.B. refused to allow the assessor, Dr. Perlman, to speak with the S.s or Ya.B.’s foster parents. If the assessor conducting a parenting capacity assessment is not permitted to obtain information about the children’s needs and routines from their actual caregivers, she is severely handicapped in her ability to comment on the parent’s ability to meet those needs and comply with those routines. The result is that Dr.

Perlman’s assessment report was of only minimal assistance to the court. Mr. Ye.B.’s selfish concern that he might not be presented in the most favourable light if Dr. Perlman had access to his children’s caregivers, was his major priority — not getting the best, most reliable expert opinion about his parenting capacity. Dr. Perlman testified that in 15 years of conducting assessments in child protection cases, Mr. Ye.B. was the first parent who had ever refused to allow her to speak with a foster parent. • On May 21, 2010 Mr. Ye.B. was advised by Ms.

Greenwood to seek counselling to address the emotional traumas he had suffered. He did not do so until October 2011, when he started attending “psycho-dynamic psychotherapy” at “The Living Institute”, run by Caroline Mardon, BA (Hon)(Eng). Mr. Ye.B. has provided no satisfactory explanation for the lengthy delay in getting the help he needs to overcome his emotional trauma and most importantly, develop the necessary insight into the consequences of his choices on his children. • In almost two years of litigation Mr. Ye.B. never brought a motion to have either child returned to him.

Nor did he ever bring a motion for increased access. Throughout the trial he blamed his former lawyer for poorly representing him, and he even went so far as to accuse the case management judge, Justice Sherr, of not taking an interest in his case. This is simply another example of Mr. Ye.B.’s pattern of self-identifying as a victim (when it should be painfully obvious to him that the real victims in this case are his children), and in blaming others instead of taking responsibility for his own choices. Whatever the reasons may be for his prolonged passivity as a litigant in this case, the reality is that Mr.

Ye.B.’s access to both children has remained extremely limited (supervised at the JFCS office twice per week, totalling four hours per week) from the outset. In terms of his access with S.B., there is no question that he could have enjoyed unsupervised access had he simply agreed that S.B. have no contact with Ms. A.So. Mr. Ye.B. now says that he would have agreed to this condition had he understood that he was not being asked to actually break up with Ms. A.So. However, I accept Ms.

Greenwood’s testimony that she made it clear to Mr. Ye.B. that he simply had to agree not to expose S.B. to Ms. A.So., and that he would have been free to continue to see Ms. A.So. when S.B. was not with him. • After Mr. Ye.B. sent an e-mail to the JFCS on February 3, 2011 proposing himself as sole caregiver for the children, the JFCS proposed a 3-day assessment to be conducted at Thistletown, which would have provided him with an extended opportunity to demonstrate that he could manage both children full-time. Without explanation, Mr. Ye.B. refused to consent to this assessment. Had Mr.

Ye.B. participated in the assessment and successfully parented his children for the 3-day period, he would most definitely have been in a much better position to seek the return of his children than he was at the trial. • Throughout the trial, Mr. Ye.B. focussed to a great extent on the conflict between himself, his wife and the S.s despite my repeated, heartfelt suggestions that he should focus on the real issues in this case: his children’s safety and well-being. When he cross- examined Mr. S.Si. and Mrs.

H.S. and S.B.’s maternal aunt N., he did not ask a single question about the care S.B. has been receiving in the S. home for the past 23 months, or their future plans for her upbringing. Nor did he raise the crucial issue of what role, if any, the S.s envisioned for him in S.B.’s life if she were to remain in their care. It is indisputable that the longstanding hostility on both sides makes this a very important issue, as S.B. has already been through too much and must be insulated and shielded from the adult conflict. It ought to have been obvious to Mr.

Ye.B. that, regardless of whether S.B. were to live with him or the S.s, there would likely have to be frequent and ongoing contact between himself and the S.s in order to facilitate access, given the importance of all of them in S.B.’s life. As this did not appear to have occurred to Mr. Ye.B. (I inferred this from his line of questioning to Mr. S.Si. and Mrs. H.S. and N.), I made repeated attempts to gently remind him of this important issue. My efforts were to no avail.

Rather than attempt to elicit from the S.s what they were prepared to do to ensure that S.B. could continue to enjoy the love and support of the entire family regardless of whom she lives with, Mr. Ye.B. chose instead to focus relentlessly on the “family feud”. Mr. Ye.B.’s choice of questions for Mr. S.Si. and Mrs. H.S. and N. were revelatory of a person who has become obsessed with a deeply entrenched, toxic family conflict that sadly, can have no resolution because the center of that conflict is a woman lying helplessly in a coma. Unfortunately, I fear that the interactions between Mr.

