Jewish Family and Child Service of Greater Toronto v. I.P., 2016 ONCJ 444

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 one or more of subsections 45 (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 . . . 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) or 76(11) (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. No. C72035/14 DATE: 2016-07-19 CITATION: Jewish Family and Child Service of Greater Toronto v.

I.P. , 2016 ONCJ 444 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1 IN THE MATTER OF The Child and Family Services Act, R.S.O. 1990, c. 11 AND IN THE MATTER OF : K.P. born […] 2013, and A.P., born […] 2014 BETWEEN : Jewish Family and Child Service of Greater Toronto Applicant - and - I.P. (mother) and A.M. (father)

Respondents Before Justice Robert J. Spence Trial Heard 4-8, 11-14, 19 April, 31 May, 30 June, 4-8, 11 July 2016 Reasons released on 19 July 2016 Ms. Sara Westreich and Ms. Haley Gaber-Katz……for the applicant society Mr. David Miller…………………………………………for the respondent mother Mr.

Bradley Berns………………………………………for the respondent father Introduction [ 1 ] In this amended protection application (“application”), the Jewish Family and Child Service of Greater Toronto (“society”) is seeking a finding in need of protection pursuant to the following sections of the Child and Family Services Act (“Act”), in respect of two children, a little girl named K., born […], 2013, and a little boy named A., born […], 2014: 1. section 37(2)(a)(

i) and (ii): (

a) the child has suffered 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; 2. section 37(2)(b)(

i) and (ii): (

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; 3.

section 37(d) , there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c); and 4. section 37(2)(h): (

h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition. [ 2 ] The society also seeks an order that both children be made Crown wards, without access, so that the children can be placed for adoption. [ 3 ] The mother concedes a finding in need of protection pursuant to section 37(2)(b)(

i) of the Act, but she is opposed to a finding under any other

section of the Act.

[ 4 ] The father opposes any finding in need of protection. [ 5 ] Both parents oppose the request for an order of Crown wardship. [ 6 ] The parents seek one of the following orders: 1. a supervision order with the parents jointly, for a period of six months, with reasonable terms and conditions; [1] 2. the mother seeks an order, in the alternative, that the children be placed with her under a six-month supervision order, with specified terms and conditions, including conditions that she be the primary caregiver and that certain restrictions be imposed on the father’s involvement with the children; 3. the father seeks an order, in the alternative, that the children be placed in the joint care and custody of both parents, subject to a six- month supervision order, with joint decision-making by the parents, with reasonable terms and conditions, but with the mother having the sole decision-making authority where the parents are unable to agree; and 4. the father seeks an order in the further alternative, that the children be placed in the joint care and custody of both parents, subject to a six-month supervision order, with reasonable terms and conditions, but with father not to be left alone with the children, whose access would be supervised either by the mother or another person approved in advance by the society.

Brief background and litigation history [ 7 ] The society first became involved with the family immediately following the birth of K.. A nurse at St. Michael’s Hospital, where the mother had given birth to K.. had contacted the society to alert it of certain protection concerns, immediately following K..’s birth. [ 8 ] The first report from the hospital to the society, on […] 30, 2013 noted [my emphasis]: Concerns were related to both parents presenting with delays, parental capacity and possible home environment .

The [hospital advised] that the mother and her boyfriend both “seem a little out of it” . [ 9 ] On July 2, 2013, the hospital contacted the society which, in turn, made a second report, noting certain information provided by the hospital, as follows [my emphasis]: [the hospital] social work staff met with [mother and father] who presented significantly delayed and dirty in appearance .

Additionally, [mother] advised that she would not accept a referral for a public health as should the nurse see her home the baby would be taken away . [ 10 ] On the heels of these reports, a society social worker attended at the hospital on July 2, 2013. At the hospital, the worker met with hospital social work staff as well as the parents. [ 11 ] The parents disclosed to the society worker that mother has a learning disability and father has Fetal Alcohol Spectrum Disorder (“FASD”).

The parents also disclosed that they were both involved with a mental health support agency in Toronto called Sound Times. [ 12 ] The parents acknowledged that their apartment was not suitable for the family to live in and, accordingly, they agreed to live with the maternal grandfather on a temporary basis while the society was helping the family to sort out the immediate issues and gain a better understanding of the family unit. [ 13 ] The society then contacted a number of resources, including a public health nurse, Susan Wilson, who was assigned to support the parents. [ 14 ] The society also contacted the parents’ Sound Times counsellors, as well as Michael Hamilton, the parents’ connection at the Scott Mission.

[ 15 ] On July 8, 2013, the society worker contacted the paternal grandmother who was living in British Columbia. She advised the society that she and the paternal grandfather had adopted the father as a child. She confirmed the father’s diagnosis of FASD, and she also expressed her concern that the father was not able to care for a baby as he himself was developmentally a “child”. The paternal grandparents agreed to travel to Toronto to provide some short-term support for the family. [ 16 ] On July 10, 2013 the society convened a Family Group Conference at the society’s offices.

The parents attended, together with K.. The paternal grandparents also attended. The society had a number of society workers and personnel in attendance. The maternal grandfather, with whom the parents and K.. were then living, and who had committed to attending the conference, failed to appear. [ 17 ] At that meeting, the father advised that, in addition to FASD, he had something called Acquired Brain Injury.

The mother again told the society of her learning disability and that she was functioning at a grade 3 level. [ 18 ] The paternal grandparents stated that, to their knowledge, the parents were in a state of ongoing conflict with the maternal grandfather.

They also expressed the opinion that if the parents were to move out of the maternal grandfather’s residence, they would not be capable of managing on their own. [ 19 ] There was a general discussion of the kinds of supports the society was able to provide, as well as a review of the supports which the parents said they had in place, including Sound Times and Surrey Place. [ 20 ] The society then drafted a Voluntary Service Agreement (“VSA”), which the parents signed on July 11, 2013. [2] [ 21 ] The VSA set out the purpose of the agreement, namely, to address the protection concerns pertaining to K..; and the VSA listed the various expectations that the society had of the parents, and which the parents agreed to follow in order to address those protection concerns.

Without specifying all of those various expectations, they included the parents’ obligation to connect with, and maintain their connection with supportive services, sign release forms and follow recommendations made by the society and the team of professionals involved with the family. [ 22 ] In turn, the society agreed to provide certain support services for the family, including home visits on at least a weekly basis. [ 23 ] The agreement was to last for six months, and was subject to review and renewal. [ 24 ] The last part of the VSA stated [my emphasis]: The parties understand and agree that should the terms of this agreement not be fulfilled as set out herein, the [society] may be obligated to bring this matter before the Ontario Court of Justice to seek an order for the protection of the child. [ 25 ] By including this last paragraph, the society wanted to ensure the parents understood the seriousness of this matter and that if they wished to avoid court proceedings, the society was expecting the parents to fully cooperate in addressing the protection concerns. [ 26 ] Due to the increasing conflict between the parents – father in particular – and the maternal grandfather [3] , the father was forced to move out of the maternal grandfather’s residence in or about October 2013.

Because he had nowhere else to go, the father moved into a shelter. [4] [ 27 ] The mother and K.. remained behind in the maternal grandfather’s residence. [ 28 ] The parents eventually found their own apartment on San Romanoway, and they moved into that residence on or about November 1, 2013.

[ 29 ] In early November 2013, the parents signed a six-month extension of the VSA. [ 30 ] Over the next 9 months there was ongoing and frequent contact between the society and the parents.

The society also remained actively involved with the team of professionals who were interfacing with the family. [ 31 ] This team included: • Susan Wilson, the public health nurse • Pat Harrison, and later Kishwar Saleem, the Home Visitors from Healthy Babies/Healthy Children • Michael Hamilton of the Scott Mission • Logan Bodeera of Good Shepherd [ 32 ] During this period of time, there were many protection concerns noted, as well as observed developmental concerns pertaining to K..

