THERE IS ONE CERTAINTY IN THE LEGAL BATTLE OVER WHO WAS MORE TO BLAME IN THE DEATH OF LITTLE NICHOLAS CRUZ — NEITHER HIS MOTHER NOR HER PARTNER SHOULD HAVE ANYTHING TO DO WITH CHILDREN.
Marleny Cruz walked backwards, her arms held out behind her, wrists ready for handcuffing, down the few steps that lead from the witness box in Ontario Superior Court Judge Anne Molloy’s courtroom.
It was a gesture that spoke to her years of subordination and deference to authority, whatever its uniform.
Last month, Cruz pleaded guilty to manslaughter for failure to provide medical care, in the July 14, 2013, death of her baby son Nicholas.
Monday, she was testifying at a Gardiner hearing — basically, a prelude to sentencing — in the case of Joel France. At the time of Nicholas’s death, France was Cruz’s live-in boyfriend, and earlier this month, he too pleaded guilty to manslaughter for his similar failure to get the little boy to a doctor.
At the Gardiner hearing, which takes its name from a 1982 Supreme Court of Canada decision, prosecutors Mihael Cole and Heather Keating are trying to prove that it was France who had a history of physically abusing Nicholas, that he also abused Cruz and that it was France who inflicted the death blows to the 26-month-old toddler.
Defence lawyers Nathan Gorham and Joanne Park argue that it was Cruz herself who inflicted the fatal injuries or was neglectful such that the injuries happened accidentally.
These are issues of socalled “aggravating factors” and will weigh into the sentence the judge gives the 39-year-old France.
The grotesque thing is that either appear to have been perfectly capable, and that they managed to find one another.
Cruz, about whom the court has heard the most thus far, is young woman with a terrible history of her own. She and her family have a lengthy history with the Catholic Children’s Aid Society of Toronto. Now 29, Cruz was sexually abused by her father and suffered repeated physical abuse by her stepmother.
She gave birth to her first child at the age of 18; the baby’s father denied that he was the parent and had no involvement with her or the baby.
She had her second child at 21 with a man named Jonathan Donaldson, who was extremely violent to her — as she put it, “emotionally, sexually, financially, pretty much every type there is.”
Donaldson was twice charged by Toronto Police with domestic assault; both times, Cruz failed to show up at trial to testify against him.
In 2009, both boys were taken into care by the CCAS because, as a lengthy agreed statement of fact introduced as evidence says, “Ms. Cruz could not be trusted to protect her children from witnessing the abuse from Mr. Donaldson or to putting their needs before her own.”
She got the kids back the following year, but Cruz showed “minimal motivation” and co-operation with the agency. She then grew depressed and starting cutting herself; as well, the oldest boy told a CCAS worker she had spanked him in the head, legs and bum. The CCAS gave Cruz reading materials.
Later that same year, she voluntarily placed the boys back into CCAS care, and she and Donaldson fled to Vancouver together.
Their relationship ended late in 2010 when Donaldson stabbed her in the back. That time, she testified against him and he ended up receiving a lengthy jail term.
But now Cruz was pregnant with her third child, by Donaldson, and returned to Toronto to live in a shelter.
Nicholas was born May 25, 2011, and was apprehended immediately by the CCAS and placed in foster care.
The two older boys were made Crown wards and, absent any attachment with Cruz, later adopted.
But she was keen on getting Nicholas back, and the CCAS appears to have worked hard in getting her all the help there was — always under supervision by agency workers, Cruz also had assistance from Healthy Babies Healthy Children, a City of Toronto program, and another frequent Family Home Visitor who worked with a public health nurse and checked in on her and the baby.
She also got assistance to enrol in a “bridging” program at Ryerson University to make up lost high school courses, food vouchers, meetings with a therapist and subsidized daycare five days a week.
In fact, by late June 2013, Cruz was doing so well — and Nicholas too — that she had regained custody of the little boy and the supervision order was about to expire. The CCAS was “about to support” her in ending it.
Little did the agency, or anyone else, know that in May, she had met France. Within a week, they were a couple.
By the beginning of June, she said, he’d assaulted her for the first time — choking her at first and then putting her in a chokehold.
On June 23 that year, just days after the CCAS social worker made her last visit and about three weeks before the next one, Joel France moved into her townhouse.
By then, of course, Marleny Cruz was already pregnant with her fourth child, by France.
The hearing continues Tuesday.