Children’s Aid Society of Toronto v. E.U., 2014 ONCJ 299

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. COURT FILE NO. C57278/12 DATE: 2014-06-19 Citation: Children’s Aid Society of Toronto v. E.U. , 2014 ONCJ 299 ONTARIO COURT OF JUSTICE IN THE MATTER OF AN AMENDED PROTECTION APPLICATION UNDER

PART III OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990, C. 11, FOR THE CROWN WARDSHIP OF A.E.T, BORN ON […], 2004. B E T W E E N: ) ) CHILDREN’S AID SOCIETY OF TORONTO ) ) ) CAROLINE HANDELMAN, for the APPLICANT ) APPLICANT ) ) - and - ) ) )

E.U. and L.T. ) ) ) CHERRY E. ISAACS-REYNOLDS for the RESPONDENT, E.U. ) RESPONDENTS ) ) KATHARINA JANCZARUK, for the RESPONDENT, L.T. ) ) HEARD: JUNE 2-6, 9-13, 2014 JUSTICE S.B. SHERR REASONS FOR JUDGMENT Part One – Introduction [ 1 ] The Children’s Aid Society of Toronto (the society) has brought an amended protection application seeking a finding that A.E.T. (the child), born on […], 2004, is a child in need of protection pursuant to sub-clauses 37 (2) (b) (

i) and (ii), and clauses 37 (2) (

g) and (

i) of the Child and Family Services Act (the Act). The society seeks a disposition order that the child be made a crown ward, with no order for access. [ 2 ] The respondents (the parents), E.U. (the mother) and L.T. (the father), are the child’s parents. They are married and live together. They ask that the society’s application be dismissed. In the alternative, if the child is found to be in need of protection, the father asks that the child be placed with him, while the mother asks that the child be placed with the parents jointly, subject to society supervision.

In the event that the child is made a crown ward, both parents ask that the court make an order for access. [ 3 ] The child was apprehended from the parents’ care by the society on July 22, 2012. On August 3, 2013, the child was placed with An. R. and Az. R. (the caregivers) at the request of the parents. The child has lived with the caregivers since then. The society’s plan is for the child to continue to live with and be adopted by the caregivers.

The parents currently have supervised access to the child. [ 4 ] The Office of the Children’s Lawyer, on behalf of the child, supports the society’s requests concerning the finding in need of protection, disposition and the plan to have the child adopted by the caregivers. They seek an order that the child have a right of access to the parents. They oppose the court making an order that the parents have a right of access to the child. [ 5 ] During the trial, the parties submitted an Agreed Statement of Facts with respect to the statutory findings concerning the child pursuant to subsection 47 (2) of the Act.

An order will go based on the findings agreed to. [ 6 ] The primary issues for the court to decide are:

a) Is the child in need of protection pursuant to the Act?

b) If so, what disposition order is in her best interests?

c) If the court makes an order that the child should be made a crown ward, should an access order be made?

d) If an access order is made, who should hold the right of access?

e) If an access order is made, what terms should be ordered? [ 7 ] The trial of these issues was heard over ten days. On consent of the parties, this trial was conducted as a blended proceeding. The court did not consider evidence that went solely to the issue of disposition in determining if the child was in need of protection. Part Two – Preliminary matters 2.1 Interpreting [ 8 ] The first language of the parents is Hungarian. The court provided a court interpreter throughout the proceedings. Both parents requested to give their testimony in English.

On occasion, they used the services of the interpreter to ensure that they understood the question asked of them and on occasion, gave their answers in Hungarian. They also chose not to use the interpreter during the latter days of the trial. The interpreter was available to them in court to interpret any evidence at their request. 2.2 Credibility [ 9 ] The society called seven of their workers and a child protection worker from the Children’s Aid Society of Oxford County to give evidence at trial. They also called one of the caregivers (An.

R.), a police officer, a psychologist who assessed the child and a community witness. I generally found the evidence of these witnesses to be credible and reliable. [1] For the most part the evidence of these witnesses was given in a clear and straightforward manner. Their evidence was substantially consistent with the evidence of the other witnesses and often corroborated by independent documentation. The professional witnesses kept contemporaneous notes of events, which enhanced the reliability of their evidence.

I found that most of the society workers provided balanced evidence, setting out the positive qualities of the parents as well as their challenges. [ 10 ] Two psychiatrists who examined the father testified. They were both qualified as experts in psychiatry. Their evidence was also given in a straightforward manner and was credible. They both readily acknowledged the limitations of their assessments. [ 11 ] The mother called her counselor to testify, as well as two community witnesses. She also called the caregivers as part of her case. The father also called two community witnesses to testify.

All of these witnesses testified about their knowledge of the parents and the child to the best of their ability. [2] [ 12 ] It was very clear to the court that the parents love the child very much and desperately want to parent her. That said, their evidence was very unreliable. [ 13 ] The father often gave his evidence in a rambling and disjointed manner. He would become evasive when challenged about his evidence. The content of his evidence would rapidly change at these times. It sometimes made little sense.

I considered that some of these problems were a function of language difficulties or the father’s personality. However, there was a pronounced difference in the father’s ability to answer questions in direct evidence or in friendly cross-examination (by the mother’s counsel) from when he was challenged by child’s counsel or society counsel. While the father occasionally gave tangential answers when questioned by his own

counsel and the mother’s counsel (mostly in a desire to provide the court with information), for the most part he answered their questions in a calm, coherent and thoughtful manner. However, when challenged by counsel for the society or the child, the father would often become evasive, go on long soliloquies about unrelated matters, talk over counsel and at times become emotional. The evidence revealed that the father is prone to exaggeration and hyperbole. Many of his statements made to professionals throughout their involvement with him were proved to be false.

The evidence also established that the father is prepared to say what he feels is necessary to accomplish his objectives. [ 14 ] The mother was more composed in presenting her evidence, but was not much more reliable than the father. She would often deny knowledge of an incident, but when confronted with documentary evidence refuting her answer, quickly come up with a lengthy explanation of the incident. She was very defensive of the father’s behaviour, often taking blame for any incident involving him. She often minimized the behaviour of the father and herself.

The mother, at times, would become evasive when challenged, but not anywhere to the same degree as the father. [ 15 ] Examples of the difficulties with the parents’ evidence will be provided throughout this decision. [ 16 ] Where the evidence of society witnesses conflicted with the parents’ evidence, I preferred the evidence of the society witnesses. The court wishes to emphasize that an adverse finding of credibility is not in and of itself a protection concern.

However, it is important when making findings of fact. 2.3 The child’s statements [ 17 ] The court received considerable evidence from multiple witnesses about what the child said to them. No party objected to the admission of this evidence or challenged the necessity of receiving it in this manner. Any inherent difficulties caused by the hearsay nature of much of this evidence went to weight. [ 18 ] The court found the evidence related by the child to the professional witnesses to be reliable.

This evidence was very consistent over a lengthy period of time, and recorded contemporaneously by professional witnesses, who have an obligation to record this evidence accurately. This evidence also fit logically with other evidence provided to the court, buttressing its reliability. The parties all had the opportunity to cross-examine the persons relating the child’s statements. Lastly, the court heard that the child is mature, intelligent, thoughtful and not prone to lying or exaggeration.

