CITATION: The Children’s Aid Society of Ottawa v. M.M.., 2012 ONSC 3529

COURT FILE NO.:  FC-08-FL-1745

DATE:  June 20, 2012



















D.S.-M., born […],  2006 and L.S.-M., born […], 2007

















Cheryl Hess, for the Applicant




- and -









M.M. and E. S.-M.












Dominique Smith, for the Respondent M.M.


Francis Aheto-Tsegah, for the Respondent E. S.-M.








HEARD: May 9, 10, 12, 16, 18, 19, 20, 24, 26, 27, July 25, 26, 27, 28, 29, August 29, 30, September 1 & 2, October 11, 12, 13, 14, December 12, 13, 14, 15, 19 and 20, 2011.





James, J.




[1]               This is the disposition of an Amended Status Review Application dated July 16, 2010. The applicant, the Children’s Aid Society of Ottawa (“CAS”), is requesting that D.S.-M. and L.S.-M. be made wards of the Crown for the purpose of adoption without access by their biological parents. CAS is also seeking a restraining order in relation to Mr. M. pursuant to section 80(1) of the Child and Family Services Act (CFSA). This Court is required to determine whether either child continues to be in need of protection and if so, what disposition is in that child’s best interests. In determining the best interests of the children, it is necessary to consider the factors listed in section 37(3) of the CFSA.


[2]               The parents first met in 2002. They married in February, 2003. Ms. S. had a child from a previous relationship, T.S.-K., who was about 7 years old at the time of the marriage. The CAS application is not directed towards T.S.-K. who will presumably continue to live with his mother.


[3]               D.S.-M. was born on […], 2006. His younger brother, L.S.-M., was born about […] months later on […], 2007. The parents’ relationship was characterized by frequent arguments, separations and sporadic physical violence. The boys were first apprehended in June, 2008. They have been in care since that time, primarily but not exclusively residing in foster homes. They are now ages 6 and 4 respectively. Both boys have been identified as having special needs and have significant behavioural challenges for which they are receiving ongoing treatment.


[4]               In 2009 the CAS attempted to re-integrate the boys into the care of their mother with extensive supports provided by both the maternal grandmother and the CAS.  After several months the re-integration was terminated and the children were returned to foster care.


[5]               The parents’ marriage broke down just at around the time that the re-integration process was to begin. Since that time, the father has consistently but unsuccessfully sought an opportunity to parent the boys on his own. He says that the CAS has stubbornly opposed all his efforts to demonstrate his parenting ability.  He is angry, frustrated and bitter due to his dealings with the CAS.


[6]               Both parents are opposed to the CAS application and they have submitted separate Plans of Care as single parents. Each parent has accused the other of serious parenting inadequacies.


[7]               For the reasons that follow, I have determined that the application of the CAS ought to be granted.


The Parents


The Mother-  E.S-M.


[8]               E.S.-M. is the mother of D.S.-M. and L.S.-M. She now wishes to be known by her unmarried name and I will refer to her as Ms. S. She is 35 years old. Her parents and sister live in the Ottawa area. Her mother has assisted Ms. S. with homemaking and childcare responsibilities at various times. Her parents are part of her Plan of Care.


[9]               Ms. S. is one credit short of holding a diploma from Algonquin College in Business Information Systems. She had her first child, T.S.-K., in 1995 as a single parent. He is now 17 years old. Ms. S. receives assistance from the Ontario Disability Support Program (O.D.S.P.) and has not been employed since 2002.


[10]           Ms. S. suffers from several physical and mental health challenges. These challenges include chronic pain, endometriosis, migraine headaches, muscle spasms, A.D.H.D. and recurring bouts of depression. She takes a variety of medications for her ailments. She finds it difficult to follow routines and stay focused and organized. She gets bored easily and has trouble staying on task. She is often tired. 


[11]           Ms. S. has a history of violent outbursts of anger. She acknowledged having struck her husband during arguments; yelling when angry was common. She threw a computer monitor down a flight of stairs that inadvertently struck her husband in the leg. There is no evidence of violence towards the children. For several years prior to 2009 she consumed marijuana regularly for pain. She said she has not consumed illegal drugs since completing an intensive treatment program that year.


[12]           She feels her situation has improved now that she is no longer residing with her husband and because T.S.-K. is older and easier to care for. She has received counselling for anger management, spousal abuse and taken parenting courses. She thinks she is now equipped with new skills and insights and is ready to meet the challenges of being a single parent. She is less angry and more positive. There is no doubt that she loves her children.


[13]           Ms. S. is soft-spoken, co-operative and compliant but acknowledges having feelings of anger and being overwhelmed at times. Dr. David MacLean, a psychiatrist and director of the Family Court Clinic at the Royal Ottawa Hospital, prepared a comprehensive family assessment including a review of Ms. S.’s medical history. He also arranged for a series of psychological tests. He noted that she had attempted suicide on more than one occasion and that she has been previously treated for psychiatric issues. He said she demonstrated certain personality characteristics consistent with a diagnosis of borderline personality disorder including intense feelings of anger, intense and unstable interpersonal relationships and fears of abandonment.


[14]           She tested in the “at risk” range on the Child Abuse Potential Inventory.


The Father- M.M.


[15]           M.M. is 38 years old. He is the second of two boys. His brother D. is two years older. His parents separated when Mr. M. was young. After separation, he initially lived with his mother who was unable to control his behaviour. Thereafter he lived with his father including several years in China. He said his father holds a dual PhD. in Linguistics and Education and is fluent in seventeen languages. He is also a world-class chef. He is currently a director of education in Alaska.


[16]           His brother D. is married and has four children. Mr. M. and D. are very close. Mr. M. describes his brother as a “math savant”. D. currently works as a night auditor in the hotel industry, which allows him to work as a freelance computer programmer developing software for a popular on-line game called World of Warcraft.


[17]           Mr. M. completed grade 12 in 1997. Prior to marrying Ms. S., he supported himself for a period of time by growing marijuana on a commercial basis. After discontinuing commercial production, he continued to be a marijuana advocate and consumer. He also ran a computer business that grew to have revenue of over $20,000,000 per year with two dozen employees and several stores before going out of business.


[18]           Like his brother, Mr. M. is fond of playing World of Warcraft. The extent of his gaming was a source of friction at times with his spouse, sometimes staying out all night and playing for more than twenty-four hours at a time. He said he is a very advanced player and very few other gamers have achieved his level of skill. He is a tactical thinker.  He said he makes a battle plan every morning when he gets up. This way of thinking is reflected in his interpersonal dealings, which have a tendency to be confrontational and combative when people don’t agree with him.


