Children’s Aid Society of Toronto v. B.M., 2011 ONCJ 216

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

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

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

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

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

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

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

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Toronto Registry No. CFO 09 10287 A1 DATE: 2011·IV·11 CITATION: Children’s Aid Society of Toronto v. B.M. , 2011 ONCJ 216 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID OF TORONTO, Applicant, — AND — B.M. and St.M., Respondents. Before Justice Penny J.

Jones Heard on 29 and 30 November 2010; 6-8, 10 and 21 December 2010; 15-17 February 2011; 16 and 17 March 2011 Reasons for Judgment released on 11 April 2011

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

section 65 ,

section 70 and

section 141.1 . CASES CITED Jewish Family and Child Service of Toronto v. K. (R.), K. (T.) and T. (E.K.) , 2008 ONCJ 774 , [2008] O.J. No. 1940, [2008] O.J. No. 5856, 2008 Cars​well​Ont 9306 (Ont. C.J.). Mai-Tuin Seto ................................................................................ counsel for the applicant society Louis C. Alexiou ............................................................... counsel for the respondent mother, B.M. No appearance by or on behalf of respondent father, St.M., even though served with notice Catherine G.

Bellinger .......................................... counsel for the Office of the Children’s Lawyer, legal representative for the child [ 1 ] JUSTICE P.J. JONES:— This is a status review application relating to the child Se.M. born on […] July 2005 brought by the Children’s Aid Society of Toronto. Se.M. was found to be a child in need of protection under clauses 37(2) (

b) and 37(2)(

g) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (the Act), on 4 June 2009 at which time a four-month society wardship order was made. This status review application has been on adjournment since 21 September 2009. 1: POSITION OF THE PARTIES [ 2 ] The Children’s Aid Society of Toronto (the society) seeks Crown wardship for the purposes of adoption. If freed for adoption, it is the society’s plan to place the child with his current foster parents who have cared for him since his placement in care two and one half years ago. [ 3 ] Ms.

B.M., the child’s mother, seeks the return of the child to her care, with or without supervision. In the alternative, she seeks an order placing the child with her parents, Mr. L.T. and Mrs. C.T., subject to supervision. In the event Crown wardship is granted, she seeks an order for liberal and generous access to the child. [ 4 ] Mr. St.M., the father of the child was noted in default.

I am advised that he has withdrawn from the proceeding as have all paternal relatives and he supports the claim made by the society for Crown wardship on the understanding that the current foster parents will proceed to adopt Se.M. [ 5 ] The Children’s Lawyer supports the position of the society. 2: HISTORY OF PROCEEDINGS AND FINDINGS OF FACT AT TRIAL [ 6 ] Se.M. came into the care of the society on 24 October 2008 by way of a voluntary care agreement. His parents approached the society and sought placement for the child citing their inability to care for Se.M. due to their mental health issues.

Just days before the child was placed in care, Ms. B.M. had been hospitalized because she had intentionally overdosed on prescribed medication. [ 7 ] According to Dana Isaacs, the intake worker, shortly after the child came into care, the parents expressed concerns about their three-year-old son’s difficult behaviour and questioned whether Se.M. might be autistic.

The society also observed that Se.M. was exhibiting concerning behaviour and significant delays: he was not toilet-trained, he did not speak clearly and used a lot of babbles and jargon, he mimicked other children, he was very passive and compliant, did not know how to use table utensils or markers, could not open a door, was fascinated by spinning wheels and would flick on and off lights, and he was afraid of water, to name but a few areas of concern.

As a result of what appeared to be significant delays in development, Se.M. was referred for a psychological assessment as well as a paediatric neurological assessment as a diagnosis of autism was suspected. [ 8 ] By January 2009, Se.M.’s parents had separated. Mr. St.M. asked Ms. B.M. to leave and she went to reside at a women’s shelter. Initially, Mr. St.M. supported his wife’s resuming custody of the child and he did not exercise regular access to the child. From November 2008 to March 2009, Ms. B.M. attended access visits regularly and on time. Se.M. looked forward to his visits with his mother and Ms.

B.M. was observed to be appropriate and loving with her son. [ 9 ] In March 2009, Mr. St.M. changed his position and began to seek regular access to his son. He no longer supported Ms. B.M.’s plan for Se.M. and proposed himself as the caregiver for Se.M.; he told the society that he was seeking custody because his wife had been negligent in her care of Se.M. and had a mental condition that rendered her unfit to care for Se.M. on a full-time basis. The society began to evaluate the plan put forward by the father. The parameters of the parenting capacity assessment with Dr. McDermott were expanded to include Mr.

St.M.

[ 10 ] Ms. B.M. testified that she felt upset and confused by the society’s attitude towards the father’s plan. Fearing that the society might place Se.M. with her husband, a man she viewed as abusive, she drove Se.M. over the American border with the assistance of her parents. She returned the child the same day to Canada after the society contacted her by cell phone and told her that what she was doing was against the law. Se.M. was apprehended at the border and returned to the care of his foster parents a day later. [ 11 ] For about four months, Ms. B.M. was not allowed back into Canada.

