Catholic Children’s Aid Society of Toronto, Applicant, — v. —, 2012 ONCJ 558

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. COURT FILE No.: Toronto C 49201/09 DATE: 2012-09-07 Citation: Catholic Children’s Aid Society of Toronto v. S.S. B. , 2012 ONCJ 558 ONTARIO COURT OF JUSTICE BETWEEN: Catholic Children’s Aid Society of Toronto, Applicant, — AND — S.S.B., and R.O.C. and C.J. Respondents Before Justice Ellen B.

Murray Heard on April 11-13,April 16-20, April 23-26, May 7-9, May 14, July 6, July 9, July 23, July 30, and August 15, 2012 Reasons for Judgment released on September 7, 2012 Ms. Fatima Husain ...................................................................................... for the applicant society Ms. Deidre Anne Newman ........................................................................ for the respondent mother No appearance by or on behalf of R.O.C. or C.J. , even though served with notice Ms.

Caterina Tempesta ........................................................ for the Office of the Children’s Lawyer,

legal representative for the child J.B. MURRAY, E. B. J.: [ 1 ] This is my judgement after trial on the application of the Catholic Children’s Aid Society of Toronto for an order finding that the children J.B., born […], 2004, and T.B., born […], 2008, are in need of protection, and an order that they be made Crown wards for the purpose of adoption. J.B. and T.B. are the children of S.S.B., who is 27 years of age. [ 2 ] The Society alleges that J.B. is in need of protection pursuant to section 37(2)(a)(

i) of the Act, in that he has suffered physical harm inflicted by Ms. S.S.B., and pursuant to section 37(2)(

g) of the Act, in that he is at risk of emotional harm demonstrated by serious anxiety or aggressive behaviour, resulting from Ms. S.S.B.’s actions or failure to act or pattern of neglect. The Society further alleges that both children are in need of protection pursuant to section 37(2)(b)(

i) and (ii) of the Act, in that they are at risk of physical harm caused by Ms. S.S.B. directly, or occasioned by her neglect or lack of supervision. [ 3 ] Ms. S.S.B. opposes the Society’s requests. She submits that there is no basis for a finding of protection, and that if such a finding is made submits that it is in the children’s best interests to be returned to her care pursuant to an order of Society supervision.

If an order of Crown wardship is made, she asks that there be continued access between her and the children. [ 4 ] The Office of the Children’s Lawyer (OCL), representing J.B., takes no position on the issue of finding or disposition.

Based on the OCL’s understanding of J.B.’s wishes, the OCL takes the position that, if a protection finding is made and if J.B. is made a Crown ward: • the child should not be separated from T.B., with whom he has a strong relationship; • if separation is unavoidable, there should be a provision insuring that there is regular access between the brothers; and • there should be a provision for some contact between J.B. and his mother . [ 5 ] R.O.C. is J.B.’s father, and C.J. is T.B.’ father.

Both men were served with the Society’s application, and neither filed an answer and plan of care or participated in the trial. R.O.C. has had no contact with J.B. since shortly after the child’s birth, and C.J. has had no contact with T.B. since January 2011. [ 6 ] The issues that I have to decide are as follows: 1. Are either or both children in need of protection? 2. If a protection finding is made, what disposition is in each child’s best interests? 3. If an order is made returning one or both children to the care of Ms. S.S.B. under supervision, what are appropriate terms of supervision? 4.

If an order of Crown wardship is made, has Ms. S.S.B. met the test which allows the court to consider making an order for access, and is access in the children’s best interests? [ 7 ] On consent, the trial was conducted as a blended hearing. In determining whether protection findings should be made, I excluded from consideration any evidence related solely to disposition. 1. HISTORY OF PROCEEDINGS [ 8 ] When the Society began this action in October, 2009, it requested a protection finding and a six month order of Society wardship. [ 9 ] Access was ordered at the Society’s discretion, a minimum of twice weekly.

Although the Society had the concerns that visits were very stressful and in its view largely negative experiences for J.B., the Society did not move to vary the order before trial. Except for some exceptions indicated below, access has always been supervised at the Society office, or at locations near the office. [ 10 ] In February 2011 the Society amended its application to seek Crown wardship for the purpose of adoption. [ 11 ] Ms. S.S.B. has filed three answers and plans of care—one at the beginning of the case, one at the outset of the trial, and one near the conclusion of the trial.

All her answers opposed a finding, and proposed that if a finding was made that the children be returned to her under Society supervision. Her second and third plans of care proposed that she live with and be assisted and supervised by individuals who would report to the Society. Her second plan of care involved her and the children living with a friend, M.A., in Ms.

M.A.’s home in Scarborough. An affidavit from Ms. M.A. setting out her support of this plan was prepared by Ms. S.S.B. ’s lawyer, but not admitted into evidence by me as Ms. M.A. refused to attend court for cross-examination. [ 12 ] Ms. S.S.B. then filed a further plan of care, proposing that she and the children live with another friend, N.W.. Ms. N.W. currently has a two bedroom apartment in the Jane/Steeles area of Toronto which she shares with her 12 year old daughter. Ms. N.W. did attend to be examined, and testified that if Ms.

S.S.B. and the children lived with her that she would seek a larger residence. 3. CONDUCT OF THE TRIAL 3.1 witnesses and evidence [ 13 ] I heard extensive evidence in this proceeding from Ms. S.S.B. and from the following witnesses: • Helen Gibbs, the family service worker, Kate Blick, the children’s service worker, and Moyra Randev, the Society’s parent support worker. • Tara Noble of Thistletown, whom I qualified as an expert in parenting assessment. • Psychologist Dr. Daniel Fitzgerald who did a psycho-educational assessment of J.B.. • Psychologist Dr.

Connie Kushnir who did a developmental assessment of T.B.. • Psychologist Dr. Denise Vallance, who assessed J.B. three times, and was qualified by me as an expert in child psychology, child development, and attachment. • Diane Moretto, a public health nurse who had contact with Ms.

S.S.B. when T.B. was born. • L.D., the boys’ foster mother from October 2009 to May 2010. • T.L. and L.L, the boys’ current foster parents (from June 2010 to date). • U.P. and V.K., J.B.’s teachers, and D.T., administrator at J.B.’s daycare centre. • Sunita Persaud, director of Birkdale Residence. • Sheilagh Beatty, an adoption worker with the Society. • Anushka Silva and Elisa Rendina-Ashley, supervisors of visits employed by outside agencies. • PC Lincoln Boyd, a police officer who investigated a disturbance involving Ms. S.S.B. and C.J.. • N.W., R.D., and L.B., Ms. S.S.B.’s friends, and J.A.H., Ms.

S.S.B.’s cousin. [ 14 ] After a voir dire, I admitted statements made by J.B. to his teachers, day care workers, and foster parents. Some statements contain allegations of abuse against Ms. S.S.B.. I also after a voir dire admitted records from Birkdale Residence as business records. [ 15 ] Some of the witnesses I heard re-attended to give evidence as a result of my mid-trial request that the Office of the Children’s Lawyer represent J.B..

I took this step after hearing conflicting evidence about J.B.’s views, and after hearing that the child had been assured by his children’s services worker that he would have a lawyer to express his views. [ 16 ] Because of the time required for counsel to familiarize herself with the case and to obtain information from collateral sources, J.B.’s lawyer did not appear before the court until July 6, 2012, after I had heard all other evidence. A clinical investigator, Ms. Silvia Novak, assisted the lawyer from the OCL. [ 17 ] The OCL lawyer and Ms.

Novak had perused the pleadings and the documentary evidence in the case; Ms. Novak had interviewed Ms. S.S.B. as well as some other witnesses who had already given evidence at the trial, and two who had not. Counsel wished to file an affidavit from Ms. Novak, setting out the results of her interviews with these individuals, in order to establish the evidentiary basis for the position she took on behalf of J.B..

The Society objected, on the basis that the proposed evidence was hearsay, and allowed witnesses who had already testified a further opportunity to give evidence on issues addressed in their prior evidence. I agreed with the Society’s objection. Although this evidence might have been admissible to set out the factual basis for an expert report, Ms. Novak was not being offered as an expert. [ 18 ] However, all counsel agreed that it would be beneficial for the court to hear from the new witnesses, as well as to hear some evidence from former witnesses about what they had told the OCL investigator.