The court was satisfied that the professional witnesses accurately reported the child’s evidence, as well as her independent views and preferences. Part Three – Review of the evidence 3.1 The father [ 19 ] The father is 57 years old. He was born in Hungary and came to Canada in 1981 with his first wife. He was granted refugee status and is now a Canadian citizen. The father married the mother on June 21, 2003. It is his third marriage. His second wife passed away. He divorced his first wife. The father has no other children. [ 20 ] The father is a serious religious and spiritual person.

He is of a fundamentalist Christian faith. He testified that after he finished high school he began his theological study. This study was interrupted when he was forced to join the Hungarian military at age 19. He was in the military until age 21. [3] [ 21 ] The father acknowledged that he was hospitalized in Hungary due to the emotional pressure he was under. [ 22 ] The father deposed that in the mid to late 1980s he was suffering from depression. He attributed this, in large part, to his first wife being unfaithful and that marriage falling apart.

The father was hospitalized in psychiatric units in Ontario on at least six occasions between 1985 and 1987. The father reportedly presented on some of these admissions in a psychotic state. He was diagnosed at that time with schizophrenia.

[ 23 ] The court heard from two psychiatrists who examined the father in 2012 and 2013. Neither psychiatrist believed the diagnosis of schizophrenia given to the father in the 1980s was accurate. They based these opinions on the lack of hospital admissions for the father since 1987, despite his not being on anti-psychotic medication for a long period of time, together with their clinical observations. They testified that the father did not have any major psychiatric illness when they examined him. [ 24 ] The father continued to receive out-patient treatment and was on anti-psychotic medication until 2001.

It was unclear how frequent this treatment was. [ 25 ] The father testified that from 1995 to 1999, he spent 6 months in Canada and 6 months each year in Hungary. He testified that he hosted a radio show in Hungary, where he shared his cultural, political and religious views. [ 26 ] The father said that he worked from 1999 until 2002 as a personal support worker in Canada. The father said that he left this job after he became depressed over the death of his second wife. [ 27 ] The father was in receipt of Ontario Works from 2002 to 2010.

He deposed that he worked at some part-time jobs during that time. [ 28 ] The father began studying at the Canadian Christian College in 2005. He was described at trial by the Vice-President of the College as an academically astute student who received good marks and was good to work with. He received his Bachelor of Theology Degree in 2007 and was ordained. [ 29 ] In his direct evidence, the father represented that he had completed his Master’s Degree. [4] This is not the case. The father began, but did not complete his Master’s Degree at the Canadian Christian College.

He has only completed 50% of his courses and still needs to complete his thesis. [ 30 ] In 2010, the father applied for Ontario Disability Support Plan Benefits (ODSP). The father testified that he did this because he had arthritis and back pain. He also acknowledged in cross-examination that he knew that his application had been approved on the basis of his having “Schizophrenia, with delusions, suicidal rumination and poor self-care – no review recommended”.

The father said it was his family doctor’s idea to include his old psychiatric records in the ODSP application, to “see what they would do with it”. [5] The father collected ODSP benefits until May of 2014. At no time, despite his adamant stance in this trial that he had no psychiatric illness, did he try to correct the finding of mental illness by ODSP. He was quite prepared to collect substantial benefits from the government based on their belief that he was mentally ill. [ 31 ] The father also had some encounters with the criminal justice system.

In May of 2005, the mother called the police reporting that the father was driving without a licence. In 2006, the father was convicted of driving without a licence and fined $3,000. In 2007, the father was convicted again of driving without a licence and fined $20,000. [6] [ 32 ] In September of 2005, the father was charged with assaulting the mother. He entered into a Peace Bond and the charge was withdrawn.

The mother took the blame for this incident, testifying that she had made a mistake. [ 33 ] The father deposed that in 2009 he had feelings of sadness which he felt were overwhelming and prevented him from working. [ 34 ] The father testified that he became better able to manage his pain and he has been working full-time since August of 2013 for a company called Canada Fibers. [ 35 ] The father deposed that he has always been active in his faith. He said that he has often been asked to travel abroad on behalf of churches. He said that he is frequently asked to speak at and attends many religious conferences.

A minister at his present church deposed that the father is very active in recruiting members of the Hungarian community to attend the church.

3.2 The mother [ 36 ] The mother is 38 years old. She was born in Hungary. This is her first marriage and the child is her only child. [ 37 ] The mother married the father in Canada in 2003 while on a visitor’s visa. The father sponsored her to become a permanent resident of Canada. She did not receive this status until February of 2014.

She deposed that her application was delayed for a number of reasons, including because of an unscrupulous real estate agent who disappeared with the parents’ funds. [ 38 ] The mother deposed that she has been trained as a gold and silver jeweler in Hungary and that she completed two years in Hungary at the Professional Institute of Gold-Silversmiths. She said that she worked for five years in Italy in the repair and sales of Swarovski crystal eyeglasses. [ 39 ] The mother said that she found it very difficult to be employed in Canada because she did not have a work permit.

She volunteered at several churches within her community. [ 40 ] The mother is also a very religious and spiritual person. She said that she is often asked to pray for people with her husband. [ 41 ] The mother has now found a part-time job as a casual labourer. [ 42 ] The mother acknowledged that she has struggled with anxiety and anger management issues. She said that it was difficult for her to obtain treatment because of her immigration status. She advised the society that she was prescribed Effexor for her anxiety in 2005 and provided them with the name of the doctor.

The doctor had no records of the mother attending her office. The mother told one society worker (Shannon Deacon) that she had struggled with anxiety since adolescence, had had many panic attacks in the past 12 to 18 months and had been on medication for eight years, but had not taken the medication since April of 2012. The father deposed that the mother was able to obtain the medication for a period of time through his friend’s doctor.

He became evasive about this arrangement when pressed for details. [ 43 ] The father advised several society workers that he would often arrange alternative caregivers for the child because he was concerned about the mother’s mental state and was not prepared to leave the child with the mother for an extended period of time. 3.3 The relationship between the parents and child care responsibilities [ 44 ] The parents deposed that they had considerable stressors in their relationship. Most of these were financial. They had limited income and struggled, at times, to pay their bills. They would be behind on rent.

They had to move their residence frequently. They were frustrated by the limitations placed on them by the mother’s lack of immigration status. The mother was having an affair from 2010 to 2012 with another man. The mother had anxiety and anger issues. The father stopped working in 2009 because of his overwhelming feelings of sadness. The mother and father often fought in front of the child. [ 45 ] The parties separated when the child was apprehended on July 22, 2012. [ 46 ] The mother began a new relationship after the separation and was contemplating marrying this man. She advised the child about this.

In August of 2013, this man was deported to Hungary and that relationship ended. [ 47 ] The parties reconciled in September of 2013 and remain together. They have attended marriage counseling through the Jamaican- Canadian Association and through their church.

[ 48 ] The mother testified that she was the child’s primary caregiver when the child was a baby. However, when the child became older, the child became closer to the father and he became and remained the child’s primary caregiver until the apprehension. [ 49 ] The child’s school reports prior to her apprehension were filed. They showed that the child was an eager student, but the school often expressed concerns about her attendance. In junior kindergarten, over a 3 to 4 month period, the child missed 35 days of school and the report card indicated that assessment was not possible due to her numerous absences.