At the same time, there was some level of cooperation between the parents and the society and the team. [5] [ 33 ] The next major event occurred on […], 2014, with the birth of A.. at Humber River Regional Hospital. [6] The hospital had contacted the society to advise that while the parents had been able to bathe the baby appropriately, and while A.. was breastfeeding well, the nurse was concerned about the parents’ ability to cope with two children. [ 34 ] This information was added to the society’s growing list of protection concerns. [ 35 ] The difficulties which the society was observing prior to A..’s birth began to escalate following his birth.

This is not to say that the parents weren’t doing some things in an acceptable manner, but the challenges of caring for both children began to overtake them. [ 36 ] Only a few hours after mother and A.. were discharged from Humber River Hospital, mother took A.. to the Hospital for Sick Children (“HSC”), complaining that A.. had jaundice. [ 37 ] However, the HSC physician, Dr. Bismilla, determined that jaundice was not the real issue. Instead, mother appeared to the physician to be overwhelmed by the responsibility of caring for both children.

Mother also expressed concerns to the physician about the father’s ability to remain awake to care for K.. in mother’s absence. [7] [ 38 ] At the beginning of October 2014 the parents moved to a new apartment on Havenbrook Avenue. [ 39 ] The society continued to observe serious parenting difficulties [8] until, on November 12, 2014, the society apprehended both children and brought them into care. [ 40 ] The children have remained in the continuous care of the society since the date of the apprehension.

With perhaps a very few exceptions [9] , the parents have had only 3 hours per week of access to the children, supervised at the society’s office since the children were brought into care. Post-apprehension litigation history [10] [ 41 ] The society’s first protection application was commenced on November 14, 2014, the same day that the parties appeared before Justice Roselyn Zisman. On that day, Justice Zisman made a temporary without prejudice order placing both children in the society’s care, with access to the parents in the society’s discretion, a minimum of twice weekly.

[ 42 ] On January 13, 2015 the society brought an urgent motion on short notice seeking to suspend the parents’ access due to the transmittal of bed bugs by the parents into the society’s offices and into the children’s foster home. The motion was heard by Justice Zisman. [ 43 ] The evidence on the motion revealed that the society had been attempting to remediate the beg bug problem, but the parents were not cooperating with the steps necessary to ready their residence for professional fumigation.

Specifically, it appeared that the parents were unwilling to dispose of some or all of their belongings which were likely infected. At that court appearance, Justice Zisman granted the society’s motion. She addressed the parents directly in court, stating: You are to cooperate fully with the agency otherwise you are not going to see your children. . . . You’ve got to decide what your priorities are.

Bedbugs are a serious issue and they have to be dealt with properly so they don’t come back to infect the two of you or to infect anybody else. [ 44 ] The matter came back before Justice Zisman on March 17, 2015 for the court to monitor the parents’ progress toward remedying this problem. Society counsel advised the court [my emphasis]: There will be two inspections happening concurrently once the infested mattress is out.

The landlord’s statutory obligation is to do his own inspection of his, of his property as well as the inspection of our [society’s] private pest control service and it’s very important that the parents comply strictly with both .

There have been concerns expressed by the landlord that the parents have not – they’re willing to comply but they may not have understood the need for both of these inspections to occur . [ 45 ] Justice Zisman then asked the parents whether they would cooperate with both inspections, to which the parents replied “yes”. [ 46 ] And to emphasize how important it was for the parents to fully cooperate, Justice Zisman stated [my emphasis]: They have to get a clear, a clear, clear clearance from everybody . [ 47 ] The parents eventually began to cooperate in addressing the bedbug issue, and on May 1, 2015, their residence was officially declared to be bedbug free.

Accordingly, access was reinstated on May 6, 2015. The parents had been without access for almost four months. [ 48 ] However, by April 2015 it had become apparent to the society that the challenges for the parents were so great that the society amended the protection application to seek an order for Crown wardship for the purpose of adoption. [ 49 ] Around the same time, the society had reason to believe that the parents did not have sufficient understanding of the proceedings and the ability to instruct counsel.

Accordingly, it brought a motion, returnable August 26, 2015, under Rule 2(1) of the Family Law Rules , to have the parents declared “special parties”, so that the Public Guardian and Trustee (“PGT”) could then represent the parents. [ 50 ] By this time, the parents’ present counsel had come on board. Each of the parents filed responding affidavits in opposition to the society’s motion. Each parent took the position that he and she fully understood the nature of the proceedings, and that each was fully capable of instructing counsel. [ 51 ] In the mother’s case, she deposed that Mr.

Miller was her “counsel of choice”, but that if she were declared a special party, Mr. Miller, would no longer represent her. She also deposed that Mr. Miller expressed the opinion to mother that she was “capable of providing reasonable instructions” in the litigation. [ 52 ] In father’s case, he deposed in his affidavit that is was “very important to me that I have the ability to make my own decisions and instruct my solicitor.” He also deposed that he and Mr. Berns “have a good working relationship.” [ 53 ] PGT counsel attended on the motion and took no position on the order sought by the society.

However, counsel did advise the court that the finding of “special party” by the court is a prejudicial finding, and should be made with caution. Counsel also submitted that if the PGT were appointed, the parents would lose the right to determine the procedure to be followed in the litigation and the right to choose their own counsel.

[ 54 ] On the basis of all the foregoing, Justice Zisman dismissed the society’s motion, allowing the parents to continue to be represented by their own counsel. The protection concerns [ 55 ] The protection concerns can be broadly divided into the following categories: 1. The parents’ failure to appreciate and facilitate the appropriate child care development, including the general neglect of the children’s needs; 2. The parents’ poor judgment; 3. The father’s marijuana use; and 4.

The parents’ inability to self-regulate. [ 56 ] The overlay in all of these categories is the parents’ low cognitive functioning which, in my view, either led directly to the creation of these protection concerns or, exacerbated them. [ 57 ] Accordingly, before I discuss each of the foregoing protection concerns I will provide some background about each parent in order to better understand the context of these protection concerns – both historical and current. The father [ 58 ] The father was born in 1978 to a 13 year-old mother and a 22 year-old father, both of whom were alcoholics.

His parents separated almost immediately and the father went to live with his paternal grandmother and paternal aunt in Saskatchewan, until he was 3 years old. [ 59 ] The father was diagnosed at an early age with FASD. [ 60 ] He lived in a foster home until about age 5 when he was then adopted by the M.. family. He never had any relationship with his own biological parents. [ 61 ] Father said he attended schooling in a “modified” program, but that he “struggled through school”. He was held back in kindergarten.

He said he went on to complete grade 12 when he was 20 years old. [ 62 ] Between the ages of 5 and 12, the father experienced epileptic seizures. However, he said he has not had seizures since then. [ 63 ] Dr. Lowry was father’s pediatric neurologist in Saskatchewan. On January 12, 1999, Dr. Lowry prepared a report [11] in which he stated [my emphasis]: I first saw [father] at the age of six years in June of ’84. At that point he was having seizures that were evident in the frontal areas and were associated with slow spike wave discharges on his EEG.

These seizures were also associated with significant developmental delay specifically in the area of language. Because of these bifrontal generalized type of seizures he was put on Depakene which worked well to control his seizures. The etiology of his developmental delay and his seizure disorder is likely both genetic and possibly related to some alcohol indulgence during pregnancy. [his] mother is said to be an alcoholic and is also said to have mental retardation. . . . His seizures eventually stopped and he now has a normal EEG and is on no anti-seizure medication .

