Catholic Children’s Aid Society of Toronto v. C.M., 2011 ONCJ 648

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 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 . . . 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. Toronto Registry No. CFO 09 10684 B3 DATE: 16·V·2011 CITATION: Catholic Children’s Aid Society of Toronto v. C.M. , 2011 ONCJ 648 ONTARIO COURT OF JUSTICE BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — C.M. and T.C., Respondents. Before Justice Ellen B.

Murray Heard on 4-6, 12-15 and 20-21 April 2011 Reasons for Judgment released on 16 May 2011 Lynn D. Bonhomme ................................................................................... for the applicant society Matthew J. Price ..................................................................................... for the respondent mother Respondent father, T.C. ....................................................................................... on his own behalf

Michal Harel ...................................................................... for the Office of the Children’s Lawyer, .................................................................................................... legal representative for the children [ 1 ] JUSTICE E.B. MURRAY:— The Catholic Children’s Aid Society of Toronto brings an application for an order of Crown wardship for the children C1. (born on […] January 1999) and C2. (born on […] September 2002), with access by the children to their parents, Ms. C.M. and Mr. T.C. Ms. C.M. and Mr.

T.C. have been separated for many years. [ 2 ] Both children have been in the temporary care of the society since 15 July 2009. Both children have already been found to be in need of protection. [1] Both children were previously in society care and the statutory time limit for temporary society placement expired prior to the beginning of the trial before me. [ 3 ] Ms. C.M. seeks the return of the children to her, under an order of supervision. [ 4 ] The lawyer for the children advises that they want to return to their mother. [ 5 ] Although Mr.

T.C. filed an answer to the original protection application offering to care for the children, he did not file an answer to the society’s amended application seeking Crown wardship. He was noted in default in January 2011. Mr. T.C. appeared on the first day of trial, seeking to advance a plan for the children. Counsel for the other parties and the children did not object and I allowed him to file an answer and plan of care and to participate in the trial. Mr. T.C. supported Ms.

C.M.’s plan and, in the alternative, sought an order placing both children with him under an order of supervision. [ 6 ] At the trial, I heard evidence from the parties; from society workers; from staff at the school attended by the children prior to apprehension; from each child’s current foster parent; from family friends of the father; from Dr. Shukri Amin, a psychologist who conducted a parenting capacity assessment of Ms. C.M.; and from Dr. Olga Henderson, who conducted two psychological assessments of each child, one in December 2009 and one in March 2011.

I also received documentary evidence, such as records of Ms. C.M.’s criminal convictions and the children’s school reports. 1: STATUTORY FRAMEWORK 1.1: Options on disposition [ 7 ] The Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, directs me to consider four alternatives for disposition, assuming that I am satisfied that a court order is necessary to protect the children in the future. The parties’ position is that a further order is required, and I agree. The possible dispositions are: Supervision order • 1.

That the child be placed in the care and custody of a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months. Society wardship • 2. That the child be made a ward of the Society and be placed in its care and custody for a specified period not exceeding twelve months. Crown wardship • 3. That the child be made a ward of the Crown, until the wardship is terminated under

section 65.2 or expires under subsection 71 (1), and be placed in the care of the Society. Consecutive orders of Society wardship and supervision • 4. That the child be made a ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. [ 8 ]

Section 70 of the Act constitutes legislative recognition of the importance of permanency planning for a child. It places limits on the time that a child may remain in temporary society care. As previously noted, that time limit has already been exceeded for both children. C1. has already been in society care for a cumulative period exceeding three years. C2. has been in society care for a cumulative period exceeding two years.

Subsection 70(4) provides that the statutory time limit may be extended by a period “not to exceed six months if it is in the child’s best interests to do so”. [ 9 ] The options open to me — unless an extension of time is ordered — are: 1) return to Ms. C.M. under a supervision order; 2) placement with Mr. T.C. under a supervision order; or, 3) Crown wardship. 1.2: Best interests [ 10 ] In choosing the appropriate disposition, I am to be guided by the child’s best interests. [2]

Section 37 of the Act sets out thirteen factors for a court to review in considering what is in a child’s in best interests.

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child's physical, mental and emotional level of development. 3. The child's cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family. 6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community. 7.

The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. 8. The merits of a plan for the child's care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child's views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11.

The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13. Any other relevant circumstance. The society bears the onus of establishing on a balance of probabilities that an order of Crown wardship is in each child’s best interests. [ 11 ] The Act mandates the return of the children to Ms.

C.M.’s care unless the society can demonstrate that no “less disruptive alternatives” — such as a supervision order with conditions — are adequate to protect them. [3] [ 12 ] If the children cannot be returned to Ms. C.M. safely, then a court is also required to consider whether it is possible to place the child with a relative or a member of the child’s community or extended family. [4] No one besides Mr.

T.C. has come forward with an alternative plan. [ 13 ] Subsection 57 (2) of the Act provides that a court is required, before making an order of disposition, to consider what efforts the society has made to assist the child while in the care of the parent from whom the child was apprehended. In this case, I am satisfied that the society made extensive efforts to assist Ms. C.M. in parenting C1. and C2. while they were in her care. 2: BACKGROUND [ 14 ] Ms. C.M. is 46 years of age. She has had a difficult life. As a child, she was in and out of the care of the Catholic Children’s Aid Society of Toronto.