Ye.B. and the S. family in the courtroom have only served to intensify the conflict. [ 38 ] It is important to note at this juncture that Mr. Ye.B. has strengths. He loves his children. He has consistently stated that he wishes them returned to his care. He has promptly attended access visits consistently and has arrived at his visits well-prepared and equipped with food and toys for the children. He is an intelligent and articulate man. Dr. Perlman’s assessment report states that Mr.

Ye.B. functions within the normal range of cognitive abilities, and that he does not suffer from any significant personality or psychiatric disorder [13] . [ 39 ] In addition, Mr. Ye.B. called four witnesses who testified that he is an honest person with great integrity and professional aptitude. Three of the witnesses have had the opportunity to observe Mr. Ye.B.’s excellent relationship with his daughter. Only one of the witnesses (Mr. Ba.) appeared to have much knowledge of the exact basis upon which Mr. Ye.B.’s children were apprehended.

None of the witnesses appeared to be aware of the key events that have transpired since the apprehension in terms of Mr. Ye.B.’s various plans of care and choices throughout the course of this proceeding. They were all prepared to support the return of S.B. and Ya.B. to Mr. Ye.B., but had virtually no understanding of how such a placement would meet the children’s current needs. It is truly unfortunate and sad that Mr.

Ye.B., who has no family in Toronto, sought to rely on the support of good friends who cared enough about him to come to court and testify on his behalf, but who gave the distinct impression that they had not been apprised by Mr. Ye.B. of the real protection issues and circumstances that have been at the center of this case for almost two years. It is hoped that Mr. Ye.B. will in the future allow the people who love him to help him heal from his trauma and make good choices in his life.

They can only help him if they know exactly what circumstances he is dealing with. 4: S.B. 4.1: S.B.’s Progress since the Apprehension [ 40 ] S.B. was a happy, healthy little 21-month old infant when her mother went off to the hospital on August 10, 2009 to have a baby and never came home. She then had to adjust to a new baby brother, an emotionally traumatized and largely unavailable father, [14] a series of nannies, and frequent visits to her grandparents with whom her father did not get along.

Just three short months after losing her mother, she lost her brother [15] and stopped living with her father. [ 41 ] If the events in the preceding paragraph were not enough for any infant to endure, there was more disruption in store for S.B. Following Ya.B.’s admission to the hospital on November 20, 2009, S.B. went to stay with her maternal grandparents. However, on December 3, 2009 she was moved to the home of the father’s friends Mr. M.M. and Mr. D.D. at the father’s insistence, because he alleged that one or both of the grandparents were alcoholics.

The JFCS agreed to move S.B. because the grandmother had attended at the hospital late in the evening on Nov. 20, 2009 with the smell of alcohol on her breath. Both grandparents subsequently submitted to random urine testing for alcohol and all test results were negative. S.B. returned to her grandparents’ home on January 29, 2010 and has remained there in a kinship foster placement. Looking back, it cannot be said that Mr. Ye.B. exercised good judgment by wrongly accusing his in-laws of being incapable of providing proper care for S.B.

She certainly could have done without the disruption of leaving her grandparents’ home on December 3, adjusting to living with Mr. M.M. and Mr. D.D. for 7 weeks, and then moving back to her grandparents’ home. [ 42 ] It is nothing short of amazing that, with this factual backdrop, S.B. has by all accounts once again become a happy, healthy, well-adjusted little girl who is doing extremely well in her grandparents’ care and meeting all developmental milestones.

The observations of all JFCS witnesses (especially the evidence of Ilana Segal and Jodi Rishikof) and Carly Lewis, the supervisor at S.B.’s daycare facility, are unanimous in their assessment of S.B. as a child who is thriving in every way. Mr. S.Si. and Mrs. H.S. and their family deserve an enormous amount of credit and gratitude for the incredible work they have done in giving S.B. all of the love and emotional support she needed to heal from her traumas. [ 43 ] It is remarkable that the S.s were able to accomplish this, given the fact that: (1) they too were coping with the tragedy

that had befallen their daughter Ms. C.B.; (2) they were heartbroken to learn that their baby grandson had been rendered blind and brain damaged in a barbaric assault by one of his caregivers; and (3) their relationship with Mr. Ye.B. has been so severely conflicted and hostile. Although it would appear that S.B. is a resilient child, it is beyond dispute that the S.s are a special family with considerable emotional resources in order to achieve what they have done for S.B. in so little time. It is also commendable that at no time since S.B. came into their care have they ever asked a court to order Mr.

