Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678

WARNING The court hearing this matter directs that the following notice 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. C53328/11 DATE: 2015-12-01 CITATION: Children’s Aid Society of Toronto v. A.F. , 2015 ONCJ 678 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 K.J.K., BORN ON […], 2014. B E T W E E N: ) ) CHILDREN’S AID SOCIETY OF TORONTO ) ) ) ERIN ROSE, for the APPLICANT ) APPLICANT ) ) - and - ) )

) A.F. and A.K. ) ) ) EDWARD RICE, for the RESPONDENT, A.F. ) RESPONDENTS ) ) SERVICE DISPENSED WITH ON THE RESPONDENT, A.K. HERBERT STOVER, for the interested party, M.H. ) ) HEARD: NOVEMBER 12-13, 16-18, 20 and 23, 2015 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 K.J.K., born on […], 2014, (the child) is in need in protection pursuant to clause 37 (2) (

b) of the Child and Family Services Act (the Act). The society seeks a final disposition that the child be made a crown ward, without access, for the purpose of adoption. The statutory findings required pursuant to subsection 47 (2) of the Act were made during the trial. [ 2 ] The respondent A.F. (the mother) is the child’s mother. She seeks a dismissal of the society’s amended protection application. In the alternative, she seeks an order that the child be placed in her care and custody, subject to terms of society supervision for 6 months.

In the further alternative, she seeks an order that the child be placed in the joint care and custody of her and her mother, M.H. (the grandmother) subject to terms of supervision for 6 months. In the further alternative, she seeks an order placing the child with the grandmother, subject to terms of supervision for 6 months. If the court decides not to place the child with her, the mother seeks as much access to the child as possible. [ 3 ] The respondent A.K. (the father) is the child’s father. He has had no involvement with the child or this court case.

An order was made dispensing with service on him at the outset of the trial. [ 4 ] The interested party M.H. ( the grandmother) was granted limited rights of participation at this trial. [1] She was permitted to have counsel attend during the trial and make submissions with respect to the issues of disposition and access.

The grandmother’s counsel conducted her direct examination, the direct examination of two witnesses, was permitted to cross-examine society witnesses about evidence pertaining to the grandmother and made closing submissions. [2] [ 5 ] The grandmother asked the court to place the child in her care, subject to society supervision for 6 months, as an alternative to the mother’s plan. [3] In the alternative, she sought an access order to the child.

The grandmother’s counsel kept within the participatory framework structured by the court during the trial and was of assistance to the court in ensuring that there was a full evidentiary presentation and consideration of the alternate plans. [ 6 ] The child has been in the care of the society since October 24, 2014. The mother and the grandmother currently exercise access

to the child. [ 7 ] The issues for this court to determine are:

a) Is the child in need of protection?

b) If so, what disposition order is in the child’s best interests?

c) If the child is placed with the grandmother, what access, if any, should the mother have to him?

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

e) If the court makes an access order, what form should it take? [ 8 ] The trial of these issues was heard over seven days. Part Two – Brief background [ 9 ] The child is the mother’s fourth child. A protection trial took place over nine days from February 3 to 13, 2014 regarding her three eldest children (the older children) before Justice Carolyn Jones (the first trial). [ 10 ] Justice Jones released her Reasons for Judgment on September 24, 2014.

She made an order that the mother’s three older children be made crown wards, with no access to the two younger children (J-1 and J-2) [4] , and with access by her to the oldest child (S.) [5] , to be supervised in the society’s discretion, a minimum of twice per month. [ 11 ] At the first trial, the mother had asked that all or some of the older children be placed in her care, or in the alternative, placed in the care of the grandmother. She also had asked for access to all three children. [ 12 ] The mother has appealed Justice Jones’ decision.

The appeal has not been heard. [ 13 ] The mother failed to advise Justice Jones or the society that she was pregnant (about 5 months) during the first trial. [ 14 ] The mother also failed to advise the society or Justice Jones that she was involved in a relationship with the father during the first trial and that it was an abusive relationship. [ 15 ] The mother separated from the father in April of 2014 and moved in with the grandmother.

The grandmother has three of her other children living in her home, being A., age 18, R., age 12 and T., age 11. [ 16 ] The society was not advised that the mother was pregnant until May 27, 2014. [ 17 ] The child was born on […], 2014.

[ 18 ] The child was apprehended from the care of the mother from the hospital on June 19, 2014. [ 19 ] After a temporary care and custody hearing, Justice Robert Spence placed the child in the temporary care and custody of the grandmother on June 26, 2014. Several terms of supervision were ordered.

The key term was: If the grandmother is unable to supervise the child, she shall ensure that the child is appropriately supervised at all times by a responsible adult approved of previously by the society, not the mother. [ 20 ] The child was apprehended from the care of the grandmother on October 24, 2014 after the mother and the grandmother breached the supervision order. The grandmother had gone to a school meeting for R. and left the child in a taxi while she attended the meeting.

The mother was in the taxi with the child. [ 21 ] The mother and the grandmother both acknowledged that they understood they were breaching the court order. [ 22 ] The society apprehended the child on October 24, 2014. [ 23 ] The mother and the grandmother had shared in caring for the child until he was apprehended. The evidence indicates that the child was developing normally.

The mother and the grandmother had assistance from the Public Health Nurse and a Home Visitor. [ 24 ] The mother and the grandmother had also participated in a parenting program called Making the Connection. [ 25 ] On October 29, 2014, Justice Spence made a temporary order placing the child in the care and custody of the society with supervised access for the mother and the grandmother at the society office. [ 26 ] The society amended its protection application to seek crown wardship without access on December 12, 2014. [ 27 ] The mother’s access was increased to three times per week, for two hour visits, on January 9, 2015. [ 28 ] The mother moved for temporary unsupervised access on March 26, 2015.

This motion was dismissed by Justice Spence. [ 29 ] The mother moved again for unsupervised access on June 30, 2015. Justice Spence ordered that the mother could have two visits per week. One visit would be for three hours and be fully supervised. The second visit would be for four hours, with the first and last 45 minutes of the visit supervised. The middle portion (two and one-half hours) would be unsupervised in the community. [ 30 ] The grandmother stopped attending access on a consistent basis after December 9, 2014. She did not attend any access from March 3, 2015 until September 25, 2015.

She asked to reinstate access in August of 2015. She is currently exercising access. [ 31 ] The mother moved from the grandmother’s home to her own residence in May of 2015. She continues to reside on her own. Part Three – Finding in need of Protection 3.1 – Legal considerations - Finding in need of protection

[32] The society seeks a finding that the child is in need of protection pursuant to clause 37 (2) (

b) of the Act. This clause read asfollows: 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; [33] The risk of harm under clause 37 (2) (

b) of the Act must be real and likely, not speculative. The harm must be demonstrated by aserious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River 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.). [34] 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.). [35] 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. [36] It was unnecessary for the court to examine evidence beyond the date of the child’s apprehension as the evidence wasoverwhelming as of that date that the child was in need of protection. 3.2 Past parenting [37] The evidence supporting the finding in need of protection was primarily based on past parenting evidence, as only a short timehad elapsed after the completion of the first trial until the child was apprehended. [38] Subsection 50 (1) of the Act permits the court to consider the past conduct of a person toward any child, and any oral or writtenstatement or report that the court considers relevant to the proceeding is admissible into evidence.

