Carol A. Allen

Following a family law trial addressing child support, spousal support, section 7 expenses, and property-related issues, the court determined costs between the parties.

Although the applicant obtained a result exceeding the respondent’s final settlement offer, her own settlement offers were found unreasonable and several significant issues at trial were decided against her.

The court also considered disclosure difficulties caused by the respondent and the respondent’s submission of an altered contract, which increased mistrust and litigation complexity.

Balancing these factors, the court declined substantial indemnity costs but awarded reduced partial indemnity costs.

Pre-trial costs were allowed as claimed, while trial costs were reduced to reflect the applicant’s limited success on certain issues.

Following a lengthy and acrimonious family law trial concerning custody and access to a young child, the court considered the best interests of the child under the Divorce Act and the Children’s Law Reform Act.

The parties had an extensive litigation history marked by high conflict, numerous interim orders, and serious allegations, many of which were unsupported hearsay and therefore not relied upon.

An expert parenting capacity assessment recommended sole custody to the father, finding the parents incapable of effective co‑parenting and identifying significant concerns about the stability of the mother’s household and the safety risks posed by one sibling’s behavioural issues.

The court accepted the expert’s recommendations and concluded that joint or parallel parenting would not serve the child’s best interests.

Sole custody was awarded to the father with structured daytime access to the mother, while child support was deferred due to the mother’s financial circumstances.

Following a family law trial addressing spousal support and child support including section 7 expenses, the court determined the issue of costs.

Although success at trial was largely divided, the applicant had made a written offer to settle shortly before trial that was close to the outcome ultimately ordered.

The court held that while the offer did not satisfy the strict requirements for presumptive cost consequences under Family Law Rule 18(14), it could still be considered under Rule 18(16) when assessing costs.

Taking into account the divided success, the respondent’s limited ability to pay, and the policy objective of encouraging settlement offers, the court awarded nominal costs to the applicant.

The applicant brought a motion to change prior orders seeking termination of child support for four adult children and termination of spousal support.

The court found a material change in circumstances but held that the respondent remained entitled to spousal support on a needs basis due to significant income disparity and ongoing health issues.

Spousal support was continued at the previously ordered amount of $800 per month with a potential review after August 1, 2016.

Child support was terminated retroactively on different dates corresponding to the children’s completion of post-secondary education, and the applicant was entitled to credits for overpayments.

The court also found that spousal support ordered in 1998 remained separate from a later child support order, resulting in spousal support arrears of $79,807.32.

Child protection applications brought by Bruce Grey Child and Family Services concerning three children.

The first child (S.L.M.M.) was found to be in need of protection by consent.

The second application concerned twins (B.G.M.M. and M.R.P.M.).

The court found all three children in need of protection under sections 37(2)(b)(i) and 37(2)(g) of the Child and Family Services Act.

The parents sought return of all three children to their care under supervision.

The Society sought Crown wardship without access.

The court determined that while the parents could safely parent one child (S.L.M.M.), they could not safely parent all three children due to concerns regarding the father's anger management issues, both parents' smoking and hygiene concerns, and the mother's tendency to defer to the father.

The court ordered Crown wardship for the twins without access and a Society wardship transitioning to supervision for S.L.M.M. interesting_citations_summary: > The decision provides important guidance on child protection proceedings under the Child and Family Services Act, particularly regarding the assessment of parental capacity to care for multiple children.

The court applied a child-centered approach, emphasizing that good intentions are insufficient and that demonstrated change is required.

The decision addresses the application of section 70(4) regarding extensions of Society wardship for children under six years of age, adopting a liberal interpretation to permit a gradual transition from foster care to parental care.

The court also examined the statutory test for access to Crown wards under section 59(2.1), requiring both that the relationship be beneficial and meaningful to the child and that access not impair future adoption opportunities.

The decision demonstrates judicial scrutiny of child protection agency decision-making, noting that the Society developed "tunnel vision" in its approach to the parents and could have been more supportive and less directive. keywords: - Child protection - Child and Family Services Act - Parenting capacity - Crown wardship - Society wardship - Supervision order - Access to children - Anger management - Smoking and child health - Attachment - Transition planning areas_of_law: - Family Law - Child Protection - Child and Family Services legislation: - title: "Child and Family Services Act, R.S.O. 1990, c.

C-11" url: "https://www.ontario.ca/laws/statute/900011" case_law: - title: "L.(R.) v. Children's Aid Society of Metropolitan Toronto, 21 O.R. (3d) 724" url: "https://www.canlii.org/en/on/sc/doc/1995/1995canlii5589/1995canlii5589.html" - title: "Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T., 90 O.A.C. 5" url: "https://www.canlii.org/en/on/ca/doc/1996/1996canlii1428/1996canlii1428.html" - title: "Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165" url: "https://www.canlii.org/en/ca/scc/doc/1994/1994canlii83/1994canlii83.html" - title: "Catholic Children's Aid Society of Hamilton v. J.I. I.M. and V.I.O." url: "https://www.canlii.org/en/on/sc/doc/2006/2006canlii19432/2006canlii19432.html" - title: "Children's Aid Society of Toronto v. Rebecca B.-H. and Sheldon W., 2006 ONCJ 515" url: "https://www.canlii.org/en/on/oncj/doc/2006/2006oncj515/2006oncj515.html" - title: "Children's Aid Society of Winnipeg v. Redwood, 19 R.F.L. (2d) 232" url: "https://www.canlii.org/en/mb/ca/doc/1980/1980canlii3654/1980canlii3654.html" - title: "Children's Aid Society of Brockville Leeds and Grenville v. C. and J." url: "https://www.canlii.org/en/on/sc/doc/2001/2001canlii1504/2001canlii1504.html" - title: "Jewish Family and Child Service of Toronto v. K.(R.), 2008 ONCJ 774" url: "https://www.canlii.org/en/on/oncj/doc/2008/2008oncj774/2008oncj774.html" - title: "Catholic Children's Aid Society of Toronto v. K.G." url: "https://www.canlii.org/en/on/sc/doc/2006/2006canlii5600/2006canlii5600.html" - title: "Kawartha-Haliburton Children's Aid Society v. K.M." url: "https://www.canlii.org/en/on/sc/doc/2003/2003canlii5047/2003canlii5047.html" - title: "Children's Aid Society of Ottawa-Carleton v. K.F." url: "https://www.canlii.org/en/on/sc/doc/2003/2003canlii67559/2003canlii67559.html" - title: "Children's Aid Society of Toronto v. Dora P. and Raymond L., 19 R.F.L. (6th) 267" url: "https://www.canlii.org/en/on/ca/doc/2005/2005canlii34560/2005canlii34560.html" - title: "Children's Aid Society of Niagara Region v. J.C., S.B., and R.R., 36 R.F.L. (6th) 40" url: "https://www.canlii.org/en/on/sc/doc/2007/2007canlii8919/2007canlii8919.html" final_judgement: > The children B.G.M.M. and M.R.P.M. are made Crown wards without access to the respondent parents.

