Children’s Aid Society of Toronto v. D.L., 2011 ONCJ 784

Toronto (North York) Registry No. C48865/09 DATE: 2011·VIII·09 CITATION: Children’s Aid Society of Toronto v. D.L. , 2011 ONCJ 784 ONTARIO COURT OF JUSTICE IN THE MATTER OF the Child and Family Services Act , R.S.O. 1990, c. C-11 AND IN THE MATTER OF F.L., born October […], 2004 and M.L., born May […], 2009 BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — D.L. (mother), G.F. (father) and P.M. (caregiver), Respondents Before Justice Robert J. Spence Heard on 4-7 April 2011; 30-31 May 2011; 1-3, 6-9 and 27-30 June 2011; and 4-7 and 11-14 July 2011 Reasons for Judgment released on 9 August 2011 Mr.

Anthony Macri ……………………..for the applicant society Ms. Frances Gregory…for the Office of the Children’s Lawyer, legal representative for the child F.L. Ms. Tammy Law …for the respondent mother, D.L. Mr. David Miller … for the respondent father, G.F. Mr. Brian Danson…for the respondent caregiver, P.M.

NATURE OF THE CASE The Children’s Aid Society of Toronto (“society”) has brought a protection application seeking an order that two young girls, F.L., born October […], 2004, and M.L., born May […], 2009 be found in need of protection, and an order of Crown wardship, with no access so that both children can be placed for adoption. The Office of the Children’s Lawyer (“OCL”) supports the society, both with respect to the finding in need of protection, as well as to disposition. In addition to the OCL, there are three other parties in this proceeding.

Each of those parties is presenting different plans for the children.

At the conclusion of the evidence, the mother, Ms. D.L. (“mother”) conceded the finding in need of protection. She seeks the return of both children to her care under a supervision order. In the alternative, she asks that M.L. be placed with herself and F.L. with Ms. P.M. or with Ms. P.M.’s stepmother, Ms. S.S., or jointly with Ms. P.M. and Ms. Ms. S.S. Ms. P.M. is a party to this proceeding because it appeared to the society that she was a caregiver to F.L. at the time of the commencement of the protection application.

At the conclusion of the evidence, while her lawyer opposed the finding in need of protection, he did not do so vigorously, arguing that the case was essentially about disposition. Ms. P.M.’s plan of care involves F.L. alone, and does not include M.L. Ms. P.M. has three plans of care. Her first request is that F.L. be placed in her sole custody; her first alternative plan is that F.L. be placed in the joint custody of herself and Ms. S.S.; and her second alternative plan of care is placing F.L. in Ms. S.S.’s sole custody. The biological father of both children is Mr. G.F. At the conclusion of the evidence, Mr.

G.F.’s lawyer made no submissions on the society’s request for a finding in need of protection. I infer from this that while he does not concede the finding, he does not actively oppose it. As for disposition, Mr. G.F. originally presented a plan for the children to be placed with himself and his girlfriend with whom he had been living for a couple of months. However, that plan fell apart when he and his girlfriend broke up a few months later. He then supported Ms. P.M., but he changed his mind when Ms. P.M. decided to plan for F.L. alone. Following that, he supported Ms. S.S.’s plan because, according to Mr.

G.F., she was planning for both children. Again, when he realized Ms. S.S. was planning for F.L. alone, he withdrew his support for Ms. S.S. He now supports the mother’s primary plan, namely, that both children be placed in her care, as that is the only plan which would keep the two girls together and out of the society’s care. ISSUES 1 . Are the children in need of protection? 2 . If the children are in need of protection what disposition is in their best interests? BACKGROUND The factual background is complex and muddied because of the allegations and counter-allegations raised by both the parents and Ms. P.M.

They are, at once, adversaries and allies. They all accuse each other of fabrication and exaggeration with respect to who was caring for F.L. at the time of apprehension, and the quality of the care that each was providing to F.L. Their venomous testimony throughout the course of this trial was palpable. And yet, they have one thing in common; they are united in their opposition to the society and the society’s involvement in the lives of F.L. and M.L. The cast of individuals that make up the competing camps is extensive. On Ms. P.M.’s side, there is the B.B. group (“B.B.”) and the Ms.

S.S. group. “B.B.” is a residential complex of assisted living housing in the east end of Toronto where Ms. P.M. and many of her relatives have lived, for as long as three generations. It has been described in the course of this trial as a ghetto [1] . Ms. P.M. has lived there, off and on, for most of her life. Ms. P.M.’s biological mother, Mi., lives in the same complex. Her cousin, El. [2] , also lives in that complex, together with El.’s partner, Ta., and Ta.’s two children, ages 11 and 9 years. Two others who were prominently mentioned throughout this trial also live in the B.B. complex: Mr. D.V. [3] is Ms.

P.M.’s cousin. He was stabbed some time ago, although no one appeared to be fully aware of the circumstances surrounding that incident, [4] or whether the perpetrator was ever caught; and Mr. M.M. who was arrested by the police [5] while hiding out in mother’s residence on the day the children were apprehended by the society. Ms. P.M.’s current partner, Co., does not live in the B.B. complex with Ms. P.M., but he does live in the east end of Toronto, a few minutes’ drive from the B.B. I turn now to the S.s household. I will provide some detail about Ms.

S.S.’s extended family, as the makeup and features of this family will play into my decision about Ms. S.S.’s plan of care. Ms. S.S. is Ms. P.M.’s stepmother. She lives with Ms. P.M.’s biological father, To., in a large house in Brampton. Ms. S.S. has two other adult daughters [6] , Ni. and Le. Ni. is about 22 years old and lives with Ms. S.S. and To. in their house in Brampton. Ms. S.S. describes Ni. as having ADHD [7] , as well as “conversion disorder”. As I understood her evidence, “conversion disorder” is something like a neurological disorder which caused Ni.’s body to shut down when she was very young.

She required substantial and ongoing therapy in order to learn how to walk and re-acquire her normal bodily functions. Ms. S.S. says Ni. has regained most — but not all — of her neurological functions. Ni. has two young children, a new-born, and a two-year old named Ad. who is severely disabled. The father of the two children does not live with Ni., and he does not come to the Brampton house to visit because he and Ms. S.S. do not get along. Ms. S.S. says this is because she does not like how he treated Ni. when they were together. Ni. is in receipt of social assistance Ms. S.S.’s third daughter is Le.

Le. and her two children, De., age three years, and Dec. who is just a few months old, live with Le.’s current boyfriend close to Ms. S.S.’s home. However, Le. may be moving to Orangeville to be closer to her boyfriend’s family. Le. has bi-polar disorder with manic and depressive episodes. She says, however, that she has not had a serious episode since she was pregnant with De. She currently has a worker through the Canadian Mental Health Association, with whom she “checks in” once each month. Sadly, De. is disabled.

Le. described him as a “special needs” child, with moderate to severe language delay, as well as someone with “autistic characteristics”. De. requires speech and language therapy, as well as therapy to assist in the development of his fine and gross motor skills. It is clear from the evidence that Ms. S.S. is closely involved with Le. and her family and that she provides considerable support to them. Le. describes Ms. S.S. as “my backup”.

Mother and Mr. G.F. fall into a different camp. In addition to being the father of F.L. and M.L., Mr. G.F. is also the father of somewhere between six and 10 other children. [8] Apart from F.L. and M.L., mother has three other children. Th., age 17, and Ru., age 16, both of whom live with their father, and Ch., age 12. Th. is severely disabled. When the children were quite young, she gave custody of both of them to their father, as she felt she was unable to provide them with the life to which they were entitled. Ch.’s father is Mr. S.F. Mother and Mr. S.F. separated when Ch. was about two years old.

It was because of protection concerns pertaining to Ch. that the society first became involved with F.L. and, later, M.L.; and all three children were apprehended at the same time. Mother eventually agreed to Ch. being placed in the permanent custody of Mr. S.F.’s sister, Ms. Su.F. [9] Ms. P.M. first met F.L. sometime around the summer of 2006, when F.L. was about 18 months old. Ms. P.M. says this meeting took place at her biological mother’s (Mi.) home, where mother was visiting with F.L. at the time. Ms.