[19]           Mr. M. is extremely overweight. He said that in Grade 9 he weighed nearly 350 pounds. As a young man, he was involved in the sport of power lifting and took anabolic steroids for several years. His weight peaked at about 520 pounds in 2009. Since then his weight has decreased. In December, 2011 he was down to 350 pounds. He attributed his success to marijuana avoidance, stress reduction, exercise and diet. He said he is much more mobile now and acknowledges that his parenting ability was compromised when he was heavier. He also receives O.D.S.P. and hasn’t worked since 2003.


[20]           In addition, Mr. M. has vision difficulties and is nearly blind in his left eye. He is unable to operate a motor vehicle. He uses an electric bike and public transit for transportation.


[21]           Mr. M. said that he has difficulties dealing with women, particularly as a result of his wife’s abuse and perceived unfair treatment by several female CAS workers. In his view women are generally dishonest and sinister and he doesn’t trust them. He hopes that if he is allowed to keep the boys, he will have a male worker assigned to his case. He doesn’t think his mistrust of women will impede his ability to work with them in the future, particularly teachers as he has great respect for educators.


[22]           Mr. M. described himself as an immensely powerful man. He testified that he can leg-press 1300 pounds.  Several women reported that he hurt them while shaking hands. Mr. M. attributes this to not knowing his own strength. He noted that despite severe provocations he never struck his stepson, T.S.-K., but said if he did it would put him in a coma.


[23]           Mr. M. is intelligent and presents as friendly and engaging. He shows his emotions readily. He can be warm and supportive but also has some less positive personality traits. In the Family Court Clinic assessment Dr. MacLean said that many of Mr. M.’s difficulties are related to personality traits that are not readily amenable to change. Dr. MacLean said that Mr. M. gives a first impression of being sociable and extroverted but is very sensitive and finds it difficult to accept criticism. He is not receptive to opinions that differ from his own and will not willingly surrender his own beliefs. He is quick to identify the problems of others but slow to recognize or take action on his own inadequacies. He shows limited insight into how he contributed to the dysfunction in his family. He scored in the normative range for non-abusive parents on the Child Abuse Potential Inventory.


[24]           In Mr. M.’s view much of Dr. MacLean’s report, at least as it relates to him, is biased and a “load of crap”. He believes that Dr. MacLean tailored his evidence to suit the CAS case. To Mr. M. the only issue that affected his parenting ability was his weight and that is now under control. There are no other issues.


[25]           Mr. M. was not critical of Dr. MacLean’s observations regarding Ms. S. or her son, T.S.-K.  Mr. M. is adamant that Ms. S. is not capable of parenting either one or both boys and he put considerable effort into attempting to demonstrate why placing the boys with their mother would be inappropriate, even dangerous.


[26]           He is tireless in his efforts to resume parenting his boys. It is the focus of his existence. He has endeavoured to meet all the requirements set for him in order to re-gain custody. His love for them is unquestioned. He equates love with good parenting. He does not recognize that parents can love their children and at the same time be unsuited for parenting.


The Maternal Grandparents--P.S. and R.S.


[27]           R.S. is Ms. S’s mother. She is 60 years old. She has assisted Ms. S. with her parenting and homemaking responsibilities at various times. R.S. has attended access visits with Ms. S. She knows her grandsons well and the challenges they present. She has been an active grandmother and has a loving relationship with all three of her daughter’s children.


[28]           Ms. S. and Mr. M. celebrated their marriage at R.S.’s home. She described Mr. M. as a “know it all”, loud, and not engaged with the boys when they were younger. He didn’t take them outside (likely because of his weight/mobility problems) and spent many hours playing video games both day and night. She noted that he wasn’t employed and did little to help around the house.


[29]           R.S. has serious health issues. She suffers from an auto immune disease similar to lupus, receives treatment for depression and has arthritis in her joints. She suffers from chronic pain and used to have migraine headaches. She has a history of strokes and a heart valve problem.


[30]           P.S. is Ms. S’s father. He is 61 years old. He has been married to R.S. for nearly forty years. He works as a scheduler in the maintenance department of an industrial firm. He hopes to retire in a few years. His health is good. He does not have a good relationship with Mr. M and his relationship with Ms. S has been strained at times. He is especially close to his grandson D. S.-M. All three grandsons were initially placed with P.S. and R.S. when taken into care in June 2008. Caring for the three boys quickly proved to be too much. T. S.-K. stayed with his grandparents and both D.S-M. and L. S.-M. were placed in foster homes.


[31]           R.S. and P.S. have requested that D.S-M. reside with them while Ms. S would have custody of L.S.-M. They have been assessed by CAS for a kinship placement as part of the Plan of Care submitted by Ms. S. They were not recommended as a placement for placement for D.S-M. Concerns included a lack of insight regarding the need for CAS involvement, minimizing Ms. S’s physical and mental health challenges, a lack of understanding of D.S-M.’s special needs, the risk to R.S.’s health due to onerous parenting responsibilities and a reluctance to facilitate a relationship between D.S-M. and his father.


The Children




[32]           Ms. S. described D.S.-M. as happy, spontaneous and energetic. He is easy-going and loveable. He has no sense of danger and exhibits some difficult behaviour.


[33]           Mr. M. acknowledged that D.S.-M. is a rambunctious child and noted that as a boy he was rambunctious as well. He acknowledged that D.S.-M. has special needs and requires a very high level of supervision because he is unpredictable and fearless.


[34]           At about 2 ½  years of age D.S.-M. underwent a speech and language assessment. It identified significant delays in the areas of play, communication, comprehension, expressive language and speech sound development. He was referred to the Ottawa Children’s Treatment Centre for a more complete developmental assessment and intervention. His fine and gross motor skills were determined to be age appropriate but his expressive language and socio-emotional development was at a 12 to 14 month old level. He was diagnosed with global developmental delay.


[35]           In June, 2008 as a result of an incident between the parents, CAS apprehended all three children and placed them with their maternal grandparents. About five weeks later D.S.-M. was transferred to a foster home. He remained in foster care until the attempted re-integration in the autumn of 2009.


[36]           Several CAS workers described some very unusual behaviours when they first met D.S.-M. including sniffing and licking their legs and sometimes biting them when they weren’t looking. His caregivers had to be extraordinarily vigilant because of his unpredictable tendencies to climb, jump or dash away. He could be aggressive with other children. He had a tendency to break and throw objects. They reported that his speech and toilet-training were delayed.


[37]           D.S.-M. made significant progress while in foster care in the areas of speech development and toilet-training. His behaviour problems continued to be present and he required a very high level of supervision. The CAS workers reported regression in these areas after the re-integration was back into his mother’s care the following year.