She was sexually abused by her stepfather. Dr. Amin observed that Ms. C.M. suffered from poor parenting when she was a child. [ 15 ] In her 20’s, Ms. C.M. began living with a boyfriend, identified only as “A.”. A. was violent, and steered her into prostitution. As part of that lifestyle, she used illegal drugs, such as cocaine, and drank to excess. A daughter, T., was born to the couple in 1987, and they raised her together. [ 16 ] In 1992 Ms. C.M.’s mother, Mrs. T.M., contacted the society, worried that her daughter was using cocaine. The society investigated her situation, but did not begin proceedings.

Over the next eight years, Ms. C.M. was convicted of a number of criminal offences, most of which involved possession of cocaine, prostitution and failure to attend court or to comply with probation orders. Because of these charges and convictions, Ms. C.M. spent periods of a few days to a few weeks in custody. [ 17 ] In 1995, Ms. C.M. separated from Armando. She testified that for her own safety she hid from him for approximately a year and a half. During this period, T. was cared for by Mrs. T. M. After a year and a half, Ms.

C.M. joined them and she and her mother cared for T. together. [ 18 ] In the mid-‘90’s, Ms. C.M. began seeing a psychiatrist, Dr. Johnson, because she wanted help “to turn my life around”. She acknowledged that she was “hanging out with the wrong people” and “choosing the wrong men”. She continued in treatment with Dr. Johnson for about seven years, until he retired. She has not sought out psychiatric treatment since that time. [ 19 ] In the late 1990’s, Ms. C.M. began dating Mr. T.C. He was a friend of Ms. C.M.’s brother and lived in the same neighbourhood as the M. family. Ms. C.M. and Mr.

T.C. begin living together. C1. was born in 1999. The parties separated soon after. Ms. C.M. testified that Mr. T.C. was drinking to excess at the time. Mr. T.C. testified that he was young and not ready to accept the responsibility of a child. Ms. C.M. testified that, even though Mr. T.C. was drinking to excess, he was not part of her “other life”, the life that involved prostitution and drug use. Mr. T.C. did not exercise access after the separation.

[ 20 ] In June 2000, Ms. C.M. overdosed on prescription medication and C1. was found wandering in the street. The Society apprehended T. and C1.. A finding that both children were in need of protection pursuant to clause 37(2)(

b) of the Act was made in September 2000. [ 21 ] T. asked to be made a Crown ward and that order was made in April 2001. [ 22 ] Ms. C.M. engaged in treatment for substance abuse, continued with her psychiatric counselling, and took parenting courses. On 17 September 2001, after trial, a court returned C1. to Ms. C.M.’s care (after a further two months of society care) under society supervision. The judge was impressed with the significant progress that Ms. C.M. had made in dealing with her substance abuse and mental health concerns and the vigorous support she received from a community social worker.

He said that the decision was a “close call”, and urged diligent supervision. The society’s file was closed in August 2002. [ 23 ] Ms. C.M. and Mr. T.C. had resumed their relationship about the time of C1.’ return. C2. was born on […] September 2002. The parties soon separated. Mr. T.C. was not a continued presence in the children’s lives. [ 24 ] In June 2004, C1 . and C2. were apprehended after Ms. C.M. was taken to hospital by police for an assessment under the Mental Health Act, R.S.O. 1990, c. M-7 , as amended. She was intoxicated at the time of apprehension.

After a contested motion on 1 November 2004, a court ordered that the children be returned to Ms. C.M. under temporary society supervision. A protection finding was made on 9 February 2005, pursuant to clause 37(2)(b) (and, for C1. only, clause 37(2)(a)). The children stayed in Ms. C.M.’s care pursuant to a supervision order made in August 2005. [ 25 ] After Mr. T.C. was notified about the protection case in 2004, he started visiting the children, but stopped after a few visits. Ms.

C.M. started a domestic case and orders were made granting her custody and child support payments. [ 26 ] The order of the society supervision was terminated in February 2006. However, society oversight continued under voluntary service agreements. [ 27 ] Mr. Michael Smith became the family service worker for Ms. C.M. and the children in July 2004, a role he has continued ever since.

He testified that his concerns prior to the children’s apprehension in 2009 included: • The “chaotic” and unhygienic condition of the home. • Unexplained bruises and scratches on both children. • Excessive school absences. • Poor hygiene and inappropriate clothing. • Inability to effectively control the children’s out-of-control or self-harming behaviour. [ 28 ] More than once, Mr. Smith offered Ms. C.M. the assistance of a parent support worker. Ms. C.M. refused. He urged her to work with the Child Development Institute to obtain help in managing C2.’s concerning behaviour. Ms. C.M. refused.

He consulted his supervisor about commencing a protection proceeding and was advised that there was likely “not enough” to obtain a supervision order. He kept going to Ms. C.M.’s home for regular visits to monitor the risk. [ 29 ] In the summer of 2008, Mrs. T.M. died. This was traumatic for the children, particularly C1.. Mrs. T.M.’s death left Ms. C.M. without someone to help manage the children. 3: APPREHENSION [ 30 ] Matters came to a head in 2009 when there were three incidents in which C2. was placed at risk because he was not properly supervised by Ms. C.M. 1 .

