Catholic Children’s Aid Society of Toronto v. C.C., 2011 ONCJ 598

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

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

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

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

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

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

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

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Toronto (North York) Registry No. C816/99 DATE: 2011·VI·17 CITATION: Catholic Children’s Aid Society of Toronto v. C.C. , 2011 ONCJ 598 ONTARIO COURT OF JUSTICE IN THE MATTER OF a twice-amended protection application respecting J.K.A. (born on […] April 1999) and B.G.C. (born on […] March 2008) under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended. BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — C.C., I.J. and G.A., Respondents.

Before Justice Stanley B. Sherr Heard on 30-31 May 2011; and 1-3 and 6-8 June 2011 Reasons for Judgment released on 17 June 2011 STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subclauses 37(2)(b)(i), subclauses 37(2)(b)(ii), clause 37(2)(g),subsection 37(3),

section 54, subsection 57(1), paragraph 57(1)¶4, subsection 57(2), subsection 57(3), subsection 57(4),

section 57.1,subsection 59(2.1),

section 63.1, subsection 70(1), subsection 70(4) and

section 141.1. CASES CITED Catholic Children’s Aid Society of Hamilton-Wentworth v. G.-T. (Jill) (1996), 90 O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394,1996 Cars​well​Ont 1428 (Ont. Div. Ct.). Catholic Children’s Aid Society of Metropolitan Toronto v. M. (Cidalia), [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R.(4th) 321, 2 R.F.L. (4th) 313, , [1994] S.C.J. No. 37, 1994 Cars​well​Ont 376. Children’s Aid Society of Brant v. T. (James Albert) and S. (Melissa Marie), 2005 ONCJ 302,144 A.C.W.S. (3d) 278, 19 O.F.L.R. 161,[2005] O.J. No. 5249, 2005 Cars​well​Ont 7097 (Ont. C.J.).

Children’s Aid Society of Hamilton-Wentworth v. R.(K.) and W.(C.) (2001), 114 A.C.W.S. (3d) 71, [2001] O.J. No. 5754, 2001 Cars​well​-Ont 5006 (Ont. Fam. Ct.). Children’s Aid Society of Niagara Region v. C.(J.), B.(S.) and R.(R.), , 223 O.A.C. 21, 281 D.L.R. (4th) 328, 36 R.F.L.(6th) 40, [2007] O.J. No. 1058, 2007 Cars​well​Ont 1680 (Ont. Div. Ct.). Children’s Aid Society of Niagara Region v. J.(M.), S.(K.) and S.(S.), , 4 R.F.L.(6th) 245, [2004] O.J. No. 2872, [2004]O.T.C. 634, 2004 Cars​well​Ont 2800 (Ont. Fam. Ct.). Children’s Aid Society of Toronto v. A.(M.) and M.(C.), , 145 A.C.W.S. (3d) 276, [2006] O.J.

No. 254, 2006 Cars​well​-Ont 328 (Ont. S.C.). Children’s Aid Society of Toronto v. H. (Robin) and N. (Michael), , 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853,2000 Cars​well​Ont 6170 (Ont. C.J.). Children’s Aid Society of Toronto v. L. (Tracy) and B. (Evonne), 2010 ONSC 1376, [2010] W.D.F.L. 1957, [2010] O.J. No. 942, 2010Cars​well​Ont 1343 (Ont. S.C.). Children’s Aid Society of Toronto v. P. (Dora) and L. (Raymond), , 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J.No. 4075, 2005 Cars​well​Ont 4579 (Ont. C.A.). The Queen v.

K.(A.) and K.(N.), , 45 O.R. (3d) 641, 125 O.A.C. 1, 176 D.L.R. (4th) 665, 67 C.R.R. (2d) 189, 137C.C.C. (3d) 225, 27 C.R. (5th) 226, [1999] O.J. No. 3280, 1999 Cars​well​Ont 2806 (Ont. C.A.). Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd. et al. (1977), (ON SC), 15 O.R. (2d)750, 76 D.L.R. (3d) 641, 1977 Cars​well​Ont 626 (Ont. H.C.).

Karen Ksienski .............................................................................. counsel for the applicant society Respondent mother, C.C. .................................................................................... on her own behalf I.J. (respondent father of younger child) .............................................................. on his own behalf No appearance by or on behalf of G.A. (respondent father of older child), even though served with notice M.

Ruth Thompson ................................................ counsel for the Office of the Children’s Lawyer, legal representative for the older child, J.K.A. JUSTICE S.B. SHERR:— 1: INTRODUCTION [1] The Catholic Children’s Aid Society of Toronto (the society) has brought a twice-amended protection applicationseeking findings that the children, J.K.A. (born on […] April 1999) and B.G.C. (born on […] March 2008), are children in need ofprotection pursuant to subclauses 37(2)(b)(

i) and (ii) and clause 37(2)(

g) the Child and Family Services Act, R.S.O. 1990, c. C-11, asamended (the Act).

[ 2 ] The society is seeking an order that B.G.C. be made a Crown ward without access for the purpose of adoption. [ 3 ] The society’s protection application also seeks an order that J.K.A. be made a society ward for six months. At trial, the society amended this request, asking for an order that J.K.A. be made a society ward for three months, followed by a nine-month supervision order, placing him with Ms. C.C. (the mother), provided that specified conditions are first complied with. [ 4 ] The mother opposes the society’s requests and asks that the society’s application be dismissed with costs.

Her position is that the children have never been in need of protection and should immediately be returned to her. In the event that one or both children are found in need of protection, her position is that the children be placed in the joint care of her and her husband, the respondent Mr. I.J., without supervision terms. She is adamant that she wants no involvement with the society. [ 5 ] The mother and Mr. I.J. claim that they are married and that Mr. I.J. is B.G.C.’s biological father. [ 6 ] Mr. I.J. fully supports the mother’s position. [ 7 ] The respondent, Mr. G.A., is J.K.A.’s father.

He did not participate in this trial and was noted in default by Justice Geraldine F. Waldman on 19 May 2011. [ 8 ] The Office of the Children’s Lawyer, acting for J.K.A., supports the society’s position. J.K.A.’s views and preferences are to return to his mother’s home as soon as possible. J.K.A. is not seeking access to his father. [ 9 ] J.K.A. was apprehended by the society from the care of his mother on 13 March 2008 and placed in the temporary care of the society. He was placed in the temporary care and custody of Mr. G.A. from 27 May 2008, until he was apprehended from his care on 10 September 2010.

J.K.A. has remained in the care of the society since that time. [ 10 ] B.G.C. was apprehended at birth ([…] March 2008) at the Humber River Regional Hospital (Humber) from the care of her mother. B.G.C. has complex medical needs. She has Down’s Syndrome and a congenital heart defect that has required two major surgeries. She has remained in the care of the society since her apprehension. The mother and Mr. I.J. have access to B.G.C., fully supervised by the society. [ 11 ] The primary issues for me to decide are: (

a) Are J.K.A. and B.G.C. in need of protection pursuant to the Act ? (

b) If so, what disposition orders are in their best interests? (

c) If the court makes an order that B.G.C. should be a Crown ward, should an access order be made? (

d) If the court makes an order that J.K.A. should be a society ward, what access order is in his best interests? 2: PROCESS AND PRELIMINARY EVIDENTIARY ISSUES 2.1: Joint Plan of Care [ 12 ] The mother and Mr. I.J. chose to represent themselves. The mother has had several lawyers represent her throughout the case. She testified that she had lost confidence in them and felt that she should present her case on her own. [ 13 ] I wanted to ensure that the mother and Mr. I.J. had the opportunity to put their best foot forward and was very aware of the challenges that they faced in representing themselves. [ 14 ] Mr.

I.J. did not file an Answer and Plan of Care and the society asked me to note him in default at the first trial management conference held on 11 May 2011. I declined this request. Mr. I.J. has been actively involved in this matter and has been exercising access with B.G.C. I asked the mother and Mr. I.J. whether they wanted me to treat the mother’s Answer and Plan of Care as a joint plan of care. They said that they did. Mr.