His frontal lobe damage however is evident in that he has lack of abilities to plan . He has a lack of social inhibitions and he has great difficulties in learning from previous . [sic] He is well intentioned and pleasant, but needs continual advice and encouragement about what to do. . . . he really needs to live in a group home and work in a sheltered environment . . . . He will probably do well if he is supervised and placed in an appropriate living environment.

His static encephalopathy [12] mostly involves his frontal brain regions and this has left him with great difficulties with planning and learning from experience .

[ 64 ] Father said that his adopted mother put him in the Saskatchewan Ability Council, for people with mental health issues. He performed odd jobs, such as building picnic tables and machinery crates for the City. [13] His income came from Saskatchewan Disability. [ 65 ] Father says he lived in his own apartment and paid his own bills. [ 66 ] He said that he joined a carnival in 1998 and he worked off and on for one or two different carnival operators until he moved to Winnipeg in 2005. [ 67 ] He said that he found employment working for a security company, but he lost his job and wound up living on the streets.

He found another security job with “Impact” where he says he remained for two years until he lost that job. [ 68 ] He was asked at trial why he lost his jobs. He responded that he had become “lazy” and stopped doing what he was supposed to do. [ 69 ] Between 2007 and 2009, father reported that he was in a common law relationship which produced a daughter. Following what father described as a “huge fight” with his spouse, father walked out and never came back. Father has not seen his daughter since she was about 3 years old. [ 70 ] In 2010 he moved to Toronto.

He said that he had arranged for a security job at Pearson airport before coming to Toronto; but when he arrived in Toronto, the company which had promised him the job “played dumb” and claimed not to recognize him. [ 71 ] He soon applied for and began to receive Ontario Works income. He lived off and on in shelters and sharing a room with other individuals. He described some of this as “couch surfing” and “sleeping in parks”. [ 72 ] He said that from about 2000 until about 2012 he was taking crack cocaine and using marijuana.

He said he paid for his drugs at the end of the month when he was in receipt of his social assistance cheque. On occasion he tried to clean up and participate in drug rehabilitation. He said he has not used crack cocaine since March 27, 2012. [ 73 ] He said that he uses marijuana as a medicine to “keep me sane with society”. He describes it as a “gift from God”.

He said he smokes several [14] joints a day, every day until his money runs out around the middle of the month; and then he starts again at the beginning of the month when he receives his money from social assistance. [ 74 ] He eventually connected with Sound Times – for persons with mental health disabilities – which in turn helped him to find a subsidized bachelor apartment on Oak Street in Toronto. [15] [ 75 ] Sound Times also assisted him with applying for Ontario Disability Support Program (“ODSP”). In order to do this, they connected father with Dr. Hau Truong, an ODSP psychiatrist. [ 76 ] Dr.

Truong testified in this trial. [ 77 ] Dr. Truong assessed father in May 2011 for his ODSP application. As part of his assessment, Dr. Truong relied on the previous findings of Dr. Lowry, as well as the records from the Saskatchewan Abilities Council. [ 78 ] Dr. Truong assessed father in a number of different mental health areas. He concluded that there were no, or minimal, safety concerns in a number of areas, but that there were moderate to severe safety concern symptoms in the following areas:

• Attentional consciousness • Lack of insight • Intellectual function • Learning • Memory [ 79 ] In reference to father’s documented “static encephalopathy”, Dr. Truong explained this means the brain has been permanently damaged. This impacts on his “executive function”, the part of the brain which involves “planning, reasoning and organizing”. [ 80 ] Dr.

Truong testified that while the father’s brain damage is permanent and cannot be fixed [16] , there are nevertheless some programs offered by such agencies as Surrey Place, which can assist him in certain ways. [ 81 ] Additionally, if he were living with a high functioning person, that person could assist with certain tasks. However, this would not replace father’s actual functioning. Furthermore, if the person with whom father was living had similar intellectual challenges, it would be very difficult to compensate for father’s deficits. [ 82 ] Dr.

Truong stated that in order to qualify for ODSP, an individual must be deemed to be disabled, in that he has a substantial physical or mental disability, such that it affects that person’s functioning. [ 83 ] Dr. Truong’s “impressions” are contained in his report, which includes the following from the historical records: Axis I: Fetal Alcohol Syndrome – Cognitive Impairment Axis II: Mental Retardation – severe [17] Axis III: As above Axis IV: housing, occupational, relationship and financial problems Axis V: 50 – serious symptoms and serious impairment in social and occupational functioning [ 84 ] Dr.

Truong had no difficulty in ultimately concluding that father is disabled and would qualify for ODSP. Father has been in receipt of ODSP since following this assessment. [ 85 ] The parents met each other at a church in February 2012. They began dating in May 2012.

Father decided to “clean up” his drug use in the intervening period between meeting mother and when he started to date her. [ 86 ] As I noted earlier, father testified that he spontaneously stopped using cocaine, on his own, and without any assistance, on March 27, 2012. [ 87 ] Father testified that the parents decided they wanted a baby; by about September 2012 mother became pregnant with K.., who was born on […], 2013. The mother [ 88 ] Mother is 36 years old. She was born in Toronto and was initially raised by both her parents, until they separated when she was about 13 or 14 years old.

[ 89 ] At first, mother and her younger sister lived with their mother. However, she says that her mother kicked her out of the house when she was about 19 years old. She then went to live with her father. She remained living with the maternal grandfather until she met the father in 2012 and moved in with him in April or May of that year. [ 90 ] Mother has never lived on her own. [ 91 ] In 1999, mother gave birth to a child, J., who she gave up for adoption to this society.

She said she did this because she wasn’t ready to be a parent. [ 92 ] In 2010, Downsview Legal Services referred mother to JVS Toronto for a psychoeduational assessment, in order to ascertain whether mother had a learning disability and whether she would qualify for ODSP. [ 93 ] The primary assessor was Dr. Hadley Koltun, Psychologist. Dr. Koltun did not testify at trial. On consent, his report was admitted into evidence for its truth. [ 94 ] In conducting his own assessment, Dr.

Koltun had a number of previous psychological reports from assessments conducted by the North York Board of Education, available to him. He also had a consultation letter from the HSC, dated September 8, 1999. [ 95 ] In the narrative background information which he obtained directly from mother, Dr. Koltun noted: She was provided with Special education support since Grade 1 . . . . Previous psychological reports confirm that she was declared as an Exceptional student at the time. . . . She described herself as “not a fast learner”. . . . [ 96 ] Dr.

Koltun reviewed some of her education history, noting that she was unable to complete post high school courses of study, for various reasons offered by mother. Dr. Koltun noted from a prior psychoeducational assessment when mother was 8 years old [my emphasis]: Her overall intellectual functioning, as measured by the Full Scale IQ, fell “just on the border between the Mildly Retarded and Borderline Retarded ranges ”. Both her Verbal and nonverbal performance scales fell within the lower reaches of the borderline range.

Her academic achievement was consistently below expected levels and commensurate with her intellectual functioning. [ 97 ] In his review of the HSC consultation, performed by Dr. Fred Weinberg in 1999, Dr. Koltun noted the following from that consultation [my emphasis]: School personnel noted that mother was “showing signs of developmental difficulties and intellectual inappropriateness for her learning placement”. . . . Dr.

Weinberg further indicated that mother would continue to need accommodations in college such as receiving handouts rather than copying from the blackboard and extended time for examinations and tests. [ 98 ] In all of the intellectual areas assessed by Dr. Koltun, mother performed “below average”, or “extremely low”, with percentile scores ranging from below the 1 st percentile to the 13 th percentile. [ 99 ] Dr.