The child S.L.M.M. is made a Society ward for three months to be followed by placement in the care and custody of the respondent parents, subject to the supervision of the Society for a period of six months.

While a Society ward, S.L.M.M. shall have unsupervised access to her parents on a graduated schedule commencing July 29, 2013, with increasing frequency and duration, culminating in full-time placement with the parents on October 29, 2013.

The supervision order includes extensive conditions regarding counselling, medical care, drug testing, smoking restrictions, hygiene, daycare enrollment, and cooperation with Society workers. --- # 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 Information **Ontario Court of Justice** **Date:** 2013-07-19 **Court File No.:** Owen Sound 60/10 **Between:** **BRUCE GREY CHILD AND FAMILY SERVICES,** Applicant, **— AND —** **M.S. and W.M.** Respondents. **Before:** Justice S. P. Harrison **Heard on:** September 24, 25 & 27, 2012 and November 6, 2012 **Reasons for Judgment released on:** 19 July 2013 --- # Counsel **Helen Trentos** — Counsel for the Applicant society **Carol Allen** — Counsel for the Respondent M.S. **Jill Gamble** — Counsel for the Respondent W.M. **Augusta Tribe** — Counsel for the Office of the Children's Lawyer, legal representative for the children --- # HARRISON J.: ## INTRODUCTION [1] The Children's Aid Society of Owen Sound and the County of Grey now known as Bruce Grey Child and Family Services has brought two protection applications before the Court. [2] The first application seeks a finding that the child, S.L.M.M. born […], 2010, is a child in need of protection pursuant to sub-clauses 37(2)(b)(i) and 37(2)(g) of the [Child and Family Services Act, R.S.O. 1990 c.

C-11](https://www.ontario.ca/laws/statute/900011) as amended.

The Society seeks a disposition of Crown wardship, with no access to the respondents. [3] Prior to trial, the parties entered into Minutes of Settlement consenting to the finding sought with respect to the child, S.L.M.M. [4] The second application seeks a finding that the children B.G.M.M. and M.R.P.M., twins born […], 2011, are children in need of protection pursuant to sub-clauses 37(2)(b)(i) and 37(2)(g) of the [Child and Family Services Act, R.S.O. 1990 c.

C-11](https://www.ontario.ca/laws/statute/900011) as amended.

The Society also seeks a disposition of Crown wardship with no access to the respondents in respect of these two children.

No finding has yet been made. [5] The children's counsel, from the Office of the Children's Lawyer supports the position of the Society. [6] The respondent, M.S. ("the mother") is the mother of all three children.

She opposes the Society's application for Crown wardship of the child S.L.M.M. and at trial opposed a finding that B.G.M.M. and M.R.P.M. are children in need of protection and the requested disposition of Crown wardship.

In the event that B.G.M.M. and M.R.P.M. are found to be children in need of protection, she seeks an order that all three children be placed in her care and custody subject to the supervision of the Society on terms. [7] The respondent, W.M., is the father of all three children.

He too, opposes the Society's application for Crown wardship of S.L.M.M. and a finding and order for Crown wardship of B.G.M.M. and M.R.P.M. In the event that they are found to be children in need of protection, the father seeks an order that all three children be placed into his joint care with the mother. [8] Notwithstanding the difference in the relief sought by the mother and the father in their respective Answers and Plans of Care filed, at all material times during the trial, the mother and father presented a joint plan that all three children be returned to their care. --- ## BACKGROUND [9] The mother is 34 years of age.

As at the date of trial she had been residing with the Respondent, W.M. for approximately four years.

She has a Grade 8 education, is unemployed and has a minor criminal record. [10] She has three older children, now ages 16, 15 and 13, who are not the subject of these proceedings and who were made Crown wards without access on April 17, 2003. [11] The mother acknowledges she was in an abusive relationship with the father of these children that continued for a number of years after the children were made Crown wards.

She recalled that Society concerns at that time revolved around hygiene issues, missed doctor appointments, smoking, exposure of the children to domestic violence and conflict, and the health difficulties of the children, particularly one of her daughter's ADHD and the breathing issues of her son. [12] The father is 37 years old.

His educational background is unclear.

He works one or two days a week for a roofer earning $17 an hour.

The family relies predominantly on social assistance for its support.

He has a 15 year old daughter who resides with her mother in a nearby community.