In senior kindergarten, the child missed 66 days of school and was late 29 times. In grade one, the child missed 45 days of school and was late 38 times. In grade two, the child missed 36 days of school and was late 7 times. [ 50 ] The parents offered poor excuses for the child’s school attendance and didn’t appear too fazed by it at trial. The father placed the full responsibility for the poor attendance on the mother, even though he conceded he wasn’t working and was primarily responsible for taking the child to school. He said that the poor attendance and lateness happened on the days when he wasn’t available.

The mother took full responsibility (a pattern in this case) for the school lateness, explaining that she was always late making the child’s lunch and the father and child had to wait for her. No explanation was provided as to why the father couldn’t prepare a lunch if this was a continuing problem. 3.4 The Christian Retreat [ 51 ] Starting in 2007, the parents and the child would spend their summers at a Christian Retreat (the retreat) in Thamesford, Ontario (they resided the rest of the year in Toronto).

The parents stayed in one of many cottages located on this property. [ 52 ] At this retreat, the parents met the caregivers (sometime in either 2010 or 2011). An. R. testified that within a week of meeting the father, he asked her to care for the child for a weekend. The father explained to her that the mother had emotional issues and he was scared to leave the child alone with her for a long time. He told her on one occasion that the mother had schizophrenia and epilepsy. An.

R. said that one month after meeting the father, he asked her to look after the child for one week, as the father was going to Florida for a conference (the mother was still at the retreat). An. R. enjoyed having the child with her and agreed. An. R. testified that the father contacted her two weeks later, even though he had returned after one week. She ended up looking after the child for a month at his request.

Subsequently, she said that she was frequently asked to look after the child by the father, even though the mother was present at the retreat. [ 53 ] The acting retreat president (the president) testified. He expressed considerable concern about the level of supervision the parents were providing for the child. The parents had not picked up the child from the camp attached to the retreat on occasions prior to the child’s apprehension. [ 54 ] Both An. R. and the president testified that the parents frequently asked other residents at the retreat for drives and to care for the child.

They both strongly felt that the parents took advantage of the Christian charity of their neighbours. [7] 3.5 The child’s apprehension [ 55 ] The parents’ marriage was in trouble in June of 2012. The mother was having an affair with a neighbor (the neighbour) in Toronto. She testified “I kept feeling his power pulling me to Toronto”. The father (in the words of both parents), “forbid” the mother from having further contact with the neighbour.

He took the child out of school in the middle of June of 2012 and the family moved from their home in Toronto to the retreat. [8] [ 56 ] On July 5, 2012, the parents went to the hospital in Ingersoll and reported that the mother was sexually assaulted by the neighbour. The mother testified that she told hospital staff that she was unsure if she wanted to proceed with laying criminal charges or to obtain a restraining order against the neighbour. [ 57 ] The parents deposed that the father wanted to attend a Christian conference in Ottawa on the weekend of July 20-22, 2012.

The child was placed in a camp that operated on the edge of the retreat from Saturday July 21, 2012, to be picked up by the parents by noon on July, 22, 2012. The parents testified that they agreed that the mother was to pick up the child from the camp if the father did not

return in time from Ottawa. [ 58 ] The father testified about his attempts to return from Ottawa that weekend. He did not have a car and hoped to be able to have someone drive him back to Toronto. He was unable to do this and took a bus from Ottawa to Toronto late Saturday night (July 21), arriving early Sunday morning (July 22). The father testified that he met a friend (now deceased, he said) on Sunday morning, who he gave all of his cash to, because his friend needed it.

He then testified that his wife called him at about 10:00 a.m., saying that she was in Toronto, had left him for the neighbor and that he shouldn’t look for her. He said that he asked his wife to return to the camp (2 hours from Toronto) to pick up the child. He then explained that he tried to get on a bus to the camp, but he had no money on his debit card and no cash, since he had given it to his friend that morning. He tried to convince the bus driver to take him to Thamesford, without success.

He tried without success, he said, to get other bus passengers to say that they were his companions. [9] He could not get on the bus. [ 59 ] The father said he called the president at 11:00 a.m. (confirmed by the president), told him that he wouldn’t be able to pick up the child and asked him to hold onto her. The president advised the father that he would wait until 2 p.m., but if no one came, he would take action.

The father said that he tried to contact friends to pick up the child, but could find no one to do it. [ 60 ] The father said that he then contacted a friend in Sudbury, who counseled him that if he reported his wife missing to the police, then Children’s Aid could not blame him for not picking up the child. [ 61 ] The president testified that when he didn’t hear anything further from the father, he picked the child up from the camp. He said that the father called him again at 2:30 p.m. and he told the father that he was taking action as this had happened before. The president called the police. [ 62 ] P.C.

Elias from the Ingersoll detachment of the OPP attended at the retreat, confirmed the information from the president, determined that the child was in need of protection and called the Children’s Aid Society of Oxford County (Oxford). He expressed surprise about how willing the child was about going to a foster home.

He remembered her telling him, “I am glad to go to a good home”. [ 63 ] A Toronto police report filed indicates that on July 22, 2012 at 3:07 p.m., the Toronto police were dispatched to the Toronto Bus Terminal because the father had called, indicating he required an ambulance and that his wife was missing. Upon attending, the police learned that the father had been transported by an ambulance to another police division as the paramedics felt that police intervention was necessary.

The police report indicates that the father advised the police that the neighbor had sexually assaulted his wife, she was missing and he was concerned for her welfare. [ 64 ] The police report states that an investigation into the father’s story uncovered a very different set of facts. The father eventually advised the police that he had heard from his wife, he was furious that she had left the retreat and not picked up the child and that he started to yell on the phone and she hung up.

The report states that the father told the police that he realized he did not have the ticket or funds to get back to Thamesford (being dependent, according to the report, on “donations” from others at the retreat), had a breakdown and called to report his wife missing. [ 65 ] The father told the Toronto police that he “forbid” his wife from calling that “hellish man” and also “forbid” telephones and communication. [ 66 ] Upon learning the above information, the Toronto police contacted the Ingersoll OPP, who were already aware that neither parent was available to pick up the child. [ 67 ] The father says that he arrived in Thamesford at about 8:30 p.m. on July 22, 2012, spoke to the police, and learned that the child was in a foster home. [ 68 ] The mother acknowledged that she was supposed to pick the child up from camp on Sunday if the father had not returned from Ottawa.

She said that she was called by a friend of the neighbor on Saturday night (July 21) to come to Toronto and party. She had no means of transportation, so she hitchhiked from Thamesford to Toronto, arriving early on Sunday morning (July 22). The mother conceded that she didn’t make arrangements for the child to be picked up the next day or tell anyone that she was leaving, as she didn’t

want anyone to know she was going to Toronto to party. She agreed, when questioned, that she had “snuck out”. [ 69 ] The mother agreed that she phoned the father early on July 22, telling him that she was leaving him and not to look for her. He asked her to pick up the child and she said that she passed the responsibility on to him. She said that she spent the rest of the day at a beach with friends. Her friend drove her there.