Ye.B. to pay even a modest amount of child support for his daughter. 4.2: Disposition for S.B. [ 44 ] S.B. is strongly bonded and attached to her grandparents and is thriving in their home. She has lived there since January 29, 2010 after suffering repeated traumas. It would be unthinkable and cruel to remove her from their care at this time. I have reached this conclusion having regard to the following factors in s.37(3) of the Act, which I consider to be the most important in determining S.B.’s best interests in the circumstances of this case: 1.

The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. 8.

The merits of a plan for the child’s care proposed by a society…, compared with the merits of the child …returning to a parent. 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. All of the above factors have weighed heavily in the court’s decision to keep S.B. in the care of her grandparents. In particular, S.B. requires the stability, consistency and security of the S.’s ongoing love and care. [ 45 ] Mr.

Ye.B. argued forcefully throughout the trial that the S.s were not good parents to his wife Ms. C.B., and that if S.B. were to be raised by them, she would likely suffer from the same mental health problems that afflicted Ms. C.B. After having heard the testimony of Mr. S.Si. and Mrs. H.S., and of their daughter N., who is quite clearly a well-adjusted and accomplished person, and especially considering the excellent parenting that the S.s have provided to S.B., I reject Mr. Ye.B.’s concerns. Whatever Ms.

C.B.’s mental health problems may have been, [16] there is absolutely no basis upon which any reasonable person could infer that the S.s pose any risk to S.B. whatsoever. To the contrary, the S.s have been S.B.’s invaluable lifeline. [ 46 ] It takes a great deal of maturity and self-control to insulate a child on a sustained basis from adult conflict. By all accounts, S.B. has so far been shielded from the high conflict tensions between her father and her caregivers.

Family court judges rarely see the kind of selflessness, generosity of spirit and child-focussed conduct that the S.s have demonstrated in their upbringing of S.B. Given the very positive relationship between Mr. Ye.B. and his daughter as evidenced at access visits, it is clear that S.B. is not being exposed to negative comments about her father, and that she has been given emotional permission to freely express her love and affection to him. [ 47 ] Unfortunately, the same cannot be said of Mr. Ye.B. He has on numerous occasions not hesitated to expose his children to his hostility towards the JFCS.

He has exposed his children to his hostility towards the S.s [17] . He utilized every opportunity throughout the trial to insult and berate the S.s, even though it would clearly have been in his best interests to demonstrate a willingness to make peace with them. He continually focused on old conflicts between his wife, himself and the S.s which any reasonable person at this point (given the fact that Ms. C.B. is in a coma and unlikely to recover) would have let go of. What does it matter at this point what the relationship was between Ms. C.B. and her parents? What good could it possibly do for Mr.

Ye.B. to focus on emails purportedly sent by Ms. C.B. to her siblings and parents? [18] Mr. Ye.B. persisted in this approach despite my repeated attempts to get him to focus on his children, especially his daughter who has been living with the S.s for almost two years and who has come to depend on them so very much. [ 48 ] The hostility is not altogether one-sided. When testifying about her wishes for S.B.’s future access with her father, Mrs. H.S. stated that she felt S.B. should have only supervised access with Mr. Ye.B. for a long time, because she is worried that he will kidnap S.B.

Clearly there is no trust on either side. This being said, I had the distinct impression from the testimony of Mr. S.Si. and Mrs. H.S. and N. that they understand the need to be civil and businesslike with Mr. Ye.B. [19] and not to badmouth him to his daughter, for the sake of S.B.’s emotional well-being. They have shielded S.B. from the conflict so far, and this factor has played a significant role in my decision-making regarding S.B.’s future. [ 49 ] Sadly, I do not have the same confidence in Mr. Ye.B.

It seems clear that until he has obtained the help he needs to let go of his rage towards the S.s for his daughter’s sake, and to develop greater impulse control, the likelihood is high that if given the opportunity, he would denigrate the S.s to his daughter and attempt to alienate her from them. [ 50 ] Accordingly, I am not prepared to make a custody order under s.57.1 of the Act for S.B. at this time.