Counsel proposed and I agreed that witness statements would be prepared by the OCL for these former witnesses, and that they would be produced for cross-examination. In this fashion, I heard briefly again from Ms. S.S.B., Ms. Gibbs, Ms. Noble, Ms. L.L., and Ms. Blick. I received an agreed statement of fact dealing with information furnished by J.B.’s current teacher, Ms. S.B.. I received a report from Dr. Jasmine Eliav, a therapist whom J.B. had begun seeing only at the outset of this trial. Last, I heard evidence from Ms. Novak about J.B.’s communications to the OCL as to

his wishes and preferences, and about her observation of J.B. with his mother on one visit. 3.2 Credibility [ 19 ] I found almost all of the witnesses in this trial reliable. The witnesses called by the Society were professionals who kept notes and had no personal interest in the outcome of the proceedings. They were careful to make clear the limits of what they observed, and to note evidence of good parenting by Ms. S.S.B., as well as perceived shortcomings. The witnesses called by Ms. S.S.B.

I also found to be truthful and careful, not pretending to know more about her situation than they actually did. [ 20 ] I also found J.B. to be a credible witness with respect to the statements he made to third parties that were received by me in evidence. The reasons for this finding are set out below in my discussion of these statements (in

section 9.1.2). [ 21 ] I did not find Ms. S.S.B. to be a credible witness. By this, I do not mean that she intentionally told untruths. I mean that her evidence was unreliable. There were many inconsistencies in her evidence that were unresolved, as well as conflicts between her evidence and that of other witnesses whose evidence I found more reliable, including witnesses called by her. When confronted with a conflict in her evidence—internal or as compared to another witness-- Ms. S.S.B.’s reaction was to claim a lack of recollection, or to deny the conflict, or to accuse the other party of lying. [ 22 ] Ms.

S.S.B.’s evidence about the alleged physical abuse of J.B. illustrates this point. In the five years of Ms. S.S.B.’s contact with the Society prior to this trial: • She denied ever using physical discipline with J.B.. • She admitted to using physical discipline with the child, but said that it was appropriate. • She admitted (to Ms. Gibbs and to Ms. Noble) that she had hit J.B. in anger and acknowledged that this was inappropriate, and apologized to J.B. for her actions. [ 23 ] At trial Ms. S.S.B. testified that she had “never touched” J.B..

She testified that J.B. was lying if he claimed that she did, or that J.B.’s teachers and daycare staff who testified as to J.B.’s reports of physical abuse by her were lying. She later gave evidence that she had hit J.B., but only for disciplinary purposes, and was always appropriate in that she did not “leave marks”. [ 24 ] There are many other examples of unreliability in Ms. S.S.B.’s evidence. For example, when she was questioned about whether she had smashed C.J.’ car window, she indignantly denied the allegation.

Later, she admitted that she smashed the window, but claimed that she was justified because he owed her $100. 4. THE FACTS: BEFORE AND INCLUDING THE APPREHENSION 4.1 Background [ 25 ] Ms. S.S.B. is now 27 years old. She was born in Grenada. Her mother was physically and emotionally abusive to her. When she was about six years old, her maternal grandmother assumed responsibility for her care. Ms. S.S.B. left Grenada to come to Canada on her own when she was 16 years old, after she had completed secondary school. [ 26 ] Sometime after Ms.

S.S.B. emigrated she was able to live with a cousin, J.A.H. and her family, where she helped care for Ms. J.A.H.’s children. Ms. J.A.H. always found her reliable. [ 27 ] Ms. S.S.B. moved out when she commenced her relationship with R.O.C.. She had very little to say about the nature of that relationship. When asked if he had been violent to her, she said “not really”. However, N.W. testified that Ms. S.S.B. had confided in her that R.O.C. was extremely abusive to her, and had locked her in a room and deprived her of food. Ms. S.S.B. was questioned about the inconsistency between her evidence and Ms.

N.W.’ testimony on this point, and had no explanation. It is not clear when or how her relationship ended. [ 28 ] By the time J.B. was born, Ms. S.S.B. was living in a city shelter. After approximately 18 months, she secured housing in a subsidized building. [ 29 ] Ms. S.S.B.’s immigration status was irregular until the fall of 2011, when she was approved for permanent residence status. Before this approval was received, she was for some time subject to an order of deportation. There was a period of time when she was not permitted to work and was ineligible for social assistance benefits.

During that time, she had no money to support herself and J.B., the one child she had at the time. She received only limited assistance from family and friends.

4.2 Early protection concerns [ 30 ] In 2007 the Society received reports that Ms. S.S.B. was struggling to provide food for herself and J.B., and a worker contacted her. She was open to receiving voluntary services. Helen Gibbs was assigned to be the family services worker, and she has continued to work with the family since that time. [ 31 ] Ms. Gibbs testified that several protection concerns emerged during her work with Ms. S.S.B.: • Inconsistency in meeting J.B.’s medical and social needs . J.B. was identified early as needing speech and language support. Despite assistance from Ms.

Gibbs in having J.B. admitted to the program and reminders to take the child for appointments, Ms. S.S.B. failed to insure his attendance. J.B. lost his spot in the program; Ms. Gibbs secured his re-admittance, but Ms. S.S.B. again failed to take him for appointments. • Excessive physical discipline . As early as December 2007 Ms. S.S.B. admitted to Ms. Gibbs that she was slapping J.B. --who was then three years old— as a disciplinary measure. Ms. Gibbs referred her to the Society’s parent support worker program to learn better child management techniques. Although Ms..

S.S.B. expressed interest in the program, she failed to respond to numerous attempts by parent support worker Moyra Randev to offer service. The concern about excessive and harsh discipline of J.B. recurred in 2008 and early 2009. At one point, Ms. S.S.B. advised Ms. Gibbs that she had stopped slapping J.B.; later, she said that she still slapped him when he was difficult to control. Occasionally, Ms. Gibbs heard her threaten the child with physical violence if he misbehaved. • Domestic violence. There was violence in the relationship between Ms. S.S.B. and C.J. to which both children were exposed [1] .

A particularly concerning incident occurred at her apartment in January 2009. C.J. kicked and punched Ms. S.S.B.; she fled to the bathroom, and he kicked in the door. Ms. S.S.B. escaped with J.B. into the hall, and C.J. followed, attempting to drag her back. J.B. was crying. Ms. S.S.B. broke away, grabbed J.B. and left. T.B. was left with C.J. in the apartment. Ms. S.S.B. did not call police because she did not want to be “hard-hearted”. • Inability to secure and maintain housing. Ms. S.S.B. was living in a subsidized housing unit when she inadvertently caused a flood that damaged other units in the building.

Eviction proceedings were begun. Despite reminders from Ms. Gibbs, Ms. S.S.B. failed to attend the landlord/tenant hearing that resulted in an eviction order in June 2009 . 4.3 Apprehension [ 32 ] Ms. S.S.B. told some friends about her plight, but they were single parents with busy lives and unable to offer assistance. She did not tell other friends, because she was embarrassed. Ms. Gibbs advocated for Ms. S.S.B. to Social Services and Housing Connections to secure appropriate housing, without immediate result. Ms.

S.S.B.’s only alternative was to bring her children to live in a city shelter, Birkdale Residence. [ 33 ] In the fall of 2009 there were reports from Birkdale and from J.B.’s school and daycare indicating that Ms. S.S.B. was hitting the child. More will be said about these reports below. The children were apprehended from Ms. S.S.B. on October 29, 2009. 5. THE FACTS: EVENTS FROM APPREHENSION TO DATE 5.1 Residential arrangements [ 34 ] After the apprehension, Ms. S.S.B. left Birkdale. The evidence is not clear as to where she went. For some time, she was living with C.J..

Later, she began sharing an apartment with a female friend, Ms. H.. Ms. H. had an active file with the Society with respect to protection concerns for her own children. 5.2 Visits [ 35 ] Visits between Ms. S.S.B. and the boys were scheduled for twice a week at Society offices. In December, 2009, a third weekly visit was begun at the Saturday access program. Very early the Society noted issues in the visits which raised further concerns about the relationship between Ms. S.S.B. and the boys—a lack of emotional engagement by Ms.

S.S.B. and failure to read the children’s cues, and a startling resistance by J.B. to attending visits.