In July 2009, she was allowed back into Canada and supervised access resumed. While she was out of Canada, the society continued to evaluate the plan put forward by the father. In August 2009, Mr. St.M. moved back to Gatineau, Quebec, a place where his mother and a number of his extended family resided with a view to preparing a home suitable for Se.M. The society had gradually extended the frequency of access to the father, and in September 2009, a weekend access visit to the father’s home in Gatineau, Quebec took place.

Apparently, Se.M. reacted very poorly to the visit and plans for further extended access visits to the father’s home were suspended. [ 12 ] On the date that the society commenced its status review application, it sought an order of supervision placing the child with his father. [ 13 ] In October 2009, the society received the parenting capacity assessment prepared by Dr. McDermott, a licensed clinical psychologist who has prepared over 425 parenting capacity assessments and has testified in court on over 75 occasions as an expert witness.

Her report recommended that neither parent be entrusted with the care of Se.M. because both parents suffer from personality disorders that are well engrained and not amenable to change and that render them unfit to care for a child. It was her opinion that the mother suffered from a borderline personality disorder and that the father suffered from a schizoid personality disorder and together, their self-absorption had, from the information she received from the foster mother, Dr. Fitzgerald and Dr. Castagna, resulted in significant harm to their son’s development.

She recommended that permanency planning for Se.M. proceed independent of the plans put forward by either parent. [ 14 ] Se.M. was assessed in 2009 by Dr. Castagna, a paediatric neurologist. Dr. Castagna noted that Se.M.’s presentation was consistent with a diagnosis of autism spectrum disorder, with a possible speech delay. [ 15 ] Dr. Fitzgerald, a clinical psychologist, also assessed Se.M. in 2009.

He noted that Se.M. tested in the borderline range at the 6th percentile for Canadian children his age in relation to his cognitive abilities. [ 16 ] However, only one year later, a dramatic change had occurred in Se.M.’s presentation and in his test profile. When Dr. Castagna reassessed Se.M., she no longer diagnosed him with autism spectrum disorder. [ 17 ] Further, when Se.M. was re-evaluated by Dr. Fitzgerald, his overall intellectual functioning was solidly in the average range, at the 58th percentile for Canadian children his age.

This dramatic improvement in Se.M.’s level of functioning was attributed by Dr. Fitzgerald to the beneficial effects of environmental factors that had promoted healthy psychological growth. [ 18 ] After the father read the report of Dr. McDermott, he withdrew his plan in favour of the society’s amended plan for Crown wardship. When he heard that the foster parents were prepared to adopt Se.M. should Se.M. become free for adoption, he supported the plan. By January 2010, it became clear that extended family on the paternal side were no longer putting forth any plan for Se.M. [ 19 ] Ms.

B.M. has continued to seek the return of her son, either to her care or to the care of her parents. The maternal grandparents attended court and supported their daughter in her quest to obtain custody of Se.M. They offered to care for Se.M. in their home in the event that the court were to decide that Ms. B.M. was not ready to resume care of Se.M. [ 20 ] In her testimony, Ms. B.M. acknowledged that her care of Se.M. had been inappropriate at times, but blamed her parenting failures on the controlling and abusive behaviour of Mr. St.M. towards her, her depressive illness, and her lack of parenting knowledge.

She testified that she has since addressed these issues successfully. She noted that she is no longer in the abusive, controlling relationship with Mr. St.M. and is now in a healthy, stable relationship with her new partner, Mr. D.Mi. Further, she testified, as did her counsellor, Ms. Grazyna Mancewicz, that she had matured and now understood how her lack of self-esteem had resulted in her being controlled by Mr. St.M. Her psychiatrist, Dr. Dennis Kussin, testified that he felt her depressive illness was now in remission. Dr.

Kussin does not currently support the diagnosis of borderline personality disorder, but did acknowledge that, when he first saw Ms. B.M. in January 2009, he had noted borderline personality disorder and bipolar disorder as his differential diagnosis. [ 21 ] Many witnesses were called at the trial that spanned over 13 days. I heard evidence from a number of professional witnesses, including Dr. Fitzgerald,(the psychologist who assessed Se.M. on two occasions), Dr. Castagna,(the paediatric neurologist who assessed Se.M. in 2009 and 2010), Dr. McDermott ( who prepared the parenting capacity assessment), and Dr.

Kussin (Ms. B.M.’s psychiatrist). I also heard evidence from a number of social workers assigned to the case, and from Se.M.’s foster parents. Ms. Grazyna Mancewicz, who is Ms. B.M.’s therapist at the Women’s Health Centre at St. Joseph’s Health Centre testified as did the mother, her parents, and her new partner, Mr. D.Mi. 3: THE TEST [ 22 ] The best interests of the child is the test that applies at a status review hearing. The burden is on the society. See

section 65 of the Child and Family Services Act , R.S.O.1990, c. C-11, as amended (“the Act”). [ 23 ] Subsection 37(3) enumerates, in a non-exhaustive way, the circumstances that the court should consider, if relevant, in making a “best interest” determination. Subsection 37(3) reads as follows:

(3) Best interests of child.— Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s 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 possible effect on the child of disruption of that continuity. 8.