I.J. was permitted to participate fully in the trial. [ 15 ] At the first trial management conference, it was agreed that the direct evidence of the society witnesses would be given in the form of affidavit evidence. Timelines were set for the delivery of these affidavits that the society complied with. 2.2: Literacy Issue [ 16 ] A second trial management conference was arranged on 24 May 2011. The mother and Mr. I.J. did not attend. The mother explained at trial that she mixed up the court date and came to court on 26 May 2011 instead.

At this trial management conference, the society raised a concern (for the first time in this case) that the mother might have literacy challenges. Out of an abundance of caution, I ordered that the evidence of the society workers should be delivered viva voce , with the mother and Mr. I.J. having the right to use the affidavits already delivered to them, if they wished, for the purpose of cross-examination. [ 17 ] On the first day of trial, I addressed the literacy issue with the mother. She assured me that she was an excellent reader.

However, she said that she has been very busy and had not read all of the society’s affidavits. Again, out of an abundance of caution, I maintained my order that the society witnesses deliver their evidence viva voce . The affidavit brief of the society was not admitted into evidence. [ 18 ] I was able to observe during the trial that the mother’s reading skills were good. She kept up with the evidence, was

taking detailed notes and prepared questions. I observed her reading questions from her notepad and reading back evidence to witnessesthat had been given in their direct testimony. 2.3: Admissibility of Society Access Notes as Business Records [19] At the start of the trial, the society sought to introduce the full set of access notes taken by its staff over the past 3 years asbusiness records. These observation notes are dense, in small type and are extremely detailed, providing the minutiae of every aspect ofeach visit.

I ruled that this brief could not be admitted in its entirety into evidence. [20] Business records are not automatically admissible. They must be authentic, relevant and not violate any other evidentiaryrule. See Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd. et al. (1977), (ON SC), 15O.R. (2d) 750, 76 D.L.R. (3d) 641, 1977 Cars​well​Ont 626 (Ont. H.C.). [21] In determining relevance, the court must determine whether the evidence is not only logically relevant, but pragmaticallyrelevant. The probative value of the evidence must outweigh any prejudice to its introduction.

See The Queen v. A.K. and N.K., , 45 O.R. (3d) 641, 125 O.A.C. 1, 176 D.L.R. (4th) 665, 67 C.R.R. (2d) 189, 137 C.C.C. (3d) 225, 27 C.R. (5th) 226, [1999]O.J. No. 3280, 1999 Cars​well​Ont 2806 (Ont. C.A.). [22] Access observations are logically relevant. My issue was that they were not pragmatically relevant in the form presented. Literally hundreds of observations and allegations were contained in the access records. It was entirely unrealistic and unjust to requirethe mother and Mr. I.J. to have to review and respond to them. Presenting evidence in this form is not helpful to the court.

The societyhas an obligation to sort through these records and present the evidence that demonstrates: (

a) The positive aspects of access visits. (

b) Its concerns with access visits, with specific examples. (

c) Its observations of the interaction between parents and children. (

d) The needs of the children and the ability of the parent to meet those needs on the visits. (

e) The attendance history at access visits, if relevant. [23] I indicated that the society could have this brief marked for identification and that I was prepared to deal with theadmissibility of any access observation notes on a case-by-case basis if any party or the Office of the Children’s Lawyer, on behalf ofJ.K.A., sought to introduce them. The society elected to withdraw its request to admit this brief and provided the court with viva voceevidence about the access visits.

No one sought to introduce any of these access observation records after this time. 2.4: Other Comments [24] Counsel for J.K.A. and the society, to their credit, agreed to the court’s granting the mother and Mr. I.J. considerableprocedural and evidentiary latitude in the presentation of their case. They agreed to the admission of unsworn letters and the presentationof oral evidence by the mother and Mr. I.J. that, at times, included levels of hearsay that ordinarily would not be admitted. [25] This trial took place over eight days. The mother and Mr.

I.J. engaged in extensive questioning of the society’switnesses. I observed that they were prepared and treated the witnesses and the court with respect. At their request, I would at timesreframe questions that they were having difficulty formulating. I would check with them if I had reframed the question in the mannerthat they wanted. For the most part, they were able to question appropriately and both improved considerably in their questioning skillsas the trial proceeded. They were clearly both intelligent. At the mother’s request, I also asked her questions to facilitate her directevidence.

When we had apparently completed the mother’s direct evidence on 3 June 2011, she asked for the opportunity to have theweekend to review her records in order to address anything she might have missed. This request was granted and the mother gave anadditional two hours of direct evidence the following week. Mr. I.J. gave his direct evidence over two days with little need of promptingfrom the court. He delivered an eloquent and passionate closing argument. [26] The trial was conducted as a blended proceeding, as I heard all of the evidence related to both the issues of finding anddisposition.

I did not consider evidence that went solely to the issue of disposition in determining the issues of finding. 3: STATUTORY FINDINGS 3.1: B.G.C.’s Biological Father [27] A predominant theme in this case was the anger and mistrust the mother and Mr. I.J. have towards the society. Thismade it extremely difficult for the society to obtain relevant personal information about them. [28] The society was still unsure of the mother’s and Mr. I.J.’s position as to who B.G.C.’s biological father was until the firsttrial management conference on 11 May 2011, when they both said that it was Mr.

I.J. [29] Several witnesses on behalf of the society gave evidence that they had been given conflicting evidence as to who Mr. I.J.was and the nature of his relationship with B.G.C. and the mother. At the hospital, prior to B.G.C.’s birth, Mr. I.J. told society andhospital staff that his name was Jesus Christ and that he was the mother’s husband. He identified himself as the “godfather” after B.G.C.was born. He then identified himself to the society for quite a while as Ricardo James. At various times he would say that he wasB.G.C.’s godfather, a relative or her father.

He consistently refused to provide identification. He eventually identified himself to thesociety as Mr. I.J.

[ 30 ] Mr. I.J. testified that he had told a society worker in 2008 that he was B.G.C.’s father, but was told by this worker that it was not a good idea to come forward — that he should continue to represent himself as a family friend or relative. [ 31 ] Mr. I.J. testified that, when he identified himself as a relative or friend, the mother was treated well by the society but, when he identified himself as her husband, she was treated worse. He said this is why he pretended not to be her husband. [ 32 ] Mr. I.J. testified that he had made the court aware by 2009 that he was B.G.C.’s biological father.

This evidence was proven to be false by the society. They produced a transcript of a court appearance on 5 March 2010. At this appearance, Mr. I.J. identified himself to the judge as Rick James, a family friend. [ 33 ] Mr. I.J. has consistently refused to provide identification to the society, even when ordered to do so by Justice Geraldine F. Waldman on 22 February 2011. Mr. I.J. testified that “no judge can order me to provide my identification. . . . I have not been charged with anything. . . . this is against the Charter of Rights . . . . this is between me and my Queen”. [ 34 ] Mr.

I.J. refused to produce his identification when he was asked to do so on cross-examination by the society’s counsel. He also refused to answer questions about his birth date, employer, previous relationships or any other children that he might have. [ 35 ] The mother supported the position that Mr. I.J. was taking regarding his identification. [ 36 ] Mr. I.J.’s evidence was not credible. [ 37 ] Compounding this problem was the fact that it came out in the evidence that the mother has been deceitful with the court in the past about who the fathers of her children are and the nature of her relationships.

She admitted that she lied to the court in 1999 by having a family friend pose as a child’s father. She said that she did that to expedite society’s terminating the case. She admitted that she also represented to the court in that case that she and the respondent, Mr. G.A., were in a relationship (when they were not) in order to facilitate the return of her children to her care. [ 38 ] The mother named “Michael Gordon” as B.G.C.’s biological father in her Answer and Plan of Care filed in 2008.

She never changed this designation and could not provide a plausible explanation why she named him. [ 39 ] Michael Gordon has never been involved in B.G.C.’s life. No address has ever been provided for him. It is really unknown whether he actually exists or was just a name given to the society and the court by the mother. The court (believing that Michael Gordon was B.G.C.’s father) dispensed with service on him on 5 March 2010. [ 40 ] The mother and Mr. I.J. also gave inconsistent evidence about the details of their marriage and living arrangements. [ 41 ] I was left with doubt whether Mr.