[ 36 ] The Society offered Ms. S.S.B. the opportunity to visit with the children in the foster home, to allow her additional time with the children and time to learn and practice child management strategies with the foster parents. Ms. S.S.B. declined the offer. [ 37 ] Ms. S.S.B. was often late-- significantly late-- in arriving for visits. There were periods of improvement, followed by a recurrence of late arrivals. [ 38 ] Ms. S.S.B. cancelled a significant number of the visits. Although visits were arranged to be compatible with her work

schedule as much as possible, Ms. S.S.B. found it necessary to cancel many times, alleging work commitments or other appointments took precedence. [ 39 ] In September, 2010, Ms. S.S.B. had to cancel Saturday visits because she took employment that required some Saturday work. [ 40 ] From the time of apprehension until just a month before trial, J.B. regularly showed great reluctance to attend visits. His reluctance was manifested in extreme ways, such as refusing to get into the car which was to transport the children to the visit, or refusing to get out of the car when the visit location was reached.

When at visits, J.B. often refused to approach his mother. After visits, J.B. was often withdrawn. The boys’ first foster mother L.D. was struck by this behaviour; in her many years as a foster parent, she had observed that even abused children wanted to see their parents. [ 41 ] Many attempts were made to encourage J.B. to attend visits. Early on, it was arranged that J.B. and T.B. would be transported to visits not by Society volunteers (the usual practice) but by one person to whom J.B. could relate. That person was T.L., who was a relief worker at the children’s first foster home with L.D.. Mr.

T.L. devised various stratagems to get J.B. to go on visits, such as promising the boy a treat if he complied. [ 42 ] One avenue that might have improved J.B.’s willingness to attend visits was not explored. The evidence indicates that J.B. does not like missing school, and many visits required him to do so. Would a reduction in the number of visits have improved his attitude towards attendance? Neither Ms.

S.S.B. nor the Society workers suggested this option. [ 43 ] Over the 2-½ years that J.B. has been in foster care, there have been some positive visits, but by and large the pattern described above continued until very shortly before this trial commenced. Ms. S.S.B. began to appear on time more often and to pay more attention to J.B.. She showed improved ability to referee conflicts between the boys. J.B. reacted well. His reluctance to go on visits decreased. He initiated affection towards his mother during visits, something not observed previously by the Society workers. 6. EFFORTS TO SUPPORT MS.

S.S.B. 6.1 Early efforts [ 44 ] After the apprehension, Ms. Gibbs continued to attempt to support Ms. S.S.B.. She recommended that Ms. S.S.B. get help for anger management, stress management, and parenting. She gave her suggestions to develop a positive support system. Ms. Gibbs referred her to programs at Hincks-Dellcrest, a children’s mental health centre, to the Jamaican Canadian Centre, and to Black Creek Community Health Centre. TTC tickets were routinely provided to Ms. S.S.B., and Ms. Gibbs periodically drove her to appointments. Ms. Gibbs drove Ms.

S.S.B. to an introductory meeting at the Jamaican Canadian Centre, as she was anxious to connect her with culturally appropriate services. [ 45 ] Ms. S.S.B. enrolled and completed a parenting course at the Hincks, but otherwise did not follow through on the recommendations. She did, however, arrange to start couples’ counselling with C.J.. 6.2 Parent support worker [ 46 ] In November 2009 parental support worker Moyra Randev began attending visits, with Ms. S.S.B.’s consent, in order to assist her in developing better parenting skills. She attempted to work with Ms. S.S.B. until September 2010, when Ms.

S.S.B. was no longer available because of changes in her work schedule. [ 47 ] Ms. Randev testified that Ms. S.S.B. was generally unable to engage with or consistently manage either J.B. or T.B.. J.B. was withdrawn or angry with his mother; T.B. was often silent, sitting by himself. Ms. S.S.B. was often late for visits. Except for one visit in March, 2010, Ms. S.S.B. did not follow any of the recommendations made by Ms. Randev. On several visits, Ms. S.S.B. was too distracted by her disputes with C.J. to pay much attention at all to the children. Ms. Randev testified that Ms.

S.S.B., although she appeared intelligent, did not absorb any of the information that Ms. Randev provided about child development or effective parenting techniques. Ms. Randev did not believe that Ms. S.S.B. was very motivated to improve her relationship with the children. 6.3 Thistletown program [ 48 ] Despite what appeared to be a lack of engagement by Ms. S.S.B. with the parent support worker, Ms. Gibbs did note some improvement in Ms. S.S.B.’s attendance at and organization of visits. In the spring of 2010 she suggested that Ms.

S.S.B. participate in the Interface program at Thistletown children’s mental health centre, and Ms. S.S.B. agreed. The program was a 3-day intensive teaching/assessment process, planned for the fall of 2010.

[ 49 ] In consultation with Tara Noble, a Thistletown therapist, and Ms. S.S.B., Ms. Gibbs developed goals to help Ms. S.S.B. improve her interaction with the children prior to attending the program. Ms. S.S.B. was to develop a plan for each visit, be on time, and bring food for the children. It was hoped that that good planning and organization would help Ms. S.S.B. avoid the crises that in the past had led to her use of harsh and abusive techniques. If progress was made, Ms.

Gibbs intended to expand the visits to longer daytime periods, progressing to semi-supervised and ultimately unsupervised visits and a return home. [ 50 ] Ms. S.S.B. made some progress, but her first unsupervised visit on Canada Day 2010 was a failure. Her plan for the visit, discussed with Ms. Gibbs and with the children, was to attend a festival at Downsview Park. She did not follow the visit plan. Ms. S.S.B. did not take the children to the festival, but to a party with her friends. She returned the children late. They were in a vehicle without car seats.

J.B. was upset and disappointed. [ 51 ] After this incident, visits reverted to supervised or semi-supervised status. J.B. continued to be very reluctant to go to visits. [ 52 ] Prior to the Thistletown assessment, Ms. Noble met with Ms. S.S.B. and with J.B. separately to prepare them for the process. J.B. indicated that he was afraid to spend three days in his mother’s care; Ms. Noble was able to reassure the child that he would be safe. Ms. S.S.B. acknowledged to J.B. that she had abused him in the past, and apologized. [ 53 ] Ms.

S.S.B. had indicated that she wanted to involve C.J., but he was out of the country and unable to participate in the assessment. [ 54 ] The assessment took place in October 2010. During the 3-day process, Ms. S.S.B. and the children lived at a home on Thistletown premises and were observed by a professional team, which included Ms. Noble. Occasionally the family went outside the home for recreation, but were still observed by staff. The team gave Ms. S.S.B. feedback over the three days. [ 55 ] The report from this assessment and Ms. Noble’s evidence at trial noted as follows: • Ms.

S.S.B. was able to care for and adequately supervise the children in the observation house, but in less -controlled environments she was less able to organize her time with the children and supervise them in a safe, consistent manner. • Ms. S.S.B. had developed some insight into her parenting deficiencies and was willing to accept constructive feedback.

In the observation home, she appeared to be able to integrate the education she was receiving into her interaction with the children. • However, without further intervention to increase her insight and to support her in behavioural changes, it was unlikely that she would be able to sustain the positive changes she had shown. • Ms. S.S.B. needed to develop a plan to decrease “external stressors”, such as her uncertain immigration status and her volatile relationship with C.J.. 6.4 Thistletown follow-up work [ 56 ] At Ms. Noble’s behest, Thistletown took the unusual step of committing to further work with Ms.

S.S.B. so that she would be given an opportunity to demonstrate what she had learned outside the observation home. The Society arranged six weeks of extended visits that were supervised by a worker from an outside agency as well as by Thistletown staff, taking place from mid- November to mid-December 2010. [ 57 ] At the end of November C.J. returned, and Ms. S.S.B. brought him to the visits. [ 58 ] In mid-December Ms. Noble advised Ms. S.S.B. that although Thistletown saw some improvement in Ms.

S.S.B.’s ability to manage the children safely, that the improvements were not great enough for that agency to recommend that the children return to Ms. S.S.B. at that time. [ 59 ] Ms. Noble observed as follows: • Although Ms.. S.S.B. showed signs of being better able to manage the children’s conflict and her own anger, she was not demonstrating that she was emotionally attuned to the children on a consistent basis. Both children required a parent who would protect and be emotionally available to them. • Ms. S.S.B.’s ability to be the children’s protector would be compromised when she was under stress. Ms.