The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child’s remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13.

Any other relevant circumstance. 4: FOCUS ON Se.M. [ 24 ] In deciding what disposition would be in Se.M.’s best interests, I begin by focusing on Se.M., his needs and how those needs can be met, and on his level of development, both now and at the time he came into care. [ 25 ] When Se.M. first came into care at the age of three years three months, he was delayed in his development and was exhibiting odd and disturbing habits and behaviour. At the time of first assessment, Dr.

Castagna, a paediatric neurologist, felt that Se.M.’s presentation and examination was consistent with a diagnosis of autistic spectrum disorder. [ 26 ] Dr. Fitzgerald, a clinical psychologist, examined Se.M. and noted that, according to his assessment, Se.M. was functioning in the borderline range, at the sixth percentile level for Canadian children his age, with a relative strength in the area of receptive language.

In both reports, a re-assessment in a year’s time was recommended as both assessors felt that neglect, experienced by the child while in his parents’ care, might be contributing to the behaviour and developmental lags observed. [ 27 ] Dr. McDermott, in her parenting capacity report, summarized the observations made by the foster mother, Ms. S.P., when Se.M. first came into her care. Many of Ms. S.P.’s comments were corroborated by the parents, the social workers, Dr. Fitzgerald, and Dr. Castagna. I am including the following excerpt from Dr.

McDermott’s report, as I find that it accurately reflects the evidence I heard from Ms. S.P. and is relevant to her findings, which I accept. On page 22 and page 23 of her report, she wrote: [Ms. S.P.] has been [Se.M.’s] foster mother since he came into care on October 24th, 2008. [Ms. S.P.] reports that [Se.M.] is not the same boy who was admitted into her care at the age of 3 years and 3 months. He evidenced extreme terror at night during the early weeks after his arrival. He had poor communication skill, was not potty trained, and was extremely terrified of water, particularly on his face.

He could not use cutlery and all his other self-help skills were almost non-existent. His play was disorganized and focused largely on cars, wheels and other spinning objects. He did not play with others and appeared to have no ability to engage in imaginary play. He had little experience of crafts and would submit for their approval blank pages on which he had used a marker with the lid on. He then had extreme difficult removing these lids. He had no experience with clay and [Ms.

B.M.] had reported to them that she avoided use of it as she believed it contained yeast or mould to which she was allergic. [Se.M.’s] communication skills were extremely weak. He was quiet and could not communicate his needs. His voice was low and he continues to struggle to have a loud voice. When excited or upset, he would speak in rapid gibberish. He repeated, often verbatim, what others said rather than answering them. [Se.M.] had an extremely low tolerance for pain and would not seek help when hurt. He was exceptionally passive and would not protest or defend himself from the actions of the other children.

He would not ask to have his needs met ( e.g. , hunger and thirst) but would line up behind anyone who was asking for these. He appeared unable to read his own emotions or to comprehend the emotions of others through non-verbal cues. Of grave concern for [Ms. S.P.] was [Se.M.’s] compliance with virtual strangers. He had no “stranger danger” and could walk off with anyone. [Se.M.] evidenced ritualistic flapping and hand movements, blinking and hair twirling. He did not permit his sleeves to be rolled up at dinner, etc. , he had little experience with eating meat or fowl, as his diet was largely vegan. Once [Ms.

B.M.] gave permission for such foods, they had to check his mouth to ensure he was not ruminating these foods for hours. He would have specific activities that he needed to attend to before going to the washroom ( e.g. , flicking the lights and ensuring the tabs on the toilet were down) and would walk on only prescribed floor tiles on his way to bed. [ 28 ] According to all accounts, the progress in Se.M.’s social and intellectual development while in care has been dramatic.

Se.M. may now be described as a young boy who is well liked and social, and doing well at school. Throughout this period, Se.M. has lived in the same foster home and has benefited from the affection, structure and routine he has enjoyed there. [ 29 ] When Se.M. was re-assessed by Dr. Castagna in 2010, autism spectrum disorder was ruled out. She felt that Se.M. was one of those children who had been incorrectly diagnosed and that his condition was due to parental neglect experienced by him prior to coming into care.

In her opinion, Se.M. suffered from psychosocial deprivation and, as a consequence, is at risk of forming an attachment disorder in the future. [ 30 ] Dr. MacDermott was questioned about the term “attachment disorder”. She testified that an attachment disorder occurs where the attempts at attachment have been frustrated. From her understanding of the circumstances in which Se.M. spent his early years, Se.M.’s attachment need had been frustrated over time and he fell into a “self-soothing, an autistic sort of self interest.” When he came into care, Dr.

Dermott postulated that Se.M. despaired that anyone would be interested in how he felt or what he wanted because, in his home, no one seemed to be interested in how he felt or what he wanted.

He felt that he could not communicate with anyone because no one was listening, so he shut down. [ 31 ] She testified that, in her expert opinion, attachment is the bedrock for his future relationships, “knowing when not to trust and when to trust and how long trust really takes time to develop, those are the things that a parent teaches a child and in this case, he’s learning those thing . . .” She went on to say that Se.M. had the capacity to attach but attachment did not flourish because his parents were preoccupied, they were not there.