This subsection reads as follows: Consideration of past conduct toward children 50.

(1) Despite anything in the Evidence Act, in any proceeding under this Part, (

a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for orhave access to a child who is the subject of the proceeding; and (

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding orthe reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[39] Past conduct evidence must not be permitted to suffocate evidence of a parent's current conduct, circumstances and functioning.The real relevance of past parenting evidence is the extent to which it provides a reliable backdrop against which to measure the extent towhich the parents' abilities and circumstances have changed. See: Waterloo Region v. R.C. and M.S., (ON CJ), [1994]O.J. No. 2955, (Ont. Prov. Div.); Catholic Children's Aid Society of Toronto v. C.S., 2010 ONCJ 656 , [2010] O.J.

No.5831 (OCJ). [40] The admission of past parenting evidence does not necessarily mean that it will be accepted as persuasive by the trial judge ordeterminative of the result. However, where a parent's previous children have recently been made crown wards, there is a tactical burdenon the parent to show that he or she has taken sufficient remedial action to eliminate or at least reduce the need for protection that wasfound to exist in relation to the earlier children. See: Children's Aid Society of Niagara Region v. D.P. and S.B. (No. 3), (ON SC), [2003] O.J. No. 619, (Ont. Fam.

Ct.); Catholic Children's Aid Society of Toronto v. L.M., 2011 ONCJ 146 ,[2011] O.J. No. 1361 (OCJ); Catholic Children's Aid Society of Toronto v. C.T., [2012] O.J. No. 2716. [41] The past parenting evidence in this case has similarities to Children’s Aid Society of Simcoe County v. B.D., 2014, O.J. No. 1641(SCJ – Divisional Court) as in B.D., which was an appeal of a

summary judgment decision. That court wrote at paragraph 32: 32 It was appropriate for the motions judge to rely on a judgment dated December 8, 2011 after a lengthy trial as evidence of pastparenting under s. 50(1), particularly because the child was born just two and a half months after the judgment and the parents lied to thetrial judge about the mother being pregnant. [42] The court went on to cite this court’s decision in Catholic Children’s Aid Society of Toronto v. L.M., supra, in the same paragraphas follows: In the latter case, Sherr J. stated the following in a

summary judgment motion, and I agree: [14] It is appropriate for this court to rely on the findings in these decisions as evidence of past parenting under subsection 50(1) of theAct. The society properly restricted its reliance on past parenting evidence to the findings set out in these two decisions; it did not presentthe court with additional past parenting evidence, which could overwhelm the mother's ability to address it, particularly on a

summaryjudgment motion. See: Catholic Children's Aid Society of Toronto v. V.W. and A.A.-C., , 20 R.F.L. (5th) 307, [2001]O.J. No. 2226, 2001 CarswellOnt 1895 (Ont. C.J.); Kawartha-Haliburton Children's Aid Society v. D.C., , 32 R.F.L.(5th) 362, [2002] O.J. No. 3864, 2002 CarswellOnt 3304 (Ont. Fam. Ct.); and Children's Aid Society of Bruce County v. I.Bu., J.M.Br.and Saugeen First Nation Band, 2004 ONCJ 454, [2004] O.J. No. 6260, 2004 CarswellOnt 10004 (Ont.

C.J.). 3.3 Findings of Justice Jones [43] The findings of Justice Jones are highly relevant as she completed the first trial just four months before the child’s birth. [44] Justice Jones delivered a comprehensive decision. Her findings that this court will rely upon are set out in the paragraphs below.This court has attempted to use Justice Jones’ wording wherever possible. [45] Justice Jones made the following findings of fact in her Reasons for Judgment:[6]:

a) The mother is a former ward of the crown. At the time she became pregnant with S., the society was continuing to provide herwith ongoing support in the form of extended care and maintenance. Following the birth of S., the society remained involved with themother and the child. Between December, 2006 and June, 2007, the society identified concerns relating to the mother’s ability to budget,her attachment to the child, and her ability to meet S.’s social and emotional needs.

b) In June 2007, the society apprehended S. who was then only six months old, after learning that she had suffered serious injurieswhile in the mother’s care. The child was examined at the Hospital for Sick Children, in the Suspected Child Abuse and Neglect(SCAN) clinic, where she was found to have a broken right femur and a fractured right upper arm (humerus).

c) During the society’s joint investigation with the police, the mother’s common law partner (the partner) admitted that he and the mother were fighting over the child and that one of them had pulled and twisted the child’s arm, causing the fracture to her humerus. The mother testified that S. broke her leg while the partner was bathing her in the tub and the partner slipped. She said that it was an accident.

d) The mother testified that after this incident, the partner became physically abusive to her, resulting in charges against him. She admitted that she did not know much about him when she invited him to reside in her home.

e) It was concerning to Justice Jones that the mother entrusted the care of a vulnerable infant to a man about whom she admitted she knew very little. Both the mother and the partner were charged with aggravated assault and criminal negligence causing bodily harm, in relation to the child’s injuries.

f) S. remained in foster care until November, 2007, when she was placed in the care of the grandmother, on an extended visit. In December, 2007, an order was made placing S. in the care of the grandmother subject to the supervision of the society on terms and conditions. The mother exercised access with the child, both at the home of the grandmother, as well as at the offices of the society. The charges against the mother and the partner were ultimately withdrawn.

g) In February, 2008, following a meeting of the society’s Abuse Review Committee, the society made the decision to support the return of S. to the care of the mother, provided she and the partner were no longer in a relationship. S. was returned to the mother’s care, and the society remained involved for the next twelve months.

h) The mother testified that she subsequently became involved in a relationship with the father of J-1 and J-2, when she travelled to Jamaica. This was a long-distance relationship.

i) In September, 2008, police responded to a call to the mother’s apartment building, due to the fact that the mother’s two younger brothers (ages 4 and 5 at the time), who were under her care, were running into traffic and darting out into the street. While the mother claimed at trial [7] that she could not recall the details of this incident, she agreed it was possible that the incident occurred as police described. The mother did not react appropriately, to remove her brothers from the situation of risk that had developed. She stated that the boys were hard to watch because of their exceptionalities.

Justice Jones found that the mother did not provide an adequate level of care to keep her brothers safe, on this occasion.

j) In February of 2009, the society closed its file with respect to S.

k) On July 11, 2009, the mother had been caring for five children at that time, among them her two oldest children, S. who was then two years of age and her son, J-1., who was then only six months old. As well, at the time of the incident, the mother was babysitting the three children of the grandmother. On this occasion, the two boys were out on her 9 th floor balcony, without adult supervision, hanging their heads and arms over the railing. [8] The boys would have been no more than five and six years of age at that time. Neighbours called the police.