P.M. says that at this first visit, which lasted for about an hour or so, she “instantly fell in love” with F.L. The second time Ms. P.M. saw F.L. was about two weeks later, also at Mi.’s home. Ms. P.M. thinks that mother was at Mi.’s home because she (mother) had been living with Mi. for a brief period of time. The third visit occurred shortly afterwards. At this third visit, Ms. P.M. said to mother: “can I steal your daughter for the weekend”, to which mother replied “absolutely”. According to Ms. P.M., she then left with F.L. and went to Ms.

S.S.’s house in Brampton, where she remained with F.L. for the weekend. After a couple of days, she tried unsuccessfully to contact mother in order to return F.L. to her. She was unable to reach either mother or Mr. G.F. As a result, Ms. P.M. says she kept F.L. with her for about two weeks before then taking F.L. back to Mi.’s home. According to Ms. P.M., from that point on, F.L. began to spend more and more time with Ms. P.M. and her extended family — particularly Ms. S.S. in Brampton. Ms.

P.M. testified that, apart from two brief periods following certain allegations [10] that were made against her, F.L. spent about 70% of her time with Ms. P.M. from early January 2007 until the apprehension in September 2009. During the course of her testimony, Ms. P.M. was blistering in her attack on mother, essentially accusing her of being a “negligent” mother. She said that mother was “unfit” to be a parent because she would simply drop her child off with Ms. P.M. and not see her for weeks at a time. Ms.

P.M.’s version of events, although differing slightly from the testimony of others who testified on her behalf, was essentially supported by those persons, including Ms. S.S., who testified that she spent so much time with F.L. that she was, for all practical purposes, acting as a grandmother to F.L. Mother’s version of these early events is somewhat different. She agrees that Ms. P.M. met F.L. at Mi.’s house. She also agrees that Ms. P.M. said words to the effect of “can I steal her one day” (referring to F.L.). However, she said that F.L. spent only one weekend with Ms.

P.M. in that first month following their initial meeting, rather than the two-week period as alleged by Ms. P.M. In fact, up to the end of 2006, that one weekend was the only time F.L. was in Ms. P.M.’s care, according to mother. In 2007, mother stated that F.L. would start going to Ms. P.M.’s home every second weekend to have sleepovers with her, as well as sleepovers with El. and her partner Ta. She did state that there would be the “odd” time F.L. would have a sleepover with Ms. P.M. during the week. In addition, she herself stated that she would go over to Ms.

P.M.’s building almost every day and they would spend time together with the children. Mother testified that F.L.’s overnights with Ms. P.M. fluctuated in frequency depending on mother’s own living circumstances, as mother and Mr. G.F. often found themselves having to move from one residence to another, for various reasons. However, she disagreed with Ms. P.M.’s assertion that F.L. spent almost all major holidays with Ms. P.M., or Ms. P.M.’s family, the S.s in Brampton. Whereas Ms.

P.M. testified that F.L. spent all major holidays (Christmas, Easter, Thanksgiving) with her and the S. family in Brampton, mother says that during 2006, 2007 and 2008, F.L. spent all her Easters with her, all Christmases were spent with her, and perhaps only one Thanksgiving was spent with Ms. P.M. F.L. was enrolled in junior kindergarten in November 2008. Mother says that “we all took turns” taking F.L. to school — meaning, “me, Mr. G.F., Co. and Ms. P.M.” [11] . According to Ms. P.M., she and her partner Co. took on the primary responsibility of getting F.L. to school.

Regardless of who took on that responsibility, by June 2009, F.L. had missed 51 days of school and was late another 19 days. According to mother, the society became in involved with the family shortly after F.L.’s birth when she was diagnosed with “failure to thrive”. The society arranged for a nurse to monitor F.L., and mother said that she continued to work voluntarily with the society. She said that Mr. G.F. was not happy with the society’s involvement in his family, and he acted “ignorant” toward the nurse and “kicked her out of the house”.

In December 2007, the society was made aware of an allegation of sexual abuse against Ch., allegedly perpetrated by her stepbrother Ri. At the time of this allegation, Ch. had been living with her father, Mr. S.F., and his partner, Al., and Al.’s two children, Vi. and Ri.. According to what Mr. S.F. told the society, he had been Ch.’s primary caregiver for the prior three years, and mother’s contact with Ch. had been minimal. During the society’s investigation, Ch. was placed with mother.

Although the evidence was not entirely clear, it does not appear that anyone was conclusively found to have sexually assaulted Ch. Over the next several months it appears that Ch.’s residence did not remain stable with mother. For example, in October 2008, mother advised the society worker, Ms. Kamyabi that she had not seen Ch. for three weeks. The evidence was unclear as to where, and on what dates, Ch. continued to live with mother or with her father, Mr. S.F. However, on the date of the apprehension in September 2009, Ch. was found sleeping on the floor of mother’s residence.

In April 2009, the Toronto East General Hospital contacted the society about the impending birth of M.L. The hospital was concerned

because of its belief that mother had not obtained prenatal care and, also, the fact that she had been smoking. As well, the society was concerned because mother had not disclosed to the society that she was even pregnant. This was a particular concern for the society because of the history of the society’s involvement with mother. According to the society, mother had refused to disclose her pregnancy because mother herself stated that she did not want the society to “latch onto another child”. M.L. was born May […], 2009 and the society assigned a high risk infant nurse to the case.

M.L.’s stature was very small, and shortly following her birth she was diagnosed with jaundice. Both the weight issue and the jaundice issue were subsequently resolved favourably for M.L. The apprehension occurred on September 8, 2009. On that day Mr. G.F. contacted the society to advise that mother was harbouring Mr. M.M., who was wanted by the police. The society and the police attended at mother’s home where they found Mr. M.M. hiding in the closet. Mother says that she did not know the police had been looking for Mr. M.M. She also says that she was not hiding Mr.

M.M. from the police and that the police refused to say who they were looking for when they attended at her residence. In any event, the society apprehended both M.L. and Ch. The society then contacted Ms. S.S. who agreed to bring F.L. into the society’s office, whereupon the society took F.L. into care as well. As I noted earlier, the protection application regarding Ch. was eventually settled by placing her in the permanent custody of Mr. S.F.’s sister, Ms. Su.F., where she is apparently thriving. THE STATUTORY PATH

Part III of the Child and Family Services Act (“Act”), outlines the statutory path for the court to follow in a protection application. The first step is set out in subsection 47(2) , which requires the court to determine the jurisdictional findings: Child’s name, age, etc. 47(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine, (

a) the child’s name and age; (

b) the religious faith, if any, in which the child is being raised; (

c) whether the child is an Indian or a native person and, if so, the child’s band or native community; and (

d) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed. There is no dispute as to paragraphs (

a) to (c). Accordingly, I make the jurisdictional findings for F.L. and M.L., as set out in the amended protection application dated September 28, 2010. As for paragraph (d), there is no dispute that M.L. was in mother’s care at the time of the apprehension. However, there is a dispute over who was F.L.’s primary caregiver at the time of apprehension. That said, it is not disputed that F.L. was physically with Ms. S.S. and Ms. P.M. on September 8, 2009, as it was they, together with other family members who drove F.L. to the society’s office on that date.

The court must then determine whether the child is in need of protection pursuant to subsection 37(2) of the Act and, if such a finding is made, what should be the appropriate disposition pursuant to

section 57 of the Act . FINDING IN NEED OF PROTECTION The society seeks a finding under subsection 37(2)(b), which states [my emphasis]: Child in need of protection 37(2)(

b) A child is in need of protection where, (

b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (

i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child; As I previously stated, mother had “charge” of M.L. at the time of apprehension. Who had “charge” of the F.L.? However, the parties disagree about the amount of time F.L. spent with mother versus the time she spent with Ms. P.M. Ms. P.M. claims to have been the primary caregiver, while mother claims that she was the primary caregiver. I have concluded from all the evidence that F.L. did indeed spend a great deal of time with Ms. P.M. and Ms.