He sees his daughter from time to time and his access must apparently be supervised by his mother pursuant to a court order made when the child was quite young. [13] The father has significant anger management issues which have plagued him most of his life.

He is presently on unspecified medication to help him cope but by his own admission, he is still often frustrated and can become quite angry.

He has a substantial youth and criminal record spanning 15 years, including multiple convictions for property related crimes, assault (including domestic assault), breach of recognizance, drug possession, breach of probation as well as a conviction for criminal harassment.

He has served time in custody within the provincial system but he has no record of convictions since mid-2007. [14] The father acknowledges that he is a heavy smoker.

He suggests he has cut down from a "pack a day" to half of that.

He says he gave up drinking four years ago but still indulges in the recreational use of marijuana smoking one joint on the weekend. [15] The Society learned in August 2009 that the mother was pregnant and discovered that her three oldest children were in care.

A review by the Society of their records at that time disclosed protection concerns surrounding an unstable home environment, the children's poor hygiene and missed medical attendances.

There had been issues respecting domestic violence between the mother and the father of these older children. [16] A Child Protection Worker from the Society met with the mother in December, 2009 who at that time disclosed: 1.

She and the father had been together for seven months; 2.

That her relationship with the father was not abusive unlike her relationship with the father of her oldest three children; 3.

She did not drink or use illegal drugs but smoked a half a pack of cigarettes a day expecting to cut down; 4.

She had had difficulty in the past taking her older children to doctor's appointments and keeping appointments with other professionals; and 5.

She was on probation for theft. [17] In January, 2010 the mother's Probation Officer contacted the Society with several concerns respecting the mother.

The mother was supposed to be living with her father and not the Respondent, W.M. even though she continually requested to do so.

The mother missed a probation appointment and the Probation Officer soon discovered that the mother was not residing at the address provided by her.

She was found at the residence of the father, but denied living with him.

It was a term of the mother's probation order that her Probation Officer approve of anyone with whom the mother wished to live.

The father was not such a person due to his criminal history and failure to undertake rehabilitative or corrective measures respecting concerns about his past criminal and other behaviours. [18] The father, disclosed to a Society worker in February, 2010 some particulars respecting his criminal history including a conviction for domestic assault and of past contact with the Society respecting an allegation of assault upon an older daughter of his some years before. [19] The father advised the worker that he drank on occasion but smoked marijuana regularly on a once a week frequency. [20] The Society subsequently determined from the father's Probation Officer that his criminal history was more extensive than the father had admitted to and included a breach of probation conviction arising out of his failure to attend The Men's Program, a program dealing with domestic abuse issues. [21] The Society's Child Protection Worker met with the mother and father on or about February 16, 2010 and advised them of the Society's intention to apprehend their unborn child at birth as a result of the parent's histories including the father's criminal record.

The worker suggested that the Society would consider the possibility of the mother and child going to Ramoth Life Centre, a pregnancy care and parenting education facility, a suggestion that the mother rejected. [22] The child S.L.M.M. was born […], 2010 and was apprehended pursuant to a warrant shortly thereafter.

She was found, on the consent of the parties, to be a "child in need of protection" pursuant to s. 37(2)(b)(i) and s. 37(2)(g) of the Child and Family Services Act on December 22, 2010.

She has remained in care since her apprehension, living in a "view-to-adopt" foster home virtually since that time. [23] The children B.G.M.M. and M.R.P.M. both born […], 2011 were apprehended by the Society on December 12, 2011.

That apprehension was undertaken according to the Society in part because: 1.

Of the concerns giving rise to the consent finding that the child S.L.M.M. was a "child in need of protection"; 2.

The concerns of Dr. Louise Sas who had conducted a parenting capacity assessment of the mother and father, rendering her report in June, 2011 and who issued an addendum in August 2011 (prior to the birth of the twins) suggesting that the mother and father could not safely parent three children; 3.

Failure of the mother and father to follow the recommendations of Dr. Sas as set out in her initial report; 4.

The father's attitude and disposition towards the mother and Society workers during periods of access; 5.

The mother's continued smoking particularly during her pregnancy; 6.

A failure of the parents to follow up on a referral to Public Health and therefore not participating in appropriate programming. [24] Following an unopposed motion by the Society for a temporary care and custody order of the twins, such an order was granted without prejudice on December 14, 2011 and confirmed on February 8, 2012. [25] The twins have remained in care since their apprehension and have also resided in a "view-to-adopt" foster home since. --- ## MANNER IN WHICH TRIAL PROCEEDED [26] By order of Bradley, J. dated April 24, 2012, the two protection applications involving all three children were ordered to be tried together. [27] On consent of the parties, this trial was conducted as a blended proceeding.

I have not considered evidence that went solely to the issue of disposition in determining if the children, B.G.M.M. and M.R.P.M. were and are individually "children in need of protection". --- ## ISSUES [28] The issues I must determine are as follows: 1.

Are the children, B.G.M.M. and M.R.P.M. children in need of protection pursuant to s. 37(2)(b)(i) and/or s.37(2)(g) of the Child and Family Services Act? 2.

If a finding is made that B.G.M.M. and M.R.P.M. are children in need of protection, is it in their best interests that they be made Crown wards, or can some less intrusive order be made? 3.

A finding having been made on consent with respect to the child, S.L.M.M., is it in her best interests to be a Crown ward or can some less intrusive order be made? 4.

If any of the three children are made Crown wards, should the Court make an order for access? --- ## STATUTORY PATHWAY [29] The proper statutory pathway for a child protection application is set out by Justice Walsh in [L.(R.) v. Children's Aid Society of Metropolitan Toronto (1995), 21 O.R. (3d) 724 (Gen. Div.)](https://www.canlii.org/en/on/sc/doc/1995/1995canlii5589/1995canlii5589.html). [30] Pursuant to s. 40 of the Child and Family Services Act, I must first determine whether or not the Society has properly brought its application before the Court.

