Children’s Aid Society of Toronto v. V.L., 2010 ONCJ 717

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. C40611/07 DATE: 2010·XI·22 CITATION: Children’s Aid Society of Toronto v. V.L. , 2010 ONCJ 717 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — V.L. and P.L., Respondents. Before Justice Robert J.

Spence Heard on 7-10, 21-24 and 28 June 2010; and 3, 16-18 and 20 August 2010 Reasons for Judgment released on 22 November 2010

CHILD PROTECTION — Status review — Form of order — Crown wardship — Grounds — Best interests of child — Risk of harm in child’s removal or return — About 3½ years ago, local children’s aid society had apprehended girl (now 8 years old) over concerns that parents were not providing necessary nutrition or medical care and over concerns that parents were using their home for marijuana grow- operation — Under revised interim care and custody order and on consent of all parties, society placed child with maternal aunt and her husband, in whose home child remained ever since, except for 4½-month interval when parents had abducted child and became fugitives — It was while family was in hiding that court entertained society motion for

summary judgment that resulted in finding that girl was in need of protection and in order that placed her with aunt and uncle under society supervision — Parents were well aware of this court date and of its purpose but did not appear — Since child’s re-apprehension (period of almost 2½ years), parents had no access to child (in fact, court had even made interlocutory order just over 2 years ago forbidding any access pending trial of status review — Initially mild relationship between parents and maternal aunt soon evaporated into outright hostility as parents accused aunt of stealing affections of their daughter and of planning to steal child by way of Crown wardship order and adoption — This was only part of general pattern of parents’ intransigence, non-co-operation and bad judgment towards children’s aid society, doctors and other service providers and court, all of whom they blamed for their misfortunes and who became targets of father’s inflammatory tirades against society’s “tyrannical, dictatorial” actions, against “toxic environment” that his daughter must be enduring in aunt’s home and against doctor who diagnosed child’s rickets as “pathetic excuse” for physician — But as for their own conduct, they never unexplained or saw anything blameworthy in their failure to seek medical attention for child for several years and to ensure that she got proper immunizations and it was only when she was diagnosed with nutritional rickets that child came to society’s attention — They made no apology for turning their family home into marijuana grow-operation nor for fact that their arrest had forced society to take child into care — They admitted that child’s abduction was tactical error but never showed any glimmer of insight into devastating effect that it must have had on child’s sense of stability and security — During past few months, parents showed constant disrespect of court process, refusing to attend court when ordered to do so, choosing to attend “only when properly and thoroughly informed” according to their own timetable and their own parameters — And yet they maintained with straight face that court had no evidence to support allegation that they would not show better judgment in future if child were to be returned to their care — Court found that it was parents’ conduct that initially required child to be removal from their care and to remain away from them because of ongoing protection concerns that clearly remained as much alive today as they were 3½ years ago — In meantime, for more than 2½ years, child’s once close bond with her parents had faded and she had become fully integrated into aunt’s and uncle’s family to point where she spontaneously voiced desire to be part of new household where she felt safe, secure and happy — Court concluded that removing child from this home now and placing her back with her parents, with or without society supervision, would be emotionally devastating for her and not in her best interests — Moreover, supervision order would be futile where parents had effectively declared that they do not respect court orders or that they do not feel bound by court directions or any need to comply with terms of any supervision order, unless they themselves chose to do so, according to their own ever- changing wishes and considerations — Extension of supervision order in favour of aunt and uncle would only prolong delay in final resolution in this case and would likewise not serve child’s best interests — Only remaining option to court was Crown wardship, which court ordered — As for possibility of parents’ access, intense hostility between parents and aunt would, at practical level, put child into midst of war zone and would make any access regime unworkable — But more specifically, parents could not overcome twin factors in subsection 59(2.1) of Child and Family Services Act to rebut presumption against access to Crown wards.

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], clause 37(2) ( a ), clause 37(2)( b ), clause 37(2) ( c ), subsection 37(3) , paragraph 37(3) ¶6 and subsection 59(2.1) . Criminal Code , R.S.C. 1985, c. C-46 [as amended]. CASES CITED Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.) , [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 CanLII 83 , [1994] S.C.J. No. 37, 1994 Cars​well​Ont 376. Children’s Aid Society of Niagara Region v.

J.(M.), S.(K.) and S.(S.) , 2004 CanLII 2667 , 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 Niagara Region v. P.(D.) and B.(S.) (No. 3) , 2003 CanLII 1932 , 36 R.F.L. (5th) 265, [2003] O.J. No. 619, 2003 Cars​well​Ont 574 (Ont. Fam. Ct.). Children’s Aid Society of Toronto v. P. (D.) and L. (R.) , 2005 CanLII 34560 , 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J. No. 4075, 2005 Cars​well​Ont 4579 (Ont. C.A.). Children’s Aid Society of Toronto v. P. (J.P.) , 2009 ONCJ 1 , [2009] O.J. No. 2401 (Ont. C.J.).

Windsor-Essex Children’s Aid Society v. H. (L.H.) (No. 2) , 2004 ONCJ 196 , 133 A.C.W.S. (3d) 1005, [2004] O.J. No. 3889, 2004 Cars​- well​Ont 3836 (Ont. C.J.). Shiri M. Smolkin ........................................................................... counsel for the applicant society Respondent mother and father, V.L. and P.L. .................................................... on their own behalf Michal Harel ...... counsel for the Office of the Children’s Lawyer, legal representative for the child For previous proceedings, see:

• order of Crown wardship without access: Children’s Aid Society of Toronto v. V.L. and P.L.. , 2009 ONCJ 766 , [2010] W.D.F.L. 2256, [2009] O.J. No. 6326, 2009 Cars​well​Ont 8320 (Ont. C.J.), per Justice Marvin A. Zuker; • reversed on appeal and new trial ordered: Children's Aid Society of Toronto v. V.L. and P.L.. , 2010 ONSC 143 , [2010] O.J. No. 26, 2010 Cars​well​Ont 26 (Ont. S.C.), per Justice Carolyn J. Horkins; and • parents’ motion for mistrial dismissed: Children’s Aid Society of Toronto v. V.L. and P.L.. , 2010 ONCJ 711 , [2010] O.J. No. 5910, 2010 Cars​well​Ont 10541 (Ont. C.J.), per Justice Robert J.

Spence. JUSTICE R.J. SPENCE:— 1: NATURE OF THE CASE [ 1 ] This is an amended early status review application, wherein the Children’s Aid Society of Toronto (“society”) seeks an order making the child, A.L., a Crown ward, with no access, for the purpose of adoption. The proposed adoptive caregivers are J.C., A.L.’s maternal aunt (“aunt”) and D.D., A.L.’s uncle (“uncle”). The Office of the Children’s Lawyer (“OCL”) supports the society’s application.

The mother, V.L. (“mother”) and the father, P.L. (“father”), oppose the society’s application and seek A.L.’s return to their care. [1] 2: MY DECISION [ 2 ] For reasons that follow, there will be an order making A.L. a Crown ward, with no access for the purpose of adoption. 3: TIMELINE HIGHLIGHTS [ 3 ] It will be helpful to begin with a timeline of some of the significant events in the history of this matter: 1. 7 March 2007 — society apprehends A.L. over concerns that the parents were not providing necessary nutrition or treatment, as well as concerns that parents were using their home for a marijuana grow-operation; 2. 12 March 2007 – Justice Stanley B.