He has attached in foster care. [ 32 ] It was her opinion that a risk of attachment disorder persists in this case. Se.M. is currently attached to his foster family and, if he were to be moved from that home, that attachment would be disrupted. To disrupt an attachment is always risky, perhaps more so in circumstances where early attachment was so problematic. [ 33 ] When Dr. Fitzgerald reassessed Se.M. in 2010, he found a child who was functioning intellectually in the solid average range, at the 58th percentile for Canadian children his age. The improvement in his skills was viewed as dramatic and in Dr.

Fitzgerald’s opinion appeared “to reflect the beneficial effects of environmental factors in promoting healthy psychological growth.” [ 34 ] From all reports, Se.M. needs a stimulating, supportive home with structure and routine where his needs are met. His current foster home is meeting his needs and he is flourishing. 5: DEGREE OF RISK JUSTIFYING FINDING [ 35 ] On 4 June 2009, Justice Marion L. Cohen made a finding that Se.M. was in need of protection under clauses 37(2) ( b )and 37(2)(

g) of the Act . A statement of agreed facts signed by Mr. St.M. and the society formed the evidentiary basis for the finding. Ms. B.M. did not sign the statement of agreed facts; she had been noted in default as she had not filed an answer and plan of care. At the time, she was in the United States and had been refused entry into Canada. [ 36 ] I have reviewed the statement of agreed facts. The facts agreed to in support of the finding are very sparse.

The statements of agreed fact outline the history of society involvement, the circumstances that led to the apprehension and the effect the actions that led to the apprehension had on Se.M. [ 37 ] As to the history of society involvement, the statement of agreed facts recites that the family had been involved with the society on three separate occasions while living in Ottawa. The first two openings related to Ms. B.M.’s mental health and Mr. St.M.’s use of physical discipline towards Se.M. The third opening related to allegations made by Ms. B.M. of domestic violence by Mr. St.M.

In October 2008, the society in Toronto opened a file after a referral regarding Ms. B.M.’s chronic suicide ideation and a recent overdose of prescribed medication. On 24 October 2008, Se.M. was placed in care under a temporary care agreement so that his parents might address their mental health issues and housing issues. [ 38 ] The statement of agreed facts goes on to recite the circumstances that led up to the apprehension. It refers to the attempt by Ms. B.M. to take Se.M. over the border during an access visit while the temporary non-ward agreement was still in effect.

Reference is also made to Se.M.’s reaction once he was brought back to Toronto. The statement of agreed facts says that Se.M. was experiencing body shakes, vomiting, night terrors, urination problems and a fear of getting into cars after he returned to the foster home. [ 39 ] Since the finding was made, a 13-day trial has been held. A great deal of evidence was adduced on the issue of the degree of risk justifying the finding. I do not see that I am limited to the facts recited in the statement of agreed facts in assessing risk that gave rise to the finding.

I note that the statement of agreed facts form specifically recites the following: WE AGREE: (

a) that the statements made on this form are true; and (

b) that this form may be filed with the court and may be read to the court as evidence, without affecting anyone’s right to test that evidence by cross-examination or to bring in other evidence. [ 40 ] In assessing the degree of risk that gave rise to the finding, I have considered all the evidence heard at the trial in addition to those facts agreed upon in the statement of agreed facts. [ 41 ] I am satisfied that Se.M. suffered from psychosocial deprivation at the hands of his parents. The neglect that he experience resulted in serious developmental delays and autistic-like behaviour.

I am satisfied that, had he not been removed from the home, Se.M. would not have shown the dramatic improvements in social and intellectual functioning that is evident today. [ 42 ] In reaching this conclusion, I gave no weight to the evidence of the mother that, when Se.M. was in her care, he was not only meeting his developmental milestones but was surpassing them. Her description of a relaxed, playful boy who enjoyed quiet

activities and classical music does not accord with the evidence that I accept. [ 43 ] It is also noteworthy that I heard testimony that, only days after Se.M. went into care, she and Mr. St.M. met with the social worker and discussed the possibility that Se.M. may be autistic. At that time, according to the evidence, Ms. B.M. told the worker that she often “found Se.M. out of control and had difficult managing his behaviour”. According to the worker, Ms.

B.M. said “that she was having “outbursts” due to her mental health condition and that she would start yelling at Se.M. and end up putting him fastened in the stroller to keep himself safe.” I also note that the mother attended with the foster mother and the worker at Dr. Castagna’s office when Se.M. was assessed for autism. An excerpt from the mother’s diary and statements to various society witnesses paint a picture of what life must have been like for Se.M. [ 44 ] In the passage from the mother’s diary filed at the trial, the mother admitted to poor parenting and neglect.

She wrote: My heart is just breaking lately over the neglect that I did to [Se.M.]. My precious little boy was abused by me. I keep remembering times when I spanked [Se.M.]. I hate that I hit him. I remember the look on his face when I was reaching for him, or when the spanking was done. Confusion, pain, shock. My innocent boy was forced to go through such awful emotions because I agreed to spank. I am also regretting the neglect. How I would stay up late with [Mr. St.M.] and then sleep during the day. I would turn on the TV and feed [Se.M.] poorly.