I am satisfied that it has done so.

The children, albeit at different times, were apprehended within the jurisdiction of the Society and the Court and the Society has alleged that the children are in need of protection for the reasons set out in its application. [31] The applications having been brought forth, s.47 of the Act requires that a hearing be held to determine whether each child is in need of protection as defined in s. 37(2).

In this case, the parties have consented to a protection finding with respect to the child S.L.M.M. on the basis of the facts out in paragraph 2 of the Minutes of Settlement signed by the parties and filed at Tab 5 of the Continuing Record.

No such finding is agreed to with respect to the twins and accordingly I must consider, assess and weigh the evidence called at trial in that regard.

If I find that either or both of B.G.M.M. and M.R.P.M. are in need of protection (and in the case of S.L.M.M. having already been so found), I must decide on an appropriate disposition under s. 57 or s. 57.1 of the Act having regard to the criteria set out in those sections and in the best interests of each child having regard to the provisions of s. 37(3) of the Act. --- ## STATUTORY FINDINGS [32] On March 22, 2010, Justice MacKenzie found that the identification of the child S.L.M.M. was acknowledged to be correct as amended in the Protection Application.

The statutory findings made and as agreed upon at that time were as follows: 1.

The child's full legal name is as set out in the Protection Application (Tab 3, Volume 1) as amended by Justice MacKenzie on March 22, 2010; 2.

The child was born […], 2010; 3.

The child is female; 4.

The child has no religious affiliation; 5.

The child is not a native person; and 6.

The child was apprehended in Grey County.

Her mother and father's names are as set out in the Protection Application. [33] On December 14, 2011, Justice MacKenzie found that the identification of the children B.G.M.M. and M.R.P.M. was acknowledged to be correct as amended in the Protection Application.

The statutory findings made and agreed upon were as follows: 1.

The children's full legal names are as set out in the Protection Application (Tab 3, Volume 2); 2.

The children were each born […], 2011; 3.

The children are both female; 4.

Neither of the children has a religious affiliation; 5.

Neither child is a native person; 6.

Both children were apprehended in Grey County.

Their mother and father's names are as set out in the Protection Application. --- ## THE EVIDENCE ### EVIDENCE OF AMANDA BOSWELL [34] Amanda Boswell is employed by the Society as a Family Services Worker, who became involved with the parents in late June, 2010.

Over the course of her involvement with the parents, she supervised a number of access visits, provided the parents with a number of referrals and directed them from time to time in respect of the Society's expectations of them. [35] Following S.L.M.M.'s birth, the parents had fully supervised access with that child twice a week for an hour and a half on each occasion.

This access became less supervised (the parents would "check in" at the start of access and would "check out" at the end of access but with the access remaining in the access facility throughout) in July 2011, but it was short lived.

In September, 2011 following a verbal argument between the parents in the presence of S.L.M.M., access reverted back to full supervision, a level it remained at through to trial in respect of all three children.

The Society was prepared to consider access, at least to S.L.M.M., outside the Society's facilities and eventually in the parent's home but the parents did not follow through with certain pre-conditions established by the Society including making their new residence in late 2011 or early 2012 available for inspection by Society workers, failing to prepare a plan and engage S.L.M.M. in programming at the Early Years Centre and refusing to engage with the Family Resource Worker, Jennifer Riesberry upon a second referral being made to that worker.

It should be noted that there had been at least one supervised visit at a local park outside the Society's access facility. [36] Ms. Boswell had a number of concerns with respect to both parents during the course of her involvement.

She found the father's treatment of the mother to be problematic.

She described instances where he raised his voice, spoke rudely, swore at the mother and told her what to do.

He presented as one who was easily frustrated and who would become angry quickly when either directed or challenged by the witness, a dynamic that surfaced early in their dealings with one another and which made it difficult for the witness to work with the father going forward. [37] Continuing concerns were: 1.

The parent's smoking and their smell of smoke at access visits (despite the parents changing clothes before each visit) impacting on the children's health, particularly S.L.M.M. and M.R.P.M.'s asthma; 2.

The father's inability to read the children's cues, particularly his persistent tickling of S.L.M.M. when she clearly did not enjoy it and his limited understanding of the development of the children based on their ages; 3.

The father making noises periodically rather than using words to engage S.L.M.M. or in trying to attract her attention; 4.

The parents' body odour and personal hygiene; 5.

The parents' failure collectively and individually to follow through on a timely basis or at all with directions or recommendations made by the Society in other areas including, but not limited to the father's failure to attend The Men's Program; 6.

The father's unwillingness to listen to and accept constructive criticism or feedback from Society workers and his ongoing anger issues; 7.

The mother continuing in her relationship with the father and her ability to stand up to him if the relationship continued; and 8.

The lack of support the mother had. [38] On cross-examination, Ms. Boswell conceded that the parents had followed through on several recommendations and directions initiated by her or other workers including: 1.

The mother had contacted Mental Health Services and had received some counselling, although not on a consistent and ongoing basis. 2.

The father had confirmed making an appointment with his family doctor and was taking prescribed medication to reduce his anger or otherwise stabilize his mood. [39] Ms Boswell was reticent in identifying any strengths exhibited by either parent particularly the father.

This is in contrast to the evidence given by most of the other workers for the Society whose testimony was more balanced.

The weight to be accorded to Ms. Boswell's evidence suffers as a result.