The mother denied to the police that the children were climbing on the rail. The mother provided two contradictory reports of her actions on that day. In her testimony at trial, the mother stated she had been watching her brothers from inside the apartment, while seated on the couch. At the time of the incident, the mother stated to the police that she was inside the apartment cleaning and had “hardly left them alone out there”. Justice Jones found that:

i) If the mother had been watching her brothers from inside the apartment, while seated on the couch, as she maintained at trial, then it was very concerning to the court that she did not immediately react to pull the children to safety. ii) It was much more likely that the mother was not actively supervising the children at the time they were on the 9 th floor balcony, circumstances that give rise to considerable concern about the mother’s judgment and her lack of appreciation of the risk or danger to children.

l) The mother was arrested and charged with two counts of abandoning a child arising out of the first balcony incident. Ultimately, the charges laid against the mother were withdrawn, on the basis of the mother entering into a peace bond pursuant to

section 810 of the Criminal Code , pledging to keep the peace and be of good behaviour for a period of twelve months.

m) The society’s next activation was on February 9, 2011. At that time, the society’s intake worker, Ms. Lynne Maitland, was at a public school in Toronto, attended by one of the sons of the grandmother, for the purposes of conducting an investigation relating to that child [9] . While there, the worker discovered that the mother’s children, S., J-1, and J-2, had been left unattended for over one hour in the grandmother’s unheated car, which was parked outside the school. The children were crying when they were found. [10]

n) The intake worker noted that there was only one car seat in the vehicle, although given their ages car seats were required for all three children, while being transported in a vehicle. The worker learned that, while they were riding in the vehicle, the middle child, J-1., age two years, had been seated in the car seat, while four-year old, S., had held the baby, J-2., on her lap.

o) The intake worker noted that the children were extremely under-dressed for the cold winter day. They wore light tops, had no sweaters and had ill-fitting footwear and socks. The children presented as very dirty and smelled poorly. S. had matted hair, the middle child had flaking skin and lumps on his forehead, and the baby, J-2., had dried diarrhoea on her skin and clothing, from her neck to her boots.

p) The grandmother repeatedly stated to the worker that the mother was on her way to pick up the children, however the mother did not arrive at the school until 7:00 p.m. By that time, the worker had apprehended the children.

q) The mother admitted at trial that at the time she left the children in the care of the grandmother, she was aware that the grandmother would be transporting the children in her vehicle and that she did not have sufficient car seats in order to do so.

r) Justice Jones made the following findings about this incident:

i) The mother did not make appropriate advance arrangements for childcare, even though she had to attend a scheduled medical pre- operative procedure that day, and had surgery scheduled for the following day. These circumstances would make it foreseeable that she needed to pre-arrange child care. Instead, the mother virtually abandoned her children to the maternal grandmother’s care, even as the grandmother protested that she could not assume this role. ii) The mother’s behaviour in this situation was irresponsible and denoted her poor judgment.

Further, the mother did not make adequate arrangements for her children to be transported safely by the grandmother, bringing only one car seat and failing to make adequate arrangements to ensure other car seats were available. iii) On leaving the children with the grandmother, the mother did not make responsible arrangements for the return of her children to her care. As well, she did not call or check-in with the grandmother in a timely manner, to ensure that she was managing adequately with the children.

Instead, the mother waited until she was on Go Transit, on the way back to Bolton, before contacting the grandmother. iv) It is clear that the mother intended to impose the care of the children upon the maternal grandmother for the following day as well. The mother’s poor decisions contributed to the circumstances where her children were unsafely transported and then left alone in a cold car in a school parking lot that day.

s) On July 26, 2011, Justice Spence found the older children to be in need of protection pursuant to clause 37 (2) (

b) of the Act. S. was placed in the care of the mother, subject to a 6 month supervision order. J-1 and J-2 were made society wards for four months and two weeks, subject to access to the mother in the discretion of the society. The society was of the view at this time that the mother was ready to resume the care of one child, although not all three of the children.

t) In 2011, the mother and the children were involved in the TAP program. [11] During her supervised access, the older children would often run from the mother’s care, once outside of the confines of the visitation room, such as while walking to the washroom or to the cafeteria. Even in the structured environment of the society’s TAP program, the mother was not able to keep the children under her direct supervision and control. This shortcoming resulted in a much more serious safety issue when a similar situation arose in the community.

u) On October 17, 2011, following an access visit, the mother left the building with S., then age four years. Approximately ten minutes later, S. came up the elevator alone to the society’s 4 th floor office. She had run from the mother’s care at the York Mills subway station, and had crossed Yonge Street on her own, en route back to the society’s offices. The mother subsequently arrived at the society’s offices, separately from the child. [12] Justice Jones found that:

i) The mother did not ensure that she used measures to keep the child within her control at that time, such as holding the child’s hand, or

having the child go through the turnstile first, so that the child was constantly in her sight and within her sphere of supervision. ii) When the child bolted from the mother’s care at the subway station, it was incumbent upon her to react immediately, so that she could overtake the child before the child exited the subway station and reached the street. iii) The mother was at least one minute behind, and by the time the child got to the society’s offices, possibly up to five minutes behind, while the child crossed busy Yonge Street by herself and returned to the society’s offices alone. iv) It was fortunate that no harm came to the child during the time she was out of her mother’s care.

v) S. was demonstrating problematic behavioural issues. In April of 2012, the parties agreed to a six month supervision order that S. remain in the mother’s care.

w) On June 28, 2012, J-1 and J-2 were sent home on an extended visit with the mother with a view to having them placed with her pursuant to a temporary supervision order. The mother had been told by the society that she had to leave the child with a pre-approved babysitter. The worker attended at the mother’s home the next day and no one answered. The worker contacted the mother. The babysitter had left the home, leaving J-1 and J-2 with the mother’s 15-year-old-sister. This had not been pre-approved by the society. The home was noted to be a mess, with piles of clothing on the floor, along with diapers and garbage. [13]

x) The mother was arrested on an outstanding warrant on July 8, 2012 (for driving while under suspension), after the police had attended at her apartment in response to a false 9-1-1 call by S. The older children were placed with friends of the mother until her release from jail several days later.

y) On July 17, 2012, S. was apprehended by the society from the mother’s care and J-1 and J-2 were brought back into care. The police had been called by concerned neighbours because children were alone and throwing items off the mother’s balcony. The police broke down the apartment door and found the mother asleep in a bedroom. The children were unsupervised on the balcony with the door locked from the inside. [14]

z) The photographs of the mother’s apartment on July 17, 2012 provided a visual representation of the state of her living space. A number of safety hazards were identified. A bottle of detergent was left sitting on the floor. Cords and wires and a screwdriver were all within easy reach of her small children. Shopping carts were left next to the railing on her balcony, among other hazards. The police attending at the apartment described the condition of the apartment as horrific. aa) The mother admitted the following at the trial about this incident:

i) She had initially lied to the society about this incident, as she had denied being asleep. She said that she had taken prescription medication for depression and fell asleep. She agreed that she did not tell the truth because she felt that, if she had admitted to falling asleep while caring for the children, this would have reflected badly on her being able to care for the children. ii) The balcony was dangerous and something to be concerned about, from the perspective of the children’s safety.