How that child was able to get through all that and still be happy to see me, I don’t know. . . . [ 45 ] At the time that Se.M. came into care, his family was residing in a one-room flat in a rooming house in Parkdale. The family was very poor. His parents were not getting along and Ms. B.M. testified that her husband was abusive and controlling to her and to Se.M. Ms. B.M. had been hospitalized for taking an overdose of prescription medication in what appeared to be a suicide attempt.

The family was in crisis and the resulting chaos in the household had clearly affected Se.M.’s development and had resulted in the child’s withdrawing into his own world. [ 46 ] I find that the degree of risk that justified the finding was significant and the risk of harm serious. 6: IMPORTANCE OF FAMILY AND THE RISK IF CHILD RETURNED OR NOT RETURNED TO MOTHER [ 47 ] When Ms. B.M. testified, she presented as an attractive, intelligent and personable woman in her mid-30’s who clearly loves her son.

Her parents and her new partner testified and indicated that they were prepared to support her in her quest to obtain custody of Se.M. [ 48 ] Mr. D.Mi. testified that he was prepared to open his home to Se.M. and financially support him. Mr. D.Mi. is a man in his late thirties, single, employed by Ford motor company on the assembly line and earns approximately $75,000 per annum. He owns his own home, has no criminal record and is clearly very committed to his relationship with Ms. B.M. [ 49 ] He told the court that he and Ms.

B.M. have known each other since August 2009 and began dating at the end of October 2009. When Ms. B.M. found herself homeless and in a shelter at the end of March 2010, he offered to rent his spare room to her and shortly thereafter, their relationship became more committed when Ms. B.M. became pregnant with their child. At that point, they decided to marry and raise the child together. Unfortunately, prenatal testing revealed that the child suffered from serious congenital defects.

The pregnancy was terminated on medical advice. (He understood that if the child were born, he would be very unwell and would not survive beyond his first birthday.) He testified that he was prepared to marry Ms. B.M. after the court made its decision and to sponsor her to Canada. [ 50 ] Mr. L.T. and Mrs. C.T. testified in support of their daughter’s claim for custody of Se.M. They indicated that their first choice would be for their daughter to be given custody of Se.M.

They both advised the court that they felt their daughter had matured over the last year and they felt that she was finally in a supportive relationship with a man of whom they approved. They acknowledged that they had only recently met Mr. D.Mi., but they had been to his home and they had observed how Ms. B.M. interacted with her new partner and felt it was respectful. [ 51 ] They testified that, if the court were to decide that it was premature to place Se.M. with their daughter, they were prepared to offer a home for Se.M. They indicated that they were 63 and 64 years old. Mr.

L.T. told the court that he was retired diesel mechanic and would be the primary caregiver for Se.M. Mrs. C.T. testified that she was a nursing professor at a local college. They indicated that they had no criminal record, owned a home that had more than enough space for Se.M. and Ms. B.M. They also indicated that they were active members in their church and that the congregation was aware of the situation and was prepared to welcome Se.M. into their tight-knit community. [ 52 ] They agreed that they had only met Se.M. on the occasion they came to Canada to drive their daughter and Se.M. to their home in Indiana.

They testified that they were not aware that it would be a problem to take Se.M. to Indiana and that they had actually consulted their congressman and had been told that, if there were no court order, their actions should pose no problem. They testified that they love their grandson and wished further contact with him; however their request for regular access to Se.M. had been denied by the society. If Se.M. were placed in their care, it was their plan to transition the child to his mother’s care with the assistance of the local child protective agency. [ 53 ] Ms.

B.M. requested that Se.M. be placed in her care, with or without supervision and indicated that she was now living with Mr. D.Mi. in a committed relationship and that their home was suitable for Se.M. [ 54 ] In the alternative, she supported placement of Se.M. with her parents and she indicated that she would be prepared to

move to Indiana to assist her parents in the care of Se.M. until the court felt that she was ready to resume care of Se.M. Once Se.M. was returned to her custody, she testified that she intended to return to Canada and live with Mr. D.Mi. According to Ms. B.M., much has changed since Se.M. came into care. She testified that she is now ready to resume care of Se.M. She testified that she is now in a healthy relationship. Her mental health has improved and her depressive illness is now in remission.

She noted that she has always been regular and appropriate with her access visits and that Se.M. is bonded to her and always happy to see her and she felt that the transition to her care should not be too difficult if handled sensitively and slowly. [ 55 ] Subsection 37(3) does direct the court to consider the importance of a positive relationship with a parent and a secure place as a member of a family and for the court to consider the child’s relationship and emotional ties to a parent, sibling, relative, other member of a child’s extended family or member of the child’s community. [ 56 ] Subsection 37(3) also directs the court, in appropriate circumstances, to consider 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. [ 57 ] The mother’s plan of care must be evaluated in light of my finding that the child suffered serious neglect while in the care of the mother that negatively affected his social and intellectual development.