She did concede that she had no issue with the mother's interaction with the children and that the mother certainly listened to and was generally accepting of feedback from Society workers. --- ### CHRISTINE MCILVEEN [40] Christine McIlveen is employed by the Society as a Children's Service Worker who was assigned as the worker for S.L.M.M. [41] Shortly after coming into their care, S.L.M.M.'s foster parents reported to Ms. McIlveen of how strongly gifts of clothing from the parents smelled of smoke and how S.L.M.M. wheezed after access visits.

The smell of smoke and respiratory distress experienced by S.L.M.M. immediately following access visits with her parents are alleged to have continued largely unabated.

The foster parents did not testify at trial. [42] S.L.M.M. was seen on a number of occasions between birth and the trial by a nurse practitioner, April McAllister who, through Ms. McIlveen, provided a series of brief notes respecting S.L.M.M.'s health. [43] In a note dated May 11, 2010, Ms. McAllister suggested S.L.M.M. not be exposed to any form of second hand smoke.

This followed a complaint by the foster parents that S.L.M.M. was returned following access visits with the smell of smoke on her clothes. [44] At nine months of age, S.L.M.M. was diagnosed by Ms. McAllister as suffering from "reactive airway disease".

She noted that exposure to cigarette smoke or the odour of nicotine triggered S.L.M.M.'s symptoms of wheezing and shortness of breath. [45] By July, 2012 and with continuing concerns expressed about S.L.M.M.'s breathing following access visits with her parents, Ms. McAllister expressed the view that additional triggers could include animal dander, infections, and various unspecified strong odours and scents. [46] The parents and Society workers implemented a number of strategies to reduce S.L.M.M.'s exposure to the various triggers identified by April McAllister.

Those strategies included the parents changing into freshly laundered clothing at the access facility before each visit, the parents showering before visits and not smoking on the way to visits. [47] A Ventolin aero chamber was prescribed for treatment of S.L.M.M.'s symptoms at nine months of age.

It was and is used just before the end of each access visit and is said to be used rarely otherwise.

There are cats and/or dogs within the foster home.

It is unclear from the evidence that the use of the Ventolin aero chamber was actually required each visit or whether it was used entirely as a precautionary measure. [48] Ms. McIlveen testified that S.L.M.M.'s health is regularly monitored and that there have been no concerns about her overall development. [49] A number of strengths of the parents were identified by the worker: 1.

The parents were openly affectionate, loving and encouraging of S.L.M.M.; 2.

They came to the visits with clothing, age appropriate reading materials, crafts and toys; 3.

Each parent was careful with S.L.M.M. in infancy in their transitional movements, appropriately supporting S.L.M.M.'s neck and head; 4.

The parents regularly read to S.L.M.M. which she enjoyed; 5.

The parents maintained regular communication with the foster parents; 6.

Although not consistently, the parents exhibited excellent team work through access visits particularly during diaper changes where Ms McIlveen described the parents as a "well-oiled machine", each parent fulfilling a prescribed role. 7.

The mother was quite nurturing and the father was capable of sharing these qualities although he was more apt to raise his voice. [50] Ms. McIlveen did express a number of concerns about the parents: 1.

When frustrated, the father was disrespectful in the manner in which he spoke to the mother.

He had a tendency to interrupt or speak over the mother often in the presence of S.L.M.M. 2.

The needs and interests of S.L.M.M. were subordinated to those of the parents.

For example, shortly after S.L.M.M.'s birth and as she was starting to sleep, the father insisted that S.L.M.M. be kept awake for a picture.

On another occasion, the mother despite having been ill, attended an access visit with the twins having known that with their weakened immune system at the time that they would be at an increased risk of becoming ill. 3.

The father did not appear to understand age appropriate behaviours.

He blamed the foster parents for minor cuts and bruises which were more likely attributable and consistent with to S.L.M.M. transitioning from crawling to walking.

When he found S.L.M.M. saying "no" frequently he attributed that to S.L.M.M. "having attitude" and outside the realm of normalcy for a child under two years of age.

The mother had a greater understanding of S.L.M.M.'s "ages and stages". 4.

The parents appeared not to be very adaptable in their routines with S.L.M.M. during visits.

They didn't easily change roles during diaper changes.

It was always the mother who took S.L.M.M. to the washroom during her toilet training as she grew older. 5.

The father would fail to read S.L.M.M.'s cues.

He would tickle her when she did not enjoy it and he would persist in that conduct.

He would attempt to force affection from the child when she was not inclined to give it.

The mother understood the child's cues and would respond to them. 6.

The father would sometimes call out or whistle to S.L.M.M."almost as if he was calling a dog." 7.

S.L.M.M. appeared more reluctant to go for visits recently. [51] Ms. McIlveen testified that S.L.M.M. was thriving in the care of her foster parents who had created a safe, smoke free environment for her.

This placement is considered as a "view to adopt foster home" where S.L.M.M.'s half-brother B has already been adopted into. --- ### EVIDENCE OF LINDSAY WILSON [52] Lindsay Wilson is a Children's Service Worker employed by the Society and assigned to the children B.G.M.M. and M.R.P.M. She attended the twin's foster home for six scheduled visits where they appear to be doing well and she supervised a total of 13 access visits between the parents and one or more children.

Most of the visits she supervised were between the parents and the twins. [53] The twins were born prematurely and hospitalized for several weeks following their birth.

At four months of age, the family doctor, according to the witness, had no concerns about the twins' development.