On 24 May 2009 C2 ., who was then 6 years old, and an 8-year-old friend were observed at Sunnyside beach on Lake Ontario, attempting to put a canoe in the water. Police were called and returned the child home. It is necessary to cross at least one major highway to reach the beach from Ms. C.M.’s home. When police returned C2. to Ms. C.M., they found that she had enlisted others to try to find him. She told Mr. Smith that she had been busy preparing for a family picnic and that C1. should have been watching C2.. Mr.

Smith warned her that she should not rely on C1. and that C2. had to be closely supervised by her. 2. On 13 July 2009, Mr. Smith came to Ms. C.M.’s home for an unannounced visit. He found C2. playing outside with no adult supervision and C1. inside in bed. She had spilled hot soup on herself and Ms. C.M. had gone out to get cream for the burn. Mr. Smith waited 2½ hours before Ms. C.M. returned. He warned her again about leaving C2. unsupervised. 3 . Then, on 15 July 2009, C2 . was picked up by police with another child, E., at Dufferin Mall. The children were allegedly shoplifting.

Dufferin Mall is a considerable distance from Ms. C.M.’s home and it is necessary to cross major intersections to reach it. When police brought C2. home, they found that C1. was home alone. Police waited 45 minutes, and then took the children to the police station and contacted the society. The children were apprehended. It was later learned that Ms. C.M. had gone to the food bank. She told police that E. had “kidnapped” C2. and that she had told C1. to supervise the child when he returned home . 4: POST-APPREHENSION

[ 31 ] Immediately after the apprehension, the children were placed together in a foster home operated by Ms. G.S.. They were upset and non-compliant. They fought with each other. C1. threatened to harm herself. Ms. G.S. was unable to control their behaviour. Within two weeks, they were moved to separate homes. C2. has settled well into a therapeutic boys’ home operated by Mr. G.S. and his wife. C1. was placed in a second home and had to be moved to a third placement in January 2011. This is a therapeutic girls’ home operated by J.P.. [ 32 ] While the children were in Ms. G.S.’s foster home, Ms.

C.M. had difficulty dealing with their behaviour on visits. The society stopped the visits briefly and then began separate visits. Ms. C.M. sees the children separately for visits on Saturday afternoons and for a joint visit on Wednesday afternoons. C1. spends an overnight visit every Saturday with her mother. The children enjoy the visits. There is no problem with their behaviour or mood before or after the visits. [ 33 ] C2. started Saturday daytime visits with Mr. T.C. in December 2009. Those visits are unsupervised.

C2. enjoys the visits and there are no problems with his behaviour either before or after the visits. After one visit with Mr. T.C., C1. decided that she did not want to see him further, although Ms. C.M. supported the prospect of visits. C1. explained her decision by saying that Mr. T.C. had abandoned her when she was young and that she saw no reason to see him now. [ 34 ] The children have periodic overnight visits with their 23-year-old sister, T.. T. is single and works as a hairdresser. Her relationship with Ms. C.M. is not close.

C1. and C2. look forward to their visits with T. and everyone agrees that she is a positive influence on the children. 5: EVIDENCE AND ANALYSIS [ 35 ] I have considered what order would be in the best interests of each child . F.C1., that order is one which keeps her in the Society care until the end of this school year, and then provides for a return to Ms. C.M. under an order of supervision. F.C2. , that order is one that provides for Society wardship for a period of six months, a period which will allow a further evaluation of Mr.

T.C.’s plan for the child. [ 36 ] My reasons for this decision are set out below, based on my analysis of the evidence in the light of the best interests factors in the Act. The children The children’s condition pre-apprehension [ 37 ] The evidence established for me that each child had significant behavioural or emotional difficulties by the time of apprehension. At the time Ms. C.M. did ;not accept that her children had any significant difficulties, although her own behaviour contributed to their problems C2. [ 38 ] C2. was often frustrated, and unable to regulate his emotions.

He hit other children, hid under a desk, and even hit his teacher. Twice the principal witnessed him banging his head on a desk or a wall, unable to control his in frustration. C2.’s teachers said that he was so active that when the class went on outings that he had to be kept by the teacher’s side to insure his safety. The school developed an Individual Education Plan to try to accommodate his special needs (behavioural and academic), and provided the services of a social worker. Even with this help, C2. struggled, and was two years behind academically by the time he was apprehended.

He missed many days of school. [ 39 ] Mr. Smith often observed behaviour in C2. similar to that noted by the school. C2. climbed on furniture and shelves. He hit C1.. Ms. C.M. sometimes did not notice this behaviour; when she did, she did not find it problematic. [ 40 ] Dr. Amin observed the children on one visit with Ms. C.M. He described C2.’s behaviour in terms similar to Mr. Smith. [ 41 ] The problems noted by the school staff and by Mr. Smith were echoed in Dr. Henderson’s first assessment. She found that C2. was anxious and insecure. He did not see adults as being able to care for him.