Noble was especially concerned that Ms. S.S.B. had no plan to deal with the problems that her reunion with C.J. would likely pose, given the history of domestic violence between them. [ 60 ] Ms. S.S.B. assured Ms. Gibbs that she had changed, and understood that she must put the children’s needs first. [ 61 ] The Society arranged a further period of independent observation of Ms. S.S.B. with the children, to further assess her ability to put into practice what she had learned in the observation home. Lengthy (6-8 hour) visits at Ms. S.S.B.’s apartment were arranged over a week in December, 2010.

These visits were supervised only part of the time. The Society planned that if all went well, that the children would begin having full weekend access at their mother’s apartment. [ 62 ] The visits did not go well, and other events indicated that Ms. S.S.B. was not managing the external stressors in her life. Ms. Gibbs supervised some of these visits. Although she observed some improved ability to manage conflict between the boys, she was still concerned with Ms. S.S.B.’s lack of emotional attunement to their cues.

[ 63 ] In early January 2011 there was another incident of domestic violence. C.J. hit Ms. S.S.B. in the face, pushed her to the ground, and tried to choke her. A neighbour called police. Ms. S.S.B. told Ms. Gibbs that she was not sure that she would end her contact with C.J., because she was “soft-hearted”. [ 64 ] A week after this incident, Ms. Gibbs discovered that Ms. S.S.B. had stopped attending the personal counselling sessions that she had started in the fall at Black Creek Community Health Centre. She had attended only four sessions (including the first, to which Ms.

Gibbs had escorted her). 6.5 Thistletown recommends against return [ 65 ] Thistletown’s final report, dated January 28, 2011, recommended that the Society not return the children to Ms. S.S.B., and that an alternate permanency plan for the children be developed. The report noted that although Ms.

S.S.B. had, as set out above, demonstrated some progress in a controlled environment when continually supported by a therapist, she was unable to sustain that progress at home: “Her ability to sustain insight into her parenting that promoted security in the parent-child relationship was compromised....S.S.B. was unable to provide a home environment that met the children’s emotional or physical needs, she was unable to consistently provide age appropriate stimulation and appeared to be less emotionally attuned to the children’s needs. ...historical patterns were emerging around her ability to provide appropriate food, deferring parenting responsibilities to J.B. and S.S.B. making decisions that addressed her needs as a priority ahead of the needs of the children.

In addition to the direct parenting behaviours, the CCAS also reported a recent incident of domestic violence between S.S.B. and her partner.” [ 66 ] Ms. Noble testified at trial that her biggest concern if the children were returned to Ms. S.S.B. was emotional neglect. Ms. Noble believed that the harshness and rigidity she had noted in Ms. S.S.B.’s parenting would continue. Although Ms.. S.S.B.’s parenting deficiencies were most notable when she interacted with J.B., Ms.

Noble believed that she would inevitably treat T.B. in a similar manner, as T.B. grew out of his “baby” stage and became more challenging. 6.6 Further home visits [ 67 ] Despite Thistletown’s negative assessment, the Society continued to attempt to give Ms. S.S.B. a further chance to show that she could manage the children well during home visits. It was arranged in early 2011 that the children would have extended daytime visits at Ms. S.S.B.’s new apartment, supervised by a worker from an outside agency, Ms. Anushka Silva. [ 68 ] Ms.

Silva testified that she was struck by the fact that, unlike the children in other cases in which she supervised visits, J.B. and T.B. did not seem happy or excited to see their mother. Ms. Silva noted that Ms. S.S.B. paid attention to T.B. during visits, grooming his hair or singing to him, but did not often engage with J.B.. J.B. often appeared bored, but did not act out. [ 69 ] In late February 2011 Ms. Silva supervised a visit that greatly upset J.B.. According to Ms. Silva, Ms. S.S.B. arrived in a bad mood. She reprimanded J.B. for what Ms.

Silva thought was unobjectionable behaviour (bouncing a ball against the wall). She gave gum to T.B., but not to J.B.. When J.B. requested a pop, she refused with no reason. Ms. S.S.B. began watching a movie on TV that scared J.B. and he began to cry. Ms. S.S.B. became angry. She told J.B. that she was “doing all this” for him, and that if he didn’t want to be with her, that she would just take T.B. and leave him in care. [ 70 ] J.B. became even more upset. He sobbed for over 15 minutes. Ms. S.S.B. walked away, and did not apologize or attempt to comfort him. [ 71 ] Ms.

S.S.B. testified that she did not make this statement to J.B., and offered three different versions of the incident. I accept that Ms. Silva’s evidence is accurate. [ 72 ] Over and over in this case I heard Society workers complain of Ms. S.S.B.’s failure to read her children’s cues and her insensitivity to their emotional state. This incident is a good example of the behaviour that prompted this criticism. [ 73 ] After this incident, access was moved back to the Society offices, or supervised at locations near the office. The Society grew increasingly concerned about J.B.’s negative reaction to the visits.

Workers made special efforts to plan “fun” activities for the children on visits, such as meals outside at restaurants. 6.7 Branching Out [ 74 ] The Society arranged for yet another program of therapeutic access in the spring of 2012 at Branching Out, in Brampton, Ontario. This change entailed long car trips for the children, and continued the

schedule that removed J.B. from school to facilitate visits. Mr. T.L. testified as to J.B.’s unhappiness with this arrangement. The Society arranged to have Ms. S.S.B. taken to these visits by taxi. [ 75 ] Elisha Rendina Ashley, the coordinator of this program, testified. Her evidence indicated an experience with Ms. S.S.B. much like that of the Thistletown team 18 months earlier. Ms. S.S.B. had problems being able to read the children’s cues and in structuring their interaction, but appeared to be receptive to feedback.

On two different occasions, she grabbed a child (once J.B., once T.B.), when trying to control them, but was able to stop herself. She was struggling to be emotionally supportive to J.B.. Ms. Ashley

observed that Ms. S.S.B. placed too many demands on J.B., and too few on T.B., whom she persisted in treating as a baby. [ 76 ] After a month at Branching Out, visits were returned to Society premises. 7. THE CHILDREN 7.1 The children’s health [ 77 ] Both J.B. and T.B. are physically healthy. They both have special developmental and emotional needs. Psychological assessments referred to below indicate that J.B. likely suffers from attention deficit disorder, and shows strong signs of an attachment disorder and post-traumatic stress disorder. T.B. is significantly behind in language development.

Both children were exposed to domestic violence in their mother’s care, and, as Ms. Noble testified, this means that they have a special need for a calm and protective home. 7.2 Psychological assessments of the children [ 78 ] The Society has had J.B. assessed by psychologists four times since the child has been in care, three times by Dr. Denise Vallance and once by Dr. Daniel Fitzgerald. T.B. was assessed by Dr. Connie Kushnir. [ 79 ] All these assessments were conducted to assist the Society in providing foster care for the children. None of the assessments involved Ms.

S.S.B., and because of this, caution must be exercised in drawing conclusions about Ms. S.S.B.’s behaviour or treatment of the children based on these assessments. [2] The assessors received information from testing of J.B. and from interviews with the child, Society staff, and J.B.’s foster parents at the time. 7.2

(1) J.B.’s assessment, January 2010 [ 80 ] In January 2010 Dr. Vallance assessed J.B. in order to evaluate his “cognitive and emotional functioning”. Dr.

Vallance found as follows: • J.B. has poor speech and language skill, and difficulty expressing his emotions using language. • J.B. is of “extremely low” intelligence, which limits not only his learning capacity, but his coping skills. • J.B. is suffering from strong feelings of loss, anxiety and fear, centered on separation from his mother. • If J.B. is returned to his mother, there should be family therapy“ to establish a more positive relationship with his mother and ....to understand some of the reasons why he appears to be anxious” about her. 7.2

(2) J.B.’s assessment, May 2011 [ 81 ] Dr. Daniel Fitzgerald conducted a psycho-educational assessment of J.B. in May of 2011. He reported that the child is of borderline intellectual ability, and suspected an emerging learning disability. He commented that the test results identified “prominent symptoms of hyperactivity, impulsivity and distractibility” which suggested that J.B. suffered from Attention Deficit/Hyperactivity Disorder. [ 82 ] Dr. Fitzgerald testified that J.B. was about one year behind in reading and mathematics, which he characterized as a significant delay for a child so young.