She recognized that the children could have fallen off and she would never have seen them again. iii) She did not install the lock on the balcony door and should have done this. bb) Justice Jones made the following comments about this incident:

i) The lax attitude of the mother and her inaction in relation to the peril presented by the 19 th floor balcony, was even more concerning, given the earlier incident on July 11, 2009, when her two younger brothers, who were under her care, were out on her 9 th floor balcony, partially hanging over the railing. Even the earlier involvement of the police did not register with the mother the seriousness of the balcony danger.

One would have expected that the mother’s awareness of the risk would have been heightened by the 2009 balcony incident. ii) Three years later, after she had moved another ten floors higher, the mother did not take preventative measures to ensure that her children would not be in a situation of peril, in relation to her 19 th floor balcony. iii) The fact that the mother was not more alive to the risk posed to the children by the balcony leaves the court to question the mother’s ability to learn from past mistakes or experiences, and her ability to generalize her learning from one situation to a similar situation.

[ 46 ] Referencing the incidents set out in paragraph 45 above, Justice Jones found that:

a) The mother failed to show good judgment and was not making good decisions in relation to her parenting.

b) The mother does not foresee obvious safety concerns or situations of risk to her children, which are quite apparent to others. When a safety concern arises, she does not react quickly enough to the circumstances. [15]

c) Even when alerted to a situation of risk to her children, the mother is unable to appreciate the gravity of the risk, and she is unable to take ordinary precautions or implement appropriate safety measures to protect her children.

d) The mother had been unable to maintain a clean, safe environment for her children and this had been a long-standing issue for her, giving rise to concerns for potential neglect of the children.

e) Young children need an alert, attentive, aware caregiver with good judgment, who is able to identify and respond to child safety hazards and who is able to provide appropriate supervision, in order to reduce risk. This is a skill set with which the mother struggles.

f) The risks of returning any child to the mother are unacceptably high and would be tempting fate. [ 47 ] Justice Jones accepted the evidence of Dr. Betty Kershner, a psychologist, who had conducted a psychological assessment of the mother in early 2012. Justice Jones wrote at paragraph 406 of her decision: Dr. Kershner testified that the mother has a tendency to “zone-out” or to “blank out” as a coping mechanism. Her depressive traits are a factor contributing to her slow rate of processing her thoughts. Dr.

Kershner concluded that the mother cannot move fast enough, either physically or mentally, when circumstances require immediate action. She cannot be expected to react quickly to her children or to circumstances in which a swift response is required. These observations were confirmed by the evidence. [ 48 ] Justice Jones made findings that:

a) The mother showed strengths in her commitment to attending the access and in being open to direction from workers. As well, the mother demonstrated affection towards the children on a number of visits.

b) Despite support, the mother was slow to integrate the parenting strategies communicated to her. She was not able to demonstrate consistent use of effective techniques, nor was she able to demonstrate consistent improvement in terms of her interaction with the children. She struggled with multi-tasking. At the time of the trial, the mother was still requiring prompts and intervention from an access supervisor, in her management of the children, even in a monitored environment.

c) The mother had a lack of positive supports.

d) The mother lacked insight into her parenting deficits.

e) The mother did not follow through with a number of referrals made by the society. Justice Jones wrote at paragraph 424 of her decision: …..She did not attend individual counselling, although this was identified as an area of need in the spring of 2012, following the assessment of Dr. Kershner. Such counselling was proposed to enable the mother to address her depressive tendencies, and other personal issues. Sadly, the mother had inadequate parenting herself, and was victimized during her childhood and young adult years. Dr.

Kershner clearly identified that the mother’s depressive tendencies are likely rooted in her experiences of past trauma, and not simply the fact that her children are not in her care. These issues affect her cognitive processing, her ability to react, her tendency to ignore, avoid or be inattentive and ultimately, her judgment. [ 49 ] Justice Jones found that the mother was not open and honest with the society. She made several findings of fact in support of this conclusion, including [16] :

a) There were numerous occasions where she was not truthful to the society, the other parties or the court. The mother actively misled the society, by providing a false name for S.’s father, and by claiming to have no idea of his address or contact details, when this information was known to her.

b) The mother, in a custody and child support case had failed to advise S.’s father or the court that the children were in the care of the society. She obtained a child support order. She did this both on December 6, 2007 and on June 28, 2011. She paid none of that support to the society.

c) When the older children were taken back into care on July 17, 2012, following the second balcony incident, the mother was untruthful to the society about the circumstances pertaining to the incident. She claimed that the children had not been on the balcony and that nothing had been thrown off the balcony. She claimed that she had not fallen asleep. These statements were false.

She chose to mislead the society as to these facts, believing that her version would cast her in a better light. [ 50 ] Justice Jones wrote that in order to have an effective working relationship with the society, any proposed caregiver must be honest and forthright with the agency.

She found that the mother’s lack of honesty with the society was an obstacle to any arrangement for the children’s care that relies upon open communication between the society and the mother for the children’s safety and well-being. [ 51 ] Justice Jones concluded in paragraph 394: The evidence demonstrates that over the course of the society’s involvement with the mother, very little has changed or improved in relation to the factors which give rise to a risk of harm to her children.

The protection concerns that were identified at the outset of this case, in relation to the mother’s care of the children, have continued to persist. While the mother loves the children, over the period that this case has been pending, she has not taken effective steps to address the risk factors. One of the most significant concerns arises from the mother’s poor judgment and lax supervision, resulting in safety concerns for the children. 3.4 Finding analysis [ 52 ] Justice Jones found that there was overwhelming evidence that the older children continued to be in need of protection.