C1. [ 42 ] At the beginning of this trial, it had not been decided whether C1. was a child in need of protection. At the conclusion of the evidence, counsel for the Society and for Ms. C.M. agreed that a finding could be made that C1. was in need of protection pursuant to s. 37(2)(

g) of the Act—risk of emotional harm caused by a parent’s “actions, pattern of neglect or failure to act”. Counsel agreed that this finding could be based upon: • the anxiety C1. exhibited prior to apprehension, and • her apparent threats of self-harm.

[ 43 ] The Society also argued that a finding could be based on C1.’ difficulties in resolving conflict, which were said to stem from Ms. C.M.’s own poor conflict resolution skills, and on C1.’ school absence record and the fact that she was “struggling academically”. [ 44 ] I am prepared to find that C1. suffered from a high level of anxiety, and that Ms. C.M. was a cause of that anxiety, in that she expected the child to assume inappropriate responsibilities to care for C2. and for herself. [ 45 ] C1. was seen by the school staff as anxious and emotionally needy.

In her last year at school before the apprehension, she cried a lot, or withdrew from interaction with others, staying in at recess. The principal testified that C1. was very conscious of having responsibility for C2., and would become distraught if there was even a minor problem with the child, such as a misplaced jacket. Dr. Henderson in her initial assessment of C1., conducted not long after apprehension, found that she was extremely anxious about what she saw as her failure to take adequate care of C2.. She blamed herself for the apprehension. [ 46 ] I find that another likely cause of C1.’ anxiety was Ms.

C.M.’s angry outbursts towards others in the children’s presence, outbursts which at times worried both children. I discuss this issue more below, in my review of Ms. C.M.’s situation. [ 47 ] I am not prepared to ground the protection finding on C1.’ alleged difficulty in resolving conflict, or her alleged academic difficulties, or her alleged suicidal utterances. [ 48 ] Evidence about the quality of C1.’ relationship with her peers and ability to negotiate conflict is mixed. The principal found C1. less able to negotiate conflict than other children her age.

C1.’ teacher said that she was a “cooperative student with many friends” who reacted more strongly than other girls to disagreements. In the report card issued just two weeks before the apprehension, the same teacher rated C1.’ conflict resolution skills as “good”. [ 49 ] Although C1. missed many days of school in the year before apprehension and did not always complete homework, her report card does not indicate that she was “struggling academically”. Although she achieved only D’s in some aspects of mathematics, her other marks were A’s, B’s and C’s.

Her learning skills were rated as “good” or “satisfactory”. [ 50 ] As for C1.’ alleged suicidal utterances, the evidence does not support a conclusion that there was a real risk prior to apprehension that C1. would intentionally harm herself, or that the Society believed that there was such a risk. The record indicates that as early as November 2004, C1 . periodically threatened to “kill myself”. Daycare staff interpreted these statements as expressions of frustration when C1. could not get her own way. The record shows C1. making similar statements in 2006. From July 2004, Mr.

Smith visited the home monthly, and was in close contact with the school and daycare. The Society was aware of these statements. There is no evidence that the Society perceived these statements as indicating that C1. was at risk, or that the Society recommended that Ms. C.M. seek professional assistance for C1. because of these statements. Further, there is no evidence that C1. was making statements such as this in the months leading up to the apprehension. [ 51 ] C1. made statements threatening to “kill myself” after her apprehension, in her first foster home, a home in which she was very unhappy.

She was referred for assessment at Youthdale. Youthdale was prepared to offer treatment. The Society did not pursue treatment for the child, deciding that transfer to a new foster home was “the least disruptive alternative”. [ 52 ] Dr. Henderson in her assessment did not interpret such statements by C1. as indicating a risk that the child would harm herself. Dr. Henderson found it significant that C1. did not show signs of depression, and that she had never acted on her threats. Dr. Henderson characterized C1.’ statements as expressions of frustration. [ 53 ] It is worth pointing out that Dr.

Henderson’s assessment of C1.’ mental health had many positive aspects. She found that C1. had “well-developed personal resources” and showed “emotional strength and resilience… and some self awareness”. There were no signs of mental illness, and no indication of cognitive problems. The children’s condition in Society care C2. [ 54 ] C2. has lived in Mr. S.’s foster home since August 2009. His emotional state has calmed and his behaviour has improved dramatically. Mr. S. testified that C2. is a model for the other boys in the house, telling them to make sure that they “follow the rules”.

C2.’s academic performance has improved considerably. The school has dispensed with the behavioural component of his IEP. [ 55 ] Dr. Henderson’s second assessment of C2. reflects the improvements noted by Mr. S.. She echoes Mr. S.’s view that C2. responds well to clear, consistent rules. Both of them believe that C2. still needs help in managing his feelings and impulses. C1. [ 56 ] Things have not gone as smoothly for C1. as for C2.. As noted above, C1. had to be moved from her second foster home in January 2011 to a third foster home.

She appears to be settling into that home, but she has not been there very long. She has started some counselling, although the evidence did not establish what issues that counselling is to address. [ 57 ] C1.’ final report card from the 2009-2010 school year does not indicate an improvement in her academic performance from the year prior to the apprehension. The “learning skills” portion of the report indicates that homework completion is a bigger problem than it was in the prior year, when C1. was with her mother. [ 58 ] In her testimony, Dr.