His evidence was that any parent to J.B. should: • Work closely with the child’s school, and advocate for him; • Reinforce what school is doing by work at home; • Build on his strengths—e.g., support athletics. 7.2 ( 3 ) J.B.’s assessment, September 2011 [ 83 ] Dr. Vallance re-assessed J.B. in September 2011. She found that the child’s anxiety had increased, and was in the clinical range. She noted that he had “anxious preoccupations”. A major preoccupation was with his mother. Dr. Vallance found that J.B. felt “fear, anxiety and sadness” regarding his relationship with her.

He wanted to “distance himself from her—but without her knowing it”. He saw maternal figures as unreliable, sometimes providing nurturance and sometimes not. [ 84 ] J.B.’s second major preoccupation was a longing for emotional nurturance. He saw his family as consisting of himself, T.B., and his friends. [ 85 ] Dr. Vallance found that J.B. had symptoms of a reactive attachment disorder, which placed him at risk of “emotional and behavioural difficulties in the future”.

She explained that a reactive attachment order indicates a failure to form an attachment, and that it is usually seen in children from very abusive or neglectful environments. She questioned whether the child could develop an attachment

to a caregiver in the future. She strongly recommended that a permanent placement be found for J.B. as soon as possible. 7.2

(4) J.B.’s assessment , February 2012 [ 86 ] In late 2011 Ms. Gibbs noted that J.B. was having problems with aggressive behaviour at school and in the foster home. He was becoming became increasingly phobic about various things. For example, initially he refused to go near the J./F. neighbourhood (where he had lived with his mother); later, he declined to go out to restaurants or to participate in activities that he had previously enjoyed, and instead only wanted to stay at home with the L.1 and their sons. [ 87 ] At Ms. Gibbs’s request, Dr. Vallance conducted a further assessment of J.B. in February 2012.

During the assessment, J.B. reported experiencing physical abuse by his mother, such as being hit with a belt. [ 88 ] Dr.

Vallance reported that J.B. displayed significant symptoms indicative of post-traumatic stress disorder (PTSD) which “appear to be related to past physical abuse”: • “Re-experiencing” (e.g., bad dreams, feeling upset, afraid or sad when reminded of past trauma, as well as having a physiological reaction in relation to past trauma”) • “Increased arousal” (e.g., hyper-vigilance and concentration problems, exaggerated startle response). • “Avoidance” (e.g., avoiding activities and people as well as thoughts and feelings that remind him of past distressing experiences, restricted affect). [ 89 ] Dr.

Vallance found that these symptoms of PTSD, considered together with the symptoms of attachment disorder she had found previously, put J.B. at further risk of emotional and behavioural difficulties as an adult. She noted some protective factors—that he was, despite his aggressive behaviours, doing well in the foster home, and that he had a pleasant amiable personality. She again underlined the importance of developing a permanency plan for J.B.. 7.2

(4) Assessment of T.B. [ 90 ] In June 2010 Dr. Connie Kushnir assessed T.B.. She found that although his non-verbal cognitive abilities were average, that his language abilities were below average and of particular concern. Dr. Kushnir said that he was a special needs child. Speech therapy was put in place, and the L.1 arranged for him to attend M[…] preschool in the mornings. These supports have helped T.B.. 7.3 The children’s placements [ 91 ] J.B. and T.B. have been in three foster placements since coming into care. The moves have not contributed to a stable environment for them.

Happily, both children appear to be well-settled in their current foster home with T.L. and L.L, where they have lived since June 2010. J.B. is particularly close to T.L., and T.B. is particularly close to L.L. [ 92 ] This placement provided the children with some continuity, because T.L. had been a relief worker at their first home with the D., and is the person who has transported the children for most of the visits. [ 93 ] T.L. is the primary caregiver for the children. L.L works as an educational assistant for special needs teenagers. J.B. and T.B. are the only children they foster.

The L.1 volunteered and trained to be foster parents because they learned that T.B. and J.B. needed a home. [ 94 ] The L.1 have two sons living with them who are young adults. T.B. and J.B. get along well with their sons; J.B. is very close to A.L.. The L.1 have made great efforts to provide a home that is sensitive to the children’s cultural background. They have Grenadan friends from whom they obtain information, and have read books about Grenada. They periodically serve Grenadan food. Ms. S.S.B. has demonstrated particular concern about the children’s clothes and haircare, and Mrs.

L.L. has carefully tried to respect her preferences. [ 95 ] The L.1 testified that they love the children, and are prepared to offer them a home as long as it is necessary. However, the L.1 will not likely offer a plan for adoption if the children are made Crown wards. Mr. T.L. is 58 years old, and the L.1 think that J.B. and T.B. should be able to have a younger family. They say that they hope to always act as grandparents to the boys. [ 96 ] Although the L.1 have attempted to support Ms.

S.S.B. in her efforts to have the boys returned to her, they have from time to time been dismayed at what they see as her insensitivity to the children. Ms. S.S.B. has been outspoken in her criticism of them to J.B. and T.B.. Ms. Novak testified that she perceived that J.B. was caught in a loyalty bind between his attachment to the L.1 and his unresolved relationship with his mother. 7.4 The children’s current condition [ 97 ] Although it took the children some time to settle with the L.1, they both appear to be doing well in their care.

S.B., J.B.’s current teacher, noted that “family” is an important theme for the child, and that when he talks about family, he talks about the L.1. This year, J.B. made a father’s day card for T.L.. J.B. loves sports, and T.L. takes time most days to play with him. [ 98 ] Although J.B. had a spate of aggressive behaviour with other children at school, Ms. S.B.’s evidence is that he has done much better this past year because of the support he has received at home. Ms. S.B. stated that J.B. is well-liked by peers, and that he has improved in his ability to manage anger and follow class routines.

J.B. now has an individualized education plan, and an educational assistant to work with him in the classroom. Ms. S.B. says that he has improved in his academic work; he likes coming to school, and is anxious if something takes away from school.

[ 99 ] Since living with the L.1, J.B. has participated in hockey and soccer. The L.1 insure that he gets to practices and games. J.B. is a “star” on his hockey team and a valued player on his soccer team. These experiences have boosted his self esteem, and are important to him. [ 100 ] Both Ms. Gibbs and the L.1 have invited Ms. S.S.B. to J.B.’s games, giving her schedules and even offering transportation from time to time. Ms. S.S.B. has attended only two games in over two years, one of which she was driven to by Ms. Gibbs. The L.1 and Ms. Gibbs have noted how happy J.B. was on the two occasions when Ms.

S.S.B. did attend, and his disappointment when she did not. [ 101 ] J.B. has been recognized as a very anxious child by many people—the L.1, Society workers, his teacher, and Dr. Vallance. [ 102 ] He has sometimes demonstrated this anxiety in extreme ways. Twice he has talked about wanting to kill himself, once even deliberately stepping into traffic. His anxiety increased as this trial approached. Society workers had felt it necessary to tell him that the Society did not support him going to his mother’s care, although “the judge would decide”. In November 2011 Ms.

S.S.B. tearfully told the child that he would never see her gain, and be forced to “live with strangers”. [ 103 ] Although the Society’s consulting psychologist had recommended that J.B. not receive therapy until he was in a permanent placement, his extreme level of anxiety caused a review of that decision. J.B. started therapy with psychologist Dr. Jasmine Eliav in April 2012. Dr. Eliav testified that the purpose of her work with the child was simply to help him cope with the anxiety until a trial decision was made.

She is willing to work with him after the trial to adjust to whatever decision is made. [ 104 ] Mrs. L.L. testified that T.B. has come a long way since he was placed with them. At first, he was non-verbal, and difficult to soothe. They had to teach him “how to be comforted” when he hurt himself. The L.1 placed him in Montessori school three days a week. [ 105 ] Mrs. L.L. testified that now T.B. is very affectionate with them, and progressing verbally. Mrs. L.L. described T.B. as “very smart”, and very structured. According to Mrs.