Koltun stated [my emphasis]: Taken together, the results of the intellectual functioning assessment indicate that mother has significant challenges with verbal reasoning/expression and nonverbal visual reasoning. As well, she also has poor abilities to remember and further process information that she hears (working memory) and requires more time to learn information and to complete pencil and paper tasks within a timely manner (processing speed). [ 100 ] In the area of emotional functioning, Dr. Koltun stated [my emphasis]:

She is currently experiencing some degree of psychological distress in terms of her specifically “feeling afraid in open spaces or on the streets” and with interpersonal problems (she feels self-conscious, as well as misunderstood and disliked by others). [ 101 ] In the

summary portion of his report, Dr. Koltun stated: Her overall intellectual functioning, as measured by the Full Scale IQ Index, fell in the Extremely Low range (below 1 st percentile). As well, she exhibited Extremely Low range Verbal Comprehension abilities and below Average range Perceptual Reasoning abilities. Her auditory Working Memory fell within the Extremely Low range and her Processing Speed abilities fell within the Below Average range. . . . An assessment of her adaptive behaviour (life skills) suggests significant limitations in aspects of Conceptual, social and Practical skills. . . .

Based upon her developmental history, cognitive assessment and current adaptive behaviour ratings, this profile does meet the DSM-IV criteria for a diagnosis of Intellectual Disability – Mild. [ 102 ] Dr.

Koltun noted both mother’s “Assets” as well as her “Barriers”, as follows: Assets • Persistent, patient person, able to engage with both examiners • Relative strengths in verbal and visual memory • Within age expectation ability to recognize meaningful information (stories) • Forthcoming with personal information and willing to accept assistance and support [18] Barriers • Significant difficulties with reasoning with both information that she hears and sees • Difficulties with adaptive behaviour (life skills) • Receptive and expressive vocabulary • Significant literacy and numeracy challenges [ 103 ] In his Recommendations, Dr.

Koltun recommended that mother seek supports from the following resources/agencies: • ODSP • Community Living Toronto • Community Literacy program or Reena Foundation • Dual Diagnosis Assessment Program through CAMH • Ability Works through JVS Toronto • Financial Literacy for Persons with Disabilities • Pursuing further volunteer work

[ 104 ] With respect to the various recommended resources suggested by Dr.

Koltun, mother stated that she did pursue ODSP and that she is now in receipt of that assistance. [ 105 ] However, she did not become involved with: • Community Living Toronto (she thinks she may have made an initial contact, but she did not pursue this) • Reena Foundation (she thinks she may have made a contact, but she did not pursue this) • CAMH – She didn’t pursue this because “I didn’t think it was necessary” because she said it’s for people with mental health issues and “I have a learning disability”. • Ability Works through JVS • Financial Literacy for Persons with Disabilities • Further volunteer work – although she did say that a long time ago she did some volunteer work at “Sunburst”, but she can’t remember when she last worked there. [ 106 ] When asked to describe father’s disabilities, mother did say that she knows he has FASD and frontal lobe damage, but “I really don’t know a lot about his disabilities, me and him haven’t really talked about it [and] I don’t judge him”. [ 107 ] She did add that she thinks he can learn from his mistakes; but that he has difficulty comprehending things and his ability to plan is “sometimes” hard. [ 108 ] I turn next to the earlier

section of my reasons entitled “Protection Concerns. 1. The parents’ failure to appreciate and facilitate the appropriate child care development, including the general neglect of the children’s needs [ 109 ] Early on, following the society’s involvement in the life of the family, the society made a number of observations about the parents.

On repeated occasions when a society worker would attend at the home, late in the morning, the father would be asleep, typically sleeping until 11:00 a.m, or even later. [19] [ 110 ] On one occasion when a worker attended at 1:30 p.m. the apartment was dark because father was still sleeping. Father said he was sleeping late because he had not gone to bed until 10 a.m. that morning. [ 111 ] He acknowledged that he typically slept very late into the day. His explanation for this is that he used to work night shifts when he was a security guard, and those shifts affected his normal sleeping pattern.

However, he acknowledged that he hasn’t worked night shifts for many years. In fact, he hasn’t been employed for a number of years.

[ 112 ] This late sleeping by father had a direct impact on the children, as the parents slept in the main living room area, which was also used as the children’s play area. [ 113 ] The society and the team of professionals who had access to the parent’s residence began to observe that K.. in particular was delayed in both speech as well as in her walking. [ 114 ] The society recorded many instances of these kinds of observations. I will refer to just some, being a representative sample. [ 115 ] Susan Wilson was the public health nurse who attended the home on numerous occasions.

On one visit, March 20, 2014, when K.. was almost 9 months old, Ms. Wilson expressed the concern that K.. had not yet begun to crawl on the floor, something which she believed should have begun earlier. [ 116 ] Ms. Wilson also observed safety hazards and garbage on the floor, including electrical cords.

This was not the first time she had made these observations, nor the first time that she had pointed out to the parents the danger of not following her directions to keep the home free of hazards so that K.. could safely play on the floor. [ 117 ] It is important to note that for the first several months of the society’s involvement in the parents’ lives, there were also many positive observations by the society and the team of professionals. [ 118 ] For example, the home visitors and other professionals noted that when the apartment was observed to be dirty and unsafe, on subsequent visits there was observable improvement.

However, the parents were never able to sustain these improvements and they would allow the previous unsafe and unsanitary conditions to re-surface. [ 119 ] The team of professionals noted a number of strengths during the period of time leading up to A..’s birth in […] 2014. Those strengths included: 1. The parents’ ability to identify the stresses arising from their living arrangement with the maternal grandfather and the need for them to move from his residence and obtain their own residence; 2. The parents were acting respectful toward each other, and overall they seemed to be a good couple together; 3.

The parents had obtained safety gates in the new apartment; 4. There appeared to be good attachment between K.. and her parents; 5. There was good eye contact between the parents and K..; and 6. K.. (mostly very early on in her life) appeared to be more or less meeting her developmental milestones. [ 120 ] Despite these strengths, the parents had little sense of the importance of routine for the children. On one occasion, the parents were seen walking K.. outside on the streets at 3:00 a.m. The parents did not seem to recognize that this was a safety issue.

[ 121 ] There was no set bedtime routine for K.. In fact, father said that it would be wrong to send the children to bed between 7 and 8 p.m., because to do so would cause them to miss out on their “social life”. He made it very clear that “I don’t think they should be on a schedule” and “I don’t know any kids who are on a schedule”. [20] [ 122 ] Nevertheless, the parents were managing to hold things together reasonably well prior to the birth of A..

Certainly, there were sufficiently observed strengths such that the society did not conclude there was a need to begin a court proceeding. [ 123 ] However, serious deterioration began to be observed around the time of A..’s birth. [ 124 ] At around the time of A..’s birth, the parents were seeking to have their primary family service worker replaced as they were unhappy with the first worker which the society had assigned to them. This change in workers was effected by the society shortly following A..’s birth. [ 125 ] The new worker attended at the home on […], 2014, just after A.. was born.

She immediately noticed the smell of marijuana in the apartment. She also observed that while the apartment was somewhat cleaner than what was observed in the prior visit, it was still in an unacceptable state. [ 126 ] For example, there was a tall bookcase that was not secured in any way, and could easily tip over; the prior worker had suggested pushing the ottoman against it to prevent such an occurrence, which would pose a real hazard for the children in the house.

On August 14 th , that had not yet been done. [ 127 ] There was also a partially full, foul-smelling garbage bag on the floor, and K.. was in a toy car next to that garbage. Mother resisted the society’s repeated urgings to address these problems, complaining that the society was always criticizing her. [ 128 ] However, at a visit the following week, many of these issues had been addressed. [ 129 ] On October 1, 2014, the parents moved to a new apartment. At around this time, Ms.