Given that finding, what risk of harm is there if the child were to return to the mother’s care or be placed with the mother’s parents? Alternatively, given the positive access visits between the mother and Se.M., what risk of harm is there if the child were to be permanently removed from the mother and her family and be placed for adoption? Although at trial Ms. B.M. presented as an intelligent, educated, and well supported woman, her personal history painted quite another picture:

(1) Ms. B.M. has a history of suicidal ideation and self-harming behaviour that began when she was a teenager and, according to the evidence, continued until October 2008. As recorded in the 2009 report from the Hamilton Centre in Indiana, Ms. B.M. reported a history of self-injury (cutting, pinching, picking and/or biting her lips till they bled), and that she started this behaviour in her 30s as a means of lessening emotional pain. The last episode was one year prior to her involvement with the Hamilton Center. In response to questions about “exploitative risk behaviours” Ms.

B.M. reported being tied up naked by her husband who would take pictures of her. Ms. B.M. also reported a long history of suicidal ideation with active periods where she would make plans. She reported that she used to carry duct tape and a hose in her car “for availability”. She further reported repeated overdose attempts from her teenage years till her mid-twenties. Her last attempt at suicide was with alcohol and pills and occurred in October 2008. These urges, which she described as “lust- like” in nature, have abated since she began taking Risperdal.

(2) Ms. B.M. has characterized her childhood as very abusive and had told many people, including the society, various medical personnel and the foster mother, that her parents were physically abusive to her and that her father had sexually assaulted her. As recently as the November 2008, in an e-mail sent to the foster mother, she wrote: My parents were extremely abusive to me while I was growing up. My dad was sexually, physically, and verbally abusive to me for as long as I can remember. My mother was an instigator of a lot of that physical abuse.

I wouldn’t let them see a picture of [Se.M.] let alone ask them for help. I believe that my childhood is what contributed/caused my borderline personality disorder. I now live without any way for my parents to contact me and they don’t know where I am. . . . We are not in contact with any family member. Nor will do we ever intend to be. . . . After her marriage broke up in January 2009 and she found herself with no place to live, she contacted her parents for help. Once she contacted her parents for help and they came to her aid, she began to deny that her father had sexually assaulted her.

She told the court that, when she was living in Ottawa, she had dreams about her father that had some sexual content and, when she spoke about these dreams with her therapist, she was told that her dreams were recovered memories of a sexual assault by her father. She told the court that she now realizes that the dreams were simply dreams and no sexual assault had occurred. She also began to characterize her relationship with her parents as non-abusive, although I note that this had not always been the case. For example, when she spoke to Dr.

Kussin in January 2009, she told him, “that she had stopped speaking to her family four years ago. Her father was the ruler of the home and her family was a typical ‘Christian family’.” She told Dr. Kussin that her father used corporal punishment; that “he would grab her by the hair and throw her down.” Thus, I question how long this supportive relationship between Ms. B.M. and her parents will continue. When Mrs. C.T. testified, she spoke about forgiving her daughter for the things she said about them and mentioned her belief that her daughter had matured. However, it was clear that Mrs.

C.T. and her husband were very hurt when they discovered, for the first time, in March 2009, what their daughter had said about them in the e-mail sent to the foster mother. After the March 2009 revelation at the society’s office, the T.s discontinued financial support to Ms. B.M. Mrs. C.T. told the court that she was “sure that [Ms. B.M.] would figure out how to survive”. Ms. B.M. left her apartment at the end of March because she could no longer afford the rent and went to a shelter. The next day, she went to live in Mr. D.Mi.’s home.

I concluded that the withdrawal of financial support at that point was not coincidental but was related to the hurtful comments made by Ms. B.M. about her parents in her e-mail sent to the foster mother. It is clear to me that the parent-and-child relationship between Mr. and Mrs. T. and Ms. B.M. has not been an easy one and that there have been times when this family has had no contact for extended periods of time. If the past is a predictor of the future, I question how lasting this most recent reconciliation will be.

(3) Ms. B.M. has had three previous husbands, two of whom she characterized as abusive and another as someone who abandoned her. I question the stability of her current intimate relationship, in light of her past history of unstable relationships. Ms. B.M.’s financial security depends on the continuation of her relationship with Mr. D.Mi. If that relationship fails, the financial underpinning for her plan of care for Se.M. disappears. Also, I am concerned that, if Se.M. were to be placed with the mother and Mr. D.Mi. and this relationship were to fail, Se.M. would experience further changes to his living situation and further disruptions in his relationships with significant others.

(4) Over the years, Ms. B.M. has been diagnosed by a number of mental health professionals as having one or more of a borderline personality disorder, a bi polar disorder and a major depression. In October, 2008 she was diagnosed with a borderline personality disorder after a suicidal gesture when she overdosed on prescription medication. In July 2009, she was diagnosed with borderline personality disorder by Dr. Burns at the Hamilton Centre of Indiana. Dr. Kussin, when he met her in January 2009, made the following diagnosis: major depression, chronic and dysthymia.