I.J. is who he says he is, whether he is married to the mother, whether they are actually living together and whether he is B.G.C.’s biological father. The society asked me to make a finding that B.G.C.’s biological father is unknown. [ 42 ] Notwithstanding my doubts, I find on a balance of probabilities (barely) that Mr. I.J. is B.G.C.’s biological father for the purposes of the Act . He did provide a society worker at one point with one part of a firearms registration document identifying him as Mr. I.J.

The society has been giving him the same rights to information and access to B.G.C. that it would for a biological parent since 2009. The evidence indicated that Mr. I.J. has been more consistent in attending access visits and has a closer connection to B.G.C. at this time than the mother. He spoke passionately about her being “his flesh and blood” and expressed great love for her. Lastly, the society named him as B.G.C.’s biological father in their twice-amended application dated 28 October 2010. 3.2: Religion [ 43 ] The mother testified that neither child is Catholic — that they are both Christian.

This was the first time that this issue was raised by her. The mother identified the children as Catholic in her Answer and Plan of Care. The file was transferred from the Children’s Aid Society of Toronto (CAST) to this society shortly after B.G.C. was born, at the mother’s request. The mother claimed that she lied about being Catholic on the advice of her lawyer, to gain an advantage.

She said that it was explained to her that she would have a better chance of having her children returned if she switched child protection agencies. [ 44 ] The society indicated that the children have not been baptized and that they had no other evidence to indicate that either child was Catholic.

It decided not to contest a statutory finding that both children are non-Catholic and I make that finding. [ 45 ] The complete statutory findings (with full names) will be set out in the court’s endorsement record and should form part of the final court order. 4: CREDIBILITY [ 46 ] The society called three family service workers, two children’s services workers, a health specialist, an intake worker from the CAST and the two current foster mothers of the children (amongst other witnesses) to testify. I found them to all to be credible witnesses. They presented their evidence in a clear and straightforward manner.

I found them to be balanced, making efforts to present the positive qualities of the parents. Their evidence was often corroborated by records from outside agencies and institutions and each witness’s evidence was substantially consistent with that of the others. Any minor inconsistencies in their evidence were understandable given the length of time that has passed since many of these events happened. [ 47 ] The mother’s evidence was often rambling, emotional and disjointed. She became vague and evasive when answering questions about subjects with which that she was uncomfortable.

She has previously deceived the court with respect to the identity of the

fathers of her children, as well as the religion of her and the children. [ 48 ] Mr. I.J. gave his direct evidence clearly and in detail, particularly when it related to his grievances against the society. However, he quickly became evasive and vague on cross-examination. He too, has been deceptive with the society and the court, as was evidenced by the identification issue. [ 49 ] Where the evidence of the society witnesses conflicted with the evidence of the mother and Mr. I.J., I preferred the evidence of the society witnesses. 5: THE EVIDENCE 5.1: The Mother’s Background [ 50 ] The mother is 42 years old.

She was born in Jamaica. She came to Canada first in 1975 and, in her words, “officially” in 1988. She has two brothers and four sisters. One of these sisters lives in Canada as does her mother. The mother’s father lives in Jamaica. [ 51 ] The mother testified that she has been married to Mr. I.J. for 10 years. She said that this is her first marriage. She says that they have been residing in the same apartment in Toronto since 2005. [ 52 ] The mother has four children, including J.K.A. and B.G.C. Her eldest daughter (M.) is 20 years old and the mother testified that she is currently residing with her and Mr.

I.J. She has a daughter (O.) who is now 15 years old. The mother says that she sent O. to live with relatives in the United States when B.G.C. was apprehended in March of 2008 to avoid having her apprehended by the society as well. She did not provide details of where O. is living. She testified that she sees O. on occasion, particularly when both travel to Jamaica. [ 53 ] The mother has not worked for several years. She testified that she has a certificate as a personal support worker, but is not working in this field.

She said she had a private arrangement caring for a “special needs” child for eight months about three years ago. She also testified that, in the past, she has done clerical work in offices and worked at the Olive Garden. 5.2: Mr. I.J.’s Background [ 54 ] Mr. I.J. testified that he is 49 years old. He was born in Jamaica. He said that he came to Canada in 1991 and is a landed immigrant. He refused to provide any other family history. At one point, he said that he had been married for ten years, another for twelve. He did not know his date of marriage. [ 55 ] Mr.

I.J. testified that he is presently employed as a truck driver. He is the sole financial supporter of the family. 5.3: Evidence Leading Up to the Apprehension [ 56 ] The mother testified that she has had a long-standing involvement with the CAST. The society did not provide much evidence about this history. [ 57 ] The mother testified that, in 1997, the CAST made allegations that her living arrangements were unsafe and that she had mental health problems. She said that she obtained a report establishing that the mental health allegations were unfounded.

The court records indicate that the children were apprehended from the mother’s care twice by the CAST in 1999 and returned to her both times with temporary supervision orders. The CAST’s protection application was withdrawn in June of 2000. The children were never found to be in need of protection. [ 58 ] The CAST investigated allegations that the mother was using inappropriate physical discipline on M. in 2005. Mr.

Hamid Jivraj, a worker from the CAST, testified that there was insufficient evidence to pursue the matter. [ 59 ] The mother testified that the CAST was constantly involved in her life up until B.G.C. was born. The extent of this involvement was unclear. The mother viewed its involvement as harassment and unwarranted. She described herself as being stalked for many years by its worker, Ms. Darlene Matthews. [ 60 ] The society produced J.K.A.’s school records that established the following facts: (

a) J.K.A. went to three different schools in grade I. He missed 17 days of school and was late 29 times. (

b) J.K.A. went to two different schools in grade II. He missed 53 days of school and was late 41 times. In this year, J.K.A. missed so much school that one of his report cards indicated that he could not be evaluated. [ 61 ] J.K.A.’s school attendance improved significantly in the school year starting in September of 2007. It appears that this was because J.K.A. was in the care of his maternal grandmother.

The mother claimed that she was also living with the maternal grandmother at this time, but this evidence is questionable given the mother’s overall credibility, the fact that the mother listed the maternal grandmother as a caregiver for J.K.A. for the period from 17 May 2007 until 7 January 2008 in her Answer and Plan of Care and because it was the maternal grandmother who signed J.K.A.’s report card for that school term. [ 62 ] The CAST received two calls from independent sources after 7 January 2008 about the mother’s concerning behaviour. [1]

[ 63 ] Mr. Jivraj testified that the CAST received a telephone call from J.K.A.’s school in January of 2008, expressing concern about the mother’s behaviour and presentation at the school. Mr. Jivraj said that, since the CAST was advised that J.K.A. was still living with his maternal grandmother, the file was closed. [ 64 ] The mother testified that she needed to frequently change her children’s schools to protect her and her children from gang members. She said that she gave evidence to the police against gang members in her community in 2004 or 2005. She testified that Mr.

Jivraj compromised her security when he came to her home to investigate in 2005, as neighbours thought he was the police. She also said that he compromised her security when he came to the hospital prior to B.G.C.’s birth. [ 65 ] The mother testified that she was planning on moving with the children out of the province after B.G.C. was born to ensure their safety. [ 66 ] The CAST next received a call from Humber on 12 March 2008. The hospital was concerned about the mother’s behaviour, anger and level of agitation. [ 67 ] The mother had entered the hospital on 24 February 2008. She had a ruptured membrane.

She was kept in the hospital for bed rest and observation. Humber’s business records indicate that the mother was very emotional and frequently agitated during her stay. It described her as anxious, often pacing and getting loud and argumentative with staff. She would threaten to sue the hospital and social workers if they called the CAST. She frequently expressed concerns about gangs and the safety of her and her family.

One social worker from Humber recorded that the mother said that she would change her children’s names when enrolling them in programs and that she would not tell her children where she was for their own safety. The mother told her that she had first gone to another hospital, but left when she recognized a nurse who was connected to a gang. [ 68 ] Humber’s records show that the mother had to be frequently talked out of discharging herself from the hospital against medical advice. The records indicate that the mother was mistrustful of the social work staff. The mother confirmed this mistrust in her testimony.

A Humber social worker asked the mother to obtain a psychiatric assessment. [2] [ 69 ] Mr. Jivraj attended the hospital on 13 March 2008. He wanted to investigate Humber’s concerns and ascertain who was looking after J.K.A. This visit did not go well. [ 70 ] The mother was very angry that Mr. Jivraj was at the hospital. She testified that she feels there has been a children’s aid society conspiracy to take away her children. She initially refused to give Mr. Jivraj any information. Eventually, she was persuaded to talk to him but remained upset. Both Mr.