M.R.P.M. had a "floppy larynx" which resolved over time. [54] The twins were referred to the Respiratory Syncytial Virus injection program as a preventative measure against a respiratory virus (RSV) said to be a common ailment in young children but highly contagious. [55] The twins were also seen regularly by their family physician, their pediatrician, a Public Health Nurse, a physiotherapist, occupational therapist and speech therapist, all of whom made recommendations from time to time and none of which appeared to be out of the ordinary. [56] In early September 2012, M.R.P.M. was hospitalized briefly after exhibiting laboured breathing.

She was diagnosed with bronchiolitis and the use of three different inhalers was recommended. [57] During the trial, M.R.P.M. was again admitted to the hospital and diagnosed with asthma, also referred to as "reactive airway disease".

The attending pediatrician, according to Ms. Wilson, was of the view that M.R.P.M.'s asthmatic condition would see her worsen quickly if she experienced cold symptoms.

He recommended a daily inhaler and a caution about exposing M.R.P.M. to smoke and pets.

When advised of the Society's concerns about the parent's hygiene at supervised visits, he is said to have recommended administration of the inhaler prior to a visit and immediately thereafter if M.R.P.M. became "wheezy" during the visit.

The parents have had no difficulty in administering the inhalers to either S.L.M.M. and M.R.P.M. [58] The twins are not developmentally delayed and at trial suffered from no major health issues other than M.R.P.M.'s "reactive airway disease". [59] Ms. Wilson testified that during her involvement with the parents, they always exuded an offensive smell which she had difficulty in identifying.

When pressed, she thought the smell was partly cat urine and partly body odour, but more recently body odour.

She noted that the parents always complied with the Society's directive that they change their clothing immediately before an access visit. [60] This witness observed a number of consistent strengths with the parents.

They read the communication book which was used to transmit information respecting the twins with the foster parents.

They were able to feed the twins according to the instructions given by the foster parents and no concerns were noted about the manner in which they prepared or warmed the twins' feedings, the feedings themselves or how they were burped. [61] The parents appropriately divided their time or visits with each twin and S.L.M.M. and there were no concerns about the manner in which either parent held, carried or handled the twins during visits. [62] The mother was noted to consistently talk to, make eye contact with, show affection, smile at, sing and read to the children on a sustained basis during each visit.

The father less so.

The mother was able to redirect S.L.M.M. if she behaved poorly and was able to assist S.L.M.M. deal with her emotions.

She encouraged S.L.M.M. to use her manners. [63] Both parents arrived on time or came early for visits. [64] Ms. Wilson expressed a number of concerns as a result of her observations.

She found that the father was easily distracted during visits and continually looked out the window or at a clock approximately 20 minutes before the end of most visits.

He was not as consistent as the mother in his interaction with the twins and at times he did not interact at all with them.

He was quick to place the twins in their infant carriers when he was done feeding or changing them, depriving the twins of an opportunity to be further stimulated.

With direction and over time, the father increased his responsibility in changing more diapers and providing the twins with more "tummy time". [65] The witness expressed concern surrounding her observations of the communication patterns between the parents.

She gave several examples of the father being impatient, directive, over bearing, impulsive, and perfunctory in the manner in which he spoke to the mother causing her periodically to question her own self-worth.

The father appeared to have little interest in joining in conversation or topics that did not immediately interest him and he had difficulty from time to time in accepting recommendations, although the witness also noted that both parents had always been appropriate with her when they had questions about the twins. --- ### EVIDENCE OF KAREN CAMERON [66] Karen Cameron is a Family Resource Worker with the Society who was primarily assigned to the parents through the Family Visiting Program.

She supervised a total of eleven visits, most of which occurred between April and July, 2010 when she had primary carriage of the file.

She only supervised one visit between the parents and the twins. [67] She described the visiting program as "goal based", whereby the parents and Society staff would meet regularly to identify access issues, review progress and set or re-adjust goals for future access.

These meetings occur as "access review meetings" with the initial meeting held within four to six weeks of the initial visit and regularly every three months thereafter. [68] The parents did not attend the first access review meeting scheduled for April 19, 2010, nor further meetings scheduled for May 10 and June 15, 2010.

The parents did not explain their absences on these dates and as a result their visitation with S.L.M.M. was suspended until they did attend.

They finally attended on June 28, 2010. [69] While supervising access, Ms. Cameron noted concerns about the strong smell of cigarette smoke emanating from the parents, particularly on the April 29th and June 10th, 2010 visit.

She discussed with the parents the dangers posed to S.L.M.M. by second and third hand smoke.

The father withdrew from the discussion clearly angered by it.

The message appeared to get temporarily through however, as Ms. Cameron noted that the smell of cigarette smoke waned for several months.

Indeed she made no observations respecting same in respect of the visits that occurred on April 22, May 13, May 25, May 29 and July 8, 2010 or any other visit she supervised.

Visitation was twice a week for an hour. [70] Although expressing general concern about the parents' body odour, Ms. Cameron made no specific note of it other than cigarette smoke, save and except on May 3, 2011.

No reference is made to body odour in the initial June 28, 2010 summary of the access review meeting held on that date. [71] Mr. Cameron felt that the parents had little insight into child development particularly with respect to S.L.M.M.'s feedings as a newborn and in mother attempting to change S.L.M.M.'s diaper on a change table without use of a safety strap. [72] The parents did display some strengths according to Ms. Cameron.

They were caring towards S.L.M.M. who appeared happy and excited to see them during access visits.

The parents attended visits regularly and punctually.

The mother was very attentive to S.L.M.M. and able to meet her needs.

She was more willing than the father to address the smoking issue.

The father, although often presenting as angry worked well with Ms Cameron once he was able to make a personal connection.

He and Ms Cameron attended the some high school together.

When angry he was able to remain calm and loving when speaking with S.L.M.M. He was able to refocus on S.L.M.M. .