Wilson was beginning to express concerns about the quality of the attachment between mother and A.. [ 130 ] On October 7, mother complained that she had run out of money and was unable to buy milk. The worker wondered how it was possible that the parents could afford to buy marijuana but were unable to purchase food for the children. Nevertheless she gave the parents 60 dollars in food vouchers.

[ 131 ] At an unannounced home visit on October 23, 2014, the worker observed that both children were in their “bouncy” chairs. The parents had previously been advised that placing the children in these chairs was not good for child development, as they needed time to be on the floor to play and to learn to move around. [ 132 ] At the same visit, the worker noted that the father was asleep. It was 2:30 p.m. [ 133 ] At this visit, the worker observed the clutter on the floor, such that there was no space for the children to move around.

She said that, at the time, the parents seemed receptive to understanding this problem. [ 134 ] The society was becoming increasingly concerned that the parents were not utilizing the recommended resources to aid in the children’s development, in particular, daycare and the Early Years Centre, both of which would have provided the children with much- needed socialization and stimulation. [ 135 ] The society was also becoming increasingly concerned about the state of the apartment, which the society observed to be cluttered and dirty. [ 136 ] The society even offered to bring in a cleaning service, at the society’s expense, to clean the parents’ apartment.

However, the parents refused this request. The father’s response to the society’s offer: “I didn’t trust them”. [ 137 ] At a home visit on November 6, 2014, at 11:30 a.m., the apartment was dark and the blinds were drawn. The father was asleep on the couch, and he remained asleep throughout that visit. [ 138 ] The society again expressed concerns to the mother about the state of the home.

At an unannounced visit on November 7, 2014, the worker observed: • The apartment was dirty, with used diapers and newspapers on the floor • The apartment smelled of cat urine • The end of a marijuana joint was on the floor next to K.. [ 139 ] At that visit, both parents refused to sign a consent to allow the society to speak to the children’s new pediatrician, Dr. Schelberg. [ 140 ] Of concern to the society was the fact that at 17 months of age K.. was not yet crawling. Instead she was “bum scooting”.

And this problem was exacerbated by the fact that the society workers often observed K.. to be strapped into her bouncy chair when the workers arrived for a visit. [21]

[ 141 ] The society was also concerned about K.. not beginning to talk at her age. [22] [ 142 ] The society pointed out to the parents that A.. was developing “flathead”. This was directly related to the manner in which the parents were allowing A.. to sit, without ensuring that he was given the opportunity to move around. [ 143 ] The society was so concerned about K..’s development that it had wanted the parents to cooperate in a developmental assessment. However, the parents were not inclined to participate. [ 144 ] The children’s pediatrician testified at trial. Dr.

Schelberg has been a pediatrician for more than 32 years, and one of his areas of interest is developmental issues, such as gross and fine motor, social, speech and language. [ 145 ] On November 13, 2014, the day following the apprehension, the foster mother brought the children to Dr. Schelberg’s office. K.. was 16-1/2 months old. She had yet to begin walking and she was not using even a single word. [ 146 ] Nor was K.. able to stand, something which, according to Dr.

Schelberg, children would usually be doing by 10 or 11 months of age. [ 147 ] He testified that K..’s failure to even “babble” was a “red flag to me”. He testified, “I felt this was abnormal”. [ 148 ] On December 2, 2014, Dr. Schelberg saw K.. again. She was still not saying single words; nor was she starting to walk. Dr. Schelberg recommended an assessment at Holland Bloorview Kids Rehabilitation Hospital. [ 149 ] On January 6, 2015, Dr. Schelberg was still concerned with K..’s speech as well as her “gross motor” skills.

By 18 months of age, he said K.. ought to have been walking. [ 150 ] On March 11, 2015, K.. was 20-1/2 months old. She was “cruising” [23] but could not walk independently. Dr. Schelberg was very concerned about developmental delay. He noted that the parents themselves are developmentally delayed and testified that family history is very important. Specifically, he said, parents with developmental delays may not understand the need for stimulation. [ 151 ] Dr. Schelberg also diagnosed A.. as being asthmatic. Asthma can be a very serious problem if not properly treated, particularly in young children.

And yet, neither parent in their respective testimony even mentioned A..’s asthma as a condition which needed to be carefully monitored.

Post-apprehension – addressing the children’s needs [ 152 ] As at June 16, 2015, K.. had been accepted at Holland Bloorview and has been assessed. That assessment concludes that K.. is “development delayed – Global”. Global in this context means a development delay in two or more areas. [ 153 ] Thanya Duvage is a speech and language therapist. Ms. Duvage’s clinical involvement with K.. began in August 2015 and ran until February 2016. [ 154 ] She conducted an assessment of K..’s development at the outset of her involvement, when K.. was about 2 years old.

She testified that K.. was not saying any words, not making any sounds, and was quiet. She did engage in several play activities, and she was responsive to some words and signs that Ms. Duvage was modelling for her. [ 155 ] She testified that K..’s word development was at about the 12 month stage, meaning that her development was about one year behind her chronological age. [ 156 ] K.. had “significant difficulty” producing speech, but her receptive language was stronger than her expressive language. That is, she could understand words but could not say them. [ 157 ] Ms.

Duvage began to see K.. for therapy sessions once each week; and she communicated with K.. by using sign language while, at the same time, doing therapy to improve her expressive language skills. [ 158 ] Ms. Duvage testified that K..’s caregivers need to understand strategies to help remediate the deficits. The child needs to be in a “rich language environment” to give her the best opportunity to succeed. [ 159 ] As a result of the regular therapies, by January 2016, K.. was able to say about 15 words, and she was able to use about 30 sign words. [ 160 ] Ms.

Duvage made it very clear, that unless caregivers accepted that the deficits existed, unless they entirely bought into the need for remediation, and unless they were active participants in that remediation, K.. would be unable to achieve success. In short, the therapist is just a “drop in the bucket” of the overall therapeutic process. [ 161 ] Dr. Anne Kawamura is a developmental pediatrician. She is a physician who subspecializes in development with children who have delays, both physical and mental.

[ 162 ] K.. was referred to Dr. Kawamura because of concerns pertaining to her development in expressive language and gross motor skills. K.. was 22 months old at the time of this referral in April 2015. [ 163 ] Dr. Kawamura was concerned to find that K.. had been “bum scooting” at the age of 15 months, and that she had taken no independent steps until 17 months of age. [ 164 ] Her assessment also determined that K.. was delayed in her fine motor skills. More specifically, she was about 4 months behind in those skills.

She said that those 4 months, while seemingly not a large period of time, is a “good chunk of a 22 month-old child’s life”. [ 165 ] She found that K..’s expressive language skills were behind, and that she was using non-verbal communication, such as signs or “reaching”. At her age, K.. was using about 3-5 words, when she should have been expected to be using 50-100 words. [ 166 ] Receptively, K.. was just starting to understand two-step commands. [ 167 ] She noted that K.. was “quite resistant to therapies, that she has a lot of reluctance to do specific tasks that are demanded of her in a therapy session”.

This is important to note because the caregivers would have to be resolute in their determination to provide therapy in order to overcome K..’s natural tendency to resist. [ 168 ] Dr. Kawamura’s overall impression was “significant delays in gross motor and expressive language skills” which led to a diagnosis of global development delay. [ 169 ] Dr. Kawamura testified to something that should be self-evident. First, K..’s caregivers must be an “integral part of the health- care team”; and second, it is important for the parents to acknowledge the development delay.

If the parents or caregivers are denying the problem they really can’t be an effective part of that team. [ 170 ] The court also heard evidence from Edite Ponte, a developmental therapist at Surrey Place. She specializes in working for children from birth to 6 years of age. [ 171 ] Ms. Ponte provided developmental therapy for K.. beginning around July 2015, and continuing as at the date of her testimony. [ 172 ] Ms. Ponte confirmed K..’s delays in expressive language, and her need to use sign language in order to communicate.