Jivraj and Humber staff noted the mother to be angry, agitated and often raising her voice. She would pace the room. Mr. Jivraj testified that the mother had difficulty with her train of thought. The mother initially refused to provide Mr. Jivraj with particulars about J.K.A.’s living arrangements or even the address where he lived. Mr. Jivraj testified that he tried to persuade the mother to consult with a psychiatrist at the hospital, but she refused. [ 71 ] Later that day, Mr. I.J. and J.K.A. attended at the hospital. This is when Mr. I.J. first identified himself as Jesus Christ. Mr. Jivraj testified that Mr.

I.J. was vague about his role with the family and refused to provide him with any identification. He stated that he was given conflicting information about J.K.A.’s living arrangements. The mother and Mr. I.J. continued to refuse to provide him with the address where J.K.A. was living. The mother and Mr. I.J. told him that M. (then age 17) was looking after J.K.A. with Mr. I.J. attending at the home regularly. J.K.A. told Mr. Jivraj that he was living with M., but that Mr. I.J. only attended the home occasionally. [3] Mr.

Jivraj was told by the mother that M. worked in the evenings, but could receive no clarity about who was caring for J.K.A. while M. was at work. [ 72 ] Security officers from Humber were called and waited in the hallway due to the escalating behaviour of the mother and Mr. I.J. [ 73 ] Mr. I.J. testified that a hospital nurse asked him to produce his identification as otherwise it appeared that the CAST would apprehend J.K.A. Mr.

I.J. testified that he told her that no one could tell him to provide his identification and that it was against his Charter rights. [ 74 ] Given the child protection history with the family, the concerns expressed by the school, Humber staff and his own observations about the mother’s behaviour, the lack of co-operation and hostility from the mother and Mr. I.J., the uncertainty about how J.K.A. was being cared for or where he was living, and the chaotic events that were taking place at the hospital, Mr. Jivraj apprehended J.K.A.

The police were called to assist in the apprehension because of the rising tensions. [ 75 ] This court finds that the CAST was justified in taking this action. Combined with the risk to J.K.A.’s emotional and mental development arising out of the recent neglect of his educational needs, these facts support a finding that J.K.A. was in need of protection at the time of the apprehension pursuant to both subclauses 37(2)( b )(

i) and (ii) and clause 37(2)(

g) of the Act . [4] [ 76 ] The mother signed herself out of Humber against medical advice on 13 March 2008 and went home. She went into early labour and returned to the hospital the next day, when B.G.C. was born prematurely (at 31 weeks). [ 77 ] B.G.C. was apprehended on […] March 2008 at Humber. The apprehension of B.G.C. was also justified. She was also in need of protection at this time pursuant to subclauses 37(2)( b )(

i) and (ii) and clause 37(2)(

g) of the Act . The protection concerns were even more significant for a vulnerable baby. [ 78 ] The case was transferred to the society on 31 March 2008, at the request of the mother. The first family service worker assigned by the society to the case was Mr. Saji George. [ 79 ] The society has had three family service workers work with this family during the course of its involvement. Each relationship started well and quickly broke down because of conflict. The evidence will be reviewed for the separate periods that each of these workers worked with the mother and Mr. I.J.

5.4: Mr. Saji George — April of 2008 until January of 2009 5.4(a): B.G.C. [ 80 ] B.G.C. was medically fragile and remained hospitalized until 9 May 2008. She was transferred from Humber to the Hospital for Sick Children (HSC) for more intensive treatment on 2 April 2008. She was returned to Humber on 30 April 2008. [ 81 ] On 18 March 2008, the initial protection application seeking a disposition of four months society wardship was issued and Justice Robert J.

Spence placed the children in the temporary care and custody of the society, with access to the mother to be in the discretion of the society. [ 82 ] On 17 April 2008, the mother filed her Answer and Plan of Care. [ 83 ] Access to B.G.C. did not take place until 10 April 2008. These visits were fully supervised at the hospital. Mr. Saji George testified that the mother wanted him to supervise the visits since the mother felt that the staff at Humber discriminated against her and she was planning to sue them. He stated that the mother’s visits with B.G.C. initially started well, but quickly deteriorated. Mr.

Saji George testified that the mother and Mr. I.J. had difficulty focusing on B.G.C. during the visits and made frequent complaints about the society and her care at Humber. He testified that he would try to redirect them, with little success. Business records filed from HSC corroborate much of this evidence. [ 84 ] Mr. Saji George testified that he felt that he was getting along well with the mother and Mr. I.J. until he advised them on 7 May 2008 that he would be keeping B.G.C. in society care after she was released from the hospital. After he told them this, he said that the mother and Mr.

I.J. were hostile and unco-operative. He said that the mother would block his phone calls to her. Communication was very difficult. [ 85 ] Mr. Saji George stated that he asked the mother to connect with a psychiatrist. He said that he set up a meeting at Humber for the mother to obtain a mental health evaluation, but she did not attend. He also set up a meeting for the mother to see another psychiatrist, but she would not go to see him. The mother has not attended for a psychiatric assessment. She made it clear in her evidence that she found this request insulting and totally unnecessary. [ 86 ] Mr.

Saji George also testified that the mother would not heed his frequent requests to name the baby and it took her until 4 June 2008 to do so. Until then, she was known as Baby Girl C. Mr. Saji George said that he continually told the mother that B.G.C. needed to be named to get a health card to facilitate her obtaining medical care and developmental treatment, but that the mother refused to name her. [ 87 ] Mr.

Saji George also said that he attempted to obtain information to confirm O.’s whereabouts but that the mother would not provide this information to him. [ 88 ] Once B.G.C. was discharged from the hospital on 9 May 2008, there was a delay before visits resumed. The mother and Mr. I.J. did not see B.G.C. again until 11 July 2008. It was unclear why there was such a long delay. These visits took place at the society office, fully supervised, and were problematic. Mr. Saji George testified that the mother and Mr. I.J. remained unfocused at the visits.

He said that they would keep raising court-related issues and become agitated. The mother and Mr. I.J. were upset about the care that B.G.C. was receiving from her foster home and felt that they were not being heard. This led to conflict and arguments at the visits in front of the child. Mr. Saji George testified that the mother was frequently angry, would raise her voice and express rage. He described her as intimidating. He said that these disputes would take place at times in front of B.G.C. [ 89 ] Mr.

Saji George reported that other problems occurred at the visits — both during visits where he was present and where he was called because of conflict between access supervisors and the mother and Mr. I.J. He said that the mother would turn her back to the observation viewing room, despite being told not to do so. He said that the mother would give B.G.C. water against medical advice. [5] He said that she tried to take obtrusive photos of B.G.C.’s vagina and would open up her legs to do this, upsetting the child.

The mother confirmed that she was videotaping visits and taking pictures of B.G.C. at visits as evidence of her concerns. [ 90 ] Mr. Saji George testified that, when the mother and Mr. I.J. could focus on B.G.C., that he was “quite impressed” with their care of her. [ 91 ] Mr. Saji George’s access observations were, in general, confirmed by Debbie Porter, B.G.C.’s children service worker, and by Jennifer Myles, a health specialist employed by the society, who both observed access visits. [ 92 ] Ms. Myles testified that the mother and Mr.

I.J. became upset with her when she would not agree with their allegations about the care that B.G.C. was receiving from her foster mother. She observed two visits and found that the mother became easily agitated and stressed and would lose her focus on B.G.C. Ms. Myles found the way that the mother cleaned and took pictures of B.G.C.’s vagina to be intrusive. [ 93 ] Ms. Porter testified that there was merit to some of the concerns expressed by the mother and Mr. I.J. about the care that B.G.C. was receiving in her foster home. B.G.C. sometimes arrived at the visits wearing dirty clothing.

Her diapers were sometimes too small. She also observed some dirty bottles sent by the foster mother. She testified that she addressed these issues with B.G.C.’s foster parent, matters improved for a while, but then got worse. She testified that she felt that it was appropriate for the mother and Mr. I.J. to raise these concerns. Her difficulty was that the mother and Mr. I.J. would allow these issues to distract them from their focus on B.G.C. at visits and that they would not accept her redirection to discuss these issues after the visits. [ 94 ] Mr.