Sherr orders A.L. into the temporary care and custody of the society, with access to the parents to be in the discretion of the society; 3. 12 July 2007 — the parties consent to vary the temporary order, by placing the child in the temporary care of the aunt and uncle, subject to society supervision, with access to the parents as agreed by the parties; 4. 29 November 2007 — the parents abduct the child from the society’s parking lot, where she had been brought for a visit by the aunt; 5. 17 December 2007 — On a motion for

summary judgment brought by the society, [2] Justice Geraldine F. Waldman found the child to be in need of protection pursuant to clauses 37(2) ( a ), (

b) and (

c) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (“Act”), and she placed the children in the care of the aunt and uncle on a six-month supervision order. Justice Waldman stated in part: I am satisfied based on evidence of [the] society and submissions of counsel for society [and] aunt and uncle that motion should be granted. There is evidence of severe neglect. In addition [the] fact that parents are alleged to have operated [a] marijuana grow operation put [the] child at risk. 6. 14 April 2008 — The parents and the child were located in Montreal.

The police transported the parents and the child back to Toronto. The child was placed in the society’s temporary care with access to the parents to be fully supervised; [3] both parents were charged with the unlawful abduction of the child, arrested and detained in custody; 7.

May 2008 — The child placed in the temporary care of the aunt and uncle; 8. 27 June 2008 — The society issues an amended early status review application seeking Crown wardship, no access for the purpose of adoption; 9. 10 September 2008 — Justice Sherr orders that the parents have no access to the child pending trial; 10. 30 April 2009 — Following an eight-day trial, Justice Marvin A. Zuker releases his judgment, ordering Crown wardship, no access. See Children’s Aid Society of Toronto v. V.L. and P.L.. , 2009 ONCJ 766 , [2010] W.D.F.L. 2256, [2009] O.J. No. 6326, 2009 Cars​well​Ont 8320 (Ont.

C.J.); and 11. 6 January 2010 — following an appeal of the trial judgment, Justice Carolyn J. Horkins grants the parents’ appeal, setting aside the trial judgment and ordering a new trial on an expedited basis. See Children's Aid Society of Toronto v. V.L. and P.L.. , 2010 ONSC 143 , [2010] O.J. No. 26, 2010 Cars​well​Ont 26 (Ont. S.C.). [ 4 ] Corollary to the events in the child protection proceedings, I note three additional events: 1.

In October 2008, [4] the father pleads guilty to possession for the purpose of trafficking in respect of the marijuana grow-operation; 2. 16 December 2008 — The father pleads guilty to two criminal charges, namely, that between 2002 and 2007, he did abandon or expose the child, being under the age of ten years, thereby endangering her life, contrary to the Criminal Code ; and that on 29 November 2007 he took the child away from the person having lawful custody of her, namely, the aunt, contrary to the Criminal Code ; and 3. 20 February 2009 — The mother pleads guilty to the same charges to which the father pleaded guilty on 16 December 2008.

4: EVENTS LEADING TO THE FINDING IN NEED OF PROTECTION [ 5 ] Prior to the events leading to the commencement of the protection application in March 2007, there was no prior reported history involving this family and the society. On or about 7 March 2007, Dr. Ian Kitai referred A.L. to the SCAN [5] unit at the Hospital for Sick Children (“SCAN”), because of his concern that A.L. might be suffering from rickets. [ 6 ] Lisa Henry is a child protection worker with the society. It was she, along with others, including two police officers, who attended at the L. family home on 7 March 2007.

The primary concern of the society had been the report from Dr. Kitai about A.L.’s medical condition. During the course of that attendance at the family home, the police discovered what they believed to be a marijuana-grow operation in the second bedroom of the home. It was then that the police arrested both parents and the society apprehended A.L. [ 7 ] On 8 March 2007, A.L. was assessed at SCAN by Dr. Meranda Nakhla (a paediatric endocrinologist) and Dr. Etienne Sochett (staff endocrinologist). The doctors also subsequently met with the parents [6] in order to obtain a dietary history for A.L..

SCAN provided a written report on 30 April 2007. In that report, they stated in part (my emphasis): Her [A.L.’s] clinical findings consisted of lower limb bowing, widening of her wrists and ankles, and evidence of widening of the ends of her ribs known as a rachitic rosary, all of which are consistent with the diagnosis of rickets. Her X-rays corroborated with the physical findings showing enlargement, widening and fraying of the ends of her arms and legs. [A.L.’s] initial blood work revealed extremely low calcium and phosphate levels with high levels of parathyroid hormone. . . .

Her levels of the body’s vitamin D stores were below measurable range and the blood levels of the active form of vitamin D were low. All of the above findings are consistent with the diagnosis of severe vitamin D deficiency rickets . Low levels of calcium can result in a number of immediate consequences including altering the heart’s electrical functioning and compromising airway function. Due to her extremely low levels of calcium, A.L. was admitted to the Hospital for Sick Children for treatment but as well for monitoring of her heart function and airway.

According to her parents, [A.L.] was exclusively breastfed until 13 months of age with no vitamin supplementation, including vitamin D. After 13 months, she had been on “Chinese soy milk” that the parents had gotten from a traditional Chinese grocer. They were unsure if the soy milk had contained any vitamin D. However, based on [A.L.’s] clinical and laboratory findings, we feel that the soy milk likely did not contain any vitamin D. Otherwise, she had not received any vitamin D supplementation. [ 8 ] On or about 21 March 2007, SCAN tested a sample of A.L.’s hair for exposure to marijuana.

The test results were positive for cannabinoids — meaning, in all likelihood, that A.L.’s body had absorbed this substance from the marijuana present in her parents’ household prior to the apprehension on 7 March 2007. [ 9 ] Thus, by the end of March 2007, the society’s protection concerns were: A.L.’s diagnosis of nutritional rickets resulting from her parents’ failure to ensure that her dietary needs were met prior to March 2007 and the parents’ marijuana grow operation, exposing A.L. to that criminal activity, as well as to the drug itself. [ 10 ] On father’s subsequent guilty plea in criminal court on 16 December 2008, and the mother’s subsequent guilty plea in criminal court on 20 February 2009, both parents accepted as substantially correct, the following facts relating to the marijuana charge: [the second bedroom in the home] was discovered to contain marijuana plants. . . . the plants appeared to have been recently harvested as the lights and venting were still within the room.

Approximately 17 to 20 planters that contained the marijuana plants were observed and located on the room floor. . . . [the police also] located a quantity of marijuana clones in the bathrooms. The search located six marijuana clones as well as 546 grams of dried marijuana. Both parents also pleaded guilty to exposing A.L. and endangering her health, contrary to the Criminal Code , R.S.C. 1985, c. C-46, as amended. [ 11 ] Neelam Ratansi was a worker with the society when she swore her affidavit on 3 May 2007. That affidavit constituted her evidence in chief at this trial.

It was around May 2007 that the society was in the process of conducting an assessment of J.C. and D.D. with a view to possibly placing A.L. with them. Ms. Ratansi noted that the parents had been attending access consistently twice each week and that the access visits were very positive.

She noted that the “parents always bring appropriate food . . . and toys to the visits and present as very attentive and responsive to [A.L.].” She also noted that, although the aunt was prepared to plan for A.L., there was definitely a history of estrangement between the mother and the aunt, something that appeared to date back to the union between mother and father. [ 12 ] Following A.L.’s apprehension, she had been placed in a foster home, where she remained for about four months. However, on or about 12 July 2007, the society placed A.L. with her aunt and her uncle, pursuant to a temporary supervision order.

This order was made by the court following a consent signed by the aunt, the uncle, the society and both parents. By that consent, the parents’ access was to be “as agreed upon by the parties, but with overnight access to take place at the discretion of the society, or subject to further order of the court.” [ 13 ] Between July and November 2007, A.L. remained with her aunt and uncle. It was during that period that problems began to surface in relation to A.L.’s behaviour. The aunt reported to the society some forms of sexualized behaviour that she observed A.L. to be displaying.