[38]           He was psychiatrically assessed in May, 2010 near the end of the re-integration period by Dr. Baksh at the Children’s Hospital of Eastern Ontario. Dr. Baksh’s observations included that D.S.-M. was very active and behaviourally challenging. Ms. S. had difficulty controlling him during the assessment. He threw cards, climbed on a table and at times had to be retrieved by his mother. D.S.-M. bit his mother as she tried to control him. Dr. Baksh observed that D.S.-M. had a big grin on his face and enjoyed the attention being paid to him for his negative behaviours. The interview was terminated before it was completed when the behaviour became too disruptive. He said that D.S.-M. would benefit from a stable and structured home environment with high degrees of one-on-one supervision and appropriate limit-setting. He was reluctant to prescribe medication in place of appropriate parenting, limit-setting and a structured environment at home and at school. He recorded a diagnosis of disruptive behaviour disorder- not otherwise specified, along with parent-child relationship problem and global developmental delay.


[39]           In his Family Court Clinic Assessment Dr. MacLean concluded that D.S.-M. was an extremely demanding child who would test the most skilled of parents. He thought D.S.-M.’s needs would best be met in a two parent family where the responsibilities could be shared. He said that the “stability and quality of parenting that D.S.-M. receives from this point forward could be crucial in determining whether he is able to function independently and productively as an adult.”


[40]           D.S.-M. is currently in senior kindergarten.  His foster mother says he receives medication for mood control and to help him stay focused.  Occasionally there are incidents of hitting or spitting at school.  His speech is becoming clearer.  He doesn’t read yet but recognizes some words.  Some impulsive behaviour is still present.




[41]           Ms. S. described L.S.-M. as sensitive, happy, energetic and easy-going. He is generally easy to handle but exhibits difficult behaviours at times. She called him a “mommy’s boy”. She said her pregnancy was difficult and she smoked marijuana regularly while pregnant to treat her nausea. 


[42]           Mr. M. said L.S.-M.’s early development was normal. He was still an infant when he first went into care. Initially he was placed with his maternal grandmother along with his brother then a short time later he was moved to a foster home where he remained for over a year. His parents exercised regular access. The re-integration was fraught with problems. Ms. S. had difficulty coping with the demands of two young boys and her older son T.S.-K. despite the presence of a high level of support services. He started into daycare in February, 2010 and no major problems were reported but he would be very active and disruptive when he returned home. Dr. Baksh reported that Ms. S. indicated to him that she had trouble settling the boys for bed. He concluded that L.S.-M. did not have A.D.H.D. because he was calm at daycare and his opinion was that L.S.-M. was mimicking his brother’s behaviour when he got home.


[43]           L.S.-M.’s foster mother reported that he was fully toilet-trained when he went home in November, 2009  but when he went back into foster care the following summer he was in pull-ups and would urinate on the floor. It should be noted, however, L.S.-M. did not come directly back to his original foster family and spent a brief time with two other families first. 


[44]           Dr. MacLean assessed L.S.-M. and concluded that he was functioning in the above average range in fine motor skills, expressive language, language comprehension, understanding of numbers and general development. His social skills, self-help and gross motors skills were average and he was somewhat delayed in his understanding of letters. Identified problems were with his vision, lack of obedience and aggression. He described L.S.-M. as a special needs child who was doing better after regressing in his mother’s care. His main area of concern centred on L.S.-M.’s behaviour and difficulties getting along with his peers, including aggressiveness.


[45]           In February, 2011, L.S.-M. was seen by Dr. D.S. Palframan, a child and family psychiatrist, when he was about 3 and a half years old.  L.S.-M. had been living with his original foster family since the previous September.  The foster parents were known to Dr. Palframan for their “excellent reputation for child management skills.” The consultation was requested by L.S.-M.’s foster mother because of difficulties L.S.-M. was having in his interactions with other children in the household.   He was refusing to share toys and could be very aggressive with younger children.  At times he was highly uncooperative and destructive.  Dr. Palframan reported that when he met with L.S.-M., the boy recalled arguments between his parents and frightening acts of violence. He also had a vivid recollection of a fire at his biological parents’ home the year before.  Dr. Palframan concluded that L.S.-M. was emotionally reliving the trauma of the fire and spousal violence from his past. He said L.S.-M.’s reliving of past angry episodes appeared to occur most often before and after visits with his biological father. He identified L.S.-M.’s psychosocial stessors to include regular visits with his biological parents and insecurity about his future.  He was convinced that L.S.-M. was suffering from post-traumatic stress disorder that had developed from an accumulation of trauma.  There was a risk that he could be re-traumatized and recommended that CAS consider terminating the access visits. He felt that L.S.-M. continued to get frightening and emotional messages when in contact with his parents. He said the corrective emotional response is to create a place and feeling of safety. As a result of this recommendation, Mr. M.’s access visits with L.S.-M. were suspended and have not resumed.  Mr. M. met with Dr. Palframan after the release of his report in order to present his side of the story.  Dr. Palframan prepared a supplemental letter following this meeting but did not change his recommendation.


[46]           L.S.-M.’s foster mother gave evidence that there have been recent problems at school. In November, 2011 he was suspended (at age four) after a particularly bad week that included being disruptive and throwing furniture. The other children had to be moved out of the classroom for safety reasons.  L.S.-M. recently moved to a new foster home with fewer and older children.  He now has a collaborative care worker who works with him every day.  It appears that his needs and behaviours are continuing to present ongoing challenges that will require intensive specialized services.




Plan of Care of Ms. S.


[47]           Ms. S. proposes that L.S.-M. be placed with her under a 6 month supervision order to live with her and L.S.-M.’s older stepbrother, T.S.-K.


[48]           Ms. S would agree to the following terms:


a.         Ms. S. will work cooperatively with the CAS and will attend all appointments as necessary;

b.        Ms. S. will advise CAS in advance of any change in address or phone number;

c.         Ms. S. will abide by the recommendations and proposed treatment plans of physicians, developmental services and the CAS workers involved in L.S.-M.’s care;

d.        Ms. S. will provide CAS with releases of information allowing it to communicate with service providers regarding issues relevant to Ms. S.’s care of L.S.-M.


[49]           Ms. S. also proposes that D.S.-M. would reside with her parents, R.S. and P.S., on the following voluntary terms:

a.         They will work cooperatively with CAS and will attend all appointments as necessary;  

b.        They will advise the CAS of any change in address or phone number;  

c.         They will abide by the recommendations and proposed treatment plans of the physicians, developmental services and the CAS workers involved in D.S.-M.’s care;  

d.        They will provide to the CAS any releases of information necessary to allow the CAS to communicate with service providers regarding issues relevant to their care of D.S.-M.