In my view, given S.B.’s need for more generous access to her father, and the concomitant requirement for coordination and adjustment of such access on an ongoing basis, there would be great risk to S.B.’s emotional wellbeing if Mr. Ye.B. and the S.s were left to their own devices to co- ordinate the access. In fact, I have no doubt that if a s.57.1 custody order were made, a fresh custody-and-access proceeding under the Children’s Law Reform Act , or a contempt motion, would be commenced by either or both parties in short order.

It is certainly not in S.B.’s best interests to set up the adults in her life to engage in their own high conflict, protracted litigation war. S.B. has already endured

enough disruption in her life. [ 51 ] S.B. needs the resources of the JFCS for at least the next year to coordinate and monitor her relationship with her father, and to serve as a buffer in the interactions between the adults. I have considered the jurisprudence militating against making a supervision order when the society is advocating for a s.57.1 order; a supervision order should be made only if a specific risk of harm to the child is found to exist: Children’s Aid Society of Toronto v. Terri-Jade M. , 2010 ONCJ 701 , [2011] W.D.F.L. 3538, [2010] O.J. No. 5892, 2010 Cars​well​Ont 10495 (Ont.

C.J.), at paragraph [29]. I find that this is such a case. A significant protection concern relating to risk of emotional harm continues to exist for S.B. at this time due to: (1) the toxic conflict between the adults; and

(2) Mr. Ye.B.’s untreated personality problems, which require the vigilant involvement of the JFCS, particularly in implementing the access order being made herein (paragraph [91]). Accordingly, there shall be a 12-month supervision order placing her in the care of her maternal grandparents. The terms and conditions of the supervision order are set out in the last

section of these reasons for decision. 4.3: Father’s access to S.B. [ 52 ] S.B. has a strong bond and attachment to her father and vice versa; they love each other very much. This is acknowledged by numerous JFCS personnel as well as by Dr. Perlman in her assessment report. Other than the occasions when he displayed anger towards JFCS staff in S.B.’s presence, and the occasions when he refused to help prepare S.B. to end the visits, Mr. Ye.B. has consistently treated his daughter with love and affection, and has engaged her in appropriate activities.

S.B. has frequently been upset at the end of visits because she did not want her time with her father to end. [ 53 ] Mr. Ye.B.’s access to S.B. has been extremely limited: 2 supervised visits per week. As stated above, it is unfortunate that Mr. Ye.B. did not see fit during the past two years to bring a motion to increase his access to S.B.

Had he demonstrated a capacity and willingness to exercise the same restraint that the S.s have shown in insulating S.B. from the adult conflict (which means absolutely never speaking badly to S.B. about anyone in the S. family ), I am certain that such a motion would have been granted (assuming of course that he had also been willing to keep S.B. away from Ms. A.So.). [ 54 ] S.B.’s access to her father must be determined in accordance with her best interests.

At this time, and in the context of all of the evidence, the most important factors to be considered are: • S.B.’s strong bond with her father, and her right to enjoy his love, affection, care, guidance and support • Mr. Ye.B.’s good parenting skills during access visits • Mr. Ye.B.’s unresolved longstanding rage toward the S.s, combined with his emotional immaturity and poor impulse control • Mr.

Ye.B.’s lack of track record so far in demonstrating the required restraint in his comments to his daughter regarding the S.s, given the fact that all of his access visits to date have been supervised • The absolute necessity, given the disruptions and traumas S.B. has already suffered, to protect her from any exposure to the adult conflict [ 55 ] The court must proceed cautiously in the gradual expansion of S.B.’s access. The time has come for Mr.

Ye.B. to seriously engage in intensive therapy with a qualified psychologist to: (1) overcome his emotional traumas; (2) let go of his anger, resentment and bitterness towards the S.s; (3) acquire better insight into the impact and consequences of his choices and behaviour on his children’s well-being; and (4) develop effective anger management and impulse control skills. I am mindful of Dr. Perlman’s admonitions during her testimony, that there is no available treatment or known interventions to remedy poor judgment, and I accept her expert opinion. However, Dr. Perlman spent only a few hours with Mr.

Ye.B. and I spent nine days with him in my courtroom. My observations and interactions with Mr. Ye.B. have led me to conclude that if he allows himself to truly accept and apply the therapy that he is being urged to undergo, his improved insight and impulse control will have a positive impact on his judgment and make him a better parent. [ 56 ] The access order being made herein (paragraph [91]) is intended to give Mr. Ye.B. a strong incentive to take the necessary remedial steps, which quite frankly are long overdue.