George testified that the parents were invited to all of B.G.C.’s medical appointments, but often missed them or were late. He said that they missed important meetings where the care of B.G.C. was discussed, including issues of diet, feeding and her heart issues.

[ 95 ] Ms. Porter testified that she also attempted to engage the mother with B.G.C.’s service providers, with little success. She also said that the mother was inconsistent in attending medical appointments for B.G.C. She said that she made a referral for the mother to attend therapeutic access with Centennial Infant and Child Centre to obtain one-on-one training with respect to B.G.C.’s needs. She said that this program would have shown the mother how to do B.G.C.’s exercises that were being used by her therapists. The mother told Ms. Porter that she did not need this service. [ 96 ] Mr.

Saji George testified that he continued to try to convince the mother to attend for an assessment, without success. [ 97 ] The society holds regular plan-of-care meetings at its office where everyone involved with the child meets to discuss a child’s needs and development. Ms. Porter testified that these meetings have been particularly essential for B.G.C. because of her many medical and developmental needs. Mr. Saji George says that the mother was invited to every plan-of-care meeting and only attended one, in April of 2008. [ 98 ] B.G.C.’s development, associated with her Down’s Syndrome, was delayed.

She also had a hole in her heart and was scheduled for major heart surgery in September of 2008 to repair it. [ 99 ] Ms. Porter arranged a meeting for August 13, 2008 with B.G.C.’s health care providers to discuss the surgery. The mother did not attend the meeting, although she was invited. [ 100 ] A pre-operation meeting was set up at the hospital on 5 September 2008. This was an important meeting to discuss the risks to B.G.C. and how the surgery would affect her. Both Ms. Porter and Mr. Saji George testified that the mother and Mr.

I.J. attended the meeting very late and that, once they arrived, the mother spent much of the time complaining about the foster mother and her treatment by the society. Mr. Saji George testified that Mr. I.J., while holding B.G.C., became angry and loud with him. [ 101 ] B.G.C. had her heart surgery on 24 September 2008 at the HSC. [ 102 ] B.G.C. had complications after her surgery. She was not discharged from the hospital until 29 October 2008. The mother and Mr. I.J. did not attend at the hospital for her surgery or attend at the hospital during her entire stay.

The mother testified that the society sabotaged her ability to see B.G.C. in the hospital — that it deliberately organized things so that she could not see her. There was no evidence to support this allegation. [ 103 ] A post-surgery meeting was set up with B.G.C.’s health care providers at the HSC to discuss B.G.C.’s care on 4 November 2008. The mother did not attend this important meeting, although invited. [ 104 ] Once B.G.C. was discharged from the hospital, supervised visits resumed at the society offices.

The observations by the society witnesses about the quality of these visits remained unchanged. [ 105 ] B.G.C. was referred to the Neonatal Clinic at the Sunnybrook Medical Centre in the fall of 2008. I heard evidence from the paediatric nurse who had charge of this case, Ms. Patricia Maddalena. [ 106 ] Ms. Maddalena explained that the purpose of the clinic is to provide follow-up for infants with special needs. The clinic assesses the child’s development, supports the family and makes necessary referrals. Strategies for the child’s care are discussed by the people involved with her care.

The clinic does not treat the child. It can follow a child up until age six. [ 107 ] Ms. Maddalena testified that the mother missed the first scheduled appointment at the clinic. [ 108 ] Ms. Maddalena said that the mother and Mr. I.J. attended the next meeting on November 18, 2008 — 25 minutes late. She said that B.G.C. was still quite weak from her surgery and still having difficulty maintaining eye contact. Ms. Maddalena described the meeting as chaotic. The mother and Mr. I.J. saw B.G.C.’s discharge chart from the HSC and demanded to see it. They would not accept the explanation that Ms.

Maddalena first had to ensure that there was no identifying information regarding the address or phone number of the foster parent. She said that the mother and Mr. I.J. became agitated and confrontational. Attempts to refocus them were unsuccessful and security had to be called. She observed that the mother and Mr. I.J. were not focused on B.G.C.’s care and instead were upset about the apprehension and the discharge form. She said that, at one point, the mother began escalating her behaviour while holding B.G.C. and she became concerned for the child’s safety. [ 109 ] Mr.

Saji George was also present at this meeting and was upset about it when he testified. He stated that Mr. I.J. became angry and confrontational with him, “came into my space, and put his hand near my face”. He said that both he and the foster mother were afraid. He said that the mother came up close to him and said, “evil spirits will be around you and you will be out of the country soon”. [ 110 ] Ms. Maddalena said that a third visit was set up. This visit, she said, was not as chaotic.

However, she said that she could not redirect the mother from talking about her own needs — how she felt wronged and persecuted. Ms. Jennifer Myles also attended this meeting and corroborated Ms. Maddalena’s evidence. [ 111 ] The final meeting was set up on 11 February 2009. Ms. Maddalena stated that many family members attended. She also described this meeting as chaotic, with the mother focused on her personal issues and not on B.G.C.’s care. [ 112 ] At this point, Ms. Maddalena determined that the clinic could no longer work with the family.

She did not feel that she could engage them as they were so mistrustful of everyone. She testified that she felt that the mother and Mr. I.J. had a limited understanding of B.G.C.’s medical and developmental needs. Ms. Maddalena felt that B.G.C.’s foster mother was sufficiently linked with services and closed her file. 5.4(b): J.K.A.

[ 113 ] After J.K.A. was apprehended, his father Mr. G.A. presented a plan to care for him. The society investigated and approved this plan. [ 114 ] On 27 May 2008, the court placed J.K.A., on consent , in the temporary care and custody of his father. The mother testified that she was manipulated by the society and J.K.A.’s counsel into entering into this consent. This evidence was not credible. [ 115 ] Despite her consent to this order, the mother decided that she would not see J.K.A. while he lived with his father. Mr.

Saji George testified that both he and Justice Waldman subsequently asked her to see J.K.A. as he missed her. The mother began to see J.K.A. again towards the end of August of 2008. It was agreed that J.K.A. could see his mother on weekends at the home of the maternal grandmother. The access arrangements were kept loose. Mr. Saji George was unsure about how often these visits took place after this time. [ 116 ] Mr.

Saji George testified that J.K.A. was happy in his father’s care and attending school regularly and on time. [ 117 ] On 21 January 2009, the society amended its protection application to seek an order under

section 57.1 of the Act , placing J.K.A. in the custody of Mr. G.A., with access to the mother to be supervised, taking J.K.A.’s wishes into consideration, and an order of Crown wardship, with no access for B.G.C. [ 118 ] In January of 2009, the society switched the family service worker to Mr. Gustavo Guillen in an attempt to improve communication with the family. 5.5: Mr. Gustavo Guillen — February of 2009 until November of 2010 5.5(a): B.G.C. [ 119 ] Mr. Guillen testified that his relationship started off well with the mother and Mr. I.J. He described the relationship as mutually respectful.

He became optimistic that he could return B.G.C. to them. The mother testified that she always had a good relationship with Mr. Guillen. [ 120 ] Mr. Guillen testified that Mr. I.J. introduced himself as Ricardo James and that is how he had always known him. [ 121 ] Mr. Guillen attended the family home on 2 February 2009. He found it to be clean and appropriate. He arranged to set up a home visit for B.G.C. that he would supervise. [ 122 ] Mr. Guillen testified that this home visit went very well. The mother was positive and enthusiastic. He observed positive interaction between both B.G.C. and Mr.

I.J. and B.G.C. and her mother. He found them both to be affectionate and effective with B.G.C. [ 123 ] It is unfortunate that the visits did not continue at the mother’s home. This likely was a resource issue. The visits resumed at the society office. [ 124 ] Mr. Guillen testified that, when visits did occur, there were several positive interactions between the mother and Mr. I.J. and B.G.C. [ 125 ] However, Mr. Guillen observed several of the same difficulties with the visits as the other witnesses. The mother and Mr.