The mother made the decision to do this instead of having her friend drive her back to the camp and pick up the child. [ 70 ] The mother said that she did not learn about the child’s apprehension until 7 days later.

She had not called to speak to the child, nor had she followed up on what had happened. [ 71 ] When asked whether she was concerned about her daughter being left alone, she said that she wasn’t – that she was confident that her husband would return there or someone at the retreat would look after her. 3.6 Investigation by the Children’s Aid Society of Oxford County [ 72 ] Fatima Medeiros, a child protection worker from Oxford was assigned to investigate this matter. She testified that she was involved with the case from July 23 to August 3, 2012. [ 73 ] Ms.

Medeiros said that she met with the father on July 23, 2012. She said that he presented as overwhelmed and distraught and struggled to recall what had happened that weekend. He told her it had been his responsibility to pick up the child from camp and his wife was only the back-up plan. She said that he kept changing his story about what happened on July 21 and 22. He told her at one point that he had planned to hitchhike back to the camp, as the family often hitchhiked together. [10] She said that the father was primarily focused on his wife’s infidelity and finding her. He was worried about how he would manage.

She said that she constantly tried to redirect him to focus on the child, without success. [ 74 ] Ms. Medeiros said that the father became increasingly distraught about his wife’s affair during the meeting and became incoherent. He told her that he hadn’t eaten as he had no access to food. Ms. Medeiros became concerned for the father’s safety and ended the child protection interview, and discussed safety planning for him. [ 75 ] Ms. Medeiros said that she specifically asked the father if he had any prior mental health issues, or if he had ever been on medication. The father told her no.

She said that the father told her he was on ODSP due to his back and foot pain and denied that there was any other reason for receiving these benefits. [ 76 ] Ms. Medeiros said that the father admitted to her, on reflection, that he didn’t have a good plan for the child being picked up from camp. However, he was angry at the president for not doing more to help him. At the end of the meeting, the father told Ms. Medeiros that due to his overwhelming feelings of stress it was better for the child to be with other people, but he wanted her to be with Christian people, preferably someone from the retreat. [ 77 ] Ms.

Medeiros offered the father access to the child that day but the father declined, indicating that his priority was to get back to Toronto and seek out the mother. He told Ms. Medeiros that he would try to be back for an access visit later that week. [ 78 ] The father arranged his first visit with the child on July 26, 2012. The father, at that time, proposed that the child be placed with the caregivers, describing An. R. as “a second mother to the child”. [ 79 ] The father did not seriously refute any of Ms. Medeiros’ evidence. [ 80 ] Ms. Medeiros said that she tried to locate the mother, without any success.

[ 81 ] Ms. Medeiros testified that she met with the child on July 24, 2012 who told her the following:

a) Her parents would yell and fight.

b) Her father provided most of her care.

c) Her mom was sick and took medicine.

d) At times there was no food in the home as they didn’t have any money.

e) Her father would travel a lot and her mom would go away.

f) When bad, she would get spanked, on her buttocks, over clothing.

g) When she was really bad, her mom and dad would hit her with the belt. She said that it hurts and makes her cry and then the red goes away. She said that it was OK for them to hit, since they always said sorry. [11] [ 82 ] Ms. Medeiros said that on another occasion the child told her that when her father was angry he would hit her with a belt and leave marks. The father denied ever hitting the child. [ 83 ] The child was very happy when she was eventually told that she would be living with An. R. Ms. Medeiros said that the child talked a lot about An.

R, saying that she liked her very much and that she gives her lots of food. She said that she has her own room there and has “lots of sleeps there”. [ 84 ] Ms. Medeiros expressed other concerns about the father to the court including:

a) She observed that he had difficulty reading the child’s cues at the visit she supervised, invading the child’s space.

b) She said that the father made her uncomfortable, often invading her space and touching her. She said that the father was unable to pick up on her verbal and non-verbal cues to stop.

c) The father made a number of concerning comments to her. He whispered to her at one time that he had been to Rome and there was a special arrangement that he was next in line to be the Pope. He insisted to her that he was a psychologist. [12] [ 85 ] On July 26, 2012, a protection application was issued in the Ontario Court of Justice at Woodstock, Ontario and on July 27, 2012, Oxford obtained a temporary order placing the child in their care, with access to the parents in their discretion. [ 86 ] On August 3, 2012, Oxford placed the child with the caregivers. [ 87 ] On August 23, 2012, the case was transferred to Toronto. 3.7 Investigation by the Toronto Children’s Aid Society

[ 88 ] The court heard evidence from Gabriella Schnayer, who was the society’s intake worker assigned to investigate this case once the file was transferred to Toronto. [ 89 ] Ms. Schnayer testified that she spoke to the child on August 3, 2012 who told her that she had never been to an eye doctor and had not been to a dentist in a long time. The child confirmed that she had spent a lot of time with An. R. She said that she missed her father a little. [ 90 ] Ms. Schnayer met the mother for the first time at court on August 7, 2012.

The mother attributed the child’s apprehension to a miscommunication (this was also the father’s explanation). The mother told Ms. Schnayer that she felt overwhelmed by the situation, was staying with friends and planned to get an apartment and a job. She did not want the father to have her phone number. [ 91 ] The mother called the police on August 8, 2012, saying that she wanted to get into her apartment, but had lost her key. She suspected that her husband had taken it from her at court the day before.

The police spoke to the father who confirmed that he had taken the mother’s key at court the day before, without her knowledge. He said that he didn’t want her to have access to the apartment because she had brought the neighbor there. He said that since his wife’s name is not on the lease, he had the right to take the key. No charges were laid. [ 92 ] Ms. Schnayer spoke to the child on August 8, 2012. The child said that she enjoyed staying with the caregivers, liked them and that Az. R. never shouts at her. She said that she wanted to “stay here forever”.

She said that she wanted to have visits with both of her parents. The child told her that she only wanted a one-hour visit with her parents, not two hours. [ 93 ] Ms. Schnayer said that she met with the father, who advised her that the mother had started the affair with the neighbor in 2010 and she was unable to get out of the relationship. He said that the mother often had panic attacks and he would send the child to the caregivers to protect her from this. These panic attacks, he told her, had occurred since the beginning of their relationship, ranging from very frequently to every few weeks. [ 94 ] Ms.

Schnayer testified that it was difficult to get the father to focus on the child at this meeting – he was constantly jumping from topic to topic. [ 95 ] The mother cancelled her first scheduled meeting with Ms. Schnayer. The mother told her that she wanted to meet with the father before meeting her. The mother was aware that access wouldn’t start until they had a meeting and the mother expressed that she was fine with this because she knew her daughter was in a safe place. She told Ms. Schnayer that she was busy getting a job. [ 96 ] Ms. Schnayer finally met with the mother on August 14, 2012.

The mother advised her that she was staying with friends. The mother was asked about hitchhiking. She said that it was a positive experience and there was only one incident where “someone brought her into a bush”. She contradicted the father, stating that the child did not hitchhike with them. She told the worker that she had believed that the father would pick up the child on July 22, 2012 from the camp. She said that she had left the retreat because she didn’t want conflict with the father (she did not tell Ms. Schnayer about going to Toronto to party).