Although it does not appear from the evidence that the aunt was directly accusing the parents of acting inappropriately

toward A.L. during their unsupervised visits with her, it is open to infer from all the evidence that she believed this was a possibility. In any event, the aunt was very concerned, and she was in constant communication with the society about A.L.’s development, including her behaviour. [ 14 ] At the same time, it appears that the parents themselves were concerned about some of A.L.’s behaviour.

I infer from their cross-examination of society witnesses that they believed the aunt and uncle may have been responsible for creating an inappropriate environment for A.L. which, in their opinion lead to behaviour of a sexualized nature. In fact, the mother testified that, prior to their planned abduction of A.L., the parents spent a number of hours with the R.C.M.P. in Bowmanville, attempting to persuade the police to act on their concerns.

I gather from the evidence at trial that the R.C.M.P. did not act on the parents’ concerns. [ 15 ] In her affidavit sworn on 23 December 2008, which constituted her evidence in chief at trial, Mary Auld, who was at that time the society worker in charge of the case, deposed: [P.L.] asked me if [the uncle] had done anything to [A.L.]. [P.L.] then said it is a serious allegation and that it is either [D.D.] or him and it is not “me so it must be him.” [7] Mr. and Ms.

L. were concerned about their daughter’s disclosures. [ 16 ] At this point, I wish to make it clear that, in these reasons for judgment, I am not finding that either the aunt and uncle, or the parents themselves were in any way acting inappropriately toward A.L., or in A.L.’s presence. While the various case notes are open to a number of possible

interpretations, including the possibility that someone was acting inappropriately in A.L.’s presence, the evidence does not persuade me on a balance of probabilities who that person might have been, if indeed, it was anyone at all. More specifically, I cannot conclude that anyone in the aunt’s household or either of the parents acted improperly.

Nor did it appear that the society was able to reach and such conclusion. [ 17 ] Nevertheless, in September 2007, the society decided out of an abundance of caution to henceforth change the parents’ access from unsupervised to fully supervised at the society’s offices. [ 18 ] Ms. Auld testified that A.L. made considerable gains while living with her aunt and uncle. She was developing physically, with noticeable improvement in her fine motor skills. She was much more stable on her feet, although she still required occupational therapy for her hip problem [8] which stemmed from the rickets.

Her gains included success in school, positive peer interaction, and increased happiness and stability. [ 19 ] And yet despite these gains, Ms. Auld deposed that the parents were attempting to “damage” the placement by “making negative statements to [A.L.] about her caregivers”, namely, the aunt and the uncle. [ 20 ] The mother did not specifically deny this in her testimony and, as I noted above, father did not testify at all.

However, in cross-examination, the mother was asked what she would do to foster the relationship between A.L. and the aunt, if A.L. were returned to mother, because it was apparent that there had developed a very strong bond between A.L. and her aunt that could not simply be severed.

In response, the mother stated in part (my emphasis): [the aunt] has been the source of discord by relaying negative information to my family at every step of the way. . . . it’s been difficult to keep fostering those relationships, and I have tried. . . . [the aunt] would have to be told to behave herself, quite frankly . [ 21 ] On 29 November 2007, the aunt brought A.L. to the society’s offices for a pre-arranged supervised visit with her parents.

While in the parking lot, and while holding A.L. in her arms, the aunt was approached by mother, who then grabbed A.L. from the aunt’s arms, placed A.L. in her car, and drove off. That marked the start of a 4½-month period when the parents were on the run, in hiding with A.L. [ 22 ] Just two weeks prior to the abduction, on 15 November 2007, the parents appeared in court before Mr. Justice Stanley Sherr. Their previous lawyer was not present with them on that appearance. Instead, they were represented on that occasion by duty counsel. Society counsel requested a date for a

summary judgment motion, and Justice Sherr set 17 December 2007 at 2:00 p.m. for the hearing of that motion before Justice Waldman. As I noted earlier, despite the parents’ knowledge of this court date, they failed to attend court; and it was on that court date that Justice Waldman found A.L. to be in need of protection. 5: EVENTS SUBSEQUENT TO THE FINDING IN NEED OF PROTECTION [ 23 ] According to the mother’s testimony, while the parents were on the run with A.L.: 1.

They did not give A.L. the vitamin supplements that had been prescribed to her while she was in Toronto, and that she was taking at the time of her abduction. Instead, mother testified, she gave over-the-counter vitamin D supplements to A.L., which, in the mother’s opinion, was sufficient to meet A.L.’s needs. 2. During that 4½-month period, the parents did not once take A.L. to see a doctor. 3. During that entire period, the parents did not enrol A.L. in school. 4.

Notwithstanding the parents’ earlier expressed concern about A.L.’s sexualized behaviour while in Toronto, they took no steps to obtain an assessment for A.L. When asked why she failed to do so, if in fact she had been genuinely concerned about this behaviour prior to the abduction, the mother replied that they could not take any steps to assist A.L. because “we were on the run”. 5. On two occasions, they covered A.L.’s birthmark with makeup to hide her identity. [ 24 ] When they were located in Montreal on 14 April 2008, the Toronto police drove to Montreal where they placed both

[ 24 ] When they were located in Montreal on 14 April 2008, the Toronto police drove to Montreal where they placed both parents under arrest and drove them back to Toronto, together with A.L.. Upon their arrival, the parents were immediately incarcerated, where they remained until they were released on or about 1 August 2008. The society promptly took A.L. into care and placed her in a society foster home. [ 25 ] On 15 April 2008, while Ms. Auld was driving A.L. to the society admission medical, A.L. disclosed certain information to Ms. Auld, some of which follows [from Ms. Auld’s affidavit]: 1.

She does not want to see her aunt and uncle because they are “bad influences” and have “bad intentions”. Her parents had told her this. She repeated this over and over again, stating that she does not want to visit them or live with them and that “Mommy and daddy do not want me to go to J.C.’s [ the aunt]”. 2. She does not like J.C. and D.D. because they “do bad things and her love for them does not last long”. 3. She remembered the abduction, changing cars, and feeling “scared and sad”. 4. She was “scared” and “sad” when she was with her parents in the “big blue truck”. 5.

She also advised me the [sic] she had no home, and that they were praying for a home. 6. She said her family “lived in a car” and “slept in a car for a long time.” She slept with her mother in the back seat and her father slept in the driver’s seat. 7. She rarely went outside . . . . and her mother put make-up on her face mark so that she would not be recognized. She stayed in all day and cleaned and worked. She could not go out to the park or anywhere because of her “situation”. 8. Her mother will be “locked up for no reason”. 9. She also stated that she was touched sexually by [the aunt].

She disclosed this only once, after the five-hour car ride back to Toronto from Montreal with her mother. This was subsequently investigated by both the society and 41 Division Toronto Police Services . . . and the allegations were not verified by the society and no criminal charges were laid. [ 26 ] At the beginning of May 2008, A.L. had her first visit with J.C. and reacted very positively to that visit. As a result, the society placed A.L. back in her aunt and uncle’s home shortly afterwards. By 14 May 2008, when Ms. Auld met with her, A.L. stated that she “loves [ her aunt]” and “wants to stay here forever”.

A.L. has remained with her aunt and her uncle continuously since early May 2008. [ 27 ] As I noted earlier, on 10 September 2008, Justice Sherr made a no-access order against the parents, pending trial. 6: DR. DANIEL FITZGERALD’S ASSESSMENTS OF A.L. [ 28 ] Dr. Daniel Fitzgerald is a clinical psychologist who was qualified as an expert in the fields of clinical psychology, child psychology and psychological assessments of children. Dr. Fitzgerald conducted six assessments of A.L.

I will highlight his findings from each of his six reports: [9] First report — 18 May 2007 This assessment took place about two months following the initial apprehension. Dr. Fitzgerald found A.L. to be suffering from “significant cognitive delay. Her verbal skills were below average and her non-verbal skills were even lower. Her physical and motor skills were found to be “immature”. Her “social, cognitive and communication skills” were all found to be “below [the] level expected for a child of her age”.