[ 173 ] She stated that the parents must be an essential part of the remediation: “I always tell them that they are the therapists” and that “parents have homework to implement the goals within their daily routine”. [ 174 ] Once again, the court heard that parental attitude must be one of understanding and cooperation, and that this is essential, otherwise it is unlikely that the child will succeed. [ 175 ] Yvonne Ng is an occupational therapist at Holland Bloorview.

She works with children in the “neuro-motor stream”, assisting children who suffer from such things as cerebral palsy and global development delays. [ 176 ] She said that, as an occupational therapist, her focus was on these fine motor skills, whereas gross motor skills would fall more within the domain of a physiotherapist. [ 177 ] K.. was initially referred to her by Dr. Kawamura in November 2015. She assessed K.. as somewhat delayed in her fine motor skills, particularly in her ability to grasp and use a pencil.

There was also some delay [24] in K..’s ability to dress herself. [ 178 ] Over the next couple of months, with assistance from the foster parents, K..’s fine motor skills improved, so that by the middle of January 2016, Ms. Ng said that K.. was not far behind. [ 179 ] Ms. Ng made it clear that the caregivers are an integral part of any therapeutic plan. They must follow the recommended exercises modelled to them by the therapist, and practise them with the child at home on a regular basis.

It is important for the child to be provided with opportunities to learn and consolidate her skills. [ 180 ] The trial elicited much more evidence than the foregoing with respect to the children’s development but, as I noted earlier, for the purpose of these reasons, it is necessary only to provide a representative flavour of that evidence. [ 181 ] But to be clear, merely because children have development delays is not, in itself a reason to find they are in need of protection under the Act.

Based on all the evidence in this trial, the real issue is whether the parents had sufficient insight to acknowledge those developmental delays and take appropriate steps to remediate them. [ 182 ] Here is some of what the parents had to say about the society’s protection concerns, including their failure to maintain their apartment in an appropriate state and to facilitate their children’s development.

The father’s responses [ 183 ] The reason the first apartment at San Romanoway was cluttered was because the parents had each brought possessions from their separate residences into the new jointly-shared home.

They did not have proper storage for their things at this apartment. [ 184 ] So they tried to remedy the problem by using the second bedroom, as well as the living room, for storage. [ 185 ] It never occurred to the parents that the remedy for the clutter – which directly impacted on K..’s ability to move around on the floor – was to pare down their possessions. [ 186 ] When the society offered a cleaning service, the father testified that he refused that offer, not only because he didn’t trust others to come into his apartment but, additionally, “if I accepted that [offer] it would mean I’m not able to do it myself”. [ 187 ] The society had been encouraging the parents to take K.. to the Early Years Centre for stimulation and socialization.

The Centre was conveniently located across the street from the San Romanoway apartment. The father took her to the Centre only three times, but did not return after K.. was “bullied” (according to father) on the third visit. [ 188 ] What led to this so-called bullying? [25] He took K.. to the Centre for “daddy day” on this third visit. He then decided that he wanted to leave the Centre to go to the coffee shop to buy himself a coffee. He says he asked K.. if it was okay for him to leave her so that he could get his coffee.

Father said that K.. not only understood this request, but that she also gave father permission to leave. [26] [ 189 ] When he returned to the Centre with his coffee, the father said the staff told him that during his absence K.. had been bullied by other kids. [ 190 ] Father could not explain to the court why, given that “daddy day” at the Centre was only two hours long, he was unable to remain with K.. for the entire two hours, or why he felt that it was appropriate to leave the Centre so that he could go to a coffee shop. [ 191 ] The parents decided to look for another apartment because they wanted a unit closer to the ground floor.

So on October 1, 2014 they moved to a place on Havenbrook. Although it was a 2-bedroom apartment, they set it up so that the master bedroom would be used as the children’s playroom, and the second bedroom would be used as storage. Everyone slept in the living room. [ 192 ] When he was asked why he didn’t use the master bedroom as a bedroom for both children, he replied that there was only one window in that room, and it wouldn’t be “fair” if one child had a window and the other child did not. [ 193 ] In any event, he said they were planning to stay there only 7-8 months before moving back to Saskatchewan.

His plan was once they moved to Saskatchewan, he would be “going to school and working for the R.C.M.P.” He never discussed this plan with the

society. [ 194 ] In response to the bouncy chairs issue, and the society’s concern that the kids were always in those chairs, the father said they were in those chairs “maybe a quarter of the time”. [ 195 ] Father acknowledged his use of marijuana when the children are in the apartment, but he said he smokes only on the patio outside, not in the presence of the children. He says he is “high” around the kids, but he is “coherent” when he is with them. [ 196 ] The society had expressed concerns that the parents were unable to read the children’s hunger cues.

They were also concerned that during access visits, the parents were allowing the children to go outside in cold weather, not properly dressed. [ 197 ] Father stated that he would never force his children to do anything. So, for example, if K.. does not want to put on her jacket to go outside, she just won’t go outside. He said, “forcing children to do things they don’t want to do is a form of abuse.” [ 198 ] He was asked about whether he would force his children to go to school if they didn’t want to go. He said that if they refuse he’d say “fine, I’ll home school you”.

He said he thinks school would be a “nice thing” but if they don’t want to go “I’ll home school them or send them to military school”. Or he would look for a “tutor”. [ 199 ] When the society advised father that K.. had global development delay, father disagreed, stating that she could not have a disability because “we are not alcoholics”. He said that his own disability resulted from parents who were alcoholics and “what other causes are there?” [ 200 ] He did not want to encourage (force?) K.. to walk, even though he was told that she was behind.

Father said, “If you force a child to walk or talk, it is classified as child abuse”. He said, “you can be charged and it’s a minimum of 2 years in jail”. [ 201 ] One of the workers noted that father was having highly elevated, age inappropriate conversations with the children. The father said he was trying to “bring back memories to the kids”. He said “K.. remembers the time mommy was pregnant with A..” [ 202 ] Father said that not only did K.. not have any delays, but she was “advanced for her age”.

For example, he said that at 8 months of age she was accessing the father’s cell phone, going into his phone contacts list, and dialing phone numbers of persons who were on that list. [ 203 ] At the end of his examination-in-chief, the father said to his counsel that he would comply with whatever order the court might impose if the children were returned to him. [ 204 ] All of the foregoing was adduced on examination-in-chief.

[ 205 ] On cross-examination, the father insisted that the children were never at risk of harm. [ 206 ] He disagreed with the society that K.. was vulnerable. [ 207 ] He disagreed with considerable evidence that he presented as unkempt and unhygienic. In fact, the evidence was that he was so unhygienic that society workers found it difficult to be around him because of the strong stench of body odour.

Father attributed that to his inability to use deodorant and that he “sweats a lot”. [ 208 ] He agreed that every one of the numerous professionals who attended his apartment told him that it was dirty and cluttered and that it needed to be cleaned up. His response was that they were all “lying” about the state of the apartment.

He said that he cooperated as much as “we were able”. [ 209 ] The evidence reveals that prior to the apprehension, various professionals told him on 15 different occasions that the apartment needed to be cleaned. [ 210 ] However, father reiterated that the apartment was “always clean” and those persons were lying. [ 211 ] He acknowledged that Ms. Wilson told him not to place K.. in front of the television at her age, and that she expressed concern that K.. was not moving. Father’s response was that K.. “did not want to crawl”. [ 212 ] He acknowledged that K.. was referred for occupational therapy.