L.L., T.B. is also “stubborn”, and given to temper if his routine is disrupted. 7.5 Relationship of J.B. and T.B. [ 106 ] Although the relationship between J.B. and T.B. has not been formally assessed, everyone who has contact with the children in the past 2 ½ years agrees that theirs is a strong and supportive relationship. T.B. may “bug’ his big brother, but he follows him around and wants to imitate him. J.B. is increasingly protective of T.B.. When Ms. S.S.B. suggested that she have separate visits with each child, J.B. rejected this suggestion, saying that visits would be “boring” without T.B.. Ms.

Novak in her interviews with J.B. found that his strongest wish was to continue to live with his brother. 8. STATUORY FRAMEWORK 8. 1 Protection finding [ 107 ] The onus is on the Society to establish on the balance of probabilities that J.B. and T.B. are in need of protection. 8.2 Options on disposition [ 108 ]

Section 57 of the Act provides that if a child has been found to be in need of protection and the court is satisfied that a court order is necessary to protect the child in the future, that the court shall make one of the following orders, or an order pursuant to

section 57.1, that is in the child’s best interests: Supervision order 1. That the child be placed with or returned to 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 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. [ 109 ] All parties agree that, if a finding is made, a further order is required to protect the children in the future. 8.3 S. 70 time limit [ 110 ] In this case,

Section 70 of the Act limits the available options for disposition.

Section 70 is a statutory recognition that permanency planning is of paramount importance for children. Section 70(1) provides as follows: [ 111 ] “(70)

(1) Subject to subsections (3) and (4), the court shall not make an order for Society wardship under this Part that results in a child being a Society ward for a period exceeding, (a) 12 months, if the child is less than 6 years of age on the day the court makes an order for Society wardship; or (b) 24 months, if the child is 6 years of age or older on the day the court makes an order for Society wardship.” [ 112 ] Section 70(4) provides that this period may in the Court’s discretion be extended by a period “not to exceed six months if it is in the child’s best interest to do so”. [ 113 ] In calculating the allowable period for a child to be a Society ward, the Act provides that any time a child has spent in care under a temporary order shall be counted.

Both children have been in care since October 29, 2009, a period which significantly exceeds the statutory limit for each of them. [ 114 ] No plan for the children’s care other than the plan offered by their mother and by the Society were put forward.

Thus, the options open to the court are limited to returning either or both of the children to their mother under a supervision order or an order making either or both of the children Crown wards, unless a case for an extension of a period of Society wardship can be made out. 8.4 Other considerations on disposition [ 115 ] Under the Act, the Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act which is to promote the best interests, protection and well being of children.

A court is required before making a disposition to consider what efforts a Society or other agency has made to assist a parent before making an order that would remove a child from that parent’s care. [3] In my view, the Society has made extraordinary efforts throughout this case to assist Ms.

S.S.B.. [ 116 ] Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether less disruptive alternatives will serve the child’s best interests and whether it is possible to place the child with a relative or member of the child’s community or extended family. [4] [ 117 ] At one point in the case Ms. S.S.B. urged the Society to place the children with Mr. and Mrs. L.2 , her parents in Grenada. The Society investigated this plan with the assistance of the International Social Services and did not give approval.

Ms. S.S.B. had been badly abused by her mother, and although she believed that her mother had changed, there was little evidence to support this belief. Mrs. L.2 told the investigators that she still believed in physical disciplinary measures. There was no evidence she had participated in any program or treatment that had changed her previous abusive behaviours when disciplining children. In addition, Mr. and Mrs. L.2 expressed reservations about caring for the children because of their special needs. [ 118 ] It was open to Mrs.

L.2 to apply to be a party and advance her plan independent of the Society support, but she did not do so. BEST INTERESTS [ 119 ] The decision as to disposition must be based on what is in the child’s best interest.

The Act provides that in determining best interests the Court shall take into consideration the following circumstances that are considered to be relevant [5] : • The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. • The child's physical, mental and emotional level of development. • The child's cultural background. • The religious faith, if any, in which the child is being raised. • The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family. • The child's relationships by blood or through an adoption order. • The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. • 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.

• The child's views and wishes, if they can be reasonably ascertained. • The effects on the child of delay in the disposition of the case. • 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. • The degree of risk, if any, that justified the finding that the child is in need of protection. • Any other relevant circumstance. 9. PROTECTION FINDINGS [ 120 ] I find that both J.B. and T.B. are in need of protection.

In making this finding, I have considered evidence with respect to time periods before as well as after the commencement of this case [6] . 9.1 Physical harm actually caused to J.B. [ 121 ] Physical discipline of a child by a parent does not automatically raise a protection issue.

A basis for a protection finding is established when the means of discipline is excessive, given the age or developmental stage of the child, or when the parent’s physical interference with the child is the result of a parent’s anger, frustration, or loss of control. [7] [ 122 ] Based on all the evidence, I find that the Society has established on the balance of probabilities that J.B. is a child in need of protection pursuant to s. 37(2)(

a) of the Act, in that the child suffered physical harm at the hands of his mother. J.B. was five years old at the time of the apprehension. I find that Ms. S.S.B.’s treatment of the child exceeded what might be considered justifiable for disciplinary purposes, and that her conduct resulted from a loss of control on her part when she was angry. 9.1.2 Evidence of physical abuse [ 123 ] The evidence of physical abuse comes from three sources. 1. Evidence from Sunita Persaud. Ms. Persaud’s evidence was that on August 7, 2009, she came out of her office at Birkdale residence to investigate a child’s crying.

She saw J.B. cowering on the floor in the hall, crying, facing his mother, who was screaming at him and appeared to be angry. Ms. S.S.B. was waving a broom at the child, and hit him with the tip of a broom. Ms. Persaud intervened. Ms. S.S.B. explained to Ms. Persaud that she was frustrated because J.B. did not obey her. Ms. S.S.B. apologized. J.B. hugged her . I accept Ms. Persaud’s evidence as an accurate description of this incident. Ms. S.S.B.’s evidence did not differ substantially from Ms. Persaud’s. Ms.

S.S.B. testified that she was yelling at J.B., who was misbehaving, and the she “tapped” him on the hand as he knelt in front of her in the hall. Ms. S.S.B.’s friend L.B. testified that although Ms. S.S.B. waved a broom at J.B., she did not hit him. Given that Ms. Persaud and Ms. S.S.B. testified differently, I think that Ms. L.B. must be mistaken in what she recalls of the incident. 2. Ms. S.S.B.’s statements. Ms. Noble testified that Ms. S.S.B., when preparing for the Thistletown assessment, stated to her that she had hit J.B., that she felt sorry for this behaviour, and that she wanted to learn how to change.

Ms. Gibbs’s evidence is that Ms. S.S.B. made similar statements to her prior to the Thistletown assessment. Ms. S.S.B. told Ms. Gibbs that she had hit J.B.. She said that it hurt her that he did not view her as “safe”, and that he flinched from her at times when she was angry. At trial Ms. S.S.B. denied making these statements to Ms. Noble or Ms. Gibbs. She testified that she had probably said that she was sometimes “too harsh” with J.B., but that she had never acknowledged hitting the child. Ms. S.S.B. was inconsistent in her evidence on this point, as noted in my discussion on credibility (at paragraph 3.2).

I prefer the testimony of Ms. Noble and Ms. Gibbs that that of Ms. S.S.B. on the issue of her use of force with J.B.. They are professionals who took notes about Ms. S.S.B.’s statements soon after interaction with her. Ms. Noble and Ms. Gibbs showed no animus to Ms. S.S.B.. They testified that they had both initially been impressed by Ms. S.S.B. ’s motivation to change her behaviour, and had gone far beyond what their respective agencies expected in offering supports and services to her. 3. J.B.’s statements.

J.B. made statements alleging physical abuse by his mother to two of his teachers, to daycare staff, to Ms. Noble, and to his foster parents. I heard evidence from each individual about these statements. On the voir dire I admitted these statements because they met the test of necessity and threshold reliability. Ms. S.S.B. denies the abuse allegations contained in all the statements. The statements fall into two categories: 1. The first category is statements allegedly made by J.B. to teachers and a day care worker. Ms. S.S.B. testified that these witnesses lied in reporting these statements.

2. The second category consists of statements made by J.B. to Ms. Noble and to his foster parents. Ms. S.S.B. accepts that J.B. made these statements, but said that he lied in doing so . a)J.B.’s statements: 1 st category The first category is the statements allegedly made to teachers and to the day care worker. Ms. S.S.B. testified that these witnesses lied about what J.B. told them. Ms. D.T., a worker at J.B.’s daycare center, testified that Ms. S.S.B. brought the child in on October 19, 2009 with a swollen lip, saying that he had hurt himself. Staff noted the swollen lip. When Ms.