She said that the father does not like her working, that he “wanted to be on top and her to be below him” and how the bible says a family should have one leader, and the father wants his family to be like this.” The mother reported that she was in a new relationship and had been going out “clubbing”. [ 97 ] The society arranged visits for the parents, fully supervised, at the society office. [ 98 ] On September 4, 2012, the father reported to the police his concerns about the mother’s relationship with the neighbour. He also contacted the police about this on October 18, 2012 and on October 21, 2012.

No charges were laid. 3.8 Child statements to Dr. Fitzgerald [ 99 ] The child was assessed by Dr. Daniel Fitzgerald on February 13, 2013 and May 9, 2014. [13] Dr. Fitzgerald was qualified as an expert in clinical psychology, as well as conducting parenting capacity and access assessments. Dr. Fitzgerald reported that the child told him the following:

a) The caregivers do not fight in front of her like her mother and father do.[14]

b) Her mother and father fight a great deal, say bad words to each other and hit each other. The fights bothered her.[15]

c) Her mother would never cook, was always sleeping and she (the child) did not receive very good care.

d) The caregivers feed her properly. Part Four -Finding in need of protection [100] The society seeks a finding that the child is in need of protection pursuant to sub-clauses 37 (2) (b) (

i) and (ii) and clauses 37 (2)(

g) and (

i) of the Act. These clauses read as follows: Child in need of protection 37(2) A child is in need of protection where, (

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

i) failure to adequately care for, provide for, supervise or protect the child, or; (ii) pattern of neglect in caring for, providing for, supervising or protecting the child; (

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

v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child; (

i) the child has been abandoned, the child’s parent has died or is unavailable to exercise his or her custodial rights over thechild and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parentrefuses or is unable or unwilling to resume the child’s care and custody; you need to move (

i) over so it’s under (g) [101] The risk of harm under clause 37 (2) (

b) of the Act must be real and likely, not speculative. See: Children's Aid Society of RainyRiver v. B.(C.), 2006 ONCJ 458 ; Children’s Aid Society of Ottawa-Carlton v. T. and T., (ON SC), [2000]O.J. No. 2273, (Ont. Fam. Ct.). [102] Inappropriate physical discipline will not always result in a finding in need of protection. The court must assess whether theinappropriate physical discipline by the parents crosses the threshold to create a risk of physical harm to the child as defined by clause 37(2) (

b) of the Act, as set out in Children’s Aid Society of Rainy River v. B. (C.), supra. See: my comments in Children’s Aid Society ofToronto v. L.E., 2012 ONCJ 516 . [103] Harm caused by neglect or error in judgment comes within the finding. See: Children’s Aid Society of the Niagara Region v T.P. (ON SC), [2003] O.J. No. 412 (Ont. Fam. Ct.). [104] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm. See: Children’s Aid Society ofToronto v. S.A.C., 2005 ONCJ 274 , [2005] O.J. No. 2154 (O.C.J.), aff’d (ON SC), [2005] O.J.

No. 4718(S.C.), aff’d 2007 ONCA 474, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 462); Jewish Family and Child Service v. K.(R.),2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903 , [2009] O.J. No. 5422, (Ont. C.A.).

[105] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admitevidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See:Children’s Aid Society of Hamilton- Wentworth v. K.R. and C.W. [2001] O.J. No. 5754 (Superior Court- Family); Brant Children’s AidSociety v. J.A.T., 2005 ONCJ 302, paragraphs 13-26. [106] The flexible approach is relevant in this case.

While I find that there were sufficient grounds to make a finding that the child wasin need of protection at the time of the child’s apprehension, the evidence obtained subsequent to the child’s apprehension reinforced theneed to make these findings. [107] The evidence is overwhelming that the child is in need of protection as pleaded by the society for the following reasons:

a) The child was abandoned by the mother at the camp on July 22, 2012 within the meaning of clause 37 (2) (

i) of the Act. It isalarming that she went to Toronto “to party” without making arrangements to pick up the child, spent the day at the beach and wastotally uninterested in and about what had happened to her child until 7 days later.

b) The father was distraught and emotionally overwhelmed on July 22, 2012. His story about having given all of his money awayto his deceased friend that morning, after a long bus ride overnight from Ottawa was not credible since, according to him, he was tryingto make his way back to the retreat to pick up the child. He was told that the police would be called if he didn’t pick up the child by 2p.m. He had time to pick up the child after learning the mother would not be doing this. Instead, he spent a lot of time trying to trackdown the mother and made the false report that she was missing to the Toronto police.

c) At best, the father showed extremely poor judgment and was unavailable to care for the child within the meaning of clause 37(2) (

i) of the Act. He entrusted the child to the mother when he was aware that she was in a fragile and emotional state. He hadpreviously ensured that the child was not left alone with her for an extended time. He admitted that he did not have a good plan to ensurethat the child was picked up from camp. He went to Ottawa with little or no money and did not make adequate plans to ensure that hecould return in time.

d) The parents were in a state of crisis on the date of apprehension. There had been significant conflict between them in front ofthe child. The child reported that the parents hit one another and she was frightened by these confrontations. The child and motherreported that the child would often withdraw from these fights and go into her room. The parents’ marriage was falling apart and neitherof the parents prioritized the needs of the child. This all created a risk of emotional harm to the child as defined in clause 37 (2) (

g) of theAct.

e) The father continued to be distraught on July 23, 2012 when he met with Ms. Medeiros. He was focused on his wife’s affair andcouldn’t be redirected to focus on the child. He told Ms. Medeiros that he was overwhelmed and it was better that the child was withother people at that time. His emotional presentation was so alarming to Ms. Medeiros that she focused on safety planning for him. Thefather turned down the opportunity to have access with the child to return to Toronto and find the mother, again placing his needs aheadof the child’s. The father was in no condition to adequately care for the child. The child was at risk of emotional and physical harm asdefined in clauses 37 (2) (

b) and (

g) of the Act.

f) The mother showed no understanding about the child’s need to have contact with her. She did not attempt to contact the childafter she left the retreat and delayed the start of access, telling Ms. Medeiros that the child would be fine.

g) The court finds that the parents used excessive physical discipline on the child. The use of a belt on the child, combined withthe child’s expressions of fear, informs the court, on a balance of probabilities, that the discipline used by the parents was not mild, butexcessive and created a risk of physical harm to the child as defined in clause 37 (2) (

b) of the Act. It is a sad commentary that the childwas taught by the parents that this behaviour was acceptable because they would always apologize. In Children’s Aid Society of Torontov. L.E. [2012] O.J. 3770, where the court wrote: The use of physical discipline was discussed by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Lawv. Canada (Attorney General), 2004 SCC 4 , [2004] 1 S.C.R. 76. This was a criminal law case, but the court's comments aboutthe use of physical discipline are helpful. The court wrote at paragraph 37:

• Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of theissue (trial decision, at para. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value giventhe cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induceaggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful.Corporal punishment which involves slaps or blows to the head is harmful (emphasis mine). These types of punishment, we mayconclude, will not be reasonable.

h) The court finds that the child’s emotional and physical needs were not being adequately met by the parents. She was beingneglected. The child was left unsupervised at times and frequently placed with other caregivers. The mother would have panic andanxiety attacks and the father reported that he did not trust the mother to be alone with the child for long periods of time. The mother wasnot receiving treatment for this condition. The child reported not having food, at times, and that the mother was not cooking, alwayssleeping and not able to care for her. She told workers that her father couldn’t cook.