She found that the risks of returning even one child to the mother were too high. [ 53 ] The evidence set out above certainly supports that conclusion. [ 54 ] It follows that if the risks of returning even one child to the mother were too high in February of 2015, the risk of placing a vulnerable infant in her care just four months later was also too high. The mother did not take any steps to reduce the risks identified by Justice Jones during this period. [ 55 ] Events during and subsequent to the first trial and prior to the apprehension of the child only reinforced the findings of Justice Jones. In particular:

a) The mother admitted that she failed to notify the society or Justice Jones that she was pregnant during the first trial. She knew that this was critical information, as she was putting forward alternate plans that she was capable of caring for two children, or in the alternative, just one child

b) The mother did not inform the society or Justice Jones at the first trial that she was involved in another relationship. This was critical information to assess her plan.

c) The mother did not inform the society or Justice Jones at the first trial that she was involved in a physically abusive relationship. This was critical information as it affected the physical and emotional safety of the older children. By asking the court to place the older children in such an environment, the mother was placing the older children at risk and putting her own needs ahead of her children’s. The mother conceded at the trial before me that this was poor judgment.

d) The mother did not inform the court or Justice Jones of these important facts because she was afraid it would adversely affect her case.

e) The mother did not advise the society that she was pregnant until just a few weeks before the child’s birth. This gave the society very little time to work with the mother to prepare for the child’s birth.

f) The mother’s actions only reinforced Justice Jones’ conclusions that she was not open and honest, showed poor judgment and placed her own interests ahead of the children.

g) The mother had taken no steps to obtain intensive counseling to address her childhood trauma as strongly recommended by Dr. Kershner. From the date of the first trial until the date of the child’s apprehension, the mother did not obtain any counseling. [ 56 ] The child was clearly in need of protection pursuant to clause 37 (2) (

b) of the Act at the time of his apprehension. It is unnecessary to rely on facts that occurred subsequent to his apprehension to support this finding. It is surprising that the mother chose to contest this issue when it should have been evident to her that this would be the result. Part Four – Disposition

4.1 Legal Considerations [57] 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. [58] 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, orderthe 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) hasexpired, determine whether an extension under section 70 (4) is available and is in the child’s best interests. If so, extend the time andmake 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 foraccess.

If so, make an access order containing the terms and conditions that are in the child’s best interests (section 58.) [59] Subsection 57 (2) of the Act requires that the court ask the parties what efforts the society or another agency or person made toassist the child before intervention under

Part III of the Act. [60] Subsection 57 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of thepersons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate toprotect the child.

Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing theleast disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent withthe best interests, protection and well-being of the child. [61] Subsection 57 (4) of the Act requires the court to look at community placements, including family members, before deciding toplace a child in care. [62] In determining the appropriate disposition, the court must decide what order is in the child’s best interests.

The court has consideredthe 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 intoconsideration 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 ofa 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. [63] 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 ajudge 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. 4th 79 (SCJ- Family Branch). [64] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time ofthe apprehension still exist today. This must be examined from the child’s perspective. See: Catholic Children’s Aid Society ofMetropolitan Toronto v. C.M. (SCC), [1994] 2 S.C.R. 165 (S.C.C.). 4.2 Services provided [65] The following services have been provided to assist the mother and the child by the society:

a) It provided the mother with a Family Service Worker.

b) It provided the mother with Family Support Workers who provided her with intensive parenting assistance.

c) It arranged Plan of Care meetings to share information about the child. The mother attended these meetings.

d) The society made referrals for the mother to obtain counseling.

e) The society’s Family Service Worker tried to obtain intensive counseling for the mother at CAMH.[17] She even met with themother’s family doctor to facilitate this referral. CAMH did not accept the mother because there are ongoing court proceedings.

f) It provided the child with a Children’s Service Worker. [66] The services provided above were in addition to the many hours of intensive parenting instruction the mother had received throughTAP for the older children. The society fulfilled its obligation to provide services for the family and the child pursuant to both subsection

57 (2) and clause 15 (3) (

c) of the Act. [18] 4.3 Community or Family Plans [ 67 ] The grandmother provided an alternate plan for the child. It will be reviewed below. [ 68 ] No other community or family plans were presented to the society or the court. 4.4 The child [ 69 ] The witnesses consistently described the child as happy, friendly and healthy. He enjoys playing and singing. [ 70 ] The witnesses described the child as rarely upset and easy to manage. [ 71 ] There was some initial concern that the child was behind in his gross and fine motor skills.

However, by the time of this trial the child was meeting his developmental milestones. 4.5 The plans of care 4.5.1 The society’s plan [ 72 ] The society’s plan is to place the child for adoption. [ 73 ] The adoption worker testified that the child is highly adoptable and provided sufficient evidence to support that claim. The society asks that the court not make an access order in order to facilitate the child’s ability to be adopted. 4.5.2 The mother’s plan [ 74 ] The mother’s primary plan is to care for the child on her own. She would receive assistance from the grandmother and her sister.

Her second choice is to have the child placed jointly with her and the grandmother and they would live together. Her third choice is to have the child placed with the grandmother and have as much access as possible. [ 75 ] The theory of the mother’s case was that she is far more capable now of parenting a child than she was at the time of the first trial. She provided the following evidence in support of this theory:

a) She had been in a series of abusive relationships with partners, including during the first trial. [19] She has actively engaged in domestic violence counseling, learned how to become more assertive and identify the warning signs of an abusive partner. She said that she has not been in an abusive relationship since leaving the child’s father in April of 2014.

b) She had been overwhelmed trying to care for three children, work and attend at school in 2012. This led to the second balcony incident. [20] The mother is no longer working or going to school as she is eligible for the Ontario Disability Support Program (ODSP). She said that the prior stressors have been eliminated.

c) The mother says that she took Dr. Kershner’s report seriously and used it to obtain ODSP and see a psychiatrist for her depression.

d) The mother says that she has been proactive in obtaining services. She has attended parenting programs and individual and group counseling. She said that she has learned from these programs and she is a much stronger person and better parent.

e) The mother called both counselors who have worked with her. They have provided supportive counseling for her and concentrated mainly on her domestic violence and relationship issues. The counselors were both very positive about their involvement with the mother. They testified that the she was motivated to learn, receptive to their advice, committed to the process, gave constructive feedback and was able to gain insights. They both felt that she has developed more assertiveness and takes more initiative. They both commented that the mother was very committed to the child and highly motivated to parent him.

f) The mother remains involved with the second counselor at Tropicana Community Services. This is culturally appropriate counseling. She sees this counselor for individual counseling once every three weeks.

g) The mother said that she has been cooperative with the society and receptive to their feedback.

h) The mother said that her ability to understand child development and to read a child’s cues has improved.

i) The mother said that she has been able to demonstrate that she can keep the child safe in a variety of situations.

j) The mother said that her relationship with the grandmother has improved and is now very strong. She said that she has also made peace with her father.

k) The mother testified that she now takes responsibility for her poor judgment. She repeatedly acknowledged during the trial that she had exercised poor judgment. Her acknowledgements of poor judgment included:

i) Exposing her children to abusive relationships. ii) Not properly supervising her nephews during the 2008 incident when they ran into traffic. iii) Not properly supervising children in both balcony incidents. iv) Lying to the police and the society about not being asleep during the second balcony incident.

v) Leaving her children with the grandmother without enough car seats in the children left alone in the cold car incident. vi) Not adequately supervising S. in the Yonge Street incident. vii) Not disclosing that she was pregnant or in an abusive relationship to the society or the court during the first trial. viii) Lying about the identity of S.’s father to the society.

ix) Not advising the family court on two occasions that her children were in the care of the society, while obtaining orders for child support. [ 76 ] The mother testified that she has adequate accommodation for the child. She says that she has kept it clean and free of hazards. She says that she has obtained all necessary equipment to have the child home, including a crib. [ 77 ] The mother said that she will stay at home and be a full-time parent. She plans to have the child in daycare during the days. She also plans to take the child to the Ontario Early Years Centre.