D.T. asked the child what had happened, he replied that his mother had punched him in the lip, but had said that she was “sorry”. Police later interviewed the child, and he gave two explanations of his injury—first, that his mother hit him, and later, that he fell out of bed. (I did not hear evidence from the investigating officer.) Charges were not laid. Ms. V.K., J.B.’s teacher, testified that on October 20, 2009, when she reproved J.B. for taking another child’s toy and questioned whether he wanted his mother to hear about this, the child became agitated and fearful.

When asked why he was so upset, he blurted out that his mother had hit him in the mouth. Ms. U.P., J.B.’s teacher from the prior school year, testified that on April 3, 2009, after she reprimanded J.B. in a mild manner, the child said “Mommy beats me”…she hates me, and she leaves me alone”. Ms. U.P. thought that the outburst was “out of left field”. She did not question J.B. further as to what he meant, but she did report the incident to the Society. All the witnesses are professionals, who had a duty to report circumstances indicating abuse or neglect of a child in their care.

There was no allegation or evidence that any of them had animus against Ms. S.S.B.. I find that J.B. made statements to them that they reported to their supervisors and ultimately to the Society soon after the statements were made. I do not accept Ms. S.S.B.’s charge that they fabricated these reports. The fact that J.B. made these statements does not necessarily mean that they are accurate. None of these witnesses attempted to elicit further detail from J.B. before they proceeded to report the incident. Both Ms. U.P. and Ms. V.K. testified that they had experienced J.B. as a truthful child.

The reliability of these statements will be addressed further below.

b) J.B.’s statements: 2 nd category J.B.’s remaining statements alleging abuse by his mother were made to Ms. Noble, who oversaw the 3-day family assessment at Thistletown, and to foster parents L.D. and T.L. and L.L. Ms. S.S.B. testified that J.B. was lying when he made these statements. J.B. told Ms. Noble that he was afraid to spend 3 days in his mother’s care for the assessment, because she had hit him in the past. The statement was not elicited by specific questioning, but made in the context of explaining his reluctance to participate in the assessment.

The statements to the foster parents came “out of the blue”. For example, when L.D. disciplined J.B., the child talked about how discipline at his mother’s home was different, how she would hit him. Mr. T.L. testified that one occasion J.B., when observing that the L.1’s son A.L. wore a black belt with a silver buckle, remarked that this belt was similar to the belt that his mother had used to hit him, and that she had hit him with the buckle end. Ms. S.S.B. admitted that J.B. had in a visit exclaimed to her that she was wearing the belt that she had used to beat him.

She testified but that when she reproved the child for this remark, he apologized and admitted he was lying. Mr. T.L. also testified that soon after J.B. moved to their home that, when taking a shower, he commented in a matter –of-fact way on certain scars which he said were the result of his mother’s hitting him, and scars that resulted from other causes. The foster parents reported each of the alleged disclosures of the abuse to the Society soon after they were made. Ms. S.S.B. offers no reason why J.B. would lie about whether she hit him. According to Ms.

S.S.B., J.B. loves her and wants to come home and live with her. Ms. S.S.B. advanced evidence from friends who had spent time with her and J.B., such as Ms. R.D. and Ms. L.B., who testified that they never saw her use physical discipline with J.B.. These witnesses may not have seen Ms. S.S.B. use physical discipline, but that does not mean that she did not use it. As Ms. S.S.B. herself admitted at trial, she has used physical discipline.

c) Conclusion: J.B.’s statements J.B.’s statements --to his teachers, to the day care worker, to Ms. Noble, and to his foster parents-- persuade me that prior to apprehension Ms. S.S.B. hit the child in anger, and that from time to time she hit him with objects such as a broom. My reasons for finding that these statements are ultimately reliable are set out below. • The statements are first-hand hearsay, and the reporter/recipient of the statement was presented for cross-examination. • The reporters had no motive to misrepresent the statement, or to cast Ms.

S.S.B. in a bad light. • The recipient reported the statements to a worker at the Society soon after they were made. • J.B. had no motive to make allegations against Ms. S.S.B. which would place her in a bad light. According to Society workers and to his foster parents, J.B. goes out of his way to place Ms. S.S.B. in a positive light, and reacts negatively to statements critical of her.

• J.B. made these statements to several people over a lengthy period of time. The statements were consistent over time. • J.B.’s foster parents and his teachers report that he is an honest child. He may prevaricate to shift blame for a misstep, but otherwise, he tells the truth. • There is some physical evidence corroborative of assault on J.B. by Ms. S.S.B.—the swollen lip noted by the daycare centre, and scars on his body noted by the foster father . I place little weight on J.B.’s recantation of his allegation of physical abuse by Ms. S.S.B. when police interviewed him on October 19, 2009.

I can easily believe that questioning by a police officer could signal to J.B. that his statements could cause trouble for his mother. 9.2 Risk of physical harm [ 124 ] For all the reasons set out above, I have no difficulty finding that J.B. is also at risk of future physical harm if in his mother’s care at the time of apprehension. Ms. Noble testified that although Ms.

S.S.B. had stopped using physical discipline with J.B. at the time of their assessment, unless she found a way to integrate the new parenting approaches that she had learned into daily life, that under stress her harsh disciplinary tactics which included excessive physical force could recur. [ 125 ] Ms. Noble testified that T.B. would also be at risk of future physical harm from Ms. S.S.B.. T.B. was only ten months old when apprehended, and there is no evidence that he was physically abused as an infant. The Society submits that as T.B. grows older and less compliant, that it is likely that Ms.

S.S.B. will resort to the same harsh physical techniques that she used with J.B. when he reached that stage. There is evidence that such a pattern is emerging. At a recent supervised visit, Ms. S.S.B. grabbed T.B. by the arm when he was disobedient. Visit supervisors report that T.B. is increasingly independent in his actions, and on recent visits has been aloof with his mother. [ 126 ] The prospect of a recurrence of domestic violence in Ms.

S.S.B.’s life constitutes a further reason that the children would be at risk of physical harm if they were in her care. [ 127 ] The attack by C.J. in January 2009 is a chilling example of the domestic violence to which both children have experienced in their mother’s care in the past. [ 128 ] Ms. S.S.B. testified that she would not expose the children to this danger in the future. Other than that bald statement of intention, there is no evidence that she can or will be able to provide this protection. Ms.

S.S.B. continued to attempt to plan with C.J. for the children for two years after that assault, despite the fact that he took no responsibility for his behaviour. Even after the assault of January 2011, she continued to associate with C.J. until September 2011. [ 129 ] Both the men who fathered Ms. S.S.B.’s children were violent. Evidence does not suggest that she has taken steps so that she can make a better choice of partners in the future. Ms. Noble testified that unless Ms. S.S.B. receives appropriate treatment, she expects that she will partner again with an abusive man. Ms.

S.S.B. has not undertaken any counselling for victims of domestic violence. She has just started a program of personal counselling, having failed to complete the counselling she attempted two years ago. 9.3 Risk of emotional harm [ 130 ] I find further that T.B. as well as J.B. is in need of protection in that they are both at risk of serious emotional harm stemming from Ms. S.S.B.’s actions or omissions. [ 131 ] The Society did not plead this ground with respect to T.B.. However, the evidence at trial provides a basis for this finding.

Caselaw has established that a protection finding may be made on a ground that is not pleaded in a protection application, if the evidence establishes that a child is in need of protection on that basis [8] . Although the Society did not amend its application, it did in closing submissions argue that the evidence provided a basis for a finding that T.B. would be at risk of emotional harm if placed in his mother’s care, and Ms. S.S.B. had an opportunity to reply to that evidence and these submissions. 9.3.1 J.B. [ 132 ] J.B. already suffers from emotional harm, as shown in the reports of Dr. Vallance.

The observations of both L.D. and T.L. and L.L further support the inference that the child suffers from such anxiety, anxiety that impairs his functioning in daily life. [ 133 ] Dr. Vallance’s evidence is that Ms. S.S.B.’s behaviour, as reported to her by Society staff and the foster parents, is likely an important contributing cause to his PTSD and to his anxiety, and at the root of his symptoms of attachment disorder. [ 134 ] It should be acknowledged that there have been other stressors in J.B.’s life that likely contributed to his anxiety.