The child’s school attendance was chronically poor.The parents frequently changed residences[16] and often didn’t have enough money to pay their expenses. The child did not receive allof her immunizations.[17] This, as a whole, created a risk of physical and emotional harm to the child pursuant to clauses 37 (2) (

b) and(

g) of the Act.

i) The child has consistently expressed to several professionals that she does not want to live with her parents. She hasconsistently told many of them that she also wants someone present at her visits with her parents. It is highly unusual when a child of thisage expresses such views. This speaks to how insecure she was in the parents’ care and how her emotional and physical needs were beingneglected. [108] The child is found to be in need of protection pursuant to sub-clauses 37 (2) (b) (

i) and (ii) of the Act, and clauses (

g) and (

i) ofthe Act. Part Five – Disposition 5.1 Legal Considerations [109] The court’s disposition options in this case are set out in subsection 57 (1) of the Act. This subsection reads as follows: Order where child in need of protection 57.

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

section 57.1, in the child’s bestinterests: 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 specifiedperiod 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 anotherperson under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1); 2006,c. 5, s. 13 (1-3). [110] The court also can make a custody order in favour of any person pursuant to

section 57.1 of the Act, with that person’s consent.This is not an available option here as the caregivers do not consent to being custodial parents under this section.[18] [111] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by JusticeCraig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:

1. Determine whether the disposition that is in the child’s best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not, determine whether the disposition that is in the child’s best interests is society wardship or crown wardship. (Section 57.) 2.

If a society wardship order would be in the child’s best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70 (4) is available and is in the child’s best interests. If so, extend the time and make a society wardship order. If not, make an order for crown wardship. 3. If a society wardship order is made determine whether an access order is in the child’s best interests. If not, dismiss the claim for access.

If so, make an access order containing the terms and conditions that are in the child’s best interests (section 58.) [ 112 ] Subsection 57 (2) of the Act requires that I ask the parties what efforts the society or another agency or person made to assist the child before intervention under

Part III of the Act. [ 113 ] Subsection 57 (3) of the Act requires that I look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless I determine that these alternatives would be inadequate to protect the child.

Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child. [ 114 ] Subsection 57 (4) of the Act requires me to look at community placements, including family members, before deciding to place a child in care. [ 115 ] In determining the appropriate disposition, I must decide what is in the child’s best interests.

I have considered the criteria set out in subsection 37 (3) of the Act in making this determination. This subsection reads as follows: Best interests of child 37.

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

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships by blood or through an adoption order. 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 . [ 116 ] A crown wardship order is the most profound order that a court can make.

To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children’s Aid Society of Hamilton- Wentworth v. G. (J) (1997) 23 R.F.L. 4 th 79 (SCJ- Family Branch) . [ 117 ] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the

apprehension still exist today. This must be examined from the child’s perspective. See: Catholic Children’s Aid Society of MetropolitanToronto v. C.M. (SCC), [1994] 2 S.C.R. 165 (S.C.C.). [118] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not beused as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue mustarise from something more than a heartfelt expression of a parent’s desire to resume care of the child.

There must be an arguable notiondiscernible from a parent’s evidence that they face some better prospects than what existed at the time of the society’s removal of thechild from their care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H. (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.). 5.2 Access scheduling after apprehension [119] The society, shortly after they took over this case, split up the parents’ visits due to the parents fighting in front of the child. Thefather saw the child twice each week. The mother saw the child once each week.

She was having difficulty getting to the visits on time.Once the mother started the society’s Therapeutic Access Program in September of 2013, the father agreed to reduce his visits to onceeach week. At the end of 2013 and early in 2014, the father attended irregularly at visits. He was working full-time and deposed that hecould not adjust his work schedule. His visits have been more regular in recent months. In March of 2014, the parents asked the societyfor joint visits with the child and these began in April of 2014.

The joint visits now take place once each week for two hours. [120] The parents’ access has always been supervised at the society office. 5.3 Services provided [121] The following services have been provided for the family by the society:

a) Both parents were referred to and participated in the society’s Therapeutic Access Program (TAP).

b) The family was provided with a Family Service Worker and the child was provided with a Children’s Service Worker.

c) The father was referred to a program – “Manage your problems, manage your life”. He did not complete this program because ofpoor attendance.

d) The father was referred to a parenting course at the YWCA. He refused to attend because a component of the program dealt withdomestic violence.

e) The father was referred to Aisling Discoveries and attended a parenting program.

f) The father was referred to the Canada Centre for Victims of Torture but did not attend.[19]

g) The mother was referred for counseling to the Family Service Association of Toronto and the Toronto Reconciliation MissionCentre for counseling.

h) The mother was provided with bus tokens and money for food to bring to visits.

i) Plan of Care meetings were set up to discuss the child’s progress and the parents were invited to attend.

j) The society provided and supported an appropriate placement for the child.

k) The child was assessed twice by Dr. Fitzgerald.

l) The caregivers and the child were referred to Aisling Discoveries for counseling. [ 122 ] The parents have also sought out services. The mother attended for parenting courses, individual counseling and marriage counseling (with the father) at the Jamaican-Canadian Association. The parents also are being counseled by the pastor at their present church. The father obtained psychiatric assessments from Dr. Steven Perez-Youssoufian and Dr. Steven Goldbloom, the two experts who testified at this trial. [ 123 ] The parents argued that the society did not do enough to help them – that they gave up on them.

The services listed above prove differently. The parents were very challenging clients for the society and the court finds that the society acted responsibly in assisting them. [20] The TAP was designed to assist the parents’ parenting, with the hope that the child could eventually be returned to one or both of them. [ 124 ] The parents also criticized the society for not increasing their access. The evidence sets out that the society was justified in keeping access fully supervised. The parents’ behaviour at the society office was, at times, out of control.

Further, the court was advised that the parents never moved to vary the access order. They had a reciprocal responsibility to move access forward, if warranted. [ 125 ] The mother also criticized the society for not obtaining a parenting capacity assessment. However, the mother never moved for an assessment despite the matter being before the court for 22 months. The court does not fault the society for not seeking an assessment.

There was considerable evidence available for them, and the court, to assess this case. 5.4 Community or Family Plans [ 126 ] The parents testified that they have no family members in Canada. No family plans were proposed. [ 127 ] Shortly after the child was apprehended, the father put forward the name of a friend to plan for the child. This friend did not return the society worker’s telephone calls. [ 128 ] The father proposed the caregivers to plan for the child on a short-term basis.

This plan was assessed and approved. [ 129 ] The society initially planned to place the child with the caregivers, subject to terms of society supervision. In fact, such an order was made on a temporary basis on December 17, 2012 by Justice Harvey Brownstone. [21] The society amended their protection application on December 6, 2013, seeking an order of crown wardship. The caregivers had advised the society that they were having difficulties with the parents and needed the assistance of the society in dealing with them. They also sought financial assistance from the society.