Second report — 24 April 2008 This assessment was just days after A.L.’s return from Montreal to Toronto following the 4½-month abduction. She spoke about her unhappiness being separated from her parents. Nevertheless, A.L. did state that she saw her current placement with the foster parents as temporary only and that she was hoping to return to live with her aunt and uncle — “ without being asked, A.L. spoke about wanting to return to live with her aunt and uncle ”. Following testing, Dr.

Fitzgerald concluded that A.L. “is dramatically improved from the time that she was seen in May 2007”. (my emphasis) Third report — 7 and 26 May 2008 A.L. was administered “projective tests”, typically used in psychological testing. The tests revealed that she was very comfortable living with her aunt and uncle and “as wanting to feel secure and stable there”. She identifies her aunt and uncle as “nurturing caregivers who are responsive and empathetic to her”. Dr.

Fitzgerald stated that A.L. was “apprehensive about the possibility of being removed from her current home [with aunt and uncle]” and that “ she appears to have an understanding that her parents disapprove of her aunt and uncle ”. (my emphasis) Fourth report — 13 June, 7 July and 27 August 2008 It was during this period that A.L. was continuing with her transition back into the home of her aunt and uncle. I extract from this report the following (my emphasis): She knows her parents are very powerful figures who could do something to jeopardize her stability and her connection with her aunt and uncle.

She is very eager to remain where she is and move forward with her personal development. She is apprehensive about the possibility of her parents returning to disrupt her life . Fifth report — 8 October 2008 Based on reports from A.L.’s teacher and from her caregivers, Dr. Fitzgerald observed that A.L. was making “very good progress” in her home with aunt J.C. and uncle D.D..

He stated: “A.L. reports feeling very comfortable and secure in her relationship with her aunt and uncle and it is reasonable to expect that she will continue to make very good progress in this home. ” (my emphasis) Sixth report — 17 June 2009 By this time, A.L. had completed grade I. Her aunt was expecting a new baby and A.L. was talking about this and anticipating what it would be like to have a baby in the family. While noting good social and interpersonal skills and age-appropriate development in A.L., Dr. Fitzgerald stated (my emphasis):

[the] lack of resolution of her personal and family situation is a cause of distress for her. . . .

It will be important that this matter be resolved as quickly as possible so that [A.L.] is able to bring some closure to the difficult circumstances of her life and move forward in her personal development, knowing where she will be and who will be caring for her. . . . it is expected that confirmation of adoption and her long-term placement with her aunt and uncle, who will become her adoptive parents, will alleviate some of the subjective dysphoria that she experiences . . . [ 29 ] At no time in all the visits with Dr.

Fitzgerald did A.L. ever spontaneously say either that she missed her parents or that she wanted to see them. [ 30 ] On cross-examination, Dr. Fitzgerald did note that A.L. had developed cognitively following her return from Montreal [10] and that she was now functioning in the average range of intelligence for children. He acknowledged the possibility that the parents had exposed her to some appropriate educational stimuli during that 4½-month period. He also noted that there was no indication that A.L. was severely traumatized during her time with her parents.

However, he noted that there is a difference between trauma and an experience that can nonetheless be characterized as “disturbing” — for example, a young child seeing her parents handcuffed following their arrest. [11] 7: THE CURRENT SOCIETY WORKER [ 31 ] The society’s current worker responsible for this case is Mr. Matthew. He took over the case from Mary Auld in September 2008. [ 32 ] Mr. Matthew states that A.L. has thrived in the care of her aunt and uncle. She is up to date with all her immunizations, [12] her health care needs are being fully met and she is receiving ongoing medical and dental care.

He states that A.L. presents as happy and healthy and well settled in her attachment to her caregivers. [ 33 ] He met privately with A.L. on 18 December 2008. A.L. asked him questions about her mother and Mr. Matthew provided her with answers. A.L. told Mr. Matthew to tell her mother that “I’m ok with J.C. and D.D. even though she said I wouldn’t be.” A.L. also told Mr. Matthew that she loves her aunt and uncle and that she wants to be adopted by them. She also added that she wanted to have some visits with her parents. When Mr.

Matthew asked A.L. to rate on a scale of one to 10, her degree of happiness in living with her aunt and uncle (with 10 being the happiest), she said she was a 10 living, with her aunt and uncle. [ 34 ] The aunt and uncle’s baby daughter, Ella, was born in July 2009. A.L. has adjusted well to this addition and calls herself the “big sister”. She told Mr. Matthew that “I love, love, love the baby”. [ 35 ] Beginning in December 2009, A.L. has referred to her aunt and uncle as “mommy” and “daddy” because she does not want the baby to think that she and A.L. have different parents. [ 36 ] On 30 December 2009, Mr.

Matthew asked A.L. how she would feel if the court ordered her to be returned to her parents. She responded that it would “make me sad because I’m used to it here and I’m kind of shy of my mom”. [ 37 ] On 3 May 2010, Mr. Matthew met again privately with A.L.. He asked her whether she wanted to return to live with her parents, to which A.L. replied, “No, I want to stay here”. [ 38 ] Although the parents have had no direct contact with A.L. since 14 April 2008, [13] Mr. Matthew has facilitated cards and gifts being given to her from her parents.

Most of these have been appropriate and supportive, with the exception of one letter dated 28 April 2010 from her parents wherein they stated that “J.C. and D.D. are not your mommy and daddy. You have only one mommy and daddy. You must tell Michal [A.L.’s lawyer] you want to be back together with your real Mom and Dad — if that is what you truly want”, and “We can be back together darling, but you must want this first and foremost”. [ 39 ] In Mr.

Matthew’s interactions with the parents, both parents have been clear that they harbour a mistrust and resentment toward the aunt, and they would not be willing to work sincerely with the aunt and uncle, with a view to supporting a relationship between them and A.L. This attitude was made apparent in the letter of 28 April 2010, and again in the testimony given by mother at trial, as well as in the comments that the father made during the course of trial. [14] 8: AUNT J.C. AND UNCLE D.D. [ 40 ] As I noted earlier, the aunt and uncle have a one year-old daughter whom A.L. now considers to be her baby sister.

Both the aunt and the uncle [15] have been actively involved in parenting A.L. since she first came into their care in July 2007, where she remained until her abduction on 29 November 2007, and then again from May 2008 until the present. [ 41 ] Although the mother and the aunt stopped getting along, well before A.L.’s birth, the aunt came forward following the apprehension and told mother that she would be willing to provide a home for A.L. if there was no other plan acceptable to the society. [16] [ 42 ] As A.L. became more and more integrated into her aunt and uncle’s family, the aunt said that it became “impossible” not to think of caring for A.L. on a long-term basis, if that were required.

Both she and her husband attended almost every society meeting and both became increasingly engaged with A.L. [ 43 ] The aunt described in considerable detail how A.L. has now become fully integrated into their own family and the

relationships that she has developed at school and with the aunt and uncle’s extended family members. [ 44 ] In December 2009, A.L. came to them and of her own accord said “I just decided I’m going to call you mom and dad, is that okay?” [ 45 ] The aunt is prepared to adopt A.L. and is fully committed to that concept. She states that A.L. is “part of my family” and “I can’t imagine her not in my family”.

That said, she also acknowledges the complexities of such an undertaking because of the rift between herself and the mother. [ 46 ] She stated that, from time to time, A.L. asks about her parents and says that she wants to see them. The aunt describes the frequency of these inquiries as not an “every week” thing, but maybe “five or six times in total”. The aunt tells A.L. that her parents love her, to which A.L. will say “I know, I know”. [ 47 ] The society lawyer asked the aunt what her feelings were around the possibility of access between A.L. and her parents.