She said that she can use the grandmother and her sister for parenting relief. She said that she might also pay an outside agency to assist her on occasion. [21] She said that she can afford to pay between $200 and $400 per month for this service. [ 78 ] The mother said that she will support herself and the child with her ODSP benefits.

She said that the grandmother can also provide her with financial assistance. [ 79 ] The mother said that she will take the child to her current family doctor. [ 80 ] The mother said that she will continue with her counseling at Tropicana and will try to find services through the Aisling Discoveries program. The mother said that she is also receptive to re-engaging with the Home Visitor program. [ 81 ] The mother says that she will be careful before entering into another relationship. 4.5.3 Positive aspects of the mother’s plan [ 82 ] I make the following positive findings about the mother’s plan of care:

a) The child would have the opportunity of living with his biological family.

b) The child would have the opportunity of knowing his extended biological family.

c) The child would have the cultural advantages of being raised in his own culture.

d) The child would have the opportunity of being raised in his religious faith.

e) The mother loves the child very much. She sincerely wishes to be able to raise him. All society workers testified that the mother tries to the best of her ability.

f) The child enjoys his visits with the mother. The mother shows him great love and affection. She sings to him, hugs and praises him. The child is affectionate with her. The mother is able to comfort the child if he is upset. Society workers testified that the child has developed a bond with her.

g) The mother ensures that the child is clean, well fed, changed and in proper clothing at all times during the visits.

h) The mother’s access is generally positive. The mother has shown some improvement in her ability to engage with the child in recent months.

i) The mother has made some gains in her parenting ability, such as reading the child’s cues.

j) The mother has been able to provide a structure (going to the Ontario Early Years Centre) for the unsupervised portion of her visits.

k) The mother has shown some improvement in her time management (coming on time for visits and appointments has been an ongoing issue).

l) The mother has shown some ability to learn parenting skills, albeit with constant repetition.

m) The mother was able to demonstrate parenting insights in a recent homework assignment given to her by a society worker (Exhibit # 9 at the trial).

n) The mother has been proactive in seeking assistance since the child was apprehended. On her own initiative (or with the help of the grandmother), she has obtained parenting assistance through the Making the Connection and Home Visitor programs. She has obtained

individual and group counseling. She presently is engaged in counseling at Tropicana.

o) The court was very impressed with the mother’s current counselor from Tropicana. She presented as warm, caring, knowledgeable and supportive of the mother.

p) The mother is very likeable. While this is not a personality contest, the reality is that service providers are likely to be more effective with someone who is easier to like. Likeability is also a positive trait for the child to be exposed to.

q) The child’s foster mother will not be putting forward a plan to adopt the child. It would likely be easier for the child, in the short term, to transition to the mother’s home than to the home of a stranger. 4.5.4 Limitations of the mother’s plan [ 83 ] Notwithstanding the positive aspects of the mother’s plan, the court finds that it is not in the child’s best interests to be placed in the care of the mother for the reasons that will be set out below. 4.5.4.1 - Honesty, insight and judgment [ 84 ] The mother was not a reliable or credible witness.

There are several examples where she has been dishonest with the court or the society. At trial, [22] her memory about important events was very poor. Her evidence was often contradictory or inconsistent. She continued to minimize her responsibility for bad decisions and deflect blame. The mother has historically lied to courts and the society to try to obtain the result she wants. The court did not rely on her evidence unless it was independently corroborated. It preferred the evidence of society workers where it conflicted with the mother’s. Examples of the mother’s lack of honesty, insight and judgment are:

a) The mother did not advise the society or Justice Jones at the first trial that she was pregnant or in an abusive relationship. While she admitted this was bad judgment in her evidence, she also cast blame on the society for not recognizing that she was pregnant at visits.

b) At this trial, the mother claimed that no evidence had ever been produced that S.’s injuries in 2007 were anything other than accidental. However, the mother had signed a Statement of Agreed Facts in a prior proceeding regarding S., where she acknowledged that the Hospital for Sick Children had reported S.’s injuries as being non-accidental . The mother tried to rationalize this inconsistency, stating that a line had been missed in the Statement of Agreed Facts that the injuries were accidental. This was unlikely.

c) The mother could not remember the 2008 incident where the police were called because her brothers were running unsupervised in traffic. She conflated this with the first balcony incident.

d) The mother continued to minimize her lack of judgment and parenting deficiencies in her affidavit sworn on June 24, 2014. This affidavit was prepared in support of a temporary care and custody hearing.

e) The mother provided a new explanation for the second balcony incident during this trial. She claimed that she fell asleep because she was overwhelmed from all of her obligations. She never mentioned this up to and including her first trial, where she testified that she fell asleep due to her depression medication. The mother admitted that she had initially lied to the society about this incident, claiming to be awake.

f) The mother continued to minimize the condition of her apartment in the second balcony incident.

g) The mother continued to struggle to understand possible solutions to preventing her children from going out on the balcony during the second balcony incident. She made excuses about why she did not secure the balcony, when it was apparent that she could have just pushed solid furniture in the apartment up against the balcony door to secure it.

h) The mother admitted that she did not advise the family court, in both 2007 and 2011, that S. was not in her care. She obtained court orders and collected child support. The mother minimized this behaviour by claiming that she used the child support to buy things for her children. The mother provided no evidence of this.

i) The mother continued to minimize her responsibility with respect to the children left alone in the cold car incident. The mother feels that her error was not providing enough car seats. Justice Jones set out multiple protection concerns about the mother, including her failing to make adequate arrangements for the care of the children, the poor condition of the children, her failing to make adequate arrangements for the return of the children and failing, in a timely manner, to ensure that the children were being adequately managed by the grandmother.

Further, the mother’s counselor testified that the mother had told her that the older children came into care at this time because of the grandmother’s mistake. The mother did not take personal responsibility for her actions.

j) The mother claimed at this trial that she was right behind S. in the Yonge Street incident. She denied that the child crossed Yonge Street, but acknowledged S. crossed another busy street. On cross-examination, the mother agreed with the finding of Justice Jones that she followed somewhere between 1-5 minutes behind S., who was four years old at the time.

k) The mother does not appear to understand the impact her past parenting issues could have on her present parenting of the child. She has told workers that her past problems have nothing to do with the child.

l) The mother appears to lack any insight into the grandmother’s parenting deficits. These deficits are profound and will be reviewed later. The mother views her as a great support. A protective parent would avail herself of us much information as possible to assess if a caregiver is appropriate. The mother has not done this. She testified that she couldn’t remember discussing the children left alone in the cold car incident with the grandmother. She never spoke to the grandmother’s child protection worker about any protection concerns that might impact the child.