The order is also intended to give the JFCS the necessary discretion and flexibility to monitor and hopefully increase Mr. Ye.B.’s access if he demonstrates the required progress in developing the necessary emotional maturity. My sincere hope for this family is that they will eventually put the past behind them and, with the able assistance of the JFCS and other mental health professionals and social workers, work towards a shared parenting arrangement in which S.B. has two loving homes, and spends a great deal of quality time with her father and the maternal side of her family. This would require Mr.

Ye.B. to make the decision once and for all that he loves S.B. more than he despises the S.s, and that for her sake he will make peace with them. I know it is not easy but S.B. is definitely worth it and she deserves nothing less. [ 57 ] One final comment regarding the access order. To assist the JFCS in managing Mrs. H.S.’s anxiety regarding Mr. Ye.B. possibly kidnapping S.B. if he were to have unsupervised access, I have included terms and conditions in the order relating to passport and travel restrictions. I wish to make it clear that I do not share Mrs. H.S.’s concerns that Mr.

Ye.B. is a potential child abductor. I accept Mr. Ye.B.’s testimony that so long as his wife is in Toronto and his lawsuit against his wife’s hospital is ongoing, he has no intentions of leaving Toronto. However, it is true that:

(1) Mr. Ye.B.’s family is in the United States; (2) his father testified that he wanted to take both children to live with him and his wife in California, and that he expected Mr. Ye.B. to eventually join them there; and

(3) Mr. Ye.B. testified that he might consider returning to live in San Diego so his parents could get to know his children. In these circumstances I consider it appropriate to include passport and travel restrictions. Hopefully the time will come when Mr. Ye.B. will be able, with the court’s blessing, to take his daughter to visit his family in the United States. Mr. Ye.B. has much to look forward to with his daughter once he takes the steps outlined in paragraph [55]. 5: Ya.B.

5.1: Ya.B.’s Special Needs [ 58 ] As a result of the violent assault inflicted upon him, Ya.B. suffered severe brain damage and vision loss, causing permanent serious impairments to his physical and cognitive functioning. Since his release from hospital on December 10, 2009, Ya.B. has been treated by a paediatrician, haematologist, neurologist, neurosurgeon, ophthalmologist and eye surgeon. In addition to his legal blindness and delayed mobility, he has suffered from feeding and swallowing issues, seizures, muscle tone issues and sleep difficulties.

In addition he has an inherited blood disorder that must be monitored. [20] Ya.B.’s medical condition is regularly monitored with CT scans, blood testing, eye examinations, hearing tests and neurological examinations. Ya.B.’s paediatric neurologist, Dr. Shelly Weiss, testified that Ya.B. has “ongoing significant neurological problems” and will continue to require neurological monitoring indefinitely. [ 59 ] Ya.B. participates in an intensive regime of rehabilitation at Holland-Bloorview Kids Rehabilitation Hospital (“Bloorview”) with a rehabilitation paediatrician, physiotherapist and occupational therapist.

He also receives speech therapy from Toronto Preschool Speech and Language Services, and he receives vision therapy at the Canadian National Institute for the Blind (“CNIB”). He also participates in an integrated “Play and Learn” program for children with special needs. The evidence contained hundreds of pages of medical and therapeutic reports, and I heard testimony from: Dr.

Laura McAdam, paediatrician at Bloorview with special expertise in paediatric neurology in brain-injured children; Marianne Balastra, early childhood vision consultant at the CNIB; Janet Woodhouse, occupational therapist at Bloorview; and Gail Kirkwood, physiotherapist at Bloorview. [ 60 ] In terms of Ya.B.’s long-term prognosis, Dr. Weiss and Dr. McAdam made it clear that Ya.B. will have significant special needs all his life due to his visual, motor, cognitive and language impairments. He will likely need ongoing physical and occupational therapy well into his adult years.

He will need constant supervision and will probably never be able to live independently in the community. He will need chronic care and supervision for the rest of his life. He is a very fragile child with exceptionally extensive therapeutic needs, and his caregivers must be hyper-vigilant to keep him safe. [ 61 ] Dr. McAdam explained that Ya.B. requires caregivers who will work with him on a continuous basis to provide the necessary stimulating environment to maximize his development.

She explained that rehabilitation for a child is a partnership between the therapists and the caregivers, and there must be a good working relationship between them. In the case of a brain-injured child, a great deal of repetition is required in order for the child to learn even the simplest things. Ms. Balastra testified to the same effect: Ya.B.’s caregivers must spend at least one hour per day implementing and reinforcing the therapy she is doing with Ya.B. at his weekly sessions with her. [ 62 ] Clearly Ya.B. needs caregivers with enormous patience, dedication and perseverance.