C.A.S.’s concern with Ms. S.’s Plan of Care


[50]           CAS has numerous concerns including the suitability of Ms. S.’s proposed plan of care including the following:

a.      She has serious ongoing physical and mental health challenges;

b.      The re-integration process demonstrated her inability to maintain a household and consistently employ effective parenting techniques. Dr. MacKaskill, in her report of August 20, 2008 noted that it takes Ms. S. considerably more effort to tend to the normal activities of daily living and that the relative burden of basic tasks exacerbates her moodiness, fatique and pain;

c.      She has a history of forming relationships with abusive partners;

d.      The stability she currently reports will likely disappear with increased parenting responsibilities and stress;

e.      Her parenting abilities were seriously challenged during the re-integration in process even with the benefit of daily supports. She was unable to successfully register the boys for daycare in early 2010. Making and attending medical and other appointments is a struggle that challenges her ability to organize routines and keep a schedule;

f.        Both boys have special needs and require superior parenting ideally in a two parent home;

g.      The maternal grandparents are unsuitable primary caregivers for D.S.-M. They tend to blame Mr. M. for the problems that have arisen without acknowledging their daughters’ role and challenges;

h.      The maternal grandmother R.S. has serious health issues;

i.         The grandparents have demonstrated little insight into the necessity of seeking out and utilizing specialized resources in relation to D.S.-M.’s ongoing care;

j.        In 2008 the grandparents chose to return D.S.-M. into CAS care following his placement in their home.


Mr. M.’s Plan of Care


[51]           Mr. M. proposes that he parent both D.S.-M. and L.S.-M. in his residence under a supervision order that would have the following conditions attached to it:

a.         The parents shall not reside together;  

b.        Mr. M. shall not attend Ms. S.’s residence at any time unless approved by CAS;

c.         Mr. M. shall cooperate with CAS;  

d.        Mr. M. shall notify CAS of any change of address or contact information;  

e.         Mr. M. shall allow CAS to attend at his residence on an announced and unannounced basis;  

f.         Mr. M. shall welcome into his residence a family support worker and/or any assistance that can be provided by Crossroads or Mothercraft;  

g.         Mr. M. shall not use any illegal substances or non-prescription drugs;  

h.         Mr. M. shall submit to random supervised drug screens as requested by CAS with the hope that every effort should be made to arrange quantitative as opposed to qualitative screens;  

i.           If Mr. M. tests positive for any illicit or non-prescribed substances he shall attend the Sandy Hill Community Centre for addictions assessment and follow any recommendations made;

j.         Mr. M. shall continue his fitness program on a regular basis and be committed to proper nutrition for his children and himself;  

k.        Mr. M. would allow CAS to monitor/approve the food he has in his residence;  

l.           Mr. M. would continue to see Dr. Dent on a regular basis and keep CAS apprised of his weight;  

m.      Mr. M. shall attend and complete any programs or counselling recommended by CAS in areas such as parenting or anger management;  

n.         Mr. M. shall ensure that the children are enrolled in daycare/kindergarten;  

o.        Mr. M. will ensure the children are seen by specialists, engaged with services, participate in programming as recommended to address their special needs and behavioural challenges (for D., this would be, if recommended, continuing to see his psychiatrist, attendance at the special program at his specialized school, seeing occupational therapists and attending speech therapy and for L., if recommended, continuing to see his collaborative care worker, his psychiatrist and participating in a psychological assessment);

p.        Mr. M. shall sign consents upon consultation with counsel so the CAS can obtain information from service providers;  

q.        Mr. M. shall permit access between the children and their mother, maternal and paternal grandparents with level of supervision, location, frequency and duration to be at the discretion of the Society.


C.A.S.’s concern with Mr. M.’s Plan of Care


[52]           CAS has a variety of concerns regarding Mr. M.’s plan of care include the following:


a.      He continues to suffer from a susceptibility to angry outbursts and his interpersonal dealings are often marked by confrontation. It is unlikely that he would be able to work with anyone from CAS. He is highly resistant to direction and correction;

b.      His weight loss depends on an intensive daily exercise program. Parenting responsibilities will likely make it much more difficult for him to maintain his exercise schedule;

c.      He would be a single parent to two high needs children in circumstances where a skilled, two parent family would be challenged to cope;

d.      Successful access visits do not equate to successful parenting;

e.      The only extended family support available is from his brother who has four children of his own and who works night shifts;

f.        There is a lack of stability in his housing arrangements. Other residents come and go. The present housing situation is quite suitable but unlikely will remain affordable on an indefinite basis. He will need roommates to share the rent which risks introducing uncertainty, unpredictability and a lack of permanency in the daily lives of the boys;

g.      It is difficult to foresee how Mr. M. would be able to maintain access relationships with Ms. S. and her family given his intense animosity towards her.


Do the Children continue to be in need of protection?


[53]           The answer to this question is clearly yes. CAS has a history of involvement with this family since 2002 and the present file opening has been underway for several years. There was a finding that the children were in a need of protection in September 2010. The proposed plans of care of both parents request continuing assistance from CAS. Implicit in these requests is the recognition that both parents would be significantly challenged in attempting to provide acceptable care for these two young boys on their own, especially considering the high level of supervision and treatment they require. Both boys continue to present ongoing challenges for their caregivers. The parents have spent the last two years endeavouring to build some stability into their personal lives. Ms S. appears to be successfully parenting her eldest child on her own. However, the demands of parenting one teenaged child are not as great than would be the situation by adding a second young child with high needs. While Ms. S. reports her current situation is less stressful that in the past, she continues to be plagued by chronic pain and other health issues that require ongoing medical treatment and daily medications. These factors are reflected in Ms. S.’s Plan of Care wherein she proposes to provide parenting to L.S.-M. with her parents providing parenting to D.S.-M. The plan calls for a sharing of the parenting load.


[54]           Mr. M. also has achieved stability in his personal life. He has lost a substantial amount of weight through daily intensive exercise and dieting. Mr. M.’s weight loss regime is itself a full time job. So is parenting two high needs children. One will inevitably have to give ground to the other. In addition, it is unrealistic to expect that Mr. M. will be able to work with the various professionals who will necessarily be part of the boys’ lives for the foreseeable future. Many of the witnesses who testified at this lengthy trial gave evidence of their personal experiences with his aggressive and confrontational behaviour of  Mr. M. Mr. M. uses his size and belligerence to intimidate opponents when he encounters resistance to his views and opinions. He has deeply embedded personality characteristics that cannot readily be altered. At times he is prepared to acknowledge that he needs help with his shortcomings as a parent and recognizes the necessity of ongoing supports in order to assume a full time parenting role.