In his opinion the diagnosis of a bipolar condition was not so clear. He included in his diagnosis a reference to a borderline personality disorder, but queried this diagnosis because Ms. B.M. seemed quite personable at the session. [ 58 ] Dr. Kussin has met with Ms. B.M. on eleven occasions over the last two years. He noted that his role has been to monitor Ms. B.M.’s medications and to intervene in the event of a crisis. He agreed that he was not Ms. B.M.’s psychotherapist and left this role to others. He said that he did not feel that Ms.

B.M. suffered from a borderline personality disorder because he had not witnessed the anger, impulsivity and drama commonly exhibited by a person suffering from a personality disorder. According to Dr. Kussin, a person suffering from this disorder typically shows anger, impulsivity and drama in their everyday interactions with others, and that such behaviour is enduring over time and must have begun in the teen years. Such persons often abuse alcohol and drugs, behave in what many people would characterize as irresponsible sexual way and live their lives filled with conflict.

He noted that such persons often need constant stimulation, present dramatically and lack authenticity in expressing their moods. [ 59 ] He testified that the core of a borderline personality is tumultuous emotionality and that he did not see this with Ms. B.M. He did acknowledge that some of the history related by Ms. B.M. would suggest that such a diagnosis might have been appropriate in the past. In this regard, he hypothesized that Ms.

B.M. might belong to the one third of patients who have historically suffered from the condition but who have matured out of the condition in their twenties or thirties. [ 60 ] Dr. McDermott in her parenting capacity assessment, after meeting with the mother, taking her history, administering psychological tests, and receiving reports from collateral sources including reports from Hamilton Centre in Indiana, and Dr. Kussin, reached the conclusion that the Ms. B.M. suffered from borderline personality disorder that was well ingrained and not amenable to change and that rendered her unfit to care for a child.

The assessor found that the mother was so preoccupied with her own issues that she would ”distort, minimize or be blind” to her child’s needs with the result that the child would and actually did suffer from her neglect even though the mother had reasonable intellect and parenting attitudes. [ 61 ] Dr. McDermott, on page 35 of her report, describes a borderline personality organization in the following terms: Ultimately, [Ms. B.M.] evidenced the emergence of a Borderline Personality organization. Such individuals have extremely low tolerance for managing on their own.

They seek relationships that are initially perceived as vehicles for meeting their immense affectional and emotional needs. They tend to idealize the object of their affection. However, they are not prepared for reciprocal relationships and expect more than they can or are willing to deliver. They will use emotional or physical ill health to inspire guilt in the partner and may resort to threats or actions of self-harm to maintain the status quo and the relationship.

When they fully come to realize that their longed-for hope of a partner no longer exists, the process of devaluation of the partner takes on immense proportion. [ 62 ] The weight of the medical evidence overwhelmingly supports a finding that Ms. B.M. suffers from a serious mental illness that has recurred over time and has resulted in her living an impulsive, chaotic life that has lacked stability and predictability. I leave the label to the professionals.

Furthermore, although the mother appears to be leading a stable existence at present, there have been other periods in her life of relative calm interspersed with times of chaos and emotional instability. I am satisfied that, when she was caring for Se.M. and her own emotional needs were not being met, she neglected her son. That neglect resulted in her son’s suffering serious harm.

Given the findings of fact that I have made, I find that, if Se.M. were returned to his mother’s care, his risk of suffering harm is substantial. [ 63 ] When I balance this significant risk for regression if Se.M. were returned to the mother against the risk for regression if Se.M.’s contact with his mother were to be terminated, I find that the risk of harm is greater if he were returned to his mother. I accept the evidence that Se.M. is well bonded to his foster parents who are seeking to adopt him.

Se.M. has been in care for two and one half years and there is no question that Se.M. sees his foster parents as his psychological parents. No doubt, Se.M. will miss his mother if he never sees her again, but I do not find that he would suffer any harm. On the other hand, if he were removed from his psychological parents, I find there would be a risk of significant harm given his history. 7: MERITS OF THE COMPETING PLANS OF CARE [ 64 ] Ms. B.M. seeks the return of the child to her care and, in the alternative, seeks a placement with her parents.

Alternatively, she seeks an order for liberal and generous access. [ 65 ] The society seeks an order for Crown wardship without access with a view to placing Se.M. for adoption with his foster parents. For the reasons set out above, I find that the plan of the society best meets the child’s best interests. Se.M. is thriving in his foster home, views his foster parents as his psychological parents and they have expressed a desire to adopt him because they already view him as a member of their family.

I accept that Se.M. has expressed his wish to live with the P.s “forever”. [ 66 ] The mother’s plan poses unacceptable risks to the child of regression should her life once again become destabilized, either with her new partner of with her parents. Se.M. is a child who has already been affected by neglect and abuse at the hands of his mother. In deciding what plan is in Se.M.’s best interest, I am required to decide the issue from a child focused perspective, not from the perspective of the parent. Justice Stanley B. Sherr in Jewish Family and Child Service of Toronto v.