I.J. complained during visits about B.G.C.’s care and about how they were being sabotaged by the society and not being treated respectfully. Mr. Guillen testified that, on 24 February 2009, he told the mother that she was being too rough and intrusive in examining B.G.C.’s vagina and received no response. He told the mother several times that B.G.C. needed a calm environment, yet she continued with her aggressive behaviour at visits. [ 126 ] On 4 March 2009, the mother observed that B.G.C.’s vagina was inflamed at a visit. Mr. Guillen confirmed that B.G.C.’s vagina was swollen. The mother, according to Mr.

Guillen, attributed this to abuse and called the police. B.G.C. was taken to the HSC SCAN (suspected child abuse and neglect) clinic for an assessment. The SCAN team could not confirm or deny sexual abuse. In its report, it wrote that nothing on examination suggested sexual abuse and that redness is generally seen in children who wear diapers. It discussed with the mother more likely explanations. It told the mother that she should not conduct repeated genital examinations unless medically indicated and that she should not engage in intrusive genital cleaning.

The SCAN records filed set out that the mother was respectful, but dismissive of its advice. She disagreed that B.G.C. was not in pain during the hospital examination and disagreed that she should refrain from photographing her genitals. [ 127 ] B.G.C. was released from the HSC. A few days later, she was re-admitted to a hospital with an e-coli infection and stayed in the hospital for a few days. The mother and Mr. I.J. were very upset because they had complained on 4 March 2009 that B.G.C. looked unwell and no one listened to them. It appears that there was merit to their concern. [ 128 ] On 13 March 2009, Mr.

Guillen sent a letter to the mother expressing concern about the mother’s high level of conflict with the staff supervising visits, her invasive cleaning of B.G.C.’s vagina and the feeding of foods to B.G.C. against medical recommendations. He wrote that he would suspend visits until there was a meeting with her lawyer to address these concerns. [ 129 ] The society brought the access issue back to court. On 25 March 2009, Justice Waldman ordered that: (

a) The mother was to attend alone on one of her two access visits each week. (

b) No other persons could attend on the other access visit in advance without the society’s approval. (

c) The mother must leave her complaints until the end of the visit.

(

d) The mother was to follow all routines and instructions including in relation to changing diapers and, if she could not change B.G.C.’s diaper appropriately, the society workers should do this. [ 130 ] The mother and Mr. I.J. did not exercise access to B.G.C. from 4 March to 7 April 2009. [ 131 ] Mr. Guillen testified that the mother subsequently complied with only the second condition ordered by Justice Waldman. [ 132 ] Mr. Guillen did not give up. He arranged for visits to be supervised by an outside agency (Bartimaeus Inc.). He also arranged, along with Ms.

Porter, for B.G.C. to be moved to a new foster home. B.G.C. moved into this home on 31 March 2009. This home was culturally compatible with the mother and Ian J’s culture, whereas the first foster home was not. The mother was very happy with this new home and Mr. Guillen testified that the mother expressed her gratitude to him. [ 133 ] Bartimaeus inc. supervised the visits from 8 April to 29 May 2009. Its records recording their observations of these visits were admitted as business records. Its records indicate that the mother missed six out of the 15 scheduled visits.

A review of its notes showed a continuation of the previous pattern — the mother and Mr. I.J. often focused on their concerns about B.G.C.’s care by the first foster family and about how they had been mistreated by the society. The records set out that the mother made several references to suing the society, appearing on Dr. Phil to reveal what has happened to them and stating that the society has taken B.G.C. for the money that it will make. [ 134 ] The Bartimaeus workers observed good interaction between the mother and Mr.

I.J. and B.G.C. [ 135 ] At the visit of 12 May 2009, the records set out that the mother did not approve of B.G.C.’s new glasses and wondered whether doctors were experimenting on her. At the visit of 15 May 2009, they record Mr. I.J.’s talking to B.G.C. about God loving her and stopping the schemes and fixing the mistakes. He talked again about being on the Dr. Phil show. [6] On 22 May 2009, Mr. I.J. again talked about how the society has taken B.G.C. for monetary profit. The mother disclosed that she gave B.G.C. honey and water (against medical instruction).

A discussion is noted where the mother says that she had unintentionally taken B.G.C.’s glasses, but did not believe that B.G.C. is “affected in a detrimental way with sight issues”. [ 136 ] The visit of 29 May 2009 was a turning point in this case. Bartimaeus Inc. assigned a new access supervisor that day to supervise the visit. The notes indicate that the mother and Mr. I.J. were offended when she said that she was there to “support them”. She wrote that the mother and Mr. I.J. became hostile and accused her of working for the society. She said that Mr.

I.J. took B.G.C.’s glasses off and put them in his pocket, saying that he will “not have these people hurting her”. When the access supervisor asked for the glasses back, she said that the mother and Mr. I.J. became confrontational, calling her an evil woman. They were yelling and screaming at her and she called a supervisor, who took over the supervision of the visit. [7] [ 137 ] The mother and Mr. I.J. claim that they took B.G.C.’s glasses inadvertently and that they had removed them because B.G.C. was poking herself in the eye with them. The mother and Mr.

I.J. both testified that they drove from the access visit to the society offices to speak to Mr. Guillen about their concerns. They said that they intended to return the glasses, but they never had the chance to do so, because after five minutes, the society supervisor came into the room and demanded that they leave the office. [ 138 ] Both Mr. Guillen and Ms. Porter were present when the mother and Mr. I.J. attended the society’s office. They described them as very agitated and loud in the reception room, where other parents were present. [ 139 ] At this point, the society decided to suspend the visits.

The mother and Mr. I.J. never returned B.G.C.’s glasses to the society. [ 140 ] Mr. Guillen said that he attempted to set up a meeting with the mother and Mr. I.J. on 1 June 2009 to discuss these issues, but they did not attend, the mother saying that she was too busy. [ 141 ] Mr. Guillen testified about other concerns that he had with the mother and Mr. I.J. up until 29 May 2009, including, (

a) They would give him no information about O. or permit him to contact her. (

b) They would miss meetings to discuss the case. (

c) The mother refused to meet with an assessor. (

d) He referred the mother to the Yellow Brick House for counselling, but she did not attend. (

e) He invited them to attend plan of care meetings and they never attended. (

f) The mother only went to some of B.G.C.’s medical appointments. (

g) He had considerable difficulty contacting them and messages went unreturned. [ 142 ] Ms. Porter testified that she referred the case to Dr. Wittenberg, an expert in attachment. She said that she did this as the mother was not always engaged with B.G.C. at visits, whereas Mr. I.J. was. She hoped that Dr. Wittenberg could assess and treat the mother. The mother refused to see Dr. Wittenberg. She testified that: Why should I go see Wittenberg? I have no mental illness, you can’t force someone to see a psychiatrist against their will — it is against Charter rights.

Only a crazy person would ask to be assessed for mental issues. [ 143 ] On 3 June 2009, Justice Waldman ordered that a parenting capacity assessment be conducted pursuant to

section 54 of the Act . This never took place as the mother refused to attend for the assessment. [ 144 ] The society next brought a motion for

summary judgment. This motion was heard on 8 March 2010. [ 145 ] The mother and Mr. I.J. did not bring a motion seeking access to B.G.C. from 29 May 2009 to 8 March 2010 and did not see her during this time.

[ 146 ] On 8 March 2010, the society’s motion for

summary judgment was granted and the court made findings that both B.G.C. and J.K.A. were children in need of protection, made B.G.C. a Crown ward without access and granted Mr. G.A. custody of J.K.A. pursuant to

section 57.1 of the Act . [ 147 ] The mother appealed this order. On 25 October 2010, this appeal was allowed, on consent, and the matter was sent back to this court. [ 148 ] Neither the mother nor Mr. I.J. saw B.G.C. from 29 May 2009 until November of 2010. Both Mr. Guillen and Ms. Porter testified that neither contacted them at any time to inquire about how B.G.C. was doing. 5.5(b): J.K.A. [ 149 ] J.K.A. continued to live with his father after Mr. Guillen became the family service worker. Mr. Guillen testified that J.K.A. initially seemed to be doing well there. [ 150 ] Mr.

Guillen stated that it was his understanding that J.K.A. was not seeing his mother during the entire time that he was the family service worker. [ 151 ] The mother testified that, from November of 2008 until September of 2010, she was secretly seeing J.K.A. for day visits, usually at her mother’s home and that sometimes she would sleep over there. She also said that she would meet J.K.A. in Jamaica with the rest of the family. [ 152 ] On 10 September 2010, J.K.A. was apprehended from the care of his father after revealing that his father was physically abusing him. Mr.