Henderson confirmed her earlier generally positive assessment of C1.’ emotional health. She also noted two changes. First, C1. is less impulsive than noted in the prior assessment. Second, there are signs that C1.’ reality control is

slipping. This may be a result of the great anxiety she feels about the possibility that she will not be able to return to her mother, or may reflect worry about the latest change in her placement. C1. has consistently and vehemently said that she wants to return to live with her mother. [ 59 ] Dr. Henderson recommended that C1. get professional help in two areas: • help to improve her ability to interact with peers, including development of conflict resolution strategies, and • help to assist her to individuate from her mother. [ 60 ] Dr. Henderson testified that C1. identifies so completely with Ms.

C.M. that she does not see herself as a separate person. She must develop this sense of a separate self, if she is to develop into a healthy adult. It would be helpful if Ms. C.M. participated in counselling for this purpose. Children’s attachment to Mother [ 61 ] Both children are very attached to their mother. [ 62 ] Dr. Amin did not assess the children, but hazarded an opinion that their attachment to Ms. C.M. was “disorganized”, a diagnosis with serious negative consequences.

He observed that the children had the same characteristics as their mother—poor self control, poor frustration tolerance, and aggressive tendencies—and predicted that if they were returned to her that they will regress. [ 63 ] Dr. Henderson testified that she did not have enough information to make a diagnosis of “disorganized attachment”. She described the children’s attachments to Ms. C.M. as “insecure”. Dr. Henderson said that individuals with insecure attachments can be functional and even successful in many ways, although they will likely have difficulty with intimate relationships. [ 64 ] I prefer Dr.

Henderson’s opinion about the children’s functioning and emotional health to that of Dr. Amin. Dr. Henderson actually assessed the children, and Dr. Amin did not. In addition, in my view Dr. Amin’s opinion suffered from his failure to acknowledge the positive aspects of C1.’ emotional health, aspects noted by Dr. Henderson. Children’s wishes [ 65 ] C1.’ desire to return to her mother’s care has been consistent and intense. Dr.

Amin testified that although an order keeping her in care would be disappointing to her, that the emotional upset would be insignificant and transitory, akin to his two-year old grandson’s tantrum when told he could not go outside. Dr. Henderson testified that such a decision would have a “devastating” impact on C1., and that the child would require very careful professional supports to maintain emotional balance. For the reasons already set out above, I prefer her opinion on this point to Dr. Amin’s. [ 66 ] C1. recently visited with Mr. T.C. again. The visit was cautious on her part.

It is not clear if she wishes to continue to see him. [ 67 ] C2. has not been as clear and consistent in his wishes as his sister. However, since January 2010 he has told his lawyer that he wants to return to Ms. C.M.’s care. This may result in part a result of pressure from C1.. C2.’s second choice is to live with his father. He consistently shows great enthusiasm for visits with him. [ 68 ] The children want to continue to visit with T.. [ 69 ] If the children are not returned to their mother, they want to continue to see her.

C1. would want her visits to be increased. [ 70 ] Even though the relationship between C1. and C2. is conflictual, the children very much want to continue to see each other if they are not placed together with their mother. Mother [ 71 ] Ms. C.M. loves her children very much. She tries her best. In the past she has dealt successfully with some major obstacles to being an adequate parent. Ms. C.M. complied with conditions in past court orders. She participated in substance abuse programs and parenting courses. She no longer engages in prostitution or drug abuse [5] . [ 72 ] Ms.

C.M. has had little support in dealing with the challenges in her life, particularly in recent years. Some of that lack of support may result from her suspicion of others. She lives alone, and is socially isolated, except for occasional volunteer work at the Food Bank. She testified that she does not trust others: “people are trouble”. She stopped attending church regularly when the children were apprehended.

She is not in regular contact with family members. (In any event, it appears that her brother and sister both have mental health problems, and are not in a position to assist her.) [ 73 ] Shortly before this trial began, Ms. C.M. and Mr. T.C. talked. He says that he is now ready to assist, practically and monetarily, if the children are returned to her. The viability of this collaboration has not been tested. [ 74 ] Ms. C.M. has serious chronic health problems, osteoarthritis and osteoporosis. She is prescribed and takes oxycontin and

medical marijuana to control her pain. [ 75 ] Ms. C.M.’s income is from a provincial disability payment (ODSP) and child support payments. Mr. T.C. continued those payments even after the children were apprehended, so that Ms. C.M.’s income was not greatly reduced when the children were removed from her care. Ms. C.M. still occupies the three bedroom townhouse that she and the children had at the time of apprehension. If the children are not returned to her, she expects that she will be moved to a bachelor unit. [ 76 ] Ms. C.M. lives in the same public housing project in which she was raised as a child.

She encountered harassment from other tenants, apparently because C1. gave police information in a criminal investigation in the project. This led to some nasty confrontations with neighbours, but according to Ms. C.M., the housing authority evicted the trouble-makers, and she has not had problems in the past year. [ 77 ] The Society alleges that Ms. C.M. instigates conflict with others, and exposes the children to that conflict. I do not find that Ms.