J.B.’s separation from his mother at apprehension, or his removal from L.D.’s [9] care in May 2010 may be contributors. However, even if factors other than Ms. S.S.B.’s behaviour are contributing factors to the child’s disorders, in my view it is unlikely that her behaviour is not an important contributing cause. I say this because of the evidence indicating that for over two years and until very recently, J.B. was extraordinarily resistant to attending visits with his mother. [ 135 ] Both before apprehension, and regularly since apprehension, Ms.

S.S.B. has displayed numerous behaviours that indicate failure by her to understand her children’s needs and read their emotional cues. Examples are set out below.

• Before apprehension, Ms. S.S.B. had unreasonable expectations of J.B.’s behaviour and, when he failed to meet those expectations, reacted harshly. This is illustrated by her assault on the child with a broom on August 7, 2009. • Ms. S.S.B. engaged in emotionally rejecting or hypercritical behaviour towards J.B. during visits. She has harshly reproved him for behaviours which supervisors found non-problematic, behaviours such as bouncing a ball in her apartment. She has expressed emphatic criticism to J.B. of his clothing, shoes, and haircut. J.B. takes these criticisms to heart.

She has regularly paid much more attention to T.B. than J.B., a fact that J.B. comments on sadly. • Ms. S.S.B. has regularly cancelled many scheduled visits, and has been late for a significant number of the visits that she has attended. Both Thistletown staff and Society workers frequently explained to her that, despite the fact that she may have good reasons from her point of view for these cancellations or late attendances, from the children’s point of view she is demonstrating a lack of commitment to them. • Although Ms..

S.S.B. occasionally attends special events that are important to the children, by and large, she fails to do so. The best example of this is Ms. S.S.B. failure to attend any of J.B.’s games but two in over two years. • Ms. S.S.B. fails to understand J.B.’s emotional needs, despite her claims to do so. Three examples are set out. 1. In February 2011, Ms. S.S.B., irritated with J.B., told the child that she would take T.B. and leave him in care. 2. Ms. S.S.B. later told J.B. that he would have to “live with strangers”, and never see her or T.B. again. 3. On a visit during this trial, Ms.

S.S.B. told the children that they were coming home to live with her. [ 136 ] The evidence is that all these behaviours significantly heightened J.B.’s anxiety. This lack of sensitivity on Ms. S.S.B.’s

part is notable, coming after many months of work by Society staff and Thistletown to develop her abilities to understand her children and avoid harsh parenting. 9.3. 2 T.B. [ 137 ] Most of the concerns raised above focus on J.B.. However, as already noted, T.B. is growing older, and becoming more challenging to Ms. S.S.B.. The workers at Branching Out observed that Ms. S.S.B. treats T.B. as a baby, and has not developed techniques that would help her manage his challenging behaviour. As Ms. Noble testified, it would be unrealistic to believe that Ms.

S.S.B. will not encounter with T.B. as he grows older the same problems she has had with J.B.. 10. DISPOSITION 10.1 Ms. S.S.B.’s plan 10.1.1 Strengths of Ms. S.S.B.’s plan. - Ms. S.S.B.’s plan for the children has some important strengths. • Love and affection. Return of the children to their mother’s care would insure their place in the home of a biological parent who loves them, and who cared for them prior to October 2009. • Cultural continuity. Return of the children to their mother’s care would insure their return to a home that would value their Grenadan cultural background. • Racial heritage.

Return of the children to their mother’s care would insure that they would be raised in an African-Canadian home. • Love and affection- siblings . Return of the children to their mother’s care would insure that the boys will be together in the same home, and will grow up together. [ 138 ] As Justice George Czutrin recognized in Catholic Children’s Aid Society of Hamilton v. A.F.,

(2004) O.J. 5053 (Sup. Ct.) , these factors are “very significant”. [ 139 ] An assessment of Ms. S.S.B.’s strengths must also include recognition of her ability to achieve goals that are important to her. Ms. S.S.B. has managed through years of work to regularize her immigration status and to obtain regular employment. At Thistletown S.S.B. showed she could develop insight into her parenting deficiencies, and could change her behaviour in a supervised setting.

10.1.2 Degree of risk [ 140 ] In my view, the most serious risk for these children is that of emotional harm, and what such harm means to each child’s long-term development. The degree of risk that justifies the protection findings is high. The risk is not related to a single act or omission on Ms. S.S.B.’s part, but to an ongoing course of conduct. 10.1.3 Ability to meet children’s needs [ 141 ] Both children, but particularly J.B., have special needs. J.B. and T.B. need a stable and child- focussed home.

They need a parent who recognizes their needs, knows how to meet them, and consistently takes the time and trouble to do so. They need a parent who will maintain regular contact with their schools, and advocate for them with school authorities. [ 142 ] Ms. S.S.B. has been unable to consistently recognize and meet either child’s emotional and developmental needs.

That deficit is starkly illustrated by her surprise at hearing from the witnesses at this trial that J.B. suffers from serious anxiety, a concern that has been discussed with her for at least two years, a concern which she has previously acknowledged and claimed that she is sensitive to. [ 143 ] As acknowledged above, there have been times when Ms. S.S.B. was working closely with a professional and in a controlled setting when she has demonstrated insight into her children’s needs and some ability to change her negative behaviours.— e.g., her work with the Thistletown team in the fall of 2010.

Outside that controlled supportive environment, Ms. S.S.B. regresses. [ 144 ] Very shortly before trial, Ms. S.S.B. began exhibiting changed behaviour at visits. She was better in organizing activities for the children, and in resolving conflicts. She was more attentive and affectionate to J.B.. Ms. S.S.B. has improved her behaviour on visits before (at Thistletown), but has not sustained the change. I cannot take this most recent change as a reliable indication of her behaviour in the long term. [ 145 ] Dr.

Vallance spoke to the serious future emotional, behavioural, and academic difficulties that will face J.B. if his emotional disorders are not effectively addressed. It is unlikely that Ms. S.S.B. could play an effective role in cooperating with a treatment plan to address those disorders. 10.1.4 Instability of plan [ 146 ] Ms. S.S.B. has presented three different plans, the last midway in the trial. Those shifts themselves raise questions about the stability of her plans. [ 147 ] The most recent plan proposes that she live with and be supervised by Ms. N.W..

This plan raises a number of questions. • Little is known about Ms. N.W.’ ability to give Ms. S.S.B. effective support. The Society had no opportunity to assess the plan because it was proposed mid-trial. Ms. N.W.’ evidence is that she is a single parent who is just finishing a community college program and looking for work. It is clear that there are many demands on her time. • Ms. N.W. did not demonstrate in her evidence much knowledge of the parenting problems that Ms. S.S.B. has had, or what her “supervision” of Ms. S.S.B. might entail. Ms. N.W. does not know the children well. Her contact with Ms.

S.S.B. was limited after 2007 until recently. She has not visited the children for the 2-½ years they have been in care, except for a recent visit upon which she accompanied Ms. S.S.B.. • Ms. S.S.B. does not now live with Ms. N.W.. Their partnership is untested. [ 148 ] Ms. S.S.B. testified that she has numerous friends (other than Ms. N.W.) and one relative who would offer her assistance in caring for the children. Some of these individuals have confirmed intention to assist in their evidence. It should be noted that all of these individuals are single parents, and none were able to offer assistance when Ms.

S.S.B. was in crisis in 2009. 10.1.5 Failure to address identified parenting problems [ 149 ] Many aspects of Ms. S.S.B.’s plan consist of intentions to address problems of long-standing in the future. Ms. S.S.B. has just started personal counselling. She plans to take counselling for domestic violence. She is on the waiting list for a parenting program. She plans to obtain services from the Jamaican Canadian Society. The Society has previously recommended and attempted to facilitate all these services for Ms.

S.S.B.. 10.1.6 Relationship with children [ 150 ] It is clear that J.B.’s relationship with his mother is significant to him; he values his mother’s attention, and it saddens him when he does not get it. He worries about his mother, and wants her to be happy. It is equally clear, however, that J.B.’s relationship with his mother has left him emotionally damaged. He is extremel

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