She is aware that the grandmother had a negative Parenting Capacity Assessment in her own child protection case, but never asked to see it. The mother is demonstrating poor judgment again in making the grandmother a central person in her plan.

m) At one of her first unsupervised visits (in July of 2015), the child bumped his head when he fell at the park. The mother had difficulty explaining what happened, giving different explanations to society workers. The society was very concerned that the mother was very focused on the society signing a piece of paper agreeing to her version of events.

n) The mother knowingly breached the supervision order of Justice Spence, which led to the apprehension of the child on October 24, 2014. When asked if she had breached the order on any other occasion, the mother hesitated and said, “I don’t think so”. After listening to the evidence of the mother and the grandmother, the court is pretty sure that they breached the terms of the supervision order more than the one time.

o) The mother has stated to many witnesses that she does not agree with Dr. Kirshner’s report. She tells them that she does not see the need for intensive long-term therapy as recommended by Dr. Kirshner. She has chosen not to share this report with her counselors. This report sets out significant issues with respect to the mother’s relationship with the grandmother which require appropriate therapy. The mother disagrees and feels that she has resolved these issues.

p) The mother claimed that she could not afford the private counseling suggested by Dr. Kirshner (the evidence about these counseling recommendations will be reviewed in more detail below). This was contradicted when (in a separate line of questioning) it was learned that the mother received a personal injury settlement of $18,000 in 2014. Further, the grandmother testified that she is able to save between $1,800 and $2,000 each month. [ 85 ] The mother’s lack of honesty creates a major barrier to returning a child to her.

The court has no confidence that the mother would advise the court or society if she was involved in another relationship or if that relationship was abusive. It has no confidence that the mother would report any protection concerns or incidents affecting the child to the society. The court also has no confidence that the mother would consistently comply with the terms of a supervision order. Her history, including her recent history, informs the court that that this is unlikely.

This creates an unacceptably high risk for the child. [ 86 ] The mother’s lack of insight and minimization of the parenting concerns likely places a ceiling on the improvements that she can make. It makes her far more likely to repeat her episodes of poor judgment and parenting, as she has done in the past when she has minimized risk concerns. [ 87 ] The evidence shows a history of exceptionally poor parenting judgment by the mother.

She is fortunate that a tragedy did not befall a child. 4.5.4.2 - The mother’s ability to keep the child safe [ 88 ] A major protection concern about the mother has been her inability to recognize safety hazards or dangerous situations and keep children in her care safe. Examples of this are:

a) In 2008, when she let her brothers run into traffic.

b) In 2009, when she left her brothers unsupervised climbing on the railing of the 9 th floor balcony.

c) In 2011, when she left the older children with inadequate car seats and clothing with the grandmother.

d) In October of 2011, when she lost S. in the subway station and let her run across a major street to the society office.

e) In June of 2012, when the older children were left with an inappropriate caregiver, the day after J-1 and J-2 were returned to her.

f) In July of 2012, when she left her children unsupervised on a hazardous 19 th floor balcony during the second balcony incident.

g) She has exposed at least S. to an abusive relationship. [ 89 ] The society workers testified that the mother continues to struggle with consistently recognizing and reacting to safety hazards for the child. [23] They say that the mother has to be continually reminded about these hazards before she can learn this information. She will then have difficulty transferring this knowledge to new situations. Examples of these problems are:

a) The mother has to be continually reminded to check the temperature of food she is feeding the child.

b) The mother has to be continually reminded to lock the child’s stroller. [24] The mother has argued that it is safe enough to prop the stroller up against a wall.

c) The mother had to be repeatedly reminded to apply sunscreen for the child. She felt that a hat would be sufficient.

d) The mother has to be reminded to first check that objects are not hot before placing the child on them. This happened this summer when the mother was about to place the child on a hot marble statue at the park and the society worker intervened. A society worker testified that the mother was upset after this incident, as the mother had an expectation that the supervising workers should be identifying all possible safety hazards for her when she goes out into the community with the child.

e) The mother has to be reminded to hold the child’s hand when in the community so that he doesn’t run off.

f) The mother had to be instructed not to change the child on her lap as he was rolling and wriggling and could have fallen. After several reminders at visits, the mother finally stopped doing this.

g) When discussing the balcony incidents with a society worker, the mother told her that it was no longer a safety issue because she was on the ground floor. She did not appear to understand that the main safety hazard was her lack of supervision of the children.

h) The mother continues to struggle with multi-tasking. She will ask society workers to look after the child while she is getting food ready for the child. She has to be constantly reminded to keep an eye on the child when she is involved in other tasks. [ 90 ] The multiple society workers who testified had variable levels of generosity when describing the mother’s parenting. The most generous worker was Amy Studholme. Ms. Studholme was the Family Support Worker for the mother and supervised 30 of her visits up until July of 2015. Many of the positives of the mother described above came from Ms. Studholme.

The mother was very fortunate to have the assistance of Ms. Studholme. She is calm, professional, warm and empathic. She demonstrated the best knowledge of the mother. For these reasons, the court gave her evidence considerable weight. [ 91 ] Despite her obvious affection and praise for the mother, Ms. Studholme had considerable reservations about the mother having unsupervised access to the child. She testified that the mother was not always aware of safety risks – she was not aware of her surroundings and potential risk factors. Ms.

Studholme felt that the mother was able to parent well in a familiar and structured setting, but struggled when the setting and structure changed. Ms. Studholme felt that she needed to stay in close proximity to the mother and the child at visits to ensure the child’s safety. She does not have confidence in the mother’s ability to recognize and react to safety issues, despite the intensive parenting instruction that the mother has received over several years. [ 92 ] Ms.

Studholme felt that the mother would never intentionally hurt the child, but the child was at risk of being inadvertently harmed due to the mother’s lack of attention. The court takes her concern seriously. [ 93 ] The court is mindful that the mother has made some gains in the area of child safety. However, the mother had also made gains in this area in 2012 after intensive parenting instruction at TAP.

The gains quickly regressed once the children were returned to her. [ 94 ] The court fully agrees with Justice Jones when she wrote at paragraph 405 of her decision: It is simply not possible to modify a child’s environment in every aspect to eliminate risk. While an apartment without a balcony may exclude this particular danger, other types of risk will inevitably arise in any living space. Young children need an alert, attentive, aware caregiver with good judgment, who is able to identify and respond to child safety hazards and who is able to provide appropriate supervision, in order to reduce risk.