C.M. unjustifiably instigates conflict, but there is some truth to the suggestion that when she is in an uncomfortable situation, that she will react angrily, even when the children are present. This places stress on the children. I heard evidence about Ms. C.M.’s “meltdown” at the school, when she was called to take the children home because they were infected with lice. I heard evidence about Ms. C.M.’s screaming at the children at a medical clinic. I heard evidence about Ms. C.M.’s screaming at Society workers in an elevator. All these incidents took place in the children’s presence. Ms.

C.M. testified that problems with pain control affected her behaviour during some of these incidents. [ 78 ] Despite Ms. C.M.’s love of her children and her motivation to be a good mother, she has significant difficulties in parenting. [ 79 ] Ms. C.M. is generally able to provide adequate physical care. She is not transient, and has provided a physically stable residence. Despite some evidence suggesting that she has not always provided good lunches or clean clothing for the children, I find that she does feed and clothe them adequately. [ 80 ] The evidence establishes that Ms.

C.M. has real difficulty in supporting the social and emotional development of the children, and particularly of C2.. Ms. C.M. was frequently unable to manage C2.. In her care, C2. was an out-of-control child, aggressive to others and unable to control his own frustration. [ 81 ] Ms. C.M. placed adult responsibilities on C1.’ shoulders, causing great anxiety for the child. [ 82 ] Dr. Amin’s opinion is that Ms. C.M. is unable to adequately parent either C1. or C2.. Dr. Amin found that Ms. C.M. lacked insight and self control, and had poor frustration tolerance and aggressive tendencies. He testified that Ms.

C.M.’s intelligence is low—the bottom 1% of the population. More important, in his opinion, is the fact that Ms. C.M.’s ability to process information -- to learn from experience and change behaviour -- is very low. Because Ms. C.M. is unable to learn, parenting courses are unlikely to help her. [ 83 ] In Dr. Amin’s opinion, Ms. C.M. is unable to provide the children with the necessary support to allow them to develop into healthy adults. Dr. Amin also believes that C2. would be at risk of physical harm if he was returned to Ms. C.M. Ms.

C.M. would be unable to keep the child safe, because she does not perceive risks that exist for him. [ 84 ] Dr. Amin’s assessment of Ms. C.M. is based almost entirely on the results of intelligence and psychological testing. Only two of the psychological tests administered purport to test parenting ability. Dr. Amin’s evidence was that he was unaware as to whether the results of any of these tests have been shown to be predictive of future parenting performance. I place limited reliance on Dr. Amin’s evidence. I found his evidence helpful primarily in instances in which his views of Ms.

C.M. confirmed the picture of her that emerged from other evidence. Mother’s plan [ 85 ] The evidence demonstrates that Ms. C.M. cannot safely care for C2., and that she cannot provide him with the social and emotional support that he needs to become a functional adult. [ 86 ] C2. is a very active child. He requires close supervision by an adult. The risk of physical harm that brought him into care was quite serious. That risk has not diminished. C2.’s behaviour has improved tremendously in Mr. S.’s care. Based on the evidence, I find that Ms.

C.M. cannot provide C2. with the clear and consistent parenting he has received from Mr. S., and that C2. is likely to regress if returned to her. [ 87 ] Is it likely that this deficit in Ms. C.M.’s parenting ability will be improved in the foreseeable future? The evidence does not indicate that an improvement is likely. Ms. C.M. stated at this trial said that she now accepts that her supervision of C2. was lacking, and that she was willing to participate in any treatment that the court deemed necessary if he could be returned to her.

However, her evidence as a whole did not indicate that she saw any real problems in her past care of the child, or demonstrate that she has insight into the cause of such problems. Despite the numerous warnings from Mr. Smith and the instruction from parenting courses she has taken in the past, she failed to appreciate the inadequacy of her supervision of C2.. She repeatedly rejected the assistance of a parent support worker, and the help available at the Child Development Institute. I do not hold out much hope that counselling will lead to a significant improvement in Ms.

C.M.’s awareness or her child management skills. [ 88 ] C1.’ situation is much different than C2.’s. I doubt that the problems that the Society has alleged in Ms. C.M.’s care of C1. would, in themselves, have prompted an apprehension. [ 89 ] I am not persuaded by the Society’s submission that C1. would be at risk of physical harm if she returns to her mother.

The Society argued that she was, based on her alleged threats of self-harm. I have already explained why I do not accept that C1. is at risk of intentional self-harm. [ 90 ] The Society also argued that C1. had been (and continued to be) at risk of physical harm in her mother’s care because two days before the apprehension, C1. had been allowed to heat soup on the stove, spilled it when she was eating, and burned herself. C1. was ten years old at the time. Heating soup does not seem like an unacceptably risky activity for a child of that age. I received no evidence that the burn that C1. suffered was serious. Ms.

C.M. provided the child with antiseptic cream, which she used. When the foster mother attempted to take C1. to a doctor after the apprehension, the child resisted examination. The Society did not take further steps to have her receive medical treatment. The burn healed satisfactorily. I do not think that this incident indicates negligent parenting on Ms. C.M.’s part, or supports the submission that there is a physical risk to C1. now if, at twelve years old, she returns to her mother’s care. [ 91 ] The Society argued further that Ms.