Best Interests Test under the CFSA


[55]           The determination of what is in the best interests of these boys engages the factors enumerated in Section 37(3) of the CFSA. Not all of the factors apply in every case. In this case the following considerations are particularly relevant:

a.      The child’s physical, mental and emotional needs and the appropriate care and treatment to meet those needs;

b.      The child’s physical, mental and emotional level of development;

c.      The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;

d.      The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community;

e.      The importance of continuity in the child’s care and possible effect on the child of disruption of that continuity;

f.        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;

g.      The risk that the child may suffer harm from being removed from, kept away from, returned to or allowed to remain in the care of a parent.


[56]           The first two factors are similar and will be dealt with together.


The Child’s Needs, Appropriate Treatment and Levels of Development


I.         D.S.-M.


[57]           D.S.-M. has just turned 6 years old. He has been in care since he was two years of age. During this time his living arrangements have changed including spending time with his maternal grandparents, several months with his mother during the re-integration effort but mostly with his foster mother Ms. F.


[58]           A review of his medical history, reports and assessments gives a picture of his development and needs. In 2008, not long after D.S.-M. came into care, his foster mother took him to the developmental clinic at the Ottawa Children’s Treatment Centre where he was seen by Dr. Evan Lewis, a developmental paediatrician. He was about 2 ½ years old. The foster mother reported that she had fostered over 50 children with many types of developmental delays and genetic disorders but D.S.-M. was unique in her experience. She couldn’t communicate with him, he had a short attention span and his play was consistently “non-constructive”. She reported that there were no signs of sadness or loss at having been removed from his family. He exhibited odd behaviour including spontaneous licking and biting and inappropriate laughing for no reason. He ate and slept well. He was in the process of being toilet trained. He spoke only a few words and didn’t sing or imitate sounds. There was no make believe play and his emotions were fairly one dimensional regardless of the social setting. Following Dr. Lewis’ evaluation, Dr. Lewis gave a diagnosis of global developmental delay.


[59]           A further consultation with Dr. Asha Nair, developmental paediatrician, took place a year later, a short time prior to the attempted re-integration in the fall of 2009. Speech and language deficiencies continued to be a concern. His foster mother reported several examples of disruptive behaviour such as turning on stove elements, random throwing of objects and biting when excited. He was noted to have continuing impulsivity issues, poor attention skills and high activity levels. He was aggressive when upset. Dr. Nair said “D.S.-M. is definitely a child who will require significant support either in a daycare system or in the home of his parents. He is at risk for injury to himself and to others and his impulsivity level will need to be monitored quite closely.”


[60]           By May, 2010, after several months in his mother’s care, albeit with significant daily support provided by CAS, Dr. Nair reported that D.S.-M. was displaying more oppositional type behaviours, starting to tell lies and had become physically abusive during tantrums. He threw food on a regular basis, he was reported to have cut the family dog’s nose with scissors and punched the dog on several occasions. Developmentally he made significant gains but continued to have difficulties with his attention, activity level and behaviours.


[61]           The psychiatric assessment performed by Dr. Baksh in May, 2010 has already been referred to. The CAS workers reported that D.S.-M. had regressed in some areas while in the care of his mother during the re-integration. Dr. Baksh diagnosis included disruptive behaviour disorder and global developmental delay.


[62]           A psychological assessment was performed by Dr. Jane Heintz-Grove, psychologist, in late 2010. By this date the re-integration effort had been terminated. D.S.-M.’s parents were exercising regular access but he resided with his foster mother Ms. F. and several other foster children. The assessment took place when D.S.-M. was aged 4 years and 8 months. He was attending a specialized treatment classroom managed by the Children’s Hospital of Eastern Ontario. Overall, Dr. Heintz-Grove concluded D.S.-M. had delays in most areas of testing but in her view he did not have a developmental disability. She described his clinical profile as complex.


[63]           Ms. F. has been D.S.-M.’s foster mother since July 2010. At present she is a single parent but there have been other adults living in the home during the time that D.S.-M. has lived there. Currently there are five other children residing in the home. D.S.-M. is receiving a specialized program at school where he is in senior kindergarten. He has benefitted from supplemental speech therapy and his speech is clearer than before. There is still some hitting and spitting at school together with impulsive behaviour. Ms. F. testified that he can be aggressive towards younger children but readily expresses affection as well. D.S.-M. gets along with most of the children most of the time. He doesn’t read but recognizes some words. He prints with difficulty. He responds well to consistency, structure and routines. While adoption is the objective, foster care with Ms. F. is a long term option. He is currently in a stable, secure setting that effectively addresses his needs. The evidence suggests that D.S.-M. has developed a sense of place in Ms. F.’s home and benefits from the continuity and consistency she provides.


II.        L.S.-M.


[64]           L.S.-M. is 4 ½ years old. He was an infant just under 9 months old when he first went into care in July 2008. Except during the reintegration phase when he lived with his mother from November, 2009 until July, 2010, he has lived with the M. family for most of his life.


[65]           During the first period of foster care from L.S.-M.’s infancy to the age of about 2 years old, his foster mother, Ms. M., described him as an emotional child, happy and energetic, who disliked change. She said he was agile and active. He was affectionate and kind towards the baby in the household. He could be aggressive at times with adults including hair pulling, hitting and throwing things when told “no”. At about a year and a half of age, she noted some regression in his speech and toilet training. He seemed to have frequent bad dreams.


[66]           When Dr. McLain assessed L.S.-M. at about 18 months of age, his view was that L.S.-M.’s development was within the normal range with some delay in expressive language. Dr. McLain’s concerns included aggressive behaviour, disobedience and an inability to sit still.


[67]           L.S.-M. was assessed by Dr. Baksh in June, 2010 near the end of the integration period then while still in his mother’s care. Ms. S. reported some difficulties with bedtime routines and said L.S.-M. was copying his older brother’s negative behaviour. This included daily temper tantrums, use of foul language and striking his mother when he didn’t get his own way. Dr. Baksh focused on the importance of managing L.S.-M.’s behaviour with a structured and supervised environment with appropriate limit setting. Dr. Baksh commented that L.S.-M. seemed calmer than his brother during the office visit but still referred to him as a “high needs child”.


[68]           When L.S.-M. returned to his foster family at about 3 years of age, Ms. M. described him as anti-social, not fully toilet trained and prone to erratic, even frantic activity. He threw his food. He spoke often of the house fire that took place in June, 2010 when he was living with his mother. He was sometimes fearful at night and often had nightmares. She said his behaviour included tantrums, aggression, difficulty to manage and throwing things.