He was asked why he didn’t pursue that referral. He said, “I didn’t think it was necessary, I wanted to try to do things on my own as a father and as a parent”. [ 213 ] He says that he refused the society’s recommendation to place K.. into daycare in October 2013 because K.. was “too young” and also because he didn’t have a “child abuse record and a criminal record” for the people who were in charge of the daycare. [ 214 ] He again asserted that when K.. was living with him she was not delayed, she was “above average”.

Despite the fact that all the social workers told him otherwise, he said they were incorrect, and he can provide the names of many people and agencies who told him that K.. was above average and doing well. [27] [ 215 ] Once again, the foregoing is only a representative sample of the evidence which revealed to the court the father’s complete intransigence and lack of insight into his daughter’s needs, or his real willingness to accept the advice he was being given from the

professionals involved. [ 216 ] Simply put, even if father did not intentionally inflict harm on his children, the evidence is overwhelming that he refused to accept that his children had physical and emotional needs that he disagreed with, and that he refused to do anything about.

The mother’s responses [ 217 ] The following are some of the responses given by mother to the various concerns raised by the society and the team of professionals. [ 218 ] In response to the question why the children were not given the master bedroom to sleep in, she answered similarly to father, namely, that there was only one window in that bedroom. [ 219 ] But then she was also asked why the children could not be given the second bedroom.

She said that room is small and she decided to give the room to her cats instead. [ 220 ] She said that she is opposed to daycare because both parents are at home and not working; but she would take the children to daycare if the court ordered to do so. She said the father would help her get them to and from daycare.

However, this conflicted with the father’s evidence that he has no intention of changing his sleeping habits, specifically, by going to sleep and waking up at more reasonable, child focused times. [ 221 ] She stated that she would follow any court orders if the children were returned to her care, including, if necessary, ensuring that the father was not left alone with the children. [ 222 ] She acknowledged that the society offered a cleaning service in June 2014 but she refused because “I thought we could deal with it ourselves”. [ 223 ] In July 2014, she asked for a new society worker because she felt that the existing worker was “judging us” and “I couldn’t take it anymore.” [ 224 ] She acknowledged that she placed K.. on a couch and at least on one occasion she rolled off the couch and banged her head on the floor.

However, she said that on the other occasions when she placed K.. on the couch, she would catch her if K.. started to roll off. [ 225 ] She acknowledged not being able to clear the clutter in the apartment and make more space for K.. to move around.

[ 226 ] She acknowledged that just prior to the apprehension, the apartment was not clean; there was not enough room for the kids. She said, “it was hard with the children”. [ 227 ] Mother was being told that K..’s speech was delayed. However, she testified “I thought it was fine”. [ 228 ] She was asked whether she thought K.. was delayed prior to the apprehension. She said, “I didn’t think she was”. [ 229 ] She was asked about A..’s head flattening. She acknowledged she was shown this by the society.

She was told by the society how to remedy the problem, but it is not clear whether she followed any of the society’s recommendations in this regard. [ 230 ] She agreed with the society’s assessment regarding the poor and unacceptable state of the apartment prior to the apprehension. [ 231 ] She also agreed that she refused the society’s request on the day before the apprehension to allow the society to speak with Dr. Schelberg. Why did she refuse? “Because I was frustrated and stressed”. [ 232 ] She was asked why, at certain access visits she was not paying sufficient attention to the children.

She replied that parents can’t always be right behind kids, sometimes parents need to “just observe kids and if they get hurt we get up and comfort them. Sometimes kids just need to be left alone”. [ 233 ] She said that father does not smoke marijuana around the kids, but he does need it because it keeps him “calm”. If he is not using marijuana “anything can trigger him”. [ 234 ] In cross-examination, mother recalled that she was told six times, prior to K..’s birth that she needed prenatal care.

However, she refused to follow this advice because “I thought I was doing everything okay”. [ 235 ] She acknowledged that the VSA required the parents to continue at Sound Times. However, she said that they could not continue after K.. was born because children under 16 years of age could not attend. However, when Ms.

Wilson offered an alternative, namely, counselling at Black Creek, mother refused to follow through, acknowledging that she should have done so. [ 236 ] Mother acknowledged the apartment floors were too dirty for the kids to move around; there were cat feces in the kitchen; there was newspaper on the floor; there were exposed wires; there was furniture that could topple over and yet she refused to place an ottoman in front of the furniture.

[ 237 ] She acknowledged that she was told repeatedly, over and over, that the apartment needed to be cleaned and that failure to do so would result in an apprehension. And yet she didn’t pay attention to these warnings because “I didn’t think it was serious”. [ 238 ] When K.. rolled off the couch and banged her head “at least once”, mother took her to the doctor at a walk-in clinic. However she didn’t tell the society about this even though she was obligated to do so by the terms of the VSA.

She said she was scared to tell the society. [ 239 ] After moving to Havenbrook, she couldn’t keep the place clean because of the clutter. She said she had difficulty doing the chores and handling the childen. She also said “daddy was sleeping sometimes when I wanted to clean”. [ 240 ] She refused the advice of the professionals to place K.. on her tummy in order to prevent her from spending too much time on her back. The professionals stated that the lack of tummy time was impeding K..’s ability to learn to crawl. Why did she refuse this advice?

Because, according to mother, K.. didn’t like being on her tummy. [ 241 ] In September 2014, Ms. Wilson observed that 15-month-old K.. still could not pull herself up.

However, mother testified that K.. would only do these things for the parents and for no one else. [ 242 ] Mother also fantastically reported that despite K..’s observed inability to use words, K.. said “I love you daddy, I did it”. [ 243 ] Despite the recommendation by the society – and the requirement for parents to follow these recommendations in the VSA – mother refused to pursue the nutrition program for A.. [ 244 ] In fact, at the Service Plan meeting held May 6, 2014, the public health nurse recommended that K.. be enrolled in certain programs, in order to address her needs, including: • The Ontario Early Years Centre, to provide socialization and stimulation, something she was not receiving at home; • The Make the Connection program • Living and Learning with Baby • Peer Nutrition program [ 245 ] Mother admitted that despite her refusal to put K.. into daycare, her failure to do so “probably” contributed to K.. falling behind. [ 246 ] She acknowledged that she didn’t follow through with the professional recommendations because she did not feel K.. had special needs and, furthermore, that she could parent K.. adequately herself without outside resources.

[ 247 ] While mother agreed that the children were “most likely” in need of protection when the society apprehended them, she was firm in her belief that the only reason the society apprehended was because the society was listening to rumours from other persons on the street.

Mother said that not only did she feel that way at the time of the apprehension, but she is convinced, even today, that this was the real reason for the apprehension. [ 248 ] Again, these responses by the mother do not represent the complete evidentiary record of mother’s inability to understand her children’s needs and her unwillingness to cooperate with facilitating those needs. However, for the purpose of these reasons, they are more than sufficient to provide a picture of where mother was at prior to the apprehension, and where she is at today. [ 249 ] I turn next to the parents’ poor judgment. 2.

Poor judgment [28] [ 250 ] Effective parenting is tied directly to the kinds of judgments parents must make. Every day that a parent has the care of a child he or she is making decisions which affect the wellbeing of that child. Good judgment is necessary in order to ensure that the child is cared for in an appropriate manner. Poor judgment can often lead to the kinds of situations which place children at risk of harm, or even actual harm to children. [ 251 ] Unfortunately, these parents have demonstrated exceedingly poor judgment in important, often critical circumstances.

I will discuss a few examples. [ 252 ] I earlier referred to father’s decision to leave K..’s side at the Early Years Centre while he went off to get a cup of coffee. Having made the decision to take K.. to the Centre, and to engage in a 2-hour session with K.. and the other children, he then decided that it was somehow acceptable for him to leave K.. alone with the other strangers at the Centre. By placing his desire for a cup of coffee over the needs of his child to be supervised and actively engaged, the father exercised poor judgment. [ 253 ] And this poor judgment had a domino effect.