P.M.’s extended family — particularly the S.s in Brampton. Whether it was 70 per cent of F.L.’s time, as suggested by Ms. P.M., or much less than 50 per cent of the time, as suggested by mother, I need not decide. Rather, I conclude that it was mother, as F.L.’s parent who had legal decision-making authority over F.L. and, as such, was the person who had “charge” over her. See Children’s Aid Society of Toronto v. Shajia A. and Matiur R. , 2008 ONCJ 348 , 170 A.C.W.S. (3d) 354 ,

[2008] O.J. No. 3110 , 2008 Cars​well​Ont 4715 (Ont. C.J.), at paragraph 12. Mother was the person with legal custody [12] and it was she who was vested with decision-making authority. Ms. P.M. made it clear that she knew of the possibility she could apply for legal custody, but she declined to do so because she believed [13] she would be unsuccessful. She was aware that she did not have authority to make legal decisions for F.L. When it came time to register F.L. in school, it was mother, not Ms. P.M. who engaged this process.

And the school chosen by mother was in the area of Toronto where mother was living, not in the B.B. area of Toronto where Ms. P.M. was living. [14] Furthermore, Ms. P.M. was aware that the society could step in at any time and simply remove F.L. from her care. And for that reason Ms. P.M. was prepared to do whatever was necessary to avoid rocking the boat, including actively deceiving the society as to who was caring for F.L., so that she could spend as much time with F.L. as possible. For example, when mother contacted Ms.

P.M. to say the society was coming to her house for a visit, and it was important that the society be able to observe F.L. in mother’s house, Ms. P.M. would immediately return F.L. to mother’s care, thereby acting in concert with mother to deceive the society as to the nature of F.L.’s living arrangements. Additionally, it was mother who was primarily responsible for taking F.L. to her medical appointments. Ms. P.M. acknowledged that she was not aware that F.L.’s doctor was Doctor Azzopardi. [15] It was also mother who held F.L.’s OHIP card. Despite the fact that mother had legal charge of F.L., it was Ms.

P.M., as well as mother, who was responsible for F.L.’s negligent care. Following the apprehension, F.L.’s teeth were found to be rotting and in desperate need of treatment. Despite her assertion that she had F.L. in her care for the better part of three years, Ms. P.M. testified that she didn’t take F.L. to the dentist until 2009 because she was unable to obtain the dental card from mother. At one point in her cross-examination she said she was unaware that F.L.’s teeth were rotting even though she said she supervised F.L. brushing her teeth. At another point in her cross-examination Ms.

P.M. stated “I didn’t think her rotting teeth were that bad”, because “her teeth were going to fall out anyways”. Ms. P.M. concluded, that F.L.’s rotting teeth was a not “humungous, big, big, big problem”. For her part, mother claims that she and Ms. P.M. shared responsibility for taking F.L. to the dentist. She claimed that she brought F.L. to a clinic at Gerrard Square and the dentist at this clinic then referred her to the University of Toronto dental clinic on Elm Street because F.L. would not sit still in the dental chair long enough to have proper work done on her teeth.

It is noteworthy that mother herself did not recognize that a problem existed, apart from what she described as some “discolouring” on the top of F.L.’s front teeth. Between mother and Ms. P.M., neither seemed to recognize what was happening to F.L. or, if they did, each ceded the responsibility for F.L.’s dental care to the other. The end result was a child who had very serious dental problems at the time of apprehension. In my view, the neglect of F.L.’s dental hygiene resulted in problems for her that were so serious as to sufficiently constitute a finding in need of protection.

However, this is but one area which supports a finding in need of protection under subsection 37(2)(b). The second area concerns F.L.’s schooling. Despite registering F.L. in school in November 2008, F.L. missed the equivalent of more than 10 weeks of school and was late another 19 days. Mother claims that the teacher encouraged her to keep F.L. home from school whenever there was even the slightest indication of a possible illness, and that she would even thank the parents for keeping the children at home. Ms. P.M. claims that F.L. was with her during this school year. What were Ms.

P.M.’s stated reasons for not getting F.L. to school? First, there was no legal requirement for F.L. to attend school, as this was only junior kindergarten. Second, she blamed mother and Mr. G.F. for not getting F.L. to school; but when she was confronted with her own assertion that F.L. was living primarily with herself, she agreed that the responsibility was hers. She said that she and Co. would sometimes drive F.L. to school, but Co.’s car was unreliable, accounting for many of the missed days. She was then asked why she did not simply take F.L. to school on public transportation. In response, Ms.

P.M. stated that there was no reason that prevented her from doing so and, finally, she stated, “I do take responsibility for not doing more when she was in my care”. The result of all of this was that F.L. missed a large portion of her junior kindergarten year; and while there may have been no legal obligation for her to attend, the evidence before the court is that F.L. not only has serious academic deficits but, additionally, she is demonstrating behaviour which stems from under-socialization. Both of these deficits must now be addressed. [16] The third protection concern is mother and Mr.

G.F.’s transient housing. According to Mr. G.F.’s testimony, he and mother met in 2002 and by the time of F.L.’s birth in 2004 they were living together on Queen Street East. He says that when F.L. was about four months old they moved into a house rental where they remained for six months; from there, they moved into a place at Birchmount and St.

Clair for about eight months, then to Oshawa, where they rented from mother’s sister (Yv.) for about four months, then to Deerhamwood, then to Darlingside for about four months and then to Kingston Road for about eight months, and then to another location for a brief period of time and, finally to Sandown where the children were apprehended. According to Mr. G.F., they lived in nine different places from 2004 until 2009. Mother’s recounting of the moves was not identical to Mr. G.F.’s, but was along similar lines. I counted eight moves according to mother’s testimony. These moves were problematic for two reasons.

First, if I accept mother’s version as to where F.L. was living from 2004 to 2009, it means that F.L. was subjected to sustained residential instability from the time she was a baby until her eventual apprehension; and second, the moves were necessitated in some cases because of conflicts between mother and Mr. G.F. and others, [17] conflicts which, in and of themselves, exposed F.L. to risk of harm. And for mother, that residential instability did not cease at the time of apprehension.

Regrettably, even following the apprehension, she was not able to obtain permanent housing and demonstrate that she was capable of finding and maintaining a permanent residence. Between September 2009 and April 2011, she moved another five times. She is now living in Haliburton with her current partner, Mr. G.P., where they have lived since April 1, 2011. She claimed at trial that this is her last move, and this is where she is planning to remain with F.L. and M.L. and Mr. G.P. [18]

Mother also exposed her children to risk of harm by harbouring Mr. M.M., an individual wanted by the police. Mother claims not to have known that Mr. M.M. was wanted. She says that Mr. M.M. told her only that he had an “appointment” the next day at 55 Police Division. However, I do not find her explanation credible, [19] nor does it make sense in the particular circumstances of this case, specifically, that Mr. M.M. was found by the police to be hiding in mother’s closet. Furthermore, even if I accept mother’s claim that she and Mr.

M.M. were not in an intimate relationship [20] at the time of the apprehension, the mere fact of his presence in the home with the children exposed the children to risk of harm. According to mother, she brought him into her house because Ch. claimed to be afraid of Mr. G.F. and would not feel safe unless Mr. M.M. was there to protect her. If I accept mother’s claim that the only reason Mr. M.M. was in the house was to protect Ch. from being harmed by Mr.

G.F., this is sufficient to find that mother’s actions exposed the children to risk of harm, as the better, more appropriate response would have been for her to call the police or the society, rather to bring a so-called “protector” into the household, a move which itself could have provoked violence in the home. Therefore, either way, whether mother was harbouring a man wanted by the police, or whether she brought him into her home to protect her children from the violence of another person (Mr. G.F.), mother’s actions in bringing Mr. M.M. into her home exposed her children to risk of harm.

A further protection concern is around the area of marital discord and domestic violence. Mother and Mr. G.F. were together for approximately nine years. During this period, mother claims that Mr. G.F. was physically abusive to her “a couple of times”. She claims that he pushed her and hit her. He also called mother’s daughter Ru. “fat” and a “cow”, and when mother confronted him about this behaviour, he responded abusively toward her. Mother said that he once threatened her with a baseball bat.