[69]           In February, 2011 L.S.-M. was examined by Dr. D.S. Palframan, Child and Family Psychiatrist. The assessment was prompted by the foster parents in consultation with L.S.-M.’s family physician due to L.S.-M.’s aggression towards smaller children and difficulties in playing cooperatively with other children. The foster parents reported that L.S.-M. seemed angry with them before and after access visits with his father. On February 11, 2011, while in tears following a behaviour correction by the foster parents, he is reported to have said, “Don’t make me go back. My old mom and dad don’t take care of us”. Dr. Palframan said that at the assessment a few days later, L.S.-M. corroborated what the foster parents had told him.


[70]           Dr. Palframan concluded that L.S.-M. was suffering from post traumatic stress disorder associated with the trauma of the house fire and the spousal violence from his past. He expressed concern that L.S.-M. was being re-traumatized by visits with his father and quite possibly with his mother as well. He recommended that access visits with L.S.-M.’s parents be terminated. He concluded that:


In the absence of extremely compelling evidence that there has been a major change in the parenting capacity and general emotional habits of L.S.-M.’s biological parents, I feel that he is being re-traumatized every time he sees them since, of course, he will be reminded of what life was like when he was with them. From Dr. Baksh’s history, it appears that this problem of spousal violence and substance abuse goes back a very long way into the first year of L.S.-M.’s life. It may well be that sufficient time has been offered to the biological parents to make the necessary changes, and if this is the case, I am concerned as to why the post traumatic stress disorder continues. I would suggest that the necessary beneficial changes in the parents have not in fact occurred so that his child continues to get uncorrected, frightening, emotional messages when he is in contact with them.



[71]           As a result of Dr. Palframan’s recommendation, access visits between L.S.-M. and both parents were suspended. Mr. M. has criticized Dr. Palframan because the evidence he relied on to reach his conclusion came in part from the CAS and he has admitted his bias in favour of the reliability of information from CAS personnel.  However, Mr. M. overlooks that perhaps the most compelling evidence came from the foster parents and L.S.-M. directly.


[72]           The foster parents reported that initially L.S.-M. seemed calmer and less likely to strike family members following the discontinuance of access visits, but behavioural problems later returned. 


[73]           Dr. Palframan prescribed Respiridone in July 2011. The foster parents reported good results initially, but the dosage had to be increased in order to maintain the improvements. By October 2011, the Respiridone no longer appeared to be effective and its use was discontinued.


[74]           In November 2011, L.S.-M. had a bad week at school. His behaviour deteriorated to the point where the school requested the foster mother to pick him up as he had become too disruptive to remain in class. At one point the other children were cleared from the classroom when L.S.-M. began throwing things around the room.


[75]           L.S.-M. was moved to a new foster home earlier this year when the situation became too difficult to manage. L.S.-M. would sometimes hit the older children in the home at night and they requested that L.S.-M. be placed elsewhere.


[76]           L.S.-M.’s father attributes the recent resurgence of serious behavioural issues to L.S.-M.’s distress due to not being able to see his father but there is no evidence to support this contention.


[77]           L.S.-M. is currently living with his new foster family and attends a specialized program at school with a dedicated worker to reinforce routines and assist in controlling his behaviour.


Importance of Positive Parental Relationships and a Secure Place as a Member of a Family


[78]           The C.A.S. contends that the boys need permanency and stability in their lives. It says they have been affected by their moves in and out of care. They need a “forever home” and to be considered part of a family unit which is stable and not dysfunctional.


[79]           Ms. S. says that there is overwhelming evidence to substantiate that both Ms. S. and her parents have a loving and affectionate relationship with the children. She says L.S.-M. needs a parent who can provide permanency and consistency of care and that she is in a position to “help him maintain healthy attachments and familial bonds”.  Ms. S. does not address her parents’ role as primary caregivers for D.S.-M. While Ms. S. is loving and affectionate towards the boys, this is not the issue. Although her present situation, may be stable and manageable, there is a serious risk that it will not remain stable and manageable with the introduction of a high needs four year old.


[80]           The household Ms. S. shared with Mr. M. was not stable or positive. Ms. S. was often angry. The evidence establishes that the home was in a continual state of disorder. The large screen TV was almost always on. To say the household was chaotic is an understatement. There were times when Ms. S. locked or tied the boys bedroom doors closed in an attempt to get them to settle. Ms. S. decided to get a puppy just before CAS attempted to re-integrate the boys into her care. This was a serious misjudgment.


[81]           The commencement of the re-integration process was delayed because it took an additional week to get the house ready for the boys’ return. Despite the fact that the boys had been absence for months and considering that, the re-integration was Ms. S.’s opportunity to demonstrate her enthusiasm and ability to return to a parenting role, this delay is surprising.


[82]           Also to be noted was Ms. S.’s apparent difficulty in managing to get the boys enrolled in daycare. This took place in early 2010. It made sense that to help manage the stresses associated with parenting two very active boys, they ought to be in daycare to provide respite if nothing else. The evidence showed, however, that Ms. S. was unwilling or unable to complete the enrolment process without the assistance of CAS personnel.


[83]           One of the themes that emerged from the evidence of CAS personnel through months of observation of Ms. S. interacting with her children was a lack of consistency in parenting techniques and absence of boundaries and structure in their daily routines. Her track record of difficulties in managing the boys, singly or together, makes it difficult to believe that Ms. S. can successfully accommodate their special needs on a long-term basis.


[84]           Mr. M. says that the court ought to take into consideration the boys’ relationship and emotional ties with him. Placing the boys in his care means they will have an opportunity to redevelop their relationship with their father as well as with their extended family. Mr. M. says he will encourage access between the boys and their mother and their maternal grandparents “so long as mother’s access is convened through a neutral intermediary” but “D.S.-M. and L.S.-M. should not have any access with their half brother, T.S.-K.”


Child’s Relationships and Emotional Ties


[85]           Ms. S. says that it is clear the children are loved by their parents and extended family. She says there is overwhelming evidence to substantiate that both Ms. S. and her parents have a loving and affectionate relationship with the children. Ms. S. points to Dr. McLean’s comment that he is convinced that the parents love their children.


[86]           Mr. M. says that spending time with his brother D’s family will promote a sense that they belong to a large and loving family. 


Importance of Continuity of Care


[87]           Ms. S. notes that with regard to L.S.-M., his foster home has changed several times since his last apprehension in July, 2010; less so for D.S.-M. She says the CAS has not been able to provide continuity of care whereas she can.


[88]           Mr. M. notes that there is no evidence that L.S.-M.’s current caregivers are in a position to adopt him so there are likely going to be future changes in his living arrangements. He says that while D.S.-M. has a long-term foster caregiver, there is no evidence regarding adoption possibilities.


[89]           CAS says that the reality is that neither parent is able to care for one or both children on his or her own. The children need stability and permanency and this will not be achieved if they are returned to either parent.