The aunt responded that she would have “very mixed feelings”, because the last time this interaction occurred it was followed by an abduction. As well, following the abduction, A.L. came back to Toronto making allegations that the aunt had sexually molested her. The aunt would be concerned about the possible detrimental impact on A.L., were she to be exposed to the adult relationship problems, stating that it is difficult enough for her — the aunt — to manage that, so “how can I expect her [A.L.] to manage that?”.

In the result, the aunt felt that it probably seemed “safer” to wait until A.L. is older and more mature before taking those risks. [ 48 ] On cross-examination the aunt was asked what adoption would likely mean to A.L.. She responded that A.L. is settled where she is, so that on a day-to-day basis, nothing would really change for her.

In response to the mother’s question about whether the aunt could envisage a possible relationship with her biological parents at some time in the future, the aunt replied that A.L. would probably want to see her parents as she gets older and that facilitating some sort of post-adoption contact will eventually be necessary.

However, she does not think that such a relationship would be in A.L.’s best interests at the present time as it would likely undermine the stability she has now achieved in her aunt and uncle’s home. [ 49 ] The parents spent a considerable amount of time cross-examining the aunt in order to elicit the deep-rooted history of dysfunction that developed amongst the adults in the family, and which continues to exist between them today. It was apparent that the mother and father were attempting to establish that this antipathy was at the root of the aunt’s decision to step in to care for A.L.

The parents’ theory is that, by becoming the child’s primary caregiver — and “taking” A.L. from her parents — the aunt would be able to hurt the parents and thus achieve some measure of satisfaction, or even revenge, because of the jealousy and resentment that the mother perceives the aunt to have in respect of the mother. [17] [ 50 ] I do not find it necessary to review the history of this dysfunctional relationship. In my view, it is of little relevance to the issues in this case.

Had the parents been represented by experienced counsel, I would have inquired of counsel the relevance of that line of questioning, particularly its extensive nature. However, because the parents were self-represented I gave them much greater latitude in their cross-examination. I refer to it in these reasons primarily because the parents spent so much time on this subject in their cross- examination of the aunt.

Although the aunt doubtless said certain things to the society that could have been interpreted as “discrediting” [18] the mother in the eyes of the society, in my view she did what she did, and said what she said, honestly and in good faith, always with an eye to what was in A.L.’s best interests. [ 51 ] I come to this conclusion because the aunt’s testimony about A.L.’s relationship with her parents was by no means one- sided. Here are some examples: She did not hesitate to acknowledge that a certain attachment existed between A.L. and her parents.

She also readily reflected on the strong likelihood that, as A.L. gets older, she would probably want to have some contact with her parents. As well, it is telling that, when A.L. was returned from Montreal, the aunt and uncle were careful not to question her too much about what happened while she was away. A.L. told them about seeing her paternal grandmother while in Montreal and showed the aunt and uncle the necklace that the grandmother had given her.

In her testimony, the aunt stated that they did not take this necklace away from A.L. and that A.L. still has it today. [ 52 ] The aunt clearly struggled in her testimony, recognizing that she was in a difficult situation as she described A.L.’s gains since coming into her care while, at the same time recognizing that the parents were both very angry and upset over the prospect of losing their daughter, and losing her to the aunt — the very person whom the parents so dislike. I found the aunt’s testimony to be about as balanced as it could be.

By deciding to step in and to offer a home for A.L., she placed herself in a most unenviable and stressful situation. Given those challenges, she seems to have coped very well and, most important, she has managed to meet A.L.’s physical and psychological needs. [ 53 ] Irrespective of the foregoing, in deciding the legal issues, my focus must be on A.L., on what is in her best interests, not on the familial differences between the sisters. 9: EVIDENCE ABOUT ADOPTABILITY [ 54 ] Susan Froehlich is the society’s adoption worker.

On the basis of her investigations, she stated: [the aunt and uncle] both impressed me as responsible, reliable, intelligent, and sensitive individuals who also related to one another with respect and affection . . . they also appeared loving and devoted to A.L., and had her happiness and well-being as their primary concern. . . . A.L. was physically and verbally affectionate with her aunt and uncle, obviously comfortable in their presence, and clearly accustomed to a regular routine in their home. She appeared to accept them functioning in a parental role. . . .

[the aunt and uncle] are functioning at a high level, appropriate as upstanding citizens and responsible parent figures. . . . they have developed a supportive network of family and friends, and have been able to demonstrate the ability to place A.L.’s needs foremost and ahead of their own. [ 55 ] Ms. Froehlich went on at some length to discuss A.L.’s happiness and security in the home, her emotional and psychological development and her general level of self-confidence. A.L. told the worker that she wanted to change her last name to the others in the household and that she wants to remain where she is forever.

A.L. said that she is tired of having social workers and she wants to be like her friends, none of who have social workers in their lives. Ms. Froehlich states: “I interpreted this last remark as a statement of A.L.’s desire to ‘get on with her life’ and just be a regular child like all the other children she knows”. [ 56 ] Although the parents cross-examined Ms. Froehlich, their questions went to issues other than A.L.’s adoptability. The thrust of Ms.

Froehlich’s evidence in chief, namely, that A.L. is adoptable, was not challenged and was not rebutted. 10: THE PARENTS’ CASE [ 57 ] The society’s amended early status review application was filed with the court on 27 June 2008, following a Crown ward conference held at the society’s offices after the parents were arrested on 14 April 2008, for abducting A.L. [ 58 ] The parents each promptly responded with detailed answers and plans of care. Both parents’ documents were lengthy and they covered many of the protection issues that were raised during the course of this trial.

In those documents, they attempted to respond to many of the concerns raised by the society and, in particular, the society’s new position that A.L. be made a Crown ward and placed for adoption. [ 59 ] Each parent had potentially interesting and relevant comments to make that might have been of assistance to the court had they decided to actually put evidence forward at this trial. In fact, at the outset of trial, the parents provided the court with a list of several witnesses whom they intended to call, including each of themselves.

However, at the conclusion of the society’s case, the parents decided to restrict their own case to the mother’s testimony alone. [19] [ 60 ] In her testimony, the mother pointed to certain documents, including access notes, which highlighted the often-positive interaction between A.L. and her parents during access visits. For example, one society case note from 25 October 2007 (about one month prior to the parents’ abduction of A.L.) noted “A.L. hugs and kisses and says I love you to her mom and dad”. [ 61 ] The mother testified that she and the father attended certain parenting programs between 2008 and 2009.

She talked about her employment, her housing, and the fact that she lives in a neighbourhood close to a school, a community centre and a local hospital.

Her health is good, as is father’s health. [ 62 ] When discussing the abduction, mother testified that this was done with “sincere concern for our daughter at the time, but knowing what we know now about the court process” they would not proceed in the same way again. [20] [ 63 ] As to the nutritional deficiency that caused A.L.’s rickets, the mother stated that this was a “mistake I am not proud of.” This acknowledgment was the only statement by the mother resembling insight into her otherwise long string of making decisions based on bad judgment. [ 64 ] What I did not hear from the mother was any insight or understanding of the harm to which they exposed A.L. by keeping large amounts of marijuana in their home.

And here, I am not referring simply to the possible effects caused by parents who might smoke a “joint” or two from time to time in the home where a young child is living, but something far more extensive, something which is more insidious and potentially harmful to the child. [ 65 ] I did not hear the mother talk about her poor judgment in refusing to take the child to a doctor for several years of her life, or for failing to obtain immunizations for her child. [ 66 ] Nor did the mother talk about why the abduction was so terribly damaging to A.L., including the forced removal from a home to which she had become accustomed, removing her from school, her friends and her community, failing to seek medical attention for her while they were on the run and instilling in her the belief that her aunt and uncle were bad people.