And following the apprehension, she says she was “jumped” by people who actually hit her with a baseball bat; those people claimed that they were doing this for Mr. G.F. She herself says that she hit Mr. G.F. “once or twice”, while claiming to be defending herself against Mr. G.F.’s behaviour. Whenever she tried to throw Mr. G.F. out, he would threaten to get back at her if she refused to reunite with him. Instead of remaining away from him, she gave into his threats. Mr. G.F.’s testimony was something to behold.

His unrestrained anger during his testimony was palpable and gave lie to his claims that he never laid a hand on mother. He says he only once threatened to harm her. During his testimony he admitted to having a temper problem but he says he has now addressed that problem by speaking with a “local minister” “roughly every other day”. There was no evidence called to substantiate this bald assertion. [21] While Mr. G.F. admits to getting into fights with other people, including once knocking out someone’s teeth, he says that in connection with this case he hasn’t threatened anyone.

On the other hand, he says that mother was physically abusive toward him, including kicking him in the face, knocking out one of his teeth, hitting him with a frying pan, hitting him with a coffee table and a dog chain, and spitting in his face. He says that despite these numerous incidents, and despite his temper issues, he never hit back at mother. And the only incident that F.L. ever witnessed? According to Mr. G.F., this was when mother threw a telephone charger at Mr. G.F. Shortly following the apprehension, mother was charged with uttering death threats to Mr. G.F., Ms. S.S., Ms. P.M., Le. and Ni.

She was released on bail and ordered to remain at least 200 metres away from all those people. In or about October 2010, Mr. G.F. contacted the police to report that mother had breached her bail by coming within 200 metres of Mr. G.F. While the fact of the charge arising from this alleged breach is well known and undisputed, it is difficult to accept that Mr. G.F. had reason to be concerned about this incident, particularly as he was the one who had come within that 200 metre perimeter. Further, Mr.

G.F.’s testimony in this regard is somewhat tainted by his evidence that he had been considering having his own live-in girlfriend charged criminally because she had committed the sin of opening his mail. It makes little difference whether I accept mother’s testimony or Mr.

G.F.’s — or a hybrid of both — which is where the truth more likely lies [22] — as it is clear that this was an abusive and chaotic relationship, a relationship into which both F.L. and M.L. were born, a relationship which continued until just prior to the apprehension, a relationship which in and of itself gives rise to a finding in need of protection pursuant to 37(2)(

b) of the Act . Finally, I turn to the issue of conflict outside the marital sphere. In his testimony, Mr. G.F. talked about the various unsavoury individuals who formed part of the circle in which he and mother — and the children — lived. First there was Mr. M.M. who, according to Mr. G.F., was a “crackhead” and a “thief”. Mr. G.F. said he did not want Mr. M.M. around his kids, but mother told Mr. G.F. to “fuck off”. In response, Mr. G.F. told mother that if she didn’t get rid of him, he would. Mr.

G.F. claimed that mother’s sister, Yv., once threatened to run him over, but he has not spoken with Yv. since December 2010. As I noted above, mother was charged with uttering death threats against Mr. G.F., Ms. S.S., Ms. P.M., Le. and Ni. According to Ms. S.S., mother’s threat, made directly to Ms. S.S. herself, was to blow up Ms. S.S.’s home. Eventually, mother did plead guilty to one count, in respect of Mr. G.F. only. Ms. P.M. and her family members also participated in this conflict and hostility. Ms. P.M. called mother “stupid” in court. This, in combination with all the other derogatory comments Ms.

P.M. made about mother during the course of her testimony, revealed Ms. P.M.’s undeniable hostility toward mother. Mother claimed that every time she came to Toronto for access visits she was the victim of threats from Ms. P.M. or from her family, for example, Mr. D.V. and Mi. (Ms. P.M.’s mother). At trial, Mr. G.F. was shown a print screen of a text message between himself and Mr. C.D., [23] a cousin of Ms. P.M.’s. In that message, Mr. C.D. says “I’ll kill you both”. This is consistent with the society worker’s evidence who testified that Mr. G.F. told her he had received threats via the internet from Ms.

P.M.’s family, that Mr. G.F. would be killed if he continued to keep company with mother. It was clear to the society that the internecine machinations of the parties were unrelenting. Mr. G.F. was accusing Ms. P.M.’s circle of family and friends of making threats and engaging in conflict. For her part, Ms. P.M. claimed that Mr. G.F. and mother were hurling threats at her. As late as February 16, 2011, the society worker attended court, and while sitting in the waiting room prior to the case

being called, she deposes: [24] I heard one of [Ms. P.M.’s] associates yelling at [Mr. G.F.] stating “you told my aunt you’re going to get the Hell’s Angels to burn her house down. You called and told her that. Don’t deny it.” The worker then spoke with Ms. P.M. regarding this incident. The worker’s evidence continues: [Ms. P.M.] reported that her brother, Mic., was walking home later in the evening from skating when [Mr. G.F.] and [mother] pulled up beside him in the pickup truck and gave him a bottle of Gatorade filled with alcohol. [Ms.

P.M.] said that [mother] apparently said to her brother, “if I see your cousin Mr. D.V. again, he’s a dead goof”. [Ms. P.M.] said that she believes this statement stemmed from an altercation that [mother] had with Mr. D.V. on the street the previous day in which she called him an “asshole” and he called her some names. [Ms. P.M.] said that she has text messages from [Mr. G.F.] that are threatening and harassing. Ms. P.M. herself acknowledged that despite her wish to care for F.L., the B.B. area is not a suitable place for F.L. to live, given the hostility and conflict that permeates the area.

It was in connection with this acknowledgment that just prior to the end of this trial, Ms. P.M. testified that she had investigated the possibility of moving to a different location in Toronto that had been made available to her through Toronto Housing. As at the conclusion of trial she had yet to move from B.B. because, according to Ms.

P.M., she cannot make this move until the children are in her care. [25] The foregoing represents a sampling of the evidence in respect of the conflict which swirled around many of the individuals who were responsible for F.L.’s care, or who were coming into contact with F.L. on a regular basis. Mother’s lawyer urged me to find that more often than not, it was mother who was the victim, rather than the perpetrator of that conflict. While it may well have been the case that mother was sometimes an unwitting victim, she herself needs to take responsibility for much of what occurred.

I would go further and state that even if mother had been the victim 100 per cent of the time [26] , she failed to understand that by remaining in the midst of that conflict, she was exposing her children to a risk of harm. To be perfectly clear about this, a parent who is the victim of unremitting conflict cannot say that her children are safe with her simply because she is the victim and not the perpetrator. [27] While most of the foregoing occurred prior to M.L.’s birth, M.L. was born into this chaos. For that reason I am forced to conclude that both M.L. and F.L. are in need of protection.

DISPOSITION Continuing along the statutory pathway,

section 57 of the Act provides [my emphasis]: Order where child in need of protection 57.

(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under

section 57.1, in the child’s best interests : Supervision order 1 . That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months. Society wardship 2 . That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months. Crown wardship 3 . That the child be made a ward of the Crown, until the wardship is terminated under

section 65.2 or expires under subsection 71 (1), and be placed in the care of the society. Consecutive orders of society wardship and supervision 4 . That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, s. 13 (1-3). Court to inquire

(2) In determining which order to make under subsection (1) or

section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4) . Less disruptive alternatives preferred (3)The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential

services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15 (1).

Community placement to be considered (4)Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4) . What this

section requires the court to do is consider the least disruptive order that is in the best interests of the child. In considering “best interests” the court is directed to subsection 37(3) of the Act , which states: Best interests of child

(3) 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 the possible effect on the child of disruption of that continuity. 8 .

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

Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3) . With these statutory considerations in mind, I will examine the various plans which have been proposed. However, in order to do this, it is necessary to have some understanding of F.L. [28] and her needs, in particular, where she is at emotionally and academically. F.L. Dr. Daniel Fitzgerald was qualified at trial as an expert in child psychology. He conducted his initial psychological assessment of F.L., on October 27, 2009, just a few weeks following the apprehension.