[90]           The CAS notes that adoption planning cannot begin in earnest until the request for Crown wardship is settled.


The Merits of the Competing Plans of Care


[91]           Ms. S. says that the best outcome for L.S.-M. would be his return to her care. She acknowledges that having both boys would be too much for her to handle. She says that her relationship with Mr. M. is over and that she does not want any face-to-face contact with him.


[92]           Ms. S. criticizes the rapid pace of the re-integration effort in 2009. She says she didn’t have an opportunity to adjust to L.S.-M. alone, although it appears that she made no objection at the time.


[93]           As well, Ms. S. had intensive supports in place to assist her in easing into a full time parenting role but even then, her ability to cope was strained.


[94]           Ms. S. says that her pain management physician, Dr. Mary Redmond, testified that Ms. S. can parent successfully despite her chronic pain. Several observations can be made in relation to this assertion. Dr. Redmond’s last consultation was in June, 2011. She said that Ms. S.’s long-term prognosis is guarded. Chronic pain that is present for several years is well entrenched and spontaneous remission is unlikely. Dr. Redmond said that chronic pain and depression frequently occur in tandem and that depression is present in one-third to one-half of her patients; chronic pain is so disruptive that patients frequently become depressed. Dr. Redmond testified that chronic pain is worsened when stress is present. She said everyday tasks are more frustrating for someone with chronic pain and activity can make symptoms worse. The lives of chronic pain suffers such as Ms. S. are altered by the pain. They are often unable to sleep or maintain employment. In Ms. S.’s case, treatment gave her partial relief but there was no dramatic improvement over a three year period. Dr. Redmond said that chronic pain sufferers can still function as parents but she never saw Ms. S. interacting with her children. She was not asked whether active or special needs children would present additional challenges for a parent who suffers from chronic pain.


[95]           Ms. S. also referred to her family doctor, Dr. Kim MacAskill and her psychologist, Dr. Irwin Pencer, as having stated in their reports that she was capable of parenting her children.


[96]           In August 2008 Dr. MacAskill said that Ms. S.’s main medical conditions at the time were endometriosis and depression. Dr. MacAskill said that Ms. S.’s pain and depression resulted in taking significantly more effort for her to attend to the normal activities of daily living. She also said that fatigue, low and irritable mood, hopelessness, and physical pain all affect Ms. S.’s ability to parent her children.


[97]           In a report at the end of December 2008, after the children had been apprehended, Dr. MacAskill said that Ms. S.’s medical and psychological conditions remained but appeared stable. Dr. MacAskill further stated that it was difficult to assess Ms. S.’s current limitations as her daily responsibilities had been reduced by the apprehension.


[98]           Dr. Pencer wrote in 2008 that while Ms. S. did not pose a serious physical risk to her children, she had difficulty at times making good judgments with regards to parenting and would benefit from ongoing support with regard to parenting approaches.


[99]           Ms. S.’s plan of care includes a proposal to place D.S.-M. in her parents care. By volunteering to assume a parenting role in relation to D.S.-M., Ms. S.’s parents are doing what they can to hold Ms. S.’s family together. They know that any proposal for Ms. S. to care for both boys would probably fail.


[100]      Ms. S.’s mother, R.S., testified at the trial. R.S. has been a dedicated supporter of Ms. S. and her children. It is obvious that their well-being is vitally important to R.S. and her husband.


[101]      The CAS kinship assessment was not favourable. Factors such as age, health concerns and D.S.-M.’s special needs make it difficult for them to present a convincing case that the Court should ignore the CAS recommendation. The rejection of their plan should not be taken as a negative reflection upon them as individuals or as a couple. Their effort and commitment is impressive.


[102]      Mr. M.’s plan of care provides that the two boys should to be placed with him. His accommodation now appears suitable; until recently it was not. Months of intensive daily exercise have enabled him to reduce his weight to the point of where his mobility and stamina no longer foreclose even the possibility of parenting his sons. The CAS concern that he will not be able to simultaneously maintain his exercise regime and parent the boys is a valid one but he has to a large extent neutralized the suggestion that he is simply too overweight to be a sole parent.


[103]      Mr. M. cannot point to a track record of successful parenting with either child. He says CAS unfairly deprived him of an opportunity to demonstrate his capabilities, especially when the re-integration plan had to be re-worked in November 2009. He fails to appreciate that the breakdown of his relationship with Ms. S. forced CAS to make hard choices. The fact that he has harboured a grudge since then, and allowed it to colour his subsequent dealings with CAS personnel, demonstrates a lack of insight into the reality of his situation and his role in the difficult problems that CAS was forced to manage. The decision to give Ms. S. an opportunity to parent the boys with her mother’s help and CAS support was a reasonable one in the circumstances. To suggest the CAS ought to have opted to give him the same opportunity is not reasonable. He did not have suitable accommodation. His weight/mobility was a significant issue. He was unable to work cooperatively with a support network. His parenting skills were wanting.


[104]      Mr. M. points to examples of access visits that went well, where the boys’ affection for their father was apparent and where Mr. M. demonstrated the parenting techniques he was taught.  Successful access visits do not, however, establish a convincing case that it is in the boys’ best interests to live with their father as a sole parent when considered in the context of the other evidence that has been adduced.


[105]      In my view, a major impediment to Mr. M. assuming a role as the sole caregiver to his children is his profound difficulty with interpersonal relations. A few examples will illustrate the point. Dealing firstly with CAS personnel, Elizabeth Anvari, a social worker involved with the family from September 2008 to February 2009, indicated that Mr. M. complained about her work and threatened to “go to the media and complain to the RCMP.”  She was re-assigned at his request. She said his tone and mannerisms seemed aggressive and he had difficulty controlling his emotions.


[106]      Jennifer Campbell is a child and youth worker with CAS who was involved with this family between 2008 and 2009 and again in 2011. Ms. Campbell supervised access visits. She indicated that Mr. M. engaged in intimidating behaviour that included swearing and raising his voice. He complained about her to her supervisor and requested that she be replaced.


[107]      Matthew Sumegi, a child and youth counsellor employed by CAS, was responsible for supervising access between the parents and their children from August 2010 until March 2011. Mr. Sumegi gave several examples of confrontational or intimidating behaviour by Mr. M. In September 2010 when Mr. Sumegi was suggesting goals for the access visits, Mr. M. argued each point in a loud and angry tone. Mr. Sumegi testified that Mr. M. later acknowledged that he had been aggressive and “borderline abusive”.


[108]      In January 2011, while discussing an upcoming court date, Mr. M. said to Mr. Sumegi, “I have four months to live”. When he asked Mr. M. if he was planning to kill himself, Mr. M. replied “yeah, but I won’t do it quietly”. He said that he was going to go on a hunger strike on Parliament Hill if he did not get his kids back.