He requires caregivers who are ready, willing and able to co-operate fully with all of Ya.B.’s doctors, therapists, teachers and other service providers. The caregivers must demonstrate a capacity and willingness to religiously follow all instructions for exercises to be done at home between therapy sessions. By all accounts, Ya.B.’s former foster parents and current foster parents possess the ideal qualities required by a child such as Ya.B.

All of the progress that has been made by Ya.B. to date is directly attributable to the incredible dedication and persistence of his wonderful foster parents, and the court is greatly appreciative of the tremendous sacrifices they have made for this special little boy. 5.2: Father’s Ability to Meet Ya.B.’s Special Needs [ 63 ] The first step in being able to meet a child’s special needs is to understand and accept that the needs exist. The next step is to have the willingness and ability to work co-operatively, consistently and respectfully with all of the child’s service providers. Mr.

Ye.B. has had ongoing difficulties meeting these requirements, as illustrated in the following points derived from the evidence: • In cross-examining Dr. McAdam, Mr. Ye.B. made it clear that he does not accept the medical prognosis for Ya.B. because he believes that the “plasticity” in Ya.B.’s brain can enable him to “heal”. During his own cross-examination Mr. Ye.B. described Dr. Weiss (Ya.B.’s neurologist) as “ignorant and arrogant; she is out of date, out of time and sorely out of touch” when it comes to her knowledge of brain functioning and healing. Mr.

Ye.B. has no medical training, yet he truly believes that he knows better than recognized medical experts in a world class teaching hospital. There is certainly nothing wrong with keeping one’s hope and not giving up on a child, particularly a child who is only 2 years old. However, there is a fine line between being in denial (and possibly delusional) and being hopeful yet realistic.

When a parent of a special needs child unreasonably refuses to accept the opinions and treatment plans established by his child’s doctors and therapists, he is putting his child at risk because there is serious doubt that he will comply with the treatment regimes prescribed for the child. • According to JSCS worker Ilana Segal (paragraphs 49-52 of her affidavit), there were several occasions when Mr. Ye.B. disagreed with a particular therapy strategy at Bloorview, or the wording of a plan of care, and he “became escalated and began shouting”. She stated that Mr.

Ye.B. demonstrated an inconsistent commitment to attending [21] and participating in Ya.B.’s therapeutic programs. Also, Mr. Ye.B. did not always accept some of the therapies being demonstrated and taught, even though he had no expertise in this area and preferred to trust his intuition rather than the expertise of Ya.B.’s doctors and therapists. She also pointed out that Mr. Ye.B.’s acceptance of Ya.B.’s medical prognoses was unclear, as at times he appeared unwilling or unable to accept information provided by medical professionals.

He also expressed a lack of desire to incorporate therapy techniques and recommendations into his access visits with Ya.B. Mr. Ye.B. made it clear that he does not always support mainstream therapeutic methods. While this is not necessary, unusual or problematic, it becomes a risk issue in the case of a child such as Ya.B., whose needs are so extensive. Ya.B. has already suffered severe abuse at the hands of one of his caregivers; he certainly does not need to also suffer neglect.

He deserves the very best available medical and therapeutic expertise, and should not become the subject of a parent’s untested and amateur holistic experimentation. It is imperative for Ya.B.’s caregivers to follow the treatment and therapeutic regimens as directed by qualified experts, in order to achieve the best possible outcome for him. • It was clear during Mr. Ye.B.’s cross-examination of Marianne Balastra, (Ya.B.’s vision therapist from the CNIB), that he likes her and approves of her therapeutic methodology.

He believes she is more sensitive to Ya.B.’s temperament and emotional state than some of Ya.B.’s other therapists. Mr. Ye.B. made it equally clear during his cross-examination of Gail Kirkwood (paediatric physiotherapist at Bloorview) that he disagreed with her approach, which he described as “forceful”, “making the child the object of her will”,

“alienating” and “an offensive violation of the child’s space”. While it is understandable that personal chemistry and differences in professional style will affect a parent’s level of appreciation for the expertise of the various members of his/her child’s medical and therapeutic team, a parent of a special needs child must work diligently with all of the child’s doctors and therapists, not just the ones he/she likes or approves of.

Ya.B.’s development and well-being cannot be placed in the hands of a non-expert parent who chooses to comply only with the instructions he agrees with, based on his untrained intuitive notions of his child’s treatment needs. • Gail Kirkwood’s testimony was very instructive in this regard. She has 25 years experience as a physiotherapist working at Bloorview with brain-injured children. She testified that she and a Bloorview social worker made repeated efforts to explain the purpose and importance of Ya.B.’s physiotherapy to Mr. Ye.B., without success.