She did not seem to realize that she and her husband had little to gain by doing what they did and that the person they were hurting the most was their daughter — the one person they profess to love more than anything. [ 67 ] There was no acknowledgment by the mother that, even though she and the aunt had suffered a familial rift, the aunt nevertheless stepped in to provide a family home for her daughter at a time when the only other alternative would have been foster care. [ 68 ] And, of course, because the father himself failed to testify, there were no apologies, no acknowledgments, no insights, and no indication from him that things would ever be any different in 2010, than they were in 2007 if A.L. were returned to him. [ 69 ] In my view, all of these failures are a reflection of the parents’ bad judgment.

I will come back to this theme shortly. First, however, I turn to the role of the court on a status review application. 11: THE ROLE OF THE COURT ON A STATUS REVIEW [ 70 ] Both parents were self-represented during trial. Each of the mother and father made submissions at the close of evidence. The father, in particular, made it clear that he rejected Justice Waldman’s finding that A.L. was in need of protection, calling that finding “not valid”. In fact, he stated, that issue was never “litigated” before Justice Waldman because the parents were absent

during that

summary judgment motion and they had not responded to the society’s motion for

summary judgment. [ 71 ] As to the father’s complaint that the matter was not “litigated” before Justice Waldman because the parents did not respond to the society’s motion for

summary judgment and were not present to argue that motion, this submission cannot succeed. The parents were present in court when the

summary judgment date was set; they could have attended to argue against the society’s motion; they could have filed material in response to that motion. However, they chose instead to abduct their child and were on the run from the society and the police for several months. It was because of their own criminal act that they were not present to argue the society’s case. [ 72 ] The law is clear that the purpose of a status review is not to re-try the original finding in need of protection.

Rather, it is the court’s obligation to determine whether the child is still in need of protection and then consider what disposition is appropriate, having regard to the best interests of the child. See Catholic Children’s Aid Society of Metropolitan Toronto v. C.M.. , [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 CanLII 83 , [1994] S.C.J.

No. 37, 1994 Cars​well​Ont 376. [ 73 ] Accordingly, my role on this trial is to accept Justice Waldman’s finding that A.L. was in need of protection, and to decide whether A.L. continues to be in need of protection and, finally, to assess what is in A.L.’s best interests. 12: CONTINUING NEED OF PROTECTION 12.1: Bad Judgment —

Part 1 [ 74 ] I have no doubt that the parents love A.L.. They demonstrated many times during access prior to the abduction that they were able to interact with A.L. in a positive manner, much to A.L.’s delight. [ 75 ] If this were enough to return a child to her parents, I would not hesitate to make an order sending A.L. back to her parents. However, that is not what this case is about. As the evidence unfolded during the trial, the over-arching theme became the parents’ unremitting bad judgment.

And here I am not referring to judgment in respect of minor issues but, rather, the kind of judgment that goes to the very core of A.L.’s safety, as well as her emotional and physical wellbeing. Regrettably, this bad judgment is not something that is merely historical in nature but, instead, something that the parents have never demonstrated either a willingness or ability to address, right up to and during the course of trial. [ 76 ] I will not re-visit in detail the underlying facts giving rise to the protection concerns, as I have discussed many of those already in these reasons.

Instead, I will summarize those areas where I find the parents’ judgment to have been so severely lacking: 1. The parents’ unexplained failure to seek medical attention for their daughter for several years, including their failure to ensure that she receive proper immunizations. 2. Severe malnutrition, to the point where A.L. suffered from nutritional rickets, with all the attendant consequences, both immediate and potentially long-term. [21] In referring to Dr. Kitai (who contacted SCAN because he suspected the existence of rickets), the father said in his submissions that Dr.

Kitai is a “pathetic excuse for a physician”. 3. The parents’ decision to use their home — the home in which their young child was living — as a place for criminal activity and exposing the child to potentially harmful drugs; and because of this decision to engage in criminal activity, they forced A.L. to experience the incarceration of both of her parents. 4. The parents’ unqualified rejection of Justice Waldman’s finding that A.L. was in need in protection, a rejection that continues to this day.

In his submissions, the father stated, without reservation, that this finding was “not valid” and “there were no findings of fact and it’s an invalid order”. 5. The decision to abduct their child [22] and go on the run with her for several months. I have already discussed the impact this had on A.L., something about which the parents did not seem to be concerned. Instead, they preferred to focus on the fact that they did provide some educational stimulation for their child even though she was not attending school.

At no point in her testimony, did the mother acknowledge how terrible this entire experience must have been for A.L. [23] However, apart from the impact the abduction had on A.L. herself, what this action reveals to the court, is the lack of respect the parents have for court orders. Aside from any other considerations going to best interests, it would be very difficult for a court to order the return of a child to a parent who engages in this kind of my-way-or-the-highway behaviour. Simply put, supervision orders cannot be made in favour of a parent who is not governable. 6.

The continuing failure of the parents to recognize A.L.’s good fortune in having the aunt come forward to provide a secure and loving home for A.L. to live in, rather than a society foster home. The lack of judgment in this regard is accentuated by the fact that so much of the parents’ cross-examination of the aunt was directed to the adult conflict, rather than focusing on the needs of their child. Instead of thanking the aunt, the parents did everything in their power in an attempt to embarrass and to humiliate her, and to blame her for the dysfunctional family relationship.

In her submissions, the mother stated that the society “allowed a disgruntled relative to scoop my daughter.” This failure to be child-focused reveals much to the court about the parents’ lack of judgment. 7. In his submissions, the father stated “we deeply regret what the child has been made to endure”, that is, “being separated from her parents, placed in foster care, [with the attendant] uncertainty”. But what about the things through which the parents themselves put A.L.? Do they “deeply regret” their own actions? 8.

Instead of acknowledging his own deficiencies, his own poor judgment, the father in his submissions called the society’s actions “tyrannical, dictatorial” and stated that they should be held “civilly liable for the negligence involved in carrying out their investigation”. Where is his insight and desire for redemption? What kind of judgment does the father demonstrate to the court, when he lays the blame for everything at the feet of the society? What does this reveal to the court?

9. The father made it clear that, in his opinion, A.L. has not in any way benefited from having been placed in the aunt and uncle’s home. Notwithstanding the wealth of evidence heard by the court during the course of this trial about the love and kindness and care and attention and stability which the aunt and uncle have given to A.L., the father is not prepared to acknowledge any of these benefits that have been conferred on his daughter. Instead, he claims in his submissions that it [the aunt’s home] is a “very toxic environment A.L. is currently immersed in.

I repeat, a highly toxic environment.” In other words, this is about father’s anger toward the other participants in this case — Dr. Kitai, the society workers and, in this particular example, the aunt and the uncle. If he is prepared to stand up in court and make such statements, how can the court come to any favourable conclusion about the quality of the judgment that he would exercise when no longer under the court’s close scrutiny? 10.

And despite all of the foregoing, the father submits to the court “there is no indication, no evidence to support the belief that we would not express better judgment in the future if the child were to be returned to us”. The father submits that is merely the society’s “speculation and assumption.” In fact, I conclude from the evidence that it is neither assumption nor speculation.

The father, by his own actions — and his inaction in his failure to even testify at this trial — has, in my view, removed that issue from the realm of speculation and assumption, and placed it squarely within the realm of fact. 12.2: Bad Judgment —

Part 2 [ 77 ] The foregoing references to bad judgment are, in my view, sufficient to make it abundantly clear to the court that, if A.L. were to be placed in the parents’ care, she would be exposed to a continuing risk of harm. However, the parents went even further and demonstrated by their very conduct during the course of this trial that their bad judgment continues unabated. [ 78 ] One of the scheduled trial dates was 28 June 2010. Society counsel and child’s counsel both attended court, ready to proceed at 10:00 a.m. The parents failed to attend.