G.A. was criminally charged and convicted of two counts of assault in January of 2011. [ 153 ] On 7 October 2010, J.K.A. was placed in his current foster home. [ 154 ] On 28 October 2010, the society issued its twice-amended protection application. [ 155 ] The mother did not see J.K.A. from 10 September 2010 until late November of that year. [ 156 ] On 12 November 2010, Justice Waldman made an access order that the mother and Mr.

I.J. could have access to J.K.A. on Saturdays from 10:00 a.m. to 6 p.m., unsupervised, and to B.G.C., twice per week, supervised. 5.6: Michael Dixon — November of 2010 until Present 5.6(a): The Working Relationship [ 157 ] The society assigned a new family service worker, Mr. Michael Dixon, in December of 2010 in the hope, once again, of establishing a positive relationship with the family. [ 158 ] As with the other two family service workers, Mr. Dixon got off to an excellent start with the mother and Mr. I.J. He said that they were willing to make a fresh start with him.

At the beginning, he said that they were respectful and co-operative. He said that he supervised two visits with B.G.C. in December of 2010 and January of 2011 and had no concerns. He felt that the mother and Mr. I.J. were acting appropriately and that they were very good visits. [ 159 ] Ms. Porter agreed that the visits with B.G.C. were better after November of 2010. The mother and Mr. I.J. were focusing much better on B.G.C. and not discussing adult issues as much during their visits. [ 160 ] Mr. Dixon testified that he arranged access for J.K.A. as he had understood that it had not taken place for a long time.

He said that these visits started in November of 2010, that J.K.A. reported no concerns and told him that he wanted to return home to live with his mother or, at the very least, to have overnight visits with her. This was confirmed by J.K.A.’s children’s service worker, Ms. Elisa Gerrardo. [ 161 ] Mr. Dixon testified that he was so encouraged by this progress that he prepared an affidavit for court in January of 2011 recommending overnight access for J.K.A. and to decrease the level of supervision for B.G.C. He stated that he felt they were on the path to family reunification. [ 162 ] Mr.

Dixon expressed his surprise when, on the court return date of 25 January 2011, the mother was very upset and complaining to Justice Waldman about how the society had treated her. He said that, while the mother was describing how the society had harmed her, she mentioned that she had given birth to a child after B.G.C. was born who had died at the hospital. Mr. Dixon says that, when the mother was asked by Justice Waldman the name of the hospital where this child had died, she gave Justice Waldman the names of three different hospitals.

The mother testified that she did this because she was exhausted and had a migraine. This was the first time that the society or the court had heard about this child and, as a result, access to the children was not increased. [ 163 ] Justice Waldman ordered the society to investigate this incident. The mother told Mr. Dixon that she would sign the necessary consents to permit him to do this. [ 164 ] Mr. Dixon testified that the attitude of the mother and Mr. I.J. towards him completely changed after this court appearance. He said that they were hostile, abusive and un​co-operative with him. [ 165 ] Mr.

Dixon testified that the mother kept stalling on signing the consents required for him to properly investigate the matter. She cancelled meetings to do this and he could no longer reach her by phone. He testified that he implored her, when he saw her

at access visits to co-operate, as he felt that they should be able to clear up this incident and get the matter back on track. [ 166 ] At the same time, Mr. Dixon said that he attempted to get Mr. I.J.’s identification. He says that these attempts were met with hostility. On 1 February 2011, he says that Mr. I.J. told him, “You’re part of them that is trying to steal my child away from me, whatever you guys have planned is not going to work”. He said that Mr. I.J. told the mother not to speak to him since he is “no good and the devil”. Mr. I.J. threatened to call the police because he felt that Mr.

Dixon was interfering with his access visit. [ 167 ] The matter returned to court on 22 February 2011. Justice Waldman ordered Mr. I.J. to produce to the court his original driver’s license, to be copied by the court, and to sign a consent to a criminal records check. Mr. Dixon said that, after the court appearance, the mother walked behind him in the hallway calling him despicable. He said that Mr. I.J. then “got in my face, speaking of voodoo”. The mother and Mr. I.J. both testified that they came to court the next day to file Mr.

I.J.’s driver’s license, but that they could not do so as the file was still with the judge. They made no subsequent effort to deliver it to the court. Mr. I.J. has not provided the society with a signed consent to a criminal records check. [ 168 ] Mr. Dixon testified that he has made several efforts to conduct an inspection of the mother’s home and that she has treated these requests with hostility. He said that she would agree to visits and then not be present when he arrived. She would go for long periods without answering his phone calls.

She would tell him that he could not visit the home because she had a visitor who was gay and she did not want him judging the friend. Mr. Dixon said that he would tell the mother that this made no sense — that J.K.A. wanted overnight visits and if they could just get this step out of the way, they could start these visits. [ 169 ] The mother did not come for access visits during most of March of 2011. Mr. Dixon says that Mr. I.J. advised him that she was out of the country. During this time, Mr.

I.J. continued to see B.G.C. and the visits were described very positively. [ 170 ] On 22 March 2011, Justice Waldman ordered that J.K.A. could start having overnight visits with the mother once: (

a) Mr. I.J. met with the society, satisfied it about his identification and the society was satisfied that he presented no risk to J.K.A. (

b) The society obtained a criminal records clearance on Mr. I.J. (

c) The society had the opportunity to check the home. (

d) The mother and Mr. I.J. agreed that an agency may enter their home to monitor visits. [ 171 ] Mr. Dixon testified that, despite his persistent requests and the fact that the mother and Mr. I.J. were aware that J.K.A. wanted overnight visits, they refused to comply with any of the conditions set out by Justice Waldman. He expressed puzzlement about why the mother and Mr. I.J. would sabotage their case. [ 172 ] Mr. Dixon says that Mr. I.J. showed him a portion of a firearms license on 29 March 2011, but was only shown the name Mr. I.J. and nothing else. [ 173 ] Mr.

Dixon stated that he spoke to the mother and Mr. I.J. on 12 April 2011 and the mother told him he could see the apartment when the case was completed and the children were returned. He said that, at this time, Mr. I.J. became abusive, calling him a “house negro, working for the master to take his kids away”. [ 174 ] On 19 April 2011, Mr. Dixon said that the mother said to him, “do what I tell you and get off this case if you know what is good for you” and stormed off. When he asked Mr. I.J. for his identification again, he answered, “Why would I give you the information?” Mr.

I.J. then proceeded to call him a black slave again, that “he was black on the outside and white on the inside”. 5.6(b): The Recent Surgery [ 175 ] B.G.C. had a second major heart surgery on 17 May 2011 to replace a valve in her heart that was leaking. [ 176 ] Ms. Porter testified that she set up three separate pre-operation meetings for the mother and Mr. I.J. to attend and meet with the health professionals.

She said that these appointments were important to learn the risks of the surgery, the types of medications that B.G.C. would require, how she will need to be cared for after the surgery and how the surgery would affect her. She said that the mother and Mr. I.J. did not attend the first meeting and she set up a second meeting specifically for them. Again, they did not attend. She also says that she set up a third meeting the day before the surgery that they also did not attend. [ 177 ] The mother offered no explanation for missing the first two meetings.

She said that she called the hospital directly on 16 May 2011 and learned that the doctor who was scheduled to hold the pre-operation meeting with her was away that day. She said that, in any event, she knew what she needed to know from the last surgery in September of 2008. [ 178 ] The mother and Mr. I.J. attended the hospital early on the day of surgery (the next day) and testified that they asked questions of the doctor. They testified that they remained at the hospital for most of that day. [ 179 ] B.G.C. was in the hospital from 17 May 2011 until 26 May 2011.

The society retained an outside agency to supervise visits at the hospital. The mother and Mr. I.J. became upset when they learned that their visits would be supervised (although this was the existing court order). Mr. I.J. testified that he told the mother: “We won’t play this game anymore. . . . if there is a note in the file, we won’t attend. . . . This is a violation of our charter rights. . . . It is not appropriate to play this charade about being supervised by anybody”.