The father's anger surfaced most frequently when he was frustrated or unwilling to accept a point of view other than his own. --- ### EVIDENCE OF CAROLYN CAFIK [73] Carolyn Cafik is employed by the Society as a Family Resource Worker who supervised a total of 20 visits with the parents and either S.L.M.M., the twins or both between October, 2011 and May, 2012.

She noted that the parents visited with the children regularly, that they usually arrived on time if not early and changed into clean clothing without prompting.

The parents greeted the children with affection and followed through regularly in giving S.L.M.M. her asthma treatment.

They established routine during visitation and maintained it each visit. [74] Initially, this worker noted a strong smell of cat urine around one or both parents, but this issue was not long lasting.

The smell of smoke on the parents was never an issue. [75] There were issues respecting the parents, but primarily the father's body odour which arose on several access visits but was only noted by the witness on a visit in December, 2011 and therefore was apparently not much of a concern to the witness. [76] According to Ms. Cafik, the parents and particularly the father had difficulty accepting her direction or feedback.

For example: 1.

The father was rigid and unwilling to listen to suggestions surrounding a flu shot for S.L.M.M., a topic raised in the first instance by the mother; 2.

Both parents actively resisted enforcement of the agency policy of drivers and foster parents taking children to and from vehicles to decrease safety issues in the parking lot.

It was not made clear in the evidence what safety issues had arisen or whether such issues were particular to these parents.

From the evidence adduced, it doesn't appear to have been an issue between March 2010 and November, 2011.

The father, in particular, voiced his opinion that he was not going to follow the policy and that it was ridiculous; 3.

When S.L.M.M. was discovered with head lice, the mother suggested that visits stop and the father suggested that the condition was the fault of the foster mother who operated a day care centre.

When it was suggested to the parents that they begin treatment and that this was part of parenting, the father voiced the view that treatment would "take away time from our visits".

He further suggested that he would not come to visits if the foster home didn't "get it under control", a position that the worker actively discouraged. [77] Ms. Cafik noted that the father engaged in adult conversation in the presence of S.L.M.M., was rude to the mother and on at least one occasion was told he would have to leave the visit if he didn't behave appropriately.

After a couple of warnings, the father's behaviour improved.

She had concerns periodically that S.L.M.M. was unresponsive to the father, although the mother was able to engage the child at her level.

The witness conceded in cross-examination that there were many times that the father and S.L.M.M. were affectionate with one another.

She observed on occasion the father's aggressive or sharp tone with S.L.M.M. The father would ignore S.L.M.M.'s cues even when the mother tried to interpret them for him. [78] With respect to her observations regarding the parent's visits with the twins, they were able to feed them and change them without difficulty.

The visits were quite routine.

The twins were content and their cues were read without difficulty. [79] The mother's interactions with all three children, but particularly with S.L.M.M. according to the witness were overall positive.

Ms. Cafik never had any concerns.

The mother did crafts or other planned activities with S.L.M.M..

She sang and read stories to S.L.M.M., played on the floor with her and let S.L.M.M. direct the nature of play. [80] The father was described by the witness as doing a good job on occasion following the mother's lead.

He was able to play and have fun with S.L.M.M., but struggled to read her cues.

When visiting with the twins, there would be significant times when he did not hold a child.

Instead, he occupied himself washing bottles or cleaning up toys. --- ### EVIDENCE OF JENNIFER RIESBERRY [81] Jennifer Riesberry, a Family Resource Worker with the Society worked briefly with the parents from September to November, 2011.

Her primary goal was to assist the parents in achieving a transition of access to S.L.M.M. from the Society's access facility into the parent's home, to assess the degree of attachment S.L.M.M. had, if any, with the parents and to help the parents in their personal hygiene.

She was also a co-leader of a parenting program known as "Parents in Action", a twelve week program which the parents enrolled in in September, 2011. [82] The parents attended six out of twelve sessions in the "Parents in Action" program.

It was recommended to the parents that they take the program again because of their attendance issues.

In the case of the mother, it should be noted however, that she was late in her pregnancy with the twins.

The program was offered to the parents for the fall of 2012 and they registered in same, although they had not re-started the program as of the date of trial. [83] The parents did enroll in and complete the majority of the sessions held as part of a program focussing on attachment issues known as "Right from the Start" in the late spring of 2011. [84] In group sessions, the father was an active participant and excited about what he was learning.

The mother was more restrained, but was an active listener. [85] Ms. Riesberry, based on her own observations and on the complaint of others, had a number of concerns about the personal hygiene of the parents and their living conditions.

On her first home visit, she was overwhelmed by the strong smell of cat urine and had trouble breathing.

The parents reported that their animals were full of fleas and that they were allowed to sleep with the parents. [86] Other individuals attending different parenting groups with the mother and father complained of their body odour despite the parent's insistence that they showered daily and changed their clothes regularly.

The parents admitted that they both had rotting teeth and did not visit a dentist regularly.

Regular oral hygiene was not a priority for the parents. [87] Ms Riesberry attempted to work with the parents on these issues but the parents did not embrace her involvement.

The parents struggled with and were preoccupied by their own basic needs, the most important of which was to secure proper housing.

They did not generally answer or return Ms. Riesberry's telephone messages, they missed appointments and were not home when Ms. Riesberry attended.

As a result of the parent's unwillingness to engage in the services offered, Ms. Riesberry was directed to close her file. --- ### EVIDENCE OF SARAH GROLLA [88] Sarah Grolla is a Family Resource Worker for the Society in the Family Access Program who began her involvement with the parents in July 2010.

The parents had been offered over 300 visits with the children in various combinations to the date of trial with the parents attending most of them.

Some visits were missed because of one or more children being ill or one of the parents being ill.