They explained to him that the exercises being done with Ya.B. were not painful for him, and that there was no cause for concern if Ya.B. was agitated or upset during the sessions, as this was normal. They also explained that it was extremely important for Ya.B. to have repetition and practice of each exercise, due to the impact of his severe brain injury on his ability to learn. Mr. Ye.B. persisted in challenging Ms. Kirkwood’s expertise and methodology, going so far as to disagree with the use of an ankle brace, and accusing her of pushing Ya.B. too hard and teaching him “circus tricks”.

She stated that on one occasion Mr. Ye.B. became so angry and verbally abusive that she contemplated leaving the room and ending the session. Mr. Ye.B. had the benefit of: (1) numerous educative discussions with Ms. Kirkwood; (2) reading Ms. Kirkwood’s progress reports and discharge

summary (tabs 58 and 60 of the Documents Brief); and (3) hearing her detailed evidence as to the purpose and importance of physiotherapy for Ya.B. and the crucially integral role which must be played by Ya.B.’s caregivers. Despite all of this, Mr. Ye.B. made it clear in his cross-examination of Ms. Kirkwood that he still adamantly refuses to accept and implement the therapeutic regime being recommended for his son.

His position was emphasized even more during his own cross-examination when he stated that Ya.B. was “being put under stress to perform” during his therapy sessions, and that “this is counterproductive to neurogenesis”. He went on to say that Ya.B. is being “overly micro-managed”, and that “his space is being invaded”, and that Ya.B.’s therapy “is interfering with his own healing process”. He also criticized Ya.B.’s first foster mother, who according to everyone (except Mr. Ye.B.) has been credited with bringing about great progress in Ya.B.’s motor development.

He accused her of “complying neurotically with every demand the JFCS put on her”, thereby causing her to “abandon Ya.B. emotionally.” Mr. Ye.B. directed these criticisms at the foster mother when it was pointed out to him in cross-examination that she had diligently followed the therapists’ instructions regarding intensive repetition of therapeutic exercises in the home. In the context of these statements, it was astonishing to read the plan of care filed by Mr. Ye.B. during his examination-in-chief, wherein he expressed a commitment to work with Ya.B.’s therapists. Clearly Mr.

Ye.B. did not appreciate the surreal disconnect between his plan of care and his repeatedly expressed disapproval of Ya.B.’s therapeutic regimen. Notwithstanding Mr. Ye.B.’s plan of care, there can be no doubt that if he were to regain custody of Ya.B., one of the first things on his agenda would be to discontinue most if not all of Ya.B.’s current therapeutic regime. This would be extremely detrimental to Ya.B.’s best interests. • JFCS worker Jodi Rishikof stated in her affidavit (paragraphs 64 — 72) that, more often than not, Mr.

Ye.B. did not engage directly in Ya.B.’s therapy sessions at Bloorview, and was more of an observer than a participant. She noted that Mr. Ye.B.’s involvement at these sessions was mostly verbal (reporting his own observations of Ya.B.’s conduct) rather than physically interactive by getting on the floor with his son and doing the exercises required to actualize the goals of Ya.B.’s therapeutic program. To illustrate her points, Ms. Rishikof referred to specific incidents which occurred at therapy sessions: on June 23, 2011 Mr.

Ye.B. sat on a bean bag for the majority of the session and declined an invitation to sit closer to his son; on July 27, 2011 Mr. Ye.B. sat reading a book, then participated in the session when encouraged to do so, but after a few minutes he returned to his seat, saying he was “not into this”; on August 24, 2011, Mr. Ye.B. showed up 25 minutes late for a physiotherapy session, and spent only a brief time with Ya.B. on the floor before returning to sit in a chair as an observer. • JFCS worker Teena Grund stated in her affidavit (paragraph 33) that Mr.

Ye.B. reacted inappropriately when suggestions were made to him at access visits that he should apply and implement the therapeutic exercises that Ya.B. needs on an ongoing basis in order to maximize his potential. She described Mr. Ye.B. as defensive and resistant to accepting help or advice. She wrote, “Mr. Ye.B. has stated to me more than once that he does not agree with the therapies that Holland-Bloorview is doing for Ya.B., e.g. the wearing of the helmet and the leg brace, the manner of feeding.” Janet Woodhouse (Ya.B.’s occupational therapist) testified that during one therapy session Ya.B. had a seizure.