R.K., T.K. and E.K.T. , 2008 ONCJ 774 , [2008] O.J. No. 1940, [2008] O.J. No. 5856, 2008 Cars​well​Ont 9306 (Ont. C.J.), wrote:

[68] The significance of the child-centered approach is that good intentions are not enough. Thetest is not whether the parents have seen the light and intend to change, but whether they have in factchanged and are now able to give the child the care that is in his best interests. There is not to beexperimentation with a child’s life with the result that, in giving the parents another change, the childwould have one less chance. See Children’s Aid Society of Winnipeg v. Redwood (1980), (MB CA), 19 R.F.L. (2d) 232, [1980] M.J. No. 245, 1980 Cars​well​Man 44 (Man. C.A.).

Therehas to be some demonstrated basis for a determination that the parents are able to parent the childwithout unreasonably endangering the child’s safety. See Children’s Aid Society of Brockville Leedsand Grenville v. C. and J. (2001), 104 A.C.W.S. (3d) 892, [2001] O.J. No. 1579, [2001] O.T.C. 287,2001 Cars​well​Ont 1504 (Ont. Fam. Ct.). [67] In arriving at my decision, I have balanced the importance of maintaining the child’s bond to his mother against the needto promote the best interest, protection and well being of the child.

What stands out in my mind is the condition in which that Se.M. waswhen he came into care. Se.M., who is a boy of normal intelligence and abilities, had been so neglected in the mother’s care that hetested as a boy with borderline intelligence suffering from autism spectrum disorder. And the neglect was caused by a mother who isintelligent and had a reasonable understanding of parenting values, but who was unable to focus on her son because of her self-absorptionin her own concerns caused by a personality or mental disorder.

I cannot be satisfied that to maintain the child’s tie with the motherwould be in the child’s best interests in this case. Se.M. has moved on and is now a secure member of another family. Without theskilled intervention of the foster parents, Se.M. would not be the happy, healthy boy he is today.

Taking into consideration all thecircumstances of this case, and if I focus on Se.M. and his future well being and protection, I see no reason to disrupt a continuity of carethat is working to the benefit of Se.M. 8: DISPOSITIONAL ORDER [68] As Se.M. has been in care for almost thirty months and is under the age of six years, by operation of

section 70 of the Act,I must either return him to the care of his mother or make him a Crown ward. [69] In arriving at my decision that the least disruptive order consistent with the best interests of Se.M. is Crown wardship, Ihave considered all of the circumstances relevant to the best interests of the child as set out in subsection 37(3), including whether thereis a benefit to the continuation of the child’s bond to his mother. [70] I find that a placement of the child with the mother would pose a significant risk of harm to the child, not only because ofher mental health status and the likelihood that her preoccupation with her own issues would “distort, minimize, or blind” her to herchild’s needs, but because a placement with the mother would necessarily cause a removal from the care of the foster parents who havebecome the psychological parents of Se.M.

Se.M. is a special little boy. He has come so far in his development since he came into care,thanks in large part to the efforts of his foster parents who have nurtured him, taught him, and have come to love him. I accept that he isa child at risk of an attachment disorder because of his early social deprivation caused by the actions of his parents and because of thatearly experience, it is especially important to protect his current attachments in order to insure his continued healthy social andintellectual development.

In arriving at my conclusion that a Crown wardship order best accords with Se.M.’s best interests, I havecompared the competing plans put forward by the society and the mother. I agree with the statement of the Children’s Lawyer that thefoster parents’ plan to adopt Se.M. is only relevant to this court’s decision making in so far as it forms a part of the society’s plan forSe.M.’s long-term stable placement. [71] As to the mother’s claim for liberal and generous access after a Crown wardship order has been made, subsection 59(2.1)of the Act applies, which reads as follows:

(2.1) Access: Crown ward.— A court shall not make or vary an access order made under

section 58with respect to a Crown ward unless the court is satisfied that, (

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

b) the ordered access will not impair the child’s future opportunities for adoption. [72] On the facts of this case, I am satisfied that Se.M. is adoptable. I note that his foster parents are interested in adoptinghim and their request for adoption is looked favourably upon by the society. As well, I find that this plan has considerable merit. [73] Any access order that I would make would impair his ability to be adopted.

Section 141.1 of the Act reads as follows: 141.1 Limitation on placement by society.— A society shall not place a child for adoption until, (

a) any outstanding order of access to the child made under subsection 58(1) of

Part III has beenterminated; . . . [74] As I read subsection 59(2.1), once a Crown wardship order is made, I am prohibited from making an access order if bydoing so I would impair Se.M.’s future opportunity for adoption. An access order in this situation would deny Se.M. the right to find apermanent home through adoption with his foster parents. [75] Although I accept that Se.M. generally looks forward to his visits with his mother and that she is appropriate and lovingwith him when she sees him at access, I do not feel that it is necessary to determine whether the access to his mother is beneficial andmeaningful given my

interpretation that clause 59(2.1)(

b) limits my ability to make an access order in this case in any event. [76] Accordingly, I order that Se.M. shall be made a Crown ward with no access order for the purposes of adoption. [77] I want to thank counsel for their assistance in this difficult case. But especially, I want to express my sympathies to Ms.B.M.