The parents failed to telephone either the parties or the court. Everyone waited. At 12:24 p.m., the father faxed a letter to the court stating that his work commitments prevented him from attending at trial. His letter stated: I have been unable to co-ordinate a replacement at my place of employment for my shift of Monday, June 28, 2010. All eight days of trial so far have required me to arrange such a replacement, as each of those days has been a day wherein I have been scheduled to work. I also requested and received a leave of absence for the month of July 2010.

Having said all this, I do not feel the need to explain how understanding my employer has been. I am expected at work today, as I promised this final week of June would not be effected [ sic ] by any of my commitments. I was hoping to make myself available at court today, but unfortunately this is not possible. I regret any inconvenience this may cause. [ 79 ] I read the father’s letter into the record, and made the following endorsement: This matter will continue on the next date, August 3, 2010, 10:00 a.m. . . .

No later than July 16, 2010, respondents to file a 14B Motion form setting out their revised witness list and timetable for calling those witnesses. . . . Respondents are both to ensure that they are present and ready to proceed on all future trial dates in order to avoid any further delay in the completion of this trial. [ 80 ] The next scheduled trial date was 3 August 2010. Once again, the society counsel and A.L.’s counsel attended court, ready to proceed at 10:00 a.m. We all waited until 12:15 p.m. The parents had previously faxed a letter to the court and each of the parties, on 30 July 2010.

The parents’ letter stated: Please be advised that on July 29, 2010, we received the court transcripts dated June 23 and 24, 2010 specific to the cross examination of [J.C.] by [V.L.]. Upon review, it has been confirmed for us that this court is ignoring certain significant pieces of evidence presented on this matter, evidence which constitutes the very basis of our case, and in essence supports — indeed validates and confirms — our theory of what has actually occurred.

Our efforts to prove this case are meaningless in light of this court’s complete disregard for admissions which have been made that support our argument and are likewise damning to the applicant’s position, as well as their case, not to mention the integrity of their witness who also happens to be — among other things — the person being considered to take permanent custody of the child [A.L.] should she be made available for adoption, thus the focus of this entire matter.

Several other troubling concerns have come to light and, as such, the fair and impartial and unbiased hearing we are entitled to is sadly in serious doubt.

We are currently seeking counsel on this matter regarding how to proceed, it being painfully obvious now that to do so would not only be a waste of time and effort and resources, but that it would also be a pointless miscarriage of justice — something we would prefer not to experience for a second time. [ 81 ] Having regard to the contents of this letter, I then sought submissions from the two lawyers as to next steps in the case, following which, I endorsed the record, in part, as follows:

Both the society and the OCL submit that the parents’ letter [dated 30 July 2010] could be interpreted, possibly, as a request for an adjournment. They are concerned, as is this court, that the parents failed to attend court on the last scheduled date. . . . Not only did the parents not attend today, but they have telephoned neither of the parties nor the court to explain their absence. . . . it is difficult to understand why the parents have simply failed to appear in court for the continuation of this trial, a trial which has now extended much further than originally anticipated.

In the unknown circumstances surrounding the parents’ absence today I will adjourn this matter one further time to permit the parents to attend to continue the trial on the next scheduled date, namely August 16, 2010. [ 82 ] On 10 August 2010, the parents delivered a “mistrial” motion, [24] returnable on the next scheduled trial date, namely, 16 August 2010.

When they attended court on 16 August 2010, I inquired of both parents why they had failed to attend court on 3 August, not having sought an adjournment from either of the parties, not having made such a request from the court, or having notified anyone that they were otherwise unable to attend. The parents essentially said that their letter of 30 July 2010 (set in full above), was self- explanatory and (per V.L.): This letter clearly states, number one, as you just said, we had concerns, serious concerns, very serious concerns.

It states very clearly, “We are currently seeking counsel on the matter.” I believe it states it very clearly why we were not here on August the 3rd. [ 83 ] When I continued to point out that the letter did not state that they would not in fact be attending court, or that they had requested an indulgence from the other parties, or that they were seeking the court’s permission not to attend, particularly in the face of a clear endorsement by the court that they attend and be ready to continue with the trial (an endorsement that the parents acknowledged having received), P.L. stated (my emphasis): We are here to bring a motion for a mistrial.

How about we get to the point, instead of diddle-doddling around, and looking for a technicality as to why we weren’t here on August the 3rd, okay? The matter is the mistrial, not us not being here on August the 3rd, Sir. So, if you want to waste more time, be my guest. But, we are here to bring a motion for a mistrial. We are not here to explain to you why we weren’t here on the 3rd. Our fax explains that quite clearly, Sir. So, if you want to continue wasting time, please feel free to do so. But, why we are here is clear. We are here to bring a motion for a mistrial.

If you would like to hear the motion, let’s get on with it, instead of sitting here, wasting time about what happened on August the 3rd, Sir. [ 84 ] I proceeded to hear arguments on the mistrial motion. I reserved on that motion and delivered written reasons the same day at 2:30 p.m., dismissing the motion. I then asked the parents to continue with the trial. Notwithstanding my request and despite the fact that we had already lost trial time on previous days, they were not prepared to continue.

Accordingly, I adjourned the trial to the next morning, 17 August 2010. [ 85 ] At 9:30 a.m., 17 August 2010, the parents faxed a letter to the court, stating (my emphasis): Please be advised that we have consulted with counsel regarding the outcome of the proceedings yesterday, August 16, 2010. The complexity and seriousness of the matter requires further discussion at a meeting that unavoidably had to be scheduled for today. Due to this meeting, we are advising that we will not be in court today, August 17, 2010, as it is imperative to review the matter and to receive proper legal advice before continuing.

Hence, we are requesting to adjourn the proceedings until tomorrow. At this time, we anticipate continuing this trial tomorrow, August 18, 2010 as per our discussions of yesterday. We are in full agreement that these proceedings should be complete by the end of the day on August 19, 2010 and that this delay is absolutely necessary at this time. A typically immoderate authoritarian response by the presiding justice is anticipated.

We regret any inconvenience this may cause, but hope that this court and the other parties remind themselves and take into account the fact that we are self-represented and that the gravity of the matter insists we proceed only when properly and thoroughly informed. [ 86 ] The parents attended on 18 and 20 August, without counsel, and without further incident. [ 87 ] In Windsor-Essex Children’s Aid Society v. L.H. (No. 2) , 2004 ONCJ 196 , 133 A.C.W.S. (3d) 1005, [2004] O.J. No. 3889, 2004 Cars​well​Ont 3836 (Ont. C.J.), [25] the mother represented herself at trial.

She sought to have the children returned to live with her at home. However, the conduct of the mother throughout the course of the trial contributed to the conclusion reached by Justice Paddy A. Hardman that the mother would be ungovernable. Justice Hardman commented at length about the mother’s inappropriate conduct. I set out some of Justice Hardman’s observations, as, in my view, they are relevant to the manner in which the father and mother behaved in this case: [5] . . .

The mother often refused to comply with the court’s redirection and usually continued her threatening and abusive behaviour. . . . . . . [7] In January of this year while the society was still presenting its case, the mother did not appear. . . . The mother was given notice to have her case ready with witnesses on the return day in February but she never attended court.

Instead, the mother had documents delivered to the court, insisting that the matter be adjourned without a return date so that she could restart the matter when she felt ready. . . . [ 88 ] In this case, the parents submitted that A.L. be returned to their care under a supervision order for a period of somewhere

between 3 and 6 months.