Instead of expressing interest in the impact of such seizures and how to help prevent or alleviate them, Mr. Ye.B. reacted by expressing doubt as to whether a seizure had even occurred. He said that he did not want his child to be “stigmatized”. [22] In cross-examining Ms. Woodhouse he explained his reason for doubting that Ya.B. had had a seizure: when he (Mr. Ye.B.) was a child, he too had experiences when he “went into himself”, and it therefore seemed possible to Mr. Ye.B. that Ya.B. was having the same experience. The fact that Mr.

Ye.B. would compare his own neurologically normal childhood to that of his severely brain-injured son, speaks volumes about his inability or unwillingness to accept that Ya.B.’s health, growth and development can in no meaningful way be likened to that of a normal child. • At an access visit on September 7, 2010, Mr. Ye.B. took exception to suggestions being made by JFCS worker Ilana Segal regarding how to position Ya.B. during the visit. Mr. Ye.B. shouted at Ms. Segal to “stop projecting” her views of what was best for Ya.B., and to stop “patronizing” him, and to “just keep quiet altogether”.

All of this occurred in front of the children. • Mr. Ye.B. sent an email to Ms. Greenwood on September 21, 2010, which amply demonstrates his inability or unwillingness to appreciate the extent of his son’s special needs. In the email Mr. Ye.B. set out his desire to help “heal” his son, with great emphasis on the power of “a father’s love” to facilitate the healing process in terms of Ya.B.’s psychological and emotional development. As Ms. Greenwood points out (paragraph 196 of her affidavit), “what is concerning about this email is the lack of emphasis Mr.

Ye.B. places on Ya.B.’s needs and the concrete care Ya.B. will need if he were in Mr. Ye.B.’s home.” In April 2011 Mr. Ye.B. told Ms. Greenwood that he thought Ya.B. was “okay”, and therefore he questioned the validity of “pushing” Ya.B. in therapy. Following one of Ya.B.’s therapy sessions at Bloorview, Mr. Ye.B. told Ms. Greenwood that “until he sees true evidence otherwise, he will not accept that Ya.B. has a developmental disability”. • On May 27, 2011, Mr.

Ye.B. told JFCS worker Teena Grund that he did not agree with the length of time that Ya.B. had to wear his leg brace and that he felt that the brace was causing the problems. When Ms. Grund explained that the professionals at Bloorview had determined that Ya.B. still needed to wear the brace, Mr. Ye.B. stated that he had “some issues” with the people at Bloorview.

• On November 9, 2011, Mr. Ye.B. told Ms. Greenwood and JFCS case aide Mary Ferrazzo that his plan was for Ya.B. to sleep with him as “children benefit emotionally from sleeping with their parents”. He expressed no concern about whether this would be appropriate for a child with Ya.B.’s needs. Ms. Greenwood and Ms. Ferrazzo also noted that less than two weeks before this trial was set to begin, Mr.

Ye.B. had still not prepared his apartment for the return of a blind, developmentally delayed child, even though he was going to be asking the court to return Ya.B. to his care. • Ya.B.’s paternal father testified that if Ya.B. cannot be returned to Mr. Ye.B., the paternal grandparents are ready and willing to assume custody of Ya.B. More will be said below about the appropriateness of this plan. However, at this point in these reasons for decision, the paternal grandfather’s testimony is being referred to as a further illustration of Mr. Ye.B.’s level of understanding of his son’s needs. It would appear that Mr.

Ye.B. is actually prepared to have his parents take Ya.B. to live in California, when they clearly haven’t a clue about the extent of Ya.B.’s needs or how they are going to put into place the necessary resources to meet those needs. This is strongly indicative not only of Mr. Ye.B.’s abominably poor judgment, but moreover, of his fundamental lack of understanding of Ya.B.’s extreme disabilities and special needs. • Mr. Ye.B.’s testimony only served to confirm his inability or unwillingness to acknowledge the reality of Ya.B.’s condition.

Despite the evidence he heard in the trial from numerous medical and therapeutic experts, he told the court that he believes the neurologist is wrong in saying that Ya.B.’s brain cannot generate new cells. He also disagrees with the prognoses for Ya.B.’s cognitive development. He stated, “I believe Ya.B. will be fairly cognitively well”, and “I haven’t come to accept that he won’t recover cognitively”. In the face of the evidence presented at this trial, it is deeply concerning that Mr. Ye.B. should still be in serious denial two years aft

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