When he returned to the Centre, he said that he was told that K.. had been “bullied” in his absence.

So this led to another poor decision, namely, not to bring K.. to any further Centre sessions. [ 254 ] Obviously, the better decision – and the more child-focused decision – would have been for father to say to himself, I shouldn’t have left K.. alone; I recognize how important these socialization opportunities are for her, so I will ensure that I take her to future sessions and remain with her for the entire 2-hour period. [ 255 ] The bed bug incident resulted in the parents’ loss of access to their children for a period of almost 4 months.

The court does not criticize the parents for the infestation of bed bugs but, rather, for the way in which they dealt with that issue. Most significantly, the choices they made in this context, led directly to the suspension of their access to the children for 4 months, when it might have been possible for them to not lose any access time at all or, perhaps, not more than a very brief period of time.

[ 256 ] The society went out of its way to hire an independent pest control company, at its own expense. Additionally, the parents’ landlord hired its own pest control company.

Justice Zisman made it perfectly clear to the parents that they needed to cooperate with both companies and that access would not resume until both companies had certified the apartment to be bed bug free. [ 257 ] And yet the parents took actions that led directly to the prolongation of the process and, hence the prolongation of the period of time during which they were without access to their children. [ 258 ] They refused the society’s suggestion to immediately get rid of their infested mattress and use an air mattress in the interim, while awaiting delivery of a new mattress. Why?

The air mattress would not be comfortable. Additionally, because there were cats in the apartment the cats could possibly damage the air mattress. [ 259 ] The cats could have been contained in another room, and the parents could have endured some discomfort for a short period of time in order to facilitate the resumption of access. These would have been better choices. [ 260 ] Part of the preparation process involved caulking the apartment in areas where bed bugs could possibly re-enter the premises. The pest control company offered to do the caulking.

But the parents refused, insisting they could do it themselves. This took weeks to accomplish, something which could otherwise have been done very quickly. [ 261 ] The parents’ poor judgment in relation to the bed bug incident goes well beyond these examples, but there is no need to cite every example of bad choices made by the parents in respect of the bed bug incident. [ 262 ] I turn next to the parents’ poor judgment in relation to the so-called lottery/inheritance scam.

Sometime around June 2015 the father received a message through Facebook that he had won a lottery, or that he would be receiving a very large inheritance. [29] [ 263 ] He said he was informed of this in an email sent to him from Mark Zuckerberg, the C.E.O. of Facebook. [ 264 ] He was very excited about the prospect of winning this much money; so much so, in fact, that during access visits he would tell K.. about his plans for the money. For example, he told her that he was intending to purchase a Hummer.

In fact, he testified that K.. was not only understanding this discussion, but that she knew the difference between a Hummer and a Ferrari. [ 265 ] He was initially told that if he wanted to receive the money he would have to pay a “delivery fee” of $700. Somehow father found this money and paid it. This was followed by more demands for money that had to be paid in order for father to claim his prize. [ 266 ] Over the next period of time, father sent about $10,000 in 12 different payments, to addresses in the United States and Africa, in a

vain attempt to secure the phantom winnings. [ 267 ] The parents went to the police to complain that they had yet to receive their money. The police told them it was a scam.

Even after being informed of this by the police, the parents decided to continue to send money because they were convinced that if Mark Zuckerberg told them it was legitimate, it must be so. [ 268 ] Finally, after their last payment in December 2015, the O.P.P. insisted that they stop sending money, and they complied. [ 269 ] At some point, while the parents and the children were living at Havenbrook, they invited an adult male to live with them, compounding the already difficult space problems.

The decision to allow another adult to live with them, without any explanation, in itself, is a demonstration of poor judgment. [ 270 ] However, what compounded that poor judgment was the fact that mother testified at trial that this person was viewing pornography while he was living with the parents and the children. [ 271 ] In an even greater demonstration of poor judgment, the parents decided to allow two other adults to live with them and the children in August 2014.

These adults – P. and S. – were a couple who were expecting the birth of a child at the time they moved into the parents’ apartment. [ 272 ] Despite the fact that the parents themselves acknowledged the serious space limitations in their apartment, they nevertheless decided this arrangement was appropriate. Why?

The couple could act as “live-in nannies” for the parents, and also to be their “butler”. [ 273 ] This decision would have been bad enough on its face; but what made it far worse was the fact that the parents knew , at the time they invited the couple to live with them, that both P. and S. had a child welfare history. In fact, father testified that he was aware that one or more children had been removed from S.’s care. [ 274 ] In his examination-in-chief, the father said that S. was his fourth cousin, so he trusted them both.

He also said, “It shouldn’t affect me” just because they lost their children. [ 275 ] In his examination-in-chief, father stated that he believed S. had lost his children because he had “abused them” and that the abuse (according to father) was “sexual assault”, and he “beat them”. [ 276 ] Father’s lawyer asked why he would let someone into his apartment, knowing about this history. Father responded, “it was a concern, but I trusted him; if he touched my daughter he’d go to jail.” Father also said (in cross-examination), “if he hurt my child, I’d hurt him”.

[ 277 ] The parents gave the couple the second bedroom to sleep in, together with their two-foot “dragon” who lived in an aquarium, but who would come out of the aquarium from time to time. [ 278 ] And, consistent with the very poor judgment which went along with this, the parents decided to go out from time to time, leaving S. and P. to babysit with K.. and A.. [ 279 ] During a home visit by the society, after it found out about the child welfare history of S. and P. [30] , the worker advised the parents not to permit them to remain in the apartment.

Despite, this caution by the society, the parents decided, in their judgment that it was fine for the couple to remain. They did eventually leave around the end of September following a big argument amongst the adults. [ 280 ] By the time they left the parents’ apartment, S. and P. had spent about 6 weeks living with the parents, and K.. and A.. [ 281 ] For her part, mother also decided that it would be acceptable for these people to move in, without first checking them out and determining whether it would be safe to do so. What was her motivation?

The couple had been couch surfing and did not have a permanent place to stay. [ 282 ] What all of the foregoing reveals to the court is that the parents were making decisions without keeping the best interests of their children in the forefront. They seemed to be making judgments based on spur-of-the-moment reactions, without considering the wider implications of those decisions. [ 283 ] In the view of the court, each of these decisions exposed the children to risk of harm – both emotional as well as physical harm. 3.

Father’s marijuana use [ 284 ] I have previously discussed father’s marijuana use to some extent. However, what is important to note in the context of this

section of my reasons, is father’s reasoning process for using marijuana, and the implications of that usage. [ 285 ] First, he said that he uses marijuana to maintain a calm composure and that when he is not using marijuana (according to mother) anything can trigger him. Whether or not the father’s usage of marijuana, per se, is a bad thing for a parent to do, this court expresses no opinion, other than to state that, at the very least, marijuana use should be avoided while the parent is in a caregiving role. [ 286 ] However, in this case, the marijuana use had broader implications.

Father said he never smoked except out on the balcony, away from his children. And yet, there is evidence from the society that marijuana joints were seen on the apartment floor, near K.., and marijuana paraphernalia was seen close at hand in the apartment.

[ 287 ] As well, father said he has cared for the children while “high” on the effects of marijuana, but that this has always been in mother’s presence. What neither parent could satisfactorily explain, was what would happen if father was high and mother had to leave the apartment, for an unexpected reason.

What was the backup plan? [ 288 ] Again, this is yet another example of decision-making by the parents without considering the broader implications and, in particular, how those decisions impact on the children. [ 289 ] The other element of father’s decision to use marijuana is the parents’ acknowledgment that this costs a considerable amount of money, money which comes directly from the social assistan

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