This is a skill set with which the mother struggles. [ 95 ] This court has to answer a fundamental question in this case. Will the mother be able to keep the child consistently safe if he is returned to her care? Sadly, the court has to answer that question, no. The risks of returning the child to the mother are much too high. 4.5.4.3 - Other parenting concerns of mother [ 96 ] The evidence set out other parenting concerns about the mother. Society workers testified and this court finds that:

a) The mother has struggled to learn parenting techniques and has to be constantly reminded about them.

b) The mother still needs support by society workers to structure her visits and play with the child.

c) The mother has spent too much time focusing on the child’s hygiene, as opposed to playing with him on visits (although there has been some recent improvement).

d) The mother has difficulty consistently coming to visits on time. This means that she is rushed at the outset of these visits, as she has to set up the room and look after the child. This results in some disorganization on these visits. The mother also has to be reminded to allow enough time to get the child prepared to leave at the end of visits. There has been some recent improvement in this area.

e) The mother doesn’t consistently respond to the child’s cues (again, the mother has improved in this area). For instance, the child will be content doing an activity and the mother will start doing something else. At times, it was observed by society workers that she will put her own needs first. She will say that the child is tired (when he isn’

t) when it is she who is tired. [ 97 ] The court finds the following deficits in the mother’s plan of care:

a) The mother says that she will have the child attend daycare. However, she has taken no steps to ascertain waiting lists for daycares or to determine the procedure to obtain subsidized daycare.

b) There are some concerns about the mother’s ability to budget. She said that she received $18,000 in a personal injury settlement in 2014, but that only $1,000 is left. This line of inquiry arose when the mother testified that she would spend $200 to $400 per month for private parenting relief. Her budget was explored. She only receives $1,100 per month from ODSP benefits and her rent is $1,300 per month. Even considering that she will receive more benefits with the child in her care, it is hard to see how she can afford private caregivers.

c) The court is very concerned about the significant role proposed for the grandmother in the mother’s plan. The grandmother lives in a building attached to the mother’s. She testified that they either see one another or speak daily. The court does not view the grandmother as a positive support. To the contrary, the grandmother has often had a destructive influence on the mother. The mother and the grandmother have a very troubling history. For instance:

i) The mother was twice, as a young child, placed in the care of child protection agencies in Florida. ii) The grandmother acknowledged that she sent the mother, when she was about 5 years old , to live with a friend in Toronto because of the mother’s behavioural problems. The grandmother lived in Texas at that time. The grandmother acknowledged that the friend called the society stating that she could no longer care for the child. iii) The grandmother was charged in Ontario of assaulting the mother with a weapon when the mother was 13 years old. Justice Jones found that the grandmother repeatedly beat the mother with an electrical power bar. The grandmother continued to blame the mother for

this incident at the trial. iv) The mother had little contact with the grandmother for three years after this incident and became a crown ward.

v) The mother’s children were apprehended from the grandmother in February of 2011, in the children left alone in the cold car incident. Justice Jones found that there had been very poor communication between the mother and the grandmother, as the mother left the older children with the grandmother in a rushed and disorganized manner and did not follow up to check on their welfare.

This poor communication led to the apprehension of the older children and the grandmother’s children. vi) The mother and grandmother participated together in the breach of the supervision order of Justice Spence, resulting in the apprehension of the child on October 24, 2014. vii) The mother and grandmother have not engaged in any treatment to deal with their issues since the mother was a teenager. They both feel that they have resolved their issues. The court has little confidence in the accuracy of this evidence.

d) Aside from the grandmother, the mother did not produce any other friend or family member who could assist her with her plan. The mother needed to be able to present a plan where she could parent the child jointly with a responsible adult to have had a realistic opportunity to be successful in this case. The grandmother is not that person. The involvement of the counselor from Tropicana is a positive consideration, but she is only available for counseling once every three weeks. The mother requires much more intensive support.

e) The mother has appealed the order of Justice Jones asking that the older children be placed in the care of the grandmother. However, at this trial, she seemed confused about what she was seeking in her appeal. She thought that she had asked for the older children to be placed either in her care or the grandmother’s. [25] She had no real plan about how she would care for her four children if she was successful on both the appeal and in this case. 4.5.4.4 - The psychological assessment and evidence of Dr. Kirshner [ 98 ] The psychological report of Dr.

Betty Kirshner, dated April 9 , 2012, provides some insight into why the mother struggles with her judgment, insight and parenting. The society filed an addendum to this report by Dr. Kirshner, dated October 9, 2015. Dr. Kirshner also testified at this trial. [ 99 ] Justice Jones in her decision reviewed this report in detail and relied on it in reaching her decision. The court will limit its review of Dr. Kirshner’s evidence to the key components of the report and to her testimony in this case. [ 100 ] The court is mindful that assessments should be treated with caution.

As this court wrote in paragraph 78 of Jewish Family and Child Service of Toronto and R.K ., 2008 ONCJ 774 : Courts should always treat assessments with caution. The assessor does not have the benefit of the full evidentiary record that a trial judge has. Their reports, by their very nature, are predictive. They are just one piece of evidence and what is important for the court is to evaluate how the findings do or do not correspond with the evidence at trial. [ 101 ] In this matter, Dr. Kirshner’s report has the following limitations:

a) Her initial report is over three years old.

b) Dr. Kirshner did not have the benefit at this trial of knowing how the mother has functioned for the past three years and her current status.

c) Dr. Kirshner did not interview the grandmother.

d) Dr. Kirshner only received background information from the society.

e) Dr. Kirshner only interviewed the mother one time.

f) This was not a parenting capacity assessment. It was a psychological assessment. Dr. Kershner did not observe the mother with any children. She could only testify about how the mother’s psychological characteristics would likely affect her general parenting. She could not comment on the mother’s specific parenting of children. [ 102 ] Dr. Kirshner was qualified as an expert in clinical psychology, psychological assessments and parenting capacity assessments at this trial. [ 103 ] Dr. Kirshner conducted cognitive and personality tests on the mother. She looked to see how these tests fit together with her observations of the mother. Her evidence was that:

a) The “big issues” with the mother are her lack of awareness, slow rate of thinking, lack of availability and lack of vigilance to safety issues.

b) The mother tested at the 13 th percentile for cognitive functioning. This is the low-average for the general population. The mother’s processing speed, at only the 4 th percentile, was lower than expected and was indicative of depressive feelings.

c) The cognitive testing showed that the mother has slow reactions. She has a tendency to withdraw into herself, feel frightened and confused and minimize what is going on.

d) All of the testing of the mother showed evidence of depression, with poor self-esteem and generalized confusion. Her depressive traits are a factor contributing to her slow rate of processing her thoughts.

e) On her personality testing the mother had a strong tendency to ignore, avoid, distract herself and not pay attention. As a result, she can be expected to have great difficulty paying attention to two things at a time. Her ability to multi-task is weak. She will be slow to react, even when a quick reaction is required and she may not know how to deal with a situation that is unfolding in front of her.

f) The mother is very vulnerable to not seeing what is going on and misinterpreting danger. She is unlikely to fail to notice or grasp that certain parenting situations r

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