C.M. placed C1. at risk by leaving her alone (when she went out to find cream for the child’s burn). Section 79 (3) and (4) of the Act provide that no one shall leave a child under sixteen years of age without making reasonable provision for the child’s care; if the child is less than ten years of age , the onus of establishing that care was adequate rests with the parent. Here, C1. was ten years old. The evidence indicates that she was a responsible child. There is no evidence that the burn was serious.

I do not find that leaving C1. alone for two hours in order to secure medication for the child was negligent in all the circumstances. (As I have already observed, however, leaving C1. in charge of C2.’s supervision placed an unacceptable pressure on her.) [ 92 ] The Society’s argument against returning C1. to her mother was more vigorous when dealing with the risks to the child’s long term emotional health posed by such an order. I begin by observing that, unlike C2., C1.’ personal resources are strong. She is resilient.

Much of the pressure experienced by C1. prior to apprehension was related to the inappropriate reliance of Ms. C.M. on C1. to supervise C2.. If C1. returns to Ms. C.M.’s care, but C2. is not part of the household, that pressure would be removed. As Dr. Amin acknowledged, Ms. C.M. would be better able to manage the care of one child than two. [ 93 ] I acknowledge that there is little evidence that Ms. C.M. understands C1.’ psychological and developmental needs. It will be important to connect C1. with outside resources that will support her in the work that Dr.

Henderson has identified as necessary for her personal development—improvement of her ability to relate to peers, and individuation from her mother. These resources include the behavioural/cognitive counselling recommended by Dr. Henderson, and a relationship with a Big Sister or other female mentor. It would be unrealistic to expect Ms. C.M. to take the lead in finding and connecting with these resources. That work can be done by the Society. I am confident that Ms. C.M., if ordered to do so, will take C1. to appointments arranged by the Society, and will make her best effort to participate in counselling.

In the past, Ms. C.M. has demonstrated that she can comply with the conditions set out in court orders (as opposed to suggestions from a social worker). [ 94 ] An important factor in my assessment of what is in C1.’ best interests is the intensity of her wish to return to her mother’s care, and the effect on her of a denial of that wish. Of course, a child’s wishes, even if she is twelve years old, are not the only factor in the determination of her best interests. However, the evidence indicates that C1. is under great stress in care. Based on Dr.

Henderson’s evidence, I do not reasonably expect that this stress would diminish with a decision that prevents her from reuniting with her mother. I think that the better decision is to allow her to go home, and provide her with as many supports as possible. Father [ 95 ] All the evidence I heard about Mr. T.C.’s skills with children was very positive. Mr. Smith and C2.’s foster father Mr. S. were impressed with his sensitivity to the issues C2. faced, and his warmth and skill in handling the child. [ 96 ] P.B., Mr. T.C.’s former employer and his friend, testified that Mr.

T.C. was an invaluable support to him in 2004-5 when he was caring for three children as a single parent. A.C., Mr. T.C.’s former fiancée, also has a high opinion of Mr. T.C.’s child care skills. Ms. C. has a young son who is autistic and deaf; she testified that Mr. T.C. was a patient and calming influence on the child. [ 97 ] Mr. T.C. works as a painter and dry-waller. He is in the process of changing his employment. The change means that he will not be required to work out of the Toronto area, and that he will have more flexible hours of work. He says that if one or both of the children are returned to Ms.

C.M., that he will assist in any way that he can—by providing transportation or childcare, and by paying for additional needs of the children. If they are not returned to Ms. C.M., he says that he can care for them, with the assistance of his roommate, J.B., and his neighbours and friends. [ 98 ] Mr. T.C. acknowledges that given C1.’ attitude towards him, family therapy would be required to make his plan for her workable. [ 99 ] Mr. T.C. has since December 2009 shared a home with an old friend, J.B.. Mr. B. owns the home. Mr. T.C. testified that Mr.

B. is supportive of his plan to have one or both children live with him, and that Mr. B. will participate in childcare. Each child would have his/her own bedroom. Mr. B. works in the home renovation business, and has a flexible schedule. Unfortunately, Mr. B. was unavailable to give evidence at the trial. [ 100 ] Given the 11 th hour presentation of this plan by Mr. T.C., the Society was unable to complete its assessment before the end of the trial. The Society submitted that before it could approve a placement of C2. with his father, it would want to assess the results of a period of overnight access, and Mr.

T.C.’s motivation and ability to participate in planning to meet the child’s needs. Regardless of the decision the court makes about a plan for C2., the Society is in the process of completing the police checks needed to allow it to approve overnight visits between Mr. T.C. and the child. Father’s plan

[ 101 ] Mr. T.C.’s alternate plan for C1. is unrealistic for the foreseeable future. At the present time, C1. has not even decided that she wants to visit with him. [ 102 ] However, Mr. T.C.’s plan for C2.—that the child live with him-- is very attractive. C2. clearly loves being with his father. Mr. T.C. appears to have the child care skills that C2. needs—the ability to provide calm, loving, consistent guidance.

If a child cannot be returned home to the parent who cared for him before an apprehension, the Act favours placement with a family member, if it is otherwise in the child’s best interests. [ 103 ] C2. is receiving good care in Mr. S.’s home, and Mr. S.’s current plan is to offer a placement for the long term. Despite a foster parent’s good intentions, it is well known that children subject to an order of Crown wardship often suffer changes in placement. On average, a child in care is moved approximately every two years.