They advised the society that they wished to adopt the child. The caregivers went through the society’s assessment process and were approved as an “in care” foster home on April 1, 2014. 5.5 The plans of care 5.5.1 The society’s plan [ 130 ] The society’s plan is to have the child made a crown ward and be adopted by the caregivers. They ask that no order be made as to

access. [ 131 ] Society workers testified that the caregivers have provided an excellent home for the child. The child is thriving in their care, is healthy, happy, and meeting her developmental milestones. The caregivers, they say, are meeting all of the emotional, physical and developmental needs of the child. The child is very close to and loving with both of them. [ 132 ] The caregivers have no children of their own. They own their home. An. R. is employed part-time as a nanny. Az. R., has worked in the past as a computer programmer. [ 133 ] The caregivers testified.

They impressed the court with their love and concern for the child and how well they complement each other in raising the child. They demonstrated insight into the child’s needs. They have ensured that the child attends regularly at school and the child’s grades reflect continuing improvement. The child is very fortunate that they were there to raise her when matters fell apart for the parents. [ 134 ] The father conceded that the caregivers have taken very good care of the child. The mother acknowledged that the child is happy. [ 135 ] The caregivers plan to care for the child on a long-term basis.

They have given considerable thought as to what form their care of the child should take. They retained counsel to review the pros and cons of their various options. They considered having the child placed with them pursuant to a custody order under

section 57.1 of the Act. They came to the realization that this was not a viable option for them. [ 136 ] The parents’ attitude towards the caregivers became increasingly hostile when they learned that the caregivers were planning for the child on a long-term basis. The parents would frequently argue with them at access exchanges and meetings and call them child thieves. An. R. deposed that she was told she was “going to hell” and “would pay for what she has done”. The parents were also making several complaints about them to the society.

They started telling the child that the caregivers were trying to “steal her heart from them” and putting pressure on the child to say that she wanted to live with the parents.

This upset the child. [22] The father also started making frequent phone calls to them in March of 2014 which they considered intrusive and harassing. [23] The parents became relentless, placing considerable pressure on them. [ 137 ] The caregivers, in consultation with the society and their lawyer, came to the conclusion that they needed the society to act as a “protective shield” with the parents. [24] This could best be accomplished through a crown wardship order. [ 138 ] The caregivers both testified that they want to maintain the child’s relationship with the parents – that it is an important relationship for her.

They know the child loves her parents and wants to see them. However, they wish to reduce the amount of the child’s contact with the parents to permit her to do other activities and reduce some of the tension these visits create. [ 139 ] The parents alleged that the caregivers have alienated the child from them. To the contrary, the court finds that the caregivers understand the importance of the child’s relationship with the parents and have properly supported it. [ 140 ] The caregivers clearly understood that once an adoption order is made, the society is no longer involved.

They do not plan to immediately adopt the child – they feel the society still has a short-term role to play as a buffer with the parents. They also receive a daily stipend as foster parents, which Az. R. confirmed is very helpful. They understood the benefits of adoption for the child and want the child to be a permanent member of their family. [ 141 ] The caregivers are not Hungarian, but recognize the importance of the child knowing her cultural heritage. They are attempting to enroll her in a Hungarian language school. Az.

R. testified that he spends time on the internet with the child singing Hungarian songs or learning things about the Hungarian culture. [ 142 ] Az. R. is a Muslim and An. R. is a Pentecostal Christian. They have agreed that the child will be raised as a Christian. An. R. and the child attend weekly at the same church the child attended prior to the apprehension. Az. R. testified that he goes to social events at the church.

5.5.2 The father’s plan [ 143 ] The father asks that the child be placed in his care. His plan is to live with the mother, but states that he will be responsible for the child. He deposed that he would not leave primary responsibility of the child to the mother – “he would entrust to her only those tasks that he could oversee”. [ 144 ] The father plans to live with the mother and child in their current home and enroll the child in a school in the area. He deposed that he has a flexible work

schedule and can fit his work hours around the child’s schedule. If he had a work conflict, he said that he would arrange day-care. [ 145 ] The father deposed that he has an excellent support network, primarily from his church. He said that he would go to church regularly with the child. [ 146 ] The father said that he was prepared to go to counseling. [ 147 ] The father deposed that while it will be hard to work with the society under a supervision order, he is prepared to do so. 5.5.3 The mother’s plan [ 148 ] The mother had a different impression of the plan than the father.

She thought it was a 50/50 joint plan and was surprised when advised that the father had proposed himself as the child’s primary caregiver, who would oversee her and entrust her with few tasks. [ 149 ] The mother plans to continue working to assist her need to be independent. She now has valid immigration status which she said has relieved much of the previous pressure on her. She said that the child will have her own room at their apartment. 5.6 The child [ 150 ] The child was described in glowing terms by all of the witnesses.

They all testified that she is a bright, intelligent, active, likeable and engaging girl. She has good social skills, many friends and is a leader. She is curious and likes to learn new things. [ 151 ] The child has many interests, including track and field, swimming and skating. She loves arts and crafts. She enjoys singing and is very active in her church community. [ 152 ] The child’s report cards show that she is an excellent student.

Her January 30, 2014 report card showed that she has only missed 2 days of school since the start of the school year in September of 2013, and has only been late for school once. [ 153 ] An. R. testified that the child has a wonderful, bubbly personality, but she has faced challenges. She said that when the child came into her care, she was often defiant and stubborn. She also has difficulty having the child eat fruits and vegetables. There has been, she said, considerable improvement in the child’s behaviour since 2012, but she still has behavioural problems at times.

The family went for counseling at Aisling Discoveries in late 2013, which ended in March of 2014. The caregivers testified that they found the counseling to be helpful and that the child’s behaviour improved. The caregivers said that they are prepared to continue counseling if it is needed. [ 154 ] The child has consistently advised the professionals dealing with her that she wants to live with the caregivers permanently and be adopted by them. She wants to continue to visit with her parents and seeks no change in the present level of access.

She is very clear that she does not want unsupervised contact with the parents.

[ 155 ] The evidence showed that in 2012 and 2013 the child often did not want to go for access visits or wanted the amount of access reduced, due to her parents’ behaviours at the visits. The child expressed that she was frightened by their fighting at visits and embarrassed by her father’s frequent outbursts at society staff. She has been more content with the structure and amount of access in 2014. [ 156 ] The independence of the child’s wishes was a central issue in this case. The parents firmly believe that the child wishes to return to their care.

They do not accept the child’s wishes are as expressed above. They believe that the child has been threatened that if she does not express these views she will be placed in a foster home and never see her parents again. [ 157 ] There is absolutely no credible evidence to support the parents’ belief. [ 158 ] Dr. Fitzgerald wrote in page 4 of his May 9, 2014 report: The child is generally well-adjusted and is coping with the difficulties of her personal circumstances very well.

She continues to state quite clearly that she wants to remain in her current home with her kith parents, whom she views as loving and nurturing towards her…… The child continues to feel that she is secure and well cared for in her current placement. She values the fact that the home is a calm, stable environment and that there is no conflict between the adults in the home. The current assessment findings indicate that the child has strong cognitive abilities and is especially capable of using language to understand what is going on around her and communicate her thoughts and ideas effectively.