[109]      Mr. Sumegi said that in the 6 month period between August 2010 and February 2011 there were 13 meetings where Mr. M. was hostile or aggressive towards him which at times included yelling and swearing.


[110]      By March 2011, Mr. Sumegi felt that his working relationship with Mr. M. had deteriorated to the point where a new access supervisor ought to be appointed and Ms. Jennifer Campbell re-assumed that role.  As a result of a shouting and swearing incident in June, 2011 at the CAS premises, Mr. M.’s access with D.S.-M. was re-located to a police facility due to safety concerns.  He seems oblivious to the effect these episodes had on his children when they were present for the confrontations. Being present when their father reacts to a situation with hostility and aggression is deleterious to the boys’ well-being.


[111]      It appeared to me that Mr. M. felt a deep sense of betrayal by Mr. Sumegi upon learning the contents of an affidavit sworn for the purposes of this proceeding.  Mr. M. referred to him, unfairly in my view, as a professional character assassin.


[112]      It may not be surprising that Mr. M. encountered difficulties and showed hostilities towards CAS personnel. His dealings with them were difficult and protracted but the behaviour CAS personnel experienced was not limited to them.


[113]      Although both Mr. M. and his brother testified about how close they are, there have been times when they did not get along at all. At one point Mr. M. was not able to visit his brother’s home. 


[114]      Dr. Mary Redmond, Ms. S.’s pain management physician, reported that while Mr. M. was attending a consultation with his wife at Dr. Redmond’s office, Mr. M. became verbally abusive and Dr. Redmond requested that he not return.


[115]      Mr. Jeff Bondy, the program facilitator in the New Directions Program, a partner assault response program, testified that Mr. M. was referred to the course by his probation officer in 2008. He said that Mr. M. was initially argumentative and challenging. There was an occasion when he was asked to redo an assignment and refused, saying that “I don’t make mistakes”. After a one on one meeting with staff, Mr. M.’s attitude improved and he completed the program.


[116]      Dr. David McLean, the psychiatrist who prepared the Family Court Clinic assessments, testified that Mr. M. made it known to Dr. McLean that if Mr. M. was not satisfied with his report, he was going to establish a website to target the CAS and the Family Court Clinic. Dr. McLean said that Mr. M. attempted to control who was going to be interviewed, the length of the interviews and the type of testing that was to be performed. Dr. McLean said that Mr. M. used intimidation in an effort to impose his will on how the assessment was to be conducted.


[117]      Mr. M.’s plan of care is deficient for the following reasons:


a.      He proposes to be a sole parent to two high needs children;

b.      He does not possess the superior parenting skills his sons require;

c.      He lacks insight into his personality traits (eg. “the only issue was my weight; there are no other issues.”  “I have incredible ability, intellect and drive.”);

d.      He is confrontational and seeks to intimidate when others do not agree with him;

e.      He has prejudicial/negative attitudes towards women;

f.        His sons will be long-term consumers of a high level of social services. It is unlikely that he will be able to work cooperatively with his sons’ medical, educational and counselling providers, many of who will probably be women;

g.      Meeting his own needs will require significant time and effort.



[118]      The CAS Plan of Care is focused on stability and permanency.  This objective is consistent with the children’s needs according to the Family Court Clinic assessment.  Ideally, this will be achieved by the adoption of each boy by separate families.


[119]      Mr. M. is critical of the CAS evidence regarding prospective adoptive placements and says that expert opinion evidence is necessary to establish whether the boys are adoptable.  He says its absence in this case seriously compromises the merits of the CAS plan.  I do not agree with this submission.  The evidence in this case established that until the issue of Crown wardship is resolved, CAS has only a limited ability to address adoptability.  Proof of adoptability is not essential, particularly in circumstances where the CAS has demonstrated that a return to the parents’ care is not in a child’s best interests and where CAS has presented a credible plan for addressing special needs through foster placements while at the same time pursuing adoption possibilities.


Risk of harm arising from being kept away from or returned to a parent


[120]      The psychiatric evidence has identified the developmental and mental health risks associated with returning the boys to the care of either parent.


[121]      Putting their respective cases at their highest, there is too much uncertainty with the parents’ capabilities and plans of care to risk another failed parenting attempt.  It is unlikely that a further period of supervision will lead to a long term solution.


[122]      CAS has established that the sooner that it is at liberty to  pursue the stability and permanency that has been recommended, the better.  In the interim, both boys are in stable and supportive homes where the focus is on maximizing their potential.  I am concerned that any provision for access and openness will detract from, or interfere with, the adoption process and will therefore not be in their best interests.  No such order will be made.


Request for Restraining Order


[123]      The CAS requests that there be an order under section 80 of the CFSA restraining or prohibiting Mr. M.’s contact with the person who has lawful custody of the children who are the subject matter of this application. In this case, CAS argues that it has lawful custody of the children and that Mr. M. should be restrained from having contact with any of the CAS workers, present and future, access supervisors, foster parents and adoptive parents.


[124]      In support of this request the CAS notes that there was testimony from a number of CAS workers regarding Mr. M.’s angry outbursts. He threatened to take his own life. Mr. M. testified that if he lost this case, he intended to be a thorn in the side of CAS; that he would not stop trying to get his children back and that he had nothing to lose. He has indicated that in his view the CAS is corrupt. CAS personnel have expressed a concern for their safety.  Although Mr. M. said his protests would be non-violent, I am not prepared to dismiss the CAS concerns as unwarranted or unreasonable.




[125]      D.S.-M. and L.S.-M. shall be made wards of the Crown for the purpose of adoption.



[126]      An order will issue prohibiting Mr. M. from contacting any CAS personnel and the foster parents or adoptive parents of D.S.-M. and L.S.-M. The term of the restraining order shall be 2 years or such other period as determined by a further order of the Court.


[127]      CAS shall designate in writing to Mr. M. the name and address of its legal representative for the purpose of enabling Mr. M. to deliver such lawful communications to CAS as may be incidental to the exercise any rights or entitlements accruing to him under the CFSA. This order shall not limit or restrict communications to CAS personnel from a solicitor acting on his behalf.





Mr. Justice M. James


Released:       June 20, 2012

CITATION: The Children’s Aid Society of Ottawa v. M.M.., 2012 ONSC 3529

COURT FILE NO.:  FC-08-FL-1745

DATE:  June 20, 2012









D.S.-M., born […],  2006 and L.S.-M., born […], 2007


B E T W E E N:





– and –


M.M. and E. S.-M.












Mr. Justice M. James





Released:       June 20, 2012