I extract certain portions from his initial report [my emphasis]: She [F.L.] described herself as someone who is close to Aunt P.M. but seems to believe that there is a conflictual relationship between her aunt and uncle [Co.] . For instance, she described how she sometimes stays home from school to console her aunt and dry her tears . Her aunt would sometimes get really mad at her uncle . Sometimes her aunt would go live someplace else because she was so angry . . . . F.L. seems to view herself as having a primary relationship with Aunt P.M.

When prompted about other family members, she included her sisters Ch. and M.L. It was necessary to ask about her biological parents directly and then she referred to her father Mr. G.F. and mother. She stated that she would sometimes go to visit them but Aunt P.M. doesn’t want her to stay over there “cause them was smokin’ too much and I just run around outside.” Dr. Fitzgerald conducted a number of tests and concluded that F.L. was functioning in the low average range of intelligence and is [my emphasis]: …a very impulsive girl who can behave in a disruptive and aggressive manner .

She does not appear to have internalized effective social and interpersonal skills and presents as markedly undersocialized . Her moods tend to fluctuate to dramatic extremes . She has difficulty staying focused on tasks and is readily drawn to extraneous stimuli in her environment. She lacks effective adaptive skills and is highly dependent upon the external structure and support in order to manage the activities of daily living. Her ability to plan and carry out age- appropriate tasks, such as those related to care of herself and her belongings, or to learn new skills, is not well developed.

Noteworthy from these findings are the following. First, F.L. viewed Ms. P.M. as her primary caregiver. However, she was subjected to the conflict in Ms. P.M. and Co.’s relationship with each other, conflict that was so extensive that F.L. herself felt the need to act in a parentified way by consoling Ms. P.M. when she became upset as a result of her conflict with Co. She was also very much aware of the conflict between Ms. P.M. and F.L.’s parents to the extent that Ms. P.M. made it known to F.L. that she did not want F.L. to go over to her parents’ home.

Additionally, she talked about having to remain home from school, which is consistent with the reported 51 days of absence from school during the 2008-09 school year. And it was not just about missing school per se but, rather, as Dr. Fitzgerald noted, F.L. was “markedly undersocialized”, something which, at least in part, would have resulted from minimal interaction with other children. Dr. Fitzgerald’s second report followed examinations of F.L. on November 2, 2010 and November 19, 2010. By that time she had been in her foster home [29] for about 14 months. Again, from Dr.

Fitzgerald’s report [my emphasis]: She spoke positively about her home and is proud to be sleeping in her own room where she keeps her toys. She is in grade 1 but finds the work difficult. . . . She knows that there is a lot of discussion about where she will live and her preference is to live with her mother . She knows that if this happens, she will not likely have visits with her father or Ms. P.M. and she is fine with this . . . . Results on a measure of academic skills indicates that F.L. is experiencing significant difficulties acquiring core literacy and numeracy skills .

She is not able to consistently identify all the letters of the alphabet and lacks the awareness of the phonology of the English language. As well, she cannot consistently write letters from dictation and cannot spell simple monosyllabic words. She has difficulty identifying numbers and performing simple, single digit addition calculations. . . . While she does not display the degree of hyperactivity and impulsivity that have been noted a year ago, she continues to be very distractible and has difficulty maintaining her focus on tasks.

She also has significant difficulties regulating her mood and adapting to changes in her environment. She lacks effective social and interpersonal skills and does not easily know how to engage and interact with others. Here we see a shift away from F.L.’s primary focus on Ms. P.M., and a greater focus on mother. This is consistent with the evidence that the access visits between Ms. P.M. and mother were generally observed to be positive. The academic and social difficulties noted by Dr. Fitzgerald are consistent with the evidence from her grade one teacher, Rebecca Mulford. Ms.

Mulford testified that she has observed F.L. to be very “sensitive” and that she “wants everyone to like her”, seeking approval from other children and adults. She loves adult attention, even to the point where she will walk through the hallways and hug teachers, including teachers she has met only once. Ms. Mulford described this behaviour as very unusual, since children would normally be more shy and reticent around adults they barely know. She testified that F.L. is significantly behind academically.

For example, she is in a program called “reading recovery”, a program designed for students who have little or no reading skills coming out of kindergarten, a program for students who are “significantly behind”. Ms. Mulford testified that in that intensive program, F.L. began at level 0 and moved to level 2 after 21 weeks. This is to be compared with level 16, where a grade 1 student, such as F.L., is expected to be at. She said that F.L. needs a long time to complete tasks. She has a special education teacher working with F.L. for about three times each week.

In addition, F.L. has required the help of a behaviour teacher because of concerning behaviours she has demonstrated in the school. In the testimony of each of mother and Ms. P.M., they claimed that prior to the apprehension, F.L. had no difficulty with her reading and writing skills. The suggestion from them is that any deficits in these areas have occurred only since the apprehension. Ms. Mulford expressed doubt that this could be the case. The findings of Dr.

Fitzgerald are consistent with the on-the-ground observations and findings of Rebecca Mulford and, accordingly, I accept their evidence as an accurate assessment of where F.L. was at when the society apprehended her in September 2009. We see further affirmation of Dr. Fitzgerald’s findings, and further evidence of the chaos in F.L.’s life when we examine the evidence of Andrea Duncan. Ms. Duncan is a child and family clinician who has been practising at the Peel Children’s Centre for the past 2½ years. She has known F.L. since March 2010, approximately six months following her apprehension.

Her involvement with F.L. has been extensive, meeting with F.L. twice each week. According to Ms. Duncan, F.L. initially presented as a “little adult”, acting older than her age. She would have temper tantrums and “meltdowns”, engaging in a lot of attention-seeking behaviour and using foul and inappropriate language. When she first met with F.L., F.L. immediately took Ms. Duncan’s hand and gave her hugs. F.L. demonstrated absolutely no shyness or restraint, throwing herself fully into her interaction with Ms. Duncan. As a result, Ms. Duncan’s major area of concern was F.L.’s ongoing boundary issues. Ms.

Duncan testified that F.L. was able to share very little about her life prior to the apprehension, and very little about what her life was like while she was growing up. She had difficulty drawing a picture of her family. At first F.L. said she wanted to live with her “Aunt P.M.”, but then later she shifted her preference to her mother. F.L. said “all little girls must live with their mother”, language which Ms. Duncan says is unusual for a five or six year old girl. Ms. Duncan believes F.L. is very confused about her family of origin and in fact does not really know who her family is.

She testified that F.L. needs to be able to act like a six year-old, not like a little adult. She requires stable and consistent caregivers so that she will know exactly where she fits into her family picture, rather than multiple caregivers, which she had previously experienced. Significantly, F.L. talks about her sister M.L. as someone who is important to her. She talks about “my little sister” with a sense of pride and closeness that had developed in the months leading up to the start of trial, in a way that Ms. Duncan had not previously observed.

Psychological evidence should not be given a special weight simply because it is psychological evidence per se . It is only one piece of evidence in the trial, and the weight a court will give to it depends, at least in part, on whether it fits with the rest of the evidence adduced. The greater the fit, the more weight a court will be inclined to ascribe to that evidence. In this case, I find that the evidence of Dr. Fitzgerald is consistent with the evidence of Rebecca Mulford and Andrea Duncan and, accordingly, I give it significant weight.

I note as well, that it is consistent with much of the evidence I heard from Ms. P.M. and mother, particularly the evidence of F.L. being

shifted around from household to household, as was clearly the case for F.L. from 2006 until the apprehension in September 2009. With that in mind, I return to some of Dr. Fitzgerald’s testimony. The thrust of what he said is that because F.L. has had multiple caregivers over an extended period of time, this has resulted in confusion for her, particularly confusion as to where she fits into any family life she may have had. The evidence of Ms. Mulford that F.L. will hug a teacher she has met only once, is very concerning to Dr. Fitzgerald.

It suggests to him that F.L. has not developed a secure sense of self in connection with her caregivers which, in turn suggests a lack of secure attachment experiences. She needs to get the message about boundaries and develop a sense of who her caregivers are. Because F.L. has had so many people in her life, with no sense of a stable caregiver, her life has become very complicated, and she has not been able to develop a strong attachment to any one person. This was revealed during F.L.’s visits which Dr. Fitzgerald observed with Ms. P.M., mother and Mr. G.F.