Placement with a parent, if that parent can offer a good home, is likely to offer more stability. [ 104 ] I agree with the Society that Mr. T.C.’s plan needs further investigation. Part of that investigation will involve testing Mr. T.C.’s commitment to the plan in the long term. Mr. T.C. in 2004 indicated an interest in playing a

part in the children’s lives, and did not follow through. He now appears to have given very serious consideration to his offer to provide a home for C2.. But I am conscious of the fact that a premature removal of C2. from the Society care—which currently entails placement with Mr. S.—would disrupt the child’s much-needed stability. [ 105 ] In my view, the order that would serve C2.’s best interests is an order of Society wardship for six months. This would allow a period during which C2. would have overnight access to his father. It would allow Mr.

T.C. to attend plan of care meetings, and to meet with C2.’s teachers. It would allow him to meet with Mr. S., to plan for a possible transition. It would allow the Society to complete the necessary checks of him and Mr. B.. Extension of the statutory time limit [ 106 ] Both orders which I propose to make involve an extension of the time a child is in temporary Society care beyond the statutory time limit. [ 107 ] Such a decision would be an exception to the general rule set out in section 70(1).

Case law indicates that the decision to extend this time limit must be child-focussed and in the child’s best interests (as opposed to the parent’s interest), viewed from the child’s perspective. [6] In considering a request to extend this time limit, Justice George Czutrin observed that “ when the statutory time limit has significantly passed, as it has here, it would be an exceptional case where the time lines are not a significant and appropriate consideration.” [7] [ 108 ] C1. has already been in care for a cumulative period (including the four months she was in care in 2004) exceeding three years—more than one year beyond the statutory limit.

The order which I propose to make will extend the Society wardship for a further 1 ½ months, in order to allow her to complete her school year. Ms. C.M., although she wants C1. to return home as soon as possible, agrees that the extension is justified. So does C1.’ lawyer. The Society although it does not support C1.’ return, raises no objection to the extension if a return order is to be made.

In my view, this short extension of Society wardship is clearly in C1.’ best interests. [8] [ 109 ] The order which I propose to make for C2. would involve an extension of Society wardship of approximately three months beyond the statutory time limit. The Society opposes an extension, an order which it says will be “unsettling” for C2. because he will not be assured of a permanent placement now. The Society affirms that it will continue to assess Mr. T.C.’s plan for C2. if Crown wardship is ordered, but argues that the onus should be on Mr.

T.C. to bring a status review proceeding, as it was only his late submission of a plan that necessitates the consideration of an extension. [ 110 ] C2.’s lawyer supports an order granting an extension to allow further consideration of Mr. T.C.’s plan. She agrees that the extension was triggered by the lateness of the plan, but points out that the focus of a decision to extend should be not whether Mr.

T.C. is at fault his tardiness in submitting a plan, but whether the extension is desirable viewed from C2.’s viewpoint. [ 111 ] An order for a slight extension which facilitates the realistic possibility for C2. that he may be able to be placed with his father is in my view in his best interests. Such a plan, if viable, is more likely to offer long-term stability for the child than an order of Crown wardship with access.

An extension will not threaten C2.’s current placement. [ 112 ] It is possible that within the next six months, all parties may agree that it is in C2.’s best interests to be placed with his father. However, if order of Crown wardship is made now and a placement of C2. with his father is not subsequently agreed to, then it would be on Mr. T.C.’s shoulders to initiate a status review. Mr. T.C. is self-represented, and I have some concern about his ability to undertake the work necessary to initiate a status review.

An extension order insures that the Society will have the responsibility of returning the case to court. Disposition [ 113 ] My order with respect to C1. is that she be a ward of the Society until June 29, 2011, when she will be placed with her mother, subject to Society supervision for a period of twelve months. That placement will be subject to following conditions: 1. Ms. C.M. shall cooperate with announced and unannounced visits by the Society, and she shall sign consents to release of information as requested by the Society. 2. Ms. C.M. shall insure that C1. attends school regularly.

3. The Society shall arrange for counselling for C1. to assist her in the areas identified by Dr. Henderson—interaction with peers, and individuation from her mother. Ms. C.M. shall insure that C1. attend appointments for this counselling and shall participate in the counselling if requested by the counsellor. 4. The Society shall arrange for a Big Sister or other adult female mentor for C1. . 5. The Society shall arrange for a summer camp program for C1., and shall arrange for at least one extra-curricular program during all terms of the school year. Ms.

C.M. shall insure that C1. attends these programs. [ 114 ] C1. shall have access to Mr. T.C. at times agreed upon by the parties and C1.. [ 115 ] My order with respect to C2. is that he be a Society ward for a period of six months. C2. shall have access to his father a minimum of once each week, on Saturday. That access shall be expanded to weekend overnight access as soon as the Society has completed the necessary record checks. [ 116 ] C2.’s access to his mother shall be a minimum of once each week for one hour.

This access shall be supervised by the Society, unless the parties agree that supervision is unnecessary. [ 117 ] The Society shall insure regular contact between C2. and C1., and shall allow periodic visits by the children with T.. Released on: 16 May 2011. Signed: “Justice Ellen B. Murray”