Apart from the separate issue in a status review application of what living arrangements are in the best interests of a child, it is obvious that a supervision order cannot be made where the parents make it clearly known that they will not respect court orders, be bound by court directions and comply with the terms of the supervision order, unless they themselves decide to do so, according to their own ever-changing wishes and considerations. [ 89 ] One would expect that parents who seek the return of a child would go out of their way to demonstrate to the court their willingness to obey any order that a court might decide is appropriate.

One would also expect that these same parents, when they are being so closely scrutinized during the course of trial, would realize that their behaviour might well have some impact on the court’s considerations. If parents are incapable of demonstrating compliance and a willingness to respect court orders during the course of the trial itself , one can only imagine what their behaviour might be like when a judge is not looking over their shoulder every day. [ 90 ] Unfortunately that is exactly what occurred here.

The parents’ constant disrespect of the court process, their unwillingness to attend court when ordered to do so, their decision to attend trial “only when properly and thoroughly informed” according to their own timetable and their own parameters, is most revealing. [ 91 ] That behaviour is entirely consistent with the bad judgment that I previously discussed in

Part 1 of this

section of my reasons. 13: WHAT IS IN A.L.’S BEST INTERESTS? [ 92 ] Subsection 37(3) of the Act sets out the factors for the court to consider in determining what is in the best interests of a child:

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

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

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

Any other relevant circumstance. [ 93 ] In my view, the most relevant of the foregoing circumstances are set out in paragraphs 1 and 5-11. In A.L.’s case, because these circumstances tend to overlap and interweave, I will address them globally. [ 94 ] In the case of Catholic Children’s Aid Society of Metropolitan Toronto v. C.M.. , supra , the Supreme Court of Canada stated (at paragraph [37]) (my emphasis): We do not agree . . . in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent.

A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the care givers, whom the child regards as her psychological parents is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing.

At paragraph [39], the court continued (my emphasis): Within the realm of best interests perhaps the most important factor in the present case, as probably in many others, is regard to the psychological bonding of a child to her or his foster family . And at paragraph [41] (my emphasis): Finally, it is clear that the best interests of a child require different solutions over time and such interests may have to take precedence over any parental interests. [ 95 ] As Justice Stanley Sherr noted in Children’s Aid Society of Toronto v. J.P.. , 2009 ONCJ 1 , [2009] O.J. No. 2401 (Ont.

C.J.), at paragraph [22] (my emphasis):

[22] . . . On a status review application, the court will not go back and review previous orders and findings of fact but must focus on the long-term interests of the child. [ 96 ] In the present case, A.L. has lived with her aunt and uncle continuously since early May 2008, a period now in excess of 2½ years. That period is in addition to the four-months that A.L. lived with her aunt and uncle before the parents abducted her in November 2007. A.L. has had no direct contact with her parents since the mother and father were arrested on 15 April 2008.

Where A.L. apparently once had a close bond with her parents, that bond has faded with the passage of time. Concurrently, however, her bond with her aunt and uncle was growing ever stronger. [ 97 ] As I have discussed at some length in these reasons, the evidence overwhelmingly establishes that A.L. has become fully integrated into her aunt and uncle’s family, a family that now includes their daughter Ella. Although A.L. has expressed from time-to- time the wish to see her parents, she has made it clear that she wants to remain with her aunt and uncle forever.

A.L. loves their daughter Ella, who she considers to be her baby sister. She wants to be adopted and to use the last name of her aunt and uncle. Of her own accord, she decided to call her aunt and uncle, “mommy” and “daddy”. She is in a home where she feels safe and secure and happy. She is in a home where her caregivers are meeting her physical needs as well as her emotional needs. The “psychological bonding of a child to her foster family”, which the Supreme Court of Canada discussed in Catholic Children’s Aid Society of Metropolitan Toronto v.

C.M.. , supra , could not be more apposite to the facts of this case, and the way in which A.L. has become totally assimilated into her aunt and uncle’s home. The continuity of that care is essential for A.L.’s physical and emotional development, and to ensure her future wellbeing. Were she to be removed from the home of her aunt and uncle and placed back with her parents, I have no doubt this would be emotionally devastating for her. [ 98 ] Furthermore, as I noted earlier, A.L. has a strong desire for finality.

She has a psychological need to get the social workers out of her life and to “get on with her life and just be a regular child like all the other children she knows”. [26] A.L. has repeatedly made this clear, as well — for example, to both Susan Froehlich and to Dr. Fitzgerald. [ 99 ] Although one of the factors in considering best interests is promoting a child’s relationship with her parents, that is only one factor; and promoting this relationship should be considered only when it is in the child’s best interests to do so.

In this case, however, the parents’ conduct required A.L. to be removed from them and to remain away from them because of ongoing protection concerns, protection concerns that remain as alive today as they were in March 2007. As a result, the child has now become emotionally distanced from her parents. She has, in effect, acquired a new set of parents, together with a new sibling. The added benefit for A.L., in the particular circumstances of this case, is that one of her new “parents” — her aunt — is a blood relative.

This means that A.L.’s extended family members will include individuals to whom she is already related to by birth — the child’s “extended family” referred to in paragraph 37(3) ¶6. [ 100 ] In my view, there is no feasible order that could be made that would involve direct access between the parents and A.L. The parents made very clear their strong dislike for the aunt and uncle.

The aunt was candid in pointing out that, although access may be necessary when A.L. becomes older, she would have no idea how to facilitate such access now, given the level of familial animosity and the resultant conflict to which A.L. would be exposed, were any attempt made at the present time to work co-operatively with the parents who are so clearly hostile towards her.

And frankly, as I struggled with this evidence, and tried to think of a formula for how any form of access might work, on the evidence before me, I found myself in the same position as the aunt — unable to get around the tremendous animosity that each of the parents holds for her. [ 101 ] For reasons that I have articulated, returning A.L. to her parents, either with or without a supervision order, is not in A.L.’s best interests.

Neither a society wardship order nor a supervision order with the aunt and uncle would flow from the evidence elicited at trial — the former because it is clear to the court that A.L. has fully integrated herself into the aunt and uncle’s home and the latter because the society has no protection concerns whatsoever with the aunt and uncle as A.L.’s caregivers. And, in the very important consideration of finality for A.L.’s sake, a society wardship order would merely serve to add to the delay.

Any further delay in a case, which has been ongoing for more than 3½ years, would be contrary to A.L.’s best interests. [ 102 ] That leaves the only other option left to the court, the one option that makes sense for A.L., namely, Crown wardship. [ 103 ] Subsection 59(2.1) of the Act states:

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

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

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

b) the ordered access will not impair the child’s future opportunities for adoption. [ 104 ] This subsection creates a presumption against access to Crown wards. The onus rests on the parents seeking access to satisfy both prongs of the test as set out in clauses (

a) and ( b ). See, for example, Children’s Aid Society of Niagara Region v. D.P. and S.B. (No. 3) , 2003 CanLII 1932 , 36 R.F.L. (5th) 265, [2003] O.J. No. 619, 2003 Cars​well​Ont 574 (Ont. Fam. Ct.), per Justice Joseph W. Quinn. [ 105 ] A.L. has occasionally said that she wishes to see her parents. A child’s desire to see her parents, as expressed from time-to- time, is not sufficient to establish a “beneficial and meaningful” relationship. As Justice Quinn stated in Children’s Aid Society of Niagara Region v. M.J., K.S. and S.S. , 2004 CanLII 2667 , 4 R.F.L.(6th) 245, [2004] O.J.

No. 2872, [2004] O.T.C. 634, 2004 Cars​well​- Ont 2800 (Ont. Fam. Ct.), at paragraph [45] (my emphasis) [45] . . . a “beneficial” relationship is one that is “advantageous.” A “meaningful” relationship is one that is “significant.” Consequently, even if there are some positive aspects to the relationship between parent and child, that is not

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