F.L. showed no real strong emotions toward any of them. While she did show some affection, and she did give a hug and a kiss goodbye, Dr. Fitzgerald was clear in his evidence that she did not display any strong emotions towards these people. Mr. P.R. is the foster father. He has been caring for both F.L. and M.L. since the apprehension in September 2009. Mr. P.R.’s evidence about F.L.’s attention-seeking behaviours and her academic difficulties are consistent with the evidence from Ms. Duncan and Ms. Mulford. He describes M.L. as essentially age-appropriate in her development, without any special needs.

When F.L. first came into his home she did not express any concern about being in foster care. She did not cry at night and she did not express missing anyone. In fact, she has never said she misses anyone, nor has she asked to phone anyone. She initially said she wanted to live with Ms. P.M., but then a few weeks later she said she wanted to live with “mom”, but since then she has never expressed the wish to live with either. Nor does she ever express any particular interest in visiting with anyone during access. When Ch. was in Mr.

P.R.’s home [30] the relationship between F.L. and Ch. was troubled and characterized by conflict. After Ch. left the home, F.L.’s problems began to ameliorate. On the other hand, F.L.’s relationship with M.L. is a notably positive one. She plays with M.L., and demonstrates overt affection, including hugging and kissing. Significantly, Mr. P.R. describes F.L.’s relationship with M.L. as a “natural loving relationship”. Mr.

P.R. said that he had been considering adopting M.L. alone, but because he knew this would result in splitting up F.L. and M.L., he changed his mind, as he did not feel this would be best for the children. Ms. P.M.’s PLAN The society worker, Ms. Kamyabi, stated that Ms. P.M. truly cares for F.L. I agree entirely with her assessment. That was clear from Ms. P.M.’s testimony, and there was no credible evidence during the trial which suggested otherwise. However, there are far too many problems with Ms.

P.M.’s plan for the court to conclude that it is in F.L.’s best interests to be placed with her, including the fact that her plan is for F.L. alone. First, I will spend some time examining Ms. P.M.’s background in order to provide an understanding of just who this person is who seeks to have F.L. placed in her fulltime care. Ms. P.M.’s biological parents separated when she was about four years old. She remained with Mi., her biological mother, until she was about 13 years old. During that time, her mother had two partners, Je. and Chu.

She cannot recall if either of those men were cocaine addicts. [31] According to Ms. S.S., Ms. P.M.’s stepmother, when Ms. P.M. reached 13 years of age, her mother Mi. said she could not handle Ms. P.M. any longer. In fact, according to Ms. S.S., she was threatening to kill herself because of her highly conflictual relationship with her mother. And so a decision was made that she would go to live with Ms. S.S. and Ms. P.M.’s biological father, To. Ms. S.S. picked her up and took her to a doctor who, in turn referred her to a psychologist where she was diagnosed with ADHD. He also advised referring Ms.

P.M. to Kinark in order to address Ms. P.M.’s mental health issues. [32] One night, while she was living at Ms. S.S. and To.’s house, Ms. P.M. got into a conflict about eating vegetables. Ms. P.M. took a knife to bed with her and she threatened to harm her sister Le. Ms. S.S. said that by the age of 14 years, Ms. P.M. had attended 11 different schools. She had a bad temper and had difficulty controlling her impulses. Ms. S.S. wondered whether Ms. P.M. had been sexually abused as a child. A psychological assessment was conducted on Ms. P.M. when she came to live with Ms.

S.S., and certain findings were made, none of which Ms. S.S. disagreed with at this trial. Those findings included: Ms. P.M. was operating at the first percentile intellectually; her verbal scores were just as low, and she had difficulty with self-control, something which impeded her ability to problem-solve. This profile could have been affected by her schooling, as well as the behaviourial and emotional difficulties and the upheaval in her life. The psychological recommendation was for a further assessment, but this apparently never happened because, after just a few months living with Ms. S.S. and To., Ms.

P.M. returned home to live with Mi., her biological mother. Ms. S.S. says that Ms. P.M.’s return to Mi.’s home came about because Ms. P.M. begged to go back to her. Ms. S.S. knew that move was not right for Ms. P.M., and Ms. S.S. herself called it a “dumb move”. In her own testimony, Ms. P.M. was dismissive of these psychological findings and the conflict and upheaval she experienced in the early years of early life, by stating “people just go through ruts in their life”. In other words, despite the very serious findings in that psychological assessment, including Ms.

P.M.’s obvious cognitive deficits, as well as her dangerous acting-out behaviours, Ms. P.M. today sees that as merely a “rut”. She sees this as something which she experienced simply as part of her normal development. And for Ms. P.M., that was then, and this is now. She is now out of that rut. Interestingly, Ms. S.S. did not describe F.L. being cared for by Ms. P.M. as something that was important for F.L. Rather, she said that this was an “opportunity [for Ms. P.M.] to take care of a child”. The inference I draw from this is that Ms. S.S. saw the connection

between F.L. and Ms. P.M. as akin to a therapeutic relationship for Ms. P.M. ; something like: Ms. P.M. has had a difficult life, she has no child of her own, and now she has the opportunity to normalize her life, to have something that she has always wanted, by becoming a caregiver or a quasi-“mother” to F.L. I glean from all of this, the picture of Ms.

P.M. as a highly challenged, very troubled young woman, a person who would have difficulty achieving and maintaining her own personal stability, much less being able to care for the needs of a young child and, in particular, a child with the very high needs that F.L. clearly has. As I noted earlier, Ms. P.M. expressed the view that F.L. was doing well academically when she was in Ms. P.M.’s care. She said that she “always read to F.L.” and that F.L. was learning to read and could count to 50 by about the age of three years. This is entirely inconsistent with the evidence of F.L.’s teacher, Rebecca Mulford.

It is particularly significant that Ms. P.M. does not believe F.L. has any special needs, and certainly not to the extent as expressed by Dr. Fitzgerald, Rebecca Mulford and Andrea Duncan. Here is some of what Ms. P.M. had to say: F.L. was great, loving and would not just run up and hug someone. Although she did not know her boundaries at 18 months of age, she did know them as she got older. When Ms. P.M. was later told about F.L.’s attention-seeking behaviours when she came into care, she said that this information “floored me” and she could offer no explanation as to why that happened.

Importantly, she can’t even remember having a discussion about this with the society worker, or what the worker said in response. When asked specifically if she felt F.L. had special needs, she replied: “I don’t”. . . . She may be behind, but that can be fixed, it can be helped”. Again, this demonstrates a near-complete lack of understanding into the depth and extent of F.L.’s challenges as detailed in the previously-discussed evidence. Ms. P.M. said she was taking a parenting course. She was then asked whether it has been helpful. She responded that there is “pretty much” nothing that she needs to learn.

It is important to look at some of Ms. P.M.’s behaviours, both as she describes them, as well as what others observed. During access visits, she said that F.L. often persisted in asking Ms. P.M. when she would come back to her. In response, Ms. P.M. once said to F.L.: “If you get this big you can come home”. At trial, Ms. P.M. acknowledged this response was improper. On another occasion, Ms. P.M. said to F.L.: “Just tell them you want to come home”. I turn to Ms. P.M.’s relationship with her so-called partner, Co. Co. does not live with Ms. P.M., moving back and forth from his own place to hers. Ms.

P.M. said that if Co. were to live with her, “it might” change her disability benefits. Ms. P.M. also said that Co. still likes his time alone away from Ms. P.M., and Ms. P.M. likes her time away from Co. Ms. P.M. expressed the concern that if she and Co. were to live together it “may ruin our relationship”. Recall that F.L. talked to Dr. Fitzgerald about conflict she witnessed between Ms. P.M. and Co. Was this an accurate recollection? It appears so. When Ms. P.M. was asked at trial whether she and Co. fight, she responded “yes, we fight”. She was asked whether F.L. would have any knowledge of these fights.