He testified that they refused to go to the hospital and be supervised and that they would no longer humiliate themselves. [ 180 ] The mother and Mr. I.J. did not see B.G.C. for the balance of her stay in the hospital. 5.6(c): J.K.A.

[ 181 ] Both Mr. Dixon and Ms. Gerrardo testified that J.K.A. is reporting no concerns about his visits home, that he is very unhappy in foster care and wants to go home. [ 182 ] The mother testified that J.K.A. has changed and is a very sad child because of what he has gone through. [ 183 ] Dr. Olga Henderson, a registered psychologist, recently conducted a psychological assessment of J.K.A. Her report, dated 20 May 2011, was filed, on consent, with the court. Dr. Henderson made the following observations: (

a) J.K.A. is struggling with high levels of anxiety, which are destabilizing for him and threaten his somewhat brittle defences. (

b) J.K.A. is very insecure and is dealing with considerable distress. His world is seen as rather threatening, unstable and dangerous. He finds it difficult to rely on others for his needs because he does not feel safe nor does he have confidence that others will not harm him. (

c) There was no indication that J.K.A. has negative feelings towards his mother. He generally does not view parental figures as supportive. Because he experiences conflicting feelings about these relationships, he lacks confidence in the ability of parental figures to consistently meet his needs. (

d) J.K.A. has a number of fears about his safety and well-being. (

f) J.K.A. requires close monitoring and should receive individual counselling. [ 184 ] The society acknowledged that there are significant risks of emotional harm to J.K.A. posed by keeping him in their care. [ 185 ] Mr. Dixon expressed sadness about how this case has turned out. He had many positive things to say about the mother and Mr. I.J.’s interaction with B.G.C. He testified that he does not believe that the mother has a mental health issue. However, he said that she has shown no ability to work with professionals and misinterprets information. He said that both the mother and Mr.

I.J. have shown very poor judgment and have sabotaged their case. He said that they could never get past their distrust — their “me against the world” attitude. [ 186 ] Mr. Dixon advised the court that he confirmed that the mother had a child who died shortly after birth and that this was due to natural causes. 6: FINDING IN NEED OF PROTECTION [ 187 ] The society seeks a finding that B.G.C. is in need of protection pursuant to clauses 37(2)(

b) and (

g) of the Act and that J.K.A. is in need of protection pursuant to clause 37(2) (

g) of the Act . These clauses read as follows:

(2) Child in need of protection.— 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; . . . (

g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause ( f )(i), (ii), (iii), (iv) or (

v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child; [ 188 ] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See Children’s Aid Society of Hamilton-Wentworth v. K.R. and C.W. (2001), 114 A.C.W.S. (3d) 71, [2001] O.J. No. 5754 , 2001 Cars​well​Ont 5006 (Ont. Fam. Ct.); Children’s Aid Society of Brant v.

James Albert T. and Melissa Marie S. , 2005 ONCJ 302 ,144 A.C.W.S. (3d) 278, 19 O.F.L.R. 161, [2005] O.J. No. 5249, 2005 Cars​well​Ont 7097 (Ont. C.J.), at paragraphs [13]-[26]. [ 189 ] The flexible approach is particularly relevant in this case. Although I have found that there were sufficient grounds to make a finding that the children were in need of protection at the time of the apprehensions on the grounds pleaded by the society, the full extent of the risk concerns for these children crystallized after their apprehensions. The mother and Mr.

I.J. received full disclosure of the evidence relied upon by the society, post-apprehension, and I find that it is appropriate to consider it. [ 190 ] The mother and Mr. I.J. both submitted that neither child has ever been in need of protection. They submit that the mother has been improperly characterized throughout this case as paranoid schizophrenic, when in fact she has no mental health issue. [ 191 ] There was no evidence in this case that the mother has ever been diagnosed with a mental health issue. [8] [ 192 ] The risk concerns to the children are not due to any mental health disorder of the mother.

The risks to the children are due to the poor judgment of the mother and Mr. I.J., their inappropriate behaviour, their failure to put the children’s needs ahead of their own, their inability to work with B.G.C.’s health care providers, their inability to work co-operatively with professionals helping the children, their failure to attend important medical and planning meetings for the children, their emotional and physical unavailability at times for the children and their lack of insight into their behaviour. [ 193 ] A dominant theme in this case is the poor judgment of the mother and Mr.

I.J. that puts the children at risk of emotional and physical harm. Their judgment has been seriously clouded by their animosity and mistrust towards the society and the professionals with whom the society has been connected. They have consistently shown that it is more important for them to be right than to meet the needs of their children. This poor judgment includes the following:

(

a) The decision to be obstructive in providing information to the society at Humber about who Mr. I.J. was, his role with the family and a clear explanation about the care-giving arrangements for J.K.A. This largely contributed to J.K.A.’s being apprehended. It is alarming that, when Mr. I.J. was warned by the nurse at the hospital that J.K.A. was going to be apprehended if he did not produce his identification, Mr. I.J. still did not produce it. Did he or the mother stop and think at any point about how an apprehension would affect J.K.A.? It appears not, as they were both focused on their Charter rights. (

b) The mother’s refusal to see J.K.A. for months after he was placed with his father. Did she consider how this would affect J.K.A.? Did she consider that this would cause J.K.A. pain and confusion? There is no indication in the evidence that she did. (

c) The failure of the mother and Mr. I.J. to meet the simple conditions set by Justice Waldman on 22 March 2011 to have overnight visits with J.K.A. They know that J.K.A. wants overnight visits and to come home. They know that he is desperately unhappy and sad at the foster home, yet they would not take the necessary steps to facilitate these overnight visits for him. They are more concerned about Mr. I.J.’s right to protect his privacy. It is no wonder that, as noted by Dr. Henderson, J.K.A. does not view adult figures as supportive. It appears that neither the mother nor Mr.

I.J. have considered the pain, confusion and feelings of abandonment that J.K.A. is experiencing because of their selfish decisions. (

d) Their decision not to see B.G.C. at the hospital while she was in the hospital for surgery for five weeks in 2008. (

e) Their refusal to see B.G.C. after her surgery in May of 2011 due to their anger at having to be supervised. (

f) Their failure to participate in most of the plans of care at the society offices to discuss B.G.C.’s developmental and medical needs. (

g) Their failure to attend many medical appointments where B.G.C.’s medical and developmental needs were being addressed. These appointments were critical to learn directly from the doctors and services providers about how to care for B.G.C. on access visits and in the event that she was returned to their care. Missing these visits was a lost opportunity to ask questions, learn about her medications, how and when to administer them and obtain new information about her. (

h) The mother’s decision to continually feed B.G.C. food and give her water that was against the medical instructions at the time, despite being constantly told not to do so. [9] The mother felt that, on the basis of information given to her, there was no danger in doing this. If she had attended critical medical appointments, she might have been educated otherwise. The mother called as a witness a distant cousin who is a registered nurse. It appears that she is relying on his medical advice. This is potentially unsafe as he has had no contact with B.G.C. and is not privy to her medical information.

He is also not a doctor trained in this field. The mother submitted in her defence that the foster mother also gave water to B.G.C. However, the foster mother only began to do this after she received medical clearance to do so. The fact that the mother and Mr. I.J. continued to disregard medical advice, even after continual redirection, put B.G.C. at risk of physical harm. It also makes the court sceptical that they would follow medical direction in the future. (

i) Their decision to continually discuss their frustrations with the society, the foster parents and other adult grievances at access visits, despite being told not to do so. [10] They were advised that B.G.C. needed a calm environment for access, yet often provided her with the opposite. It often meant that they were distracted from focusing on her needs. (

j) The mother’s failure to accept offers of supportive services to assist her with understanding B.G.C.’s needs. (

k) The mother’s decision to remove her child O. from the country. This has deprived O. of being with her mother and siblings for over three years. [ 194 ] I find that the mother was in poor condition to care for the children at the time of the apprehensions, which put them both at risk of physical (due to neglect) and emotional harm. I accept the evidence that she was presenting in a disorganized, emotional and concerning fashion at Humber. She was frequently angry, agitated and providing confusing information to the hospital and the society. She was claiming that she and her children were not safe. Mr.

I.J. showed very poor judgment by escalating the situation with his obstructive behaviour. [ 195 ] There are serious questions that were unresolved about the care that J.K.A. was receiving from his mother and with whom he was living, or

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