She shows every indication of having a mature understanding of the issues. There are some indications that she is apprehensive that her relationship with her kith parents will be disrupted. However, she is not so fearful as to be unable to cope or function while the matter is being resolved and no therapeutic supports are indicated at this time. [ 159 ] Dr. Fitzgerald testified that the child was quick to give a narrative about her life. She was clear and comfortable in understanding what to discuss. She presented as a bright child, who looks at you and makes good eye contact.

She had the clear ability to describe the events that have gone on in her life. [ 160 ] Dr. Fitzgerald testified that the child views the caregivers as her “psychological parents”. He explained that a psychological parent is the caregiver or caregivers with whom the child has the strongest attachment and bond and who can provide the child with an environment of safety and security. The psychological parent is who the child would turn to in times of distress. [ 161 ] Dr. Fitzgerald said that the child identified the caregivers as her parents.

He said that this relationship comes from nurturance, empathy, care and support. [ 162 ] Dr. Fitzgerald said that the child has more resilience than most children. [ 163 ] Dr. Fitzgerald observed that the child has “moved on” from her parents. She has been in her new home for almost two years and views the caregivers’ home as her home. He said that disrupting this would likely have a disruptive impact on the child’s development. [ 164 ] Dr.

Fitzgerald expressed no reservation about the authenticity of the child’s wishes. 5.7 The Therapeutic Access Program (TAP) [ 165 ] TAP is a teaching and assessment program operated by the society to assess and assist parents in parenting their children. It is designed to help child protection workers create and develop therapeutic access plans for the child. Shannon Deacon, the coordinator of

this program testified. 5.7.1 The father and TAP [ 166 ] The father was referred to TAP in late 2012. The referral indicated that the society was concerned about the mental health stability of both parents and that the father’s access had been inconsistent. [25] The referral was made to assess the father’s ability to parent the child safely. The society’s Family Service Worker advised Ms.

Deacon that society workers had observed that the child was uncomfortable at times in the father’s presence, that she did not always want to attend visits, and that the father appeared unable to read the child’s cues and often contributed to the child’s stress by telling her about adult issues and conflict. She was also told that the father had been verbally abusive with society staff. [26] [ 167 ] The father participated in TAP from March 18, 2013 until April 29, 2013. [ 168 ] Ms.

Deacon deposed that in her first meeting with the father, he told her that the incident that had resulted in the child being apprehended was a misunderstanding and that his wife had taken responsibility for it. He felt that his behaviours had been blown out of proportion by the society. [ 169 ] The Family Service Worker was present at this first meeting. Ms. Deacon deposed that the father became upset and agitated when hearing about the society’s concerns. She said that the father continually interrupted the Family Service Worker in a loud voice and had to be asked repeatedly to calm down. [ 170 ] Ms.

Deacon observed a visit and gave the father feedback. She observed that he was loving and attentive to the child, but some of his behaviours were intrusive and he needed to learn to read and respect the child’s cues. She said that the father disagreed with her feedback and was defensive and argumentative, frequently interrupting her and raising his voice. She said he would move around, stand up and point at her as he spoke. She said that he would not respond to redirection.

Finally, at the end of the meeting, they agreed that she would speak to the child privately to assess her views and experiences and provide feedback to him. [ 171 ] Ms. Deacon met with the child on April 25, 2014. She deposed that the child told her:

a) She likes living with the caregivers because she feels their home is calm and comfortable.

b) Her time in her parents’ care was “all over the place” and they were not home much. Her father mostly took care of her. Her mother had been sick a lot and was often sleeping or getting upset and she knew this was because of her mental health.

c) Her father would spank her with a belt or with his hand when she got in trouble. This happened about once per week.

d) She liked the visits the way they were and only wanted to go on outings with her father if the society case aide was also present. She asked to be able to stay in her current home. [ 172 ] Ms. Deacon asked the child to make a list of the things she wanted to share with her father at the next visit. The child wrote the following list on April 25, 2013 (set out as written by the child): [27] notes about visits.

a) all over the place

b) I get mad easily

c) I don’t like it when my dad spanks me with a belt and at all

d) it’s frightening when my dad yells and scream.

e) I am afraid to tell my dad things when he’s angry or stressed.

f) I get angry when my dad tells me what to say* (star added by child). [ 173 ] On April 29, 2013, Ms. Deacon met with the father and the child to facilitate a conversation about the child’s feelings, as set out in the child’s list. This did not go well. When they reached the part about spanking, the father became angry and demanded a copy of the list to take to court. He interrupted the child when she was speaking, said it wasn’t true and wanted to know why she was lying. Ms. Deacon said that the father raised his voice, spoke very loudly and began moving about in an agitated manner.

She observed that the child appeared upset. Ms. Deacon asked the child to leave the room so the father could calm down. [ 174 ] Ms. Deacon deposed that the father became increasingly upset, interrupting her several times, shaking his head and pointing at her. The father agreed he would calm down and was permitted to have his visit with the child. Ms. Deacon stated that she had concerns about how the father would crowd into the child’s space during the visit and whisper inappropriately into the child’s ear. She commented that the child was sad at the end of the visit. [ 175 ] Ms.

Deacon deposed that at the end of the visit the father said he had proof that the child did not write the list of concerns. She said he became increasingly argumentative, interrupting her, pointing in her face and leaning close to her physical space, making her uncomfortable. [ 176 ] Ms. Deacon determined that TAP was not appropriate for the father as he was unable to recognize or acknowledge any concern of risk to the child or respond appropriately to interventions.

She observed in the visits that the father was unable to recognize the child’s cues and feelings and that his reactions toward the child made the child feel uncomfortable and less safe. [ 177 ] Ms. Deacon’s evidence corroborated very similar evidence from other society workers who had observed visits and dealt with the father. 5.7.2 The mother and TAP [ 178 ] Ms. Deacon said that the mother was also referred to TAP. She was involved with the program for 13 weeks, from August 9, 2013 until December 12, 2013.

The initial concerns presented by the society were the mother’s mental health, her inability to be protective of the child and to attend consistently to the child’s physical and emotional needs. The mother had cancelled several visits and was often late for them. They were concerned about the quality of her relationship with the child and wanted to see if it could be repaired. [ 179 ] Ms. Deacon said that her first meeting with the mother went well. The mother took responsibility for her actions.

She admitted that she had experienced difficulty managing her anger; as well as having suffered from depression and anxiety. She said that she had been sick a lot, and had not been available to engage with the child. Her plan was to co-parent the child with the father. [ 180 ] Ms. Deacon testified that there was a distinct change in her second meeting with the mother. The mother appeared anxious, distracted and worried, and would interrupt her to discuss how the program would affect the father’s access. She was focused on the father not losing access time.

She said that the mother was unable to complete the meeting due to her anxiety.

[ 181 ] Plans were made for the mother to see the child twice per week. Strict conditions were put on the mother to come 30 minutes early, as she had cancelled or come late for many visits. The mother agreed that the visit would be cancell

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