She responded: “maybe she does remember some of the fights . . . I didn’t realize her ears were always open”. Co. was not happy with the way in which Ms. P.M. was dealing with issues pertaining to F.L. and this led to a number of their fights. What has changed? According to Ms. P.M., “I have become stronger as a person, I am fighting for F.L.”. How did Ms. P.M. become stronger? What has changed in her life? How has she addressed her challenges? What insights has she gained into her own behaviours?

How can someone who is so personally challenged, and with such limited inner resources address the needs of a little child who has so many needs herself? Neither Ms. P.M.’s testimony, nor any other credible evidence at trial revealed the answers to any of these questions. A meeting took place at the society’s office on May 10, 2011, after the commencement of trial. At that meeting mother presented her plan for the children to live with her in Haliburton. Ms.

P.M.’s response to mother’s plan was that it was “unacceptable to me” because there was no way “I was going to fight for a year and a half” and then just let her go back to her mother who had initially abandoned her. When Ms. P.M. first met F.L. in 2006 she says that she wound up keeping F.L. for two weeks because her parents, mother and Mr. G.F., simply disappeared; or, as Ms. P.M. put it, “abandoned” F.L. into Ms. P.M.’s care.

The obvious question is why would someone who cannot find a young child’s parents simply continue to care for a child that she barely knows, with whom she has no history, and to whom she is not related? Why wouldn’t she instead call the society or the police and alert them to the fact that she has a child in her care who — according to Ms. P.M. — has been abandoned by her parents? In cross-examination, Ms. P.M. initially agreed that she should have contacted the society very early on. But then she stated: “I would do it all over again”. Why? According to Ms.

P.M., “She’s not my child, I’m fighting for someone else’s child . . . I love her to death”. . . If I lose her I’m not losing my own child”. Question: Then why are you fighting so hard? Answer: “because I love her”. The word oft-repeated here is “I”. There is no focus on F.L. herself. Ms. P.M. is unable to articulate why she believes it is in F.L.’s best interests that she be in Ms. P.M.’s fulltime care — apart from the fact that Ms. P.M. loves her. As I combed through the evidence I tried to understand why it was that Ms. P.M. believed it was in F.L.’s best interests to live with her.

I was unable to find that evidence. Instead, I heard words like: “I love her” and “it would mean the world to me if she was back in my care”. She would be willing to go anywhere to have F.L. in her care, including “moving to China”. When she was asked about the importance of F.L. and M.L. remaining together, she agreed that was important, but she added: “I’m not just going to give up on F.L.” . . . I stopped my life for this little girl . . . I was 20 years old . . .there were so many other things I could have been doing”. Again, Ms. P.M.’s focus is on Ms. P.M., and why it is important for Ms.

P.M. to care for F.L., rather than focusing on F.L., and why it is important for F.L. to be cared for by Ms. P.M. Given the previously-discussed psychological findings of Ms. P.M., I suppose none of this should come as much of a surprise. That is simply who Ms. P.M. is.

In addition to the foregoing discussion, perhaps just as important — if not more so — is the fact that a placement of F.L. with Ms. P.M. would mean a permanent separation of the siblings — F.L. and M.L. The evidence is that F.L. and M.L. have a close and loving connection.

From all the evidence at this trial, this two-year relationship may well be the most stable and consistent relationship in F.L.’s entire life, and certainly the only stable relationship that M.L. has experienced. [33] F.L. has been bounced around from pillar to post, from one house to another, never knowing where her permanent residence will be, or who her permanent caregiver will be. The evidence inexorably leads me to conclude that it would contrary to the best interests of both children were they to be separated permanently from each other.

For all of the foregoing reasons, I have concluded that I must reject Ms. P.M.’s plan to have F.L. placed with her. In arriving at this decision I have taken into account the “best interests” provisions of subsection 37(3) of the Act and, particularly paragraphs 1, 6, 10 and 12, which I consider to be the most significant provisions insofar as Ms. P.M.’s plan is concerned. In

summary: Paragraph 1 — the child’s physical, emotional and mental needs cannot be met by Ms. P.M. Ms. P.M. herself is saddled with too many personal challenges. She lacks insight into her own challenges and was almost entirely unaware of F.L.’s needs at the time of apprehension. Paragraph 6 — the most important consideration insofar as this paragraph is concerned, is the sibling relationship between F.L. and M.L. In my view, that relationship is far more important than the relationship between F.L. and Ms. P.M. Paragraph 10 — the effects of delay. Both children have been in care for almost two years.

In M.L.’s case, this is almost one full year beyond the statutory time limit provided for in the Act . There is no longer any time remaining to experiment with a placement that is destined not to work out. [34] Paragraph 12 - degree of risk justifying the finding in need of protection. In my view, the risk of harm was significant. The evidence leads me to conclude that F.L. has significant academic and emotional needs which will require very focused attention and a highly structured setting, by a caregiver who understands those needs and who is capable of addressing them. Ms. P.M. is not that person. Ms.

S.S.’s PLAN Ms. S.S. was one of the most impressive witnesses in this trial. She is clearly a strong-willed person who has firm views about many things in her life, and about the people in her life. She obviously rules the roost in her home in Brampton. It also appears that she commands considerable respect from her extended family members, as well as mother and possibly even Mr. G.F. himself. It is noteworthy that while Mr. Danson’s instructions on behalf of Ms. P.M. were to advance Ms. P.M.’s primary plan [35] , with Ms. S.S. as the secondary plan, Mr.

Danson candidly acknowledged during argument that the plan with Ms. S.S. was the stronger plan. I agree. However, while the plan with Ms. S.S. may be stronger, in this case, “stronger” is a relative term only, and the plan falls far short of meeting the best interests of the two children. I have come to this conclusion for three reasons. First, F.L. has very special needs. She will require considerable structure and focused attention by whoever becomes her caregiver. It does not appear to be the case that Ms. S.S. is inherently incapable of addressing those needs.

Instead, the evidence suggests that, in many respects, Ms. S.S. is a very capable person. However, she has so much on her plate at the present time that it is unrealistic to expect her to be able to give F.L. the very significant amount of attention that she will obviously require. As I pointed out in the early part of these reasons, Ms. S.S. is surrounded by family members who have enormous challenges of their own. And it is Ms.

S.S. who is the guiding hand in addressing those challenges; it is she who takes the lead in providing support for those various individuals, including her daughters Ni. and Le., who each have their own challenges, Ni.’s severely disabled son Ad., and Le.’s disabled son De. In addition to these people, Ms. S.S.’s husband To. (Ms. P.M.’s biological father), has what Ms. S.S. calls an “extreme” case of ADHD, and he sometimes has difficulty articulating his thoughts and intentions. When the society attended at Ms. S.S. and To.’s house to perform a kinship assessment, it rejected Ms.

S.S. and To. as kin caregivers for a number of reasons, including To.’s deficits, as well as the challenges stemming from Ni. and Le. and their respective families. To. told the kinship assessor that he was diagnosed with ADHD at an early age and that he was on medication. Ms. S.S. believed that in fact To. had, at some time earlier in his life, received electroshock therapy. To. did not recall any concerning behaviours about his own children — Ms. P.M., Ni. and Le. He also said that he did not believe in therapy because therapy did not help him when he was a child.

He was clear that he himself would be unable to identify and address any special needs for those living in his household. Ms. S.S.’s answer to all of this was that she and To. have found a sort of short-hand way of communicating with each other during their 22 years of marriage. This includes Ms. S.S. leaving notes for To., which assists To. in remembering what he must do. Ms. S.S. said that if she had sole custody of F.L., To. would defer to her as the decision-maker. Quite possibly so.

However, to inject a special needs child such as F.L. into this already complicated family dynamic would be tantamount to conducting an experiment, with F.L. as the guinea pig. It is one thing to make a supervision order with a kin or kith because there is reason to believe that it will work, on a balance of probabilities; but it is something else entirely to experiment with a child who has been in care almost two years, when there is little more than a faint hope that success will ensue. Despite Ms. S.S.’s sincerely expressed belief that she would be able to make this work [36] , the evidence suggests otherwise.

She is but one, strong-willed person, surrounded by a sea of individuals, all of whom she is required to juggle and keep in the air, with the hope that none of the balls will come crashing to the ground. The second reason I cannot accept Ms. S.S.’s plan is because I have concluded that Ms. S.S.’s real plan is not to be F.L.’s sole caregiver but, rather, to facilitate Ms. P.M. being the sole caregiver, with herself, Ms. S.S., as a sort of mentor or backup to Ms. P.M.

Ms. S.S. made it clear in her evidence that ideally F.L. should be placed in Ms. P.M.’s primary care. She said that she is aware of the society’s concerns regarding Ms. P.M. but, nevertheless, she believes there should be a joint custody order between herself and Ms. P.M., with F.L.’s primary residence being with Ms. P.M. She stated that she would be able to assist Ms. P.M. with programs and resources and help Ms. P.M. how to “problem-solve”. She does not recognize [37] the lack of internal resources that Ms. P.M. has, that would ultimately limit her ability to parent F.L.

Rather, she stated that the real problem with Ms. P.M., when she was given the chance to look after F.L., was that she was not “assertive enough” to take advantage of the fact that mother and Mr. G.F. were not in the picture. [38] Ms. S.S. was not able to articulate any substantial shortcomings that existed in Ms. P.M.’s care of F.L. in the three-year period leading to the apprehension. In other words, Ms. S.S. is firmly of the view that all would be well with Ms. P.M. as the primary caregiver, and Ms. S.S. herself could remain on the sidelines, providing advice or support from time-to-time, as needed. Ms.

S.S. believes that sole custody — or at least primary residence — with Ms. P.M. would work because Ms. P.M. would come to Ms. S.S. for advice and assistance whenever she felt it was necessary to do so. Even if this were true, it presupposes Ms. P.M. having the necessary insight to know when she required advice and assistance. And based on Ms. P.M.’s own evidence, combined with the objective evidence of her own substantial limitations, it is doubtful that those insights would ever materialize. Ms. S.S. was aware that Ms.

P.M. participated in a subterfuge by bringing F.L. over to mother’s house whenever she knew the society would be coming over to conduct a visit. Ms. S.S. also knew that the society was very confused about F.L.’s true living arrangements prior to the time of apprehension, because the society was being fed different stories by different people. I find it significant that despite Ms. S.S.’s acknowledgment of all of Ms. P.M.’s diagnosed psychological problems and her extreme intellectual limitations, she would still believe Ms.

P.M. has the ability to become F.L.’s primary caregiver and address F.L.’s very challenging needs. What was also noteworthy from Ms. S.S.’s evidence was her inherent distrust of the society. While she said the right things, specifically that she would abide by any order the court made and that she would do whatever the society required of her, her actions suggest otherwise. For example, she did not find it at all unusual that Ms. P.M. would refrain from calling the society when she found herself with F.L., who Ms. P.M. alleges was abandoned into her care by mother and Mr. G.F. Ms.

S.S. testified: “I understand how you can think that most people would have called children’s aid to say we have an abandoned child”, but the way Ms. S.S. looked at it was different. She says that her mentality is not to call children’s aid . More than once throughout this trial I heard witnesses on behalf of Ms. S.S. or Ms. P.M. say that “it takes a village” to raise a child, as an implicit justification for moving F.L. around from household to household, as a reason to keep her away from the society. In a simple, almost throw-away line in her testimony, Ms. S.S. revealed what her true feelings are about Ms.

P.M.’s ability to care for F.L. She was asked what should happen in regards to F.L.’s care once the society was no longer involved, and once the court was out of the picture. Ms. S.S. stated simply that Ms. P.M. should then have F.L. “ as much as she wants” . Given the fundamental unworkability of Ms. P.M.’s plan to care for F.L., the court would be unable to trust any plan which involved either sole custody to Ms. S.S., or joint custody between Ms. S.S. and Ms. P.M. Simply put, any custody order where Ms. S.S. has a role would likely end up with F.L. living fulltime, or at least primarily, with Ms. P.M.

The third and final reason I am compelled to reject Ms. S.S.’s plan is because it would by necessity result in splitting up the siblings, F.L. and M.L. I will not repeat what I said earlier about the importance of the siblings remaining together. Ms. S.S. said she was originally planning for F.L. and M.L. together but, upon reflection, she realized she did not have a relationship with M.L. and so it was best to leave M.L. out of the planning consideration. Ms.

S.S. did agree that it would be “terrible” for F.L. to lose her relationship with M.L., but she felt on balance that this could be justified by the other relationships F.L. would benefit from, particularly Ms. S.S. and To.’s family and Ms. P.M. I give credit to Ms. S.S. for recognizing that F.L.’s loss of her sibling relationship would be “terrible”. But she failed to recognize that the loss for M.L. would be terrible as well.

It must be remembered that M.L. was less than four months old when she was apprehended and, for all intents and purposes, her sister F.L. is the only family relation with whom she has had a consistent connection. Perhaps for M.L., even more than F.L., the destruction of the sibling relationship would be devastating. For the foregoing reasons, I have concluded that no aspect of Ms. S.S.’s plan would be in the best interests of either F.L. or M.L. In coming to this conclusion, I have relied primarily on paragraphs 1, 6, 10, 12 and 13 of subsection 37(3) of the Act . In

summary: Paragraph 1- F.L.’s physical, emotional and mental needs cannot be met by Ms. S.S. Ms. S.S. is surrounded by other family members who rely heavily on Ms. S.S.’s time and attention, leaving Ms. S.S. with very little time to devote to F.L.’s special needs. Paragraph 6 — M.L. has no relationship with Ms. S.S. Whatever relationship F.L. may have had with Ms. S.S. came to an end almost two years ago. Paragraph 10 — the effects of delay. F.L. and M.L. have been in care almost two full years and, for M.L., this is almost a full year beyond the statutory time limit.

Paragraph 12 — degree of risk justifying the finding in need of protection. As I previously discussed, the risk of harm to the children, was significant, and any plan must recognize and be capable of addressing the past risk of harm which brought the children into care. Neither Ms. S.S. — because of the other significant demands on her time — nor any combination of Ms. S.S. and Ms. P.M., would be capable of addressing the protection concerns. Paragraph 13 — any other relevant circumstance. Here I consider Ms. S.S.’s motivation for seeking custody or joint custody of F.L. For Ms.

S.S., this would be a step in accomplishing her true purpose, namely, to place F.L. in Ms. P.M.’s fulltime care, something which I have already concluded is inherently unworkable.

MOTHER’S PLAN a. Mother’s Background In order to have a full appreciation of the merits of mother’s plan, it is necessary to examine some of her history. At age 34 years, she is the youngest of five original siblings. Both her parents are deceased. Her sister Be. died in an automobile accident when she was only 25 years old. She no longer has a relationship with her sister Yv. a person about whom much was discussed during the course of this trial. She was apparently close to her mother who she described as the “rock of the family”.

Throughout her childhood, her father used to abuse her, both physically as well as mentally. He would call her names and hit her. Life at home became so bad for mother that she eventually left home when she was 15 or 16, and moved in with B.S. B.S. is the father of mother’s first two children, Th., age 17 (who is severely disabled) [39] and Ru., age 16. As I noted earlier, mother has three other children, Ch., age 12, and the two children who are the subject of this protection application, F.L., age 6 and M.L., age 2 years.

Mother was kicked out of school at age 16 and she moved back to her dad’s house when she was 17 as a result of problems she was having with B.S. Mother claims that her sister Yv. blamed her for their mother’s death and, because of this, Yv. acted abusively to mother. There was a good deal of evidence during the trial about the highly conflictual relationship between mother and Yv. which culminated when mother claims that Yv. tried to kill her in or about August 2010. Her other sister Ca. had a son named Se. The society became involved because of protection concerns regarding Se.

One day, mother said she came home and Se. was gone. She said that her father claimed “Yv. [40] had “messed up”, got into trouble and the society came and took Se.”. Mother said that made her feel she could not trust the society. Mother described B.S. as a “really good father”. She was with him for four or five years, but the relationship ended because she says they argued too much. After she and B.S. separated, she said she gave up custody of Th. and Ru. to B.S. because she felt she was unable to properly care for them. She test

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