The mother missed some visits with S.L.M.M. when she was pregnant with the twins.

The mother described her pregnancy as "high risk".

Very few visits were missed as a result of the parents simply not attending although the manner and timeliness of their communicating to the Society of an inability to attend was an issue from time to time. [89] Ms. Grolla chaired seven access review meetings between August 2010 and June 2012.

Such meetings were generally held every three months.

The parents were expected to share their views on how they perceived access to be going and to listen to feedback from Society workers.

The parents were expected to actively discuss and participate in goal setting for future access. [90] According to the witness, the father did not engage in most of these meetings.

He would quickly grow angry, raise his voice or simply not communicate.

He was disrespectful and at times, confrontational.

He refused in most instances to willingly accept feedback from Society workers, feedback that the witness felt would improve the quality of access and interaction between the father and the children. [91] Ms. Grolla expressed the following concerns respecting access that she supervised: 1.

The father was rude and condescending towards the mother, quick to anger, interrupt or speak over someone usually in the presence of one or more children.

The mother would try to redirect the father's anger, but with little success.

For six to nine months, the father's disrespectful conduct abated only to return and somewhat more pronounced when visitation with all three children occurred at the same time. 2.

The parents exuded strong cigarette smoke, cat urine and body odour smells when attending visits.

A change of clothes by the parents immediately before access did not completely eliminate the smell.

Indeed, by the early summer of 2012, the visiting room at the Society's facilities had to be aired out for approximately 15 minutes before the next family could visit.

This measure was undertaken as a result of complaints by other families and staff members.

The witness conceded that the smoke smell lessened over time to the point that she could rarely smell smoke when the parents came for visits after May, 2011.

She hadn't noticed that S.L.M.M. had become progressively more wheezy during visited.

Body odour was the main concern and thought to be a reflection of the parent's personal hygiene.

Ms. Grolla tried to suggest a linkage between the parents' body odour and a risk that it could trigger S.L.M.M. and/or M.R.P.M.'s asthma.

I find that there was no medical or other evidence proffered to suggest such a connection. 3.

The father did not or could not respond to cues of the children and S.L.M.M. in particular.

Further, he did not understand the developmental stages of the children. 4.

The father enjoyed playing with the children and engaging in preparatory or "clean-up" work, but was less inclined to take a more active role in feeding, soothing or rocking a child to sleep.

This was less of an issue at trial as the parents had started to share roles.

Ms Grolla, did not, in her examination in-chief, identify many strengths for the parents during access visits beyond the parents demonstrated love for the children, beginning and ending their visits on time and sharing the holding of the twins.

On cross-examination, she conceded that the father was a proud father, excited about his children's accomplishments and wanting increased information about them.

Both parents actively, passionately and emotionally advocated for their children.

They both knew how to administer "puffers" to S.L.M.M. and M.R.P.M. The mother was proficient in reading the cues of all of the children and interacting with them.

She was capable of understanding and utilizing the information she was given. 5.

The mother in particular didn't seize opportunities that could have led to enriched or even unsupervised access.

A goal was established for the mother to attend the Early Years Centre with S.L.M.M. and to actively inquire and engage in appropriate programming there.

She failed to do so.

The parents were asked to present plans for supervised visits outside the Society's facilities, but other than one or two visits at a local park, no consistent plan was presented.

The parents were encouraged to take S.L.M.M. for a walk outside, but the parents were reluctant to do so fearing an upset in S.L.M.M.'s feeding schedule.

It doesn't appear that Ms. Grolla attempted to problem solve this issue (outside walks) with the parents. --- ### EVIDENCE OF DR.

LOUISE SAS [92] Dr. Sas is an experienced assessor qualified as and accepted by the parties as an expert in parenting capacity.

She prepared a parenting capacity assessment of the parents in June 2011 at a time when she was unaware that the mother was pregnant with twins.

She was aware that the child S.L.M.M. had been in the same foster home virtually since birth and that the parents were exercising supervised access with S.L.M.M. twice a week for approximately three hours in total. [93] Dr. Sas interviewed the parents individually, collectively and with S.L.M.M. on multiple occasions.

Such interviews were conducted both at facilities provided by the Society as well as the parent's home at the time.

She reviewed the supervised access notes and contacted a number of collateral sources as well as some extended family members. [94] In relation to the mother's three oldest children (who had all be previously made Crown wards a number of years earlier), Dr. Sas noted in her assessment the mother's troubled childhood, the fact that she left school at age 13, left her home at age 17, formed her first serious relationship shortly thereafter and had three children in rapid succession.

She described the mother as having been overwhelmed with her parental responsibilities and not having the maturity or skills necessary to properly have cared for these children.

The mother drank to excess and was abused by her partner at the time.

The CAS became involved because the children were not properly supervised, their needs were neglected and two of the children had behavioural problems, experienced developmental delay and had medical issues.

Extensive outside supports over a protracted period of time did not ameliorate the problems. [95] The father was described as having grown up in a dysfunctional family and that he had had an unhappy childhood.

He himself fathered a child in 1997 and separated from that child's mother three and a half years later.

He drank to excess and that, coupled with his poorly controlled anger, saw his access to the child supervised for short durations and limited in frequency by court order.

There were problems with access and the father was not involved in this child's life until many years later. [96] Dr. Sas conducted psychological testing on both parents. [97] With respect to the father, such testing confirmed that he is prone to anger, easily frustrated and likely to lose his temper with provocation.

He is said to recognize this tendency in himself and he had started to develop coping mechanisms such as walking away when angered.

Dr. Sas felt that the father would benefit from an anger management program to develop additional strategies.

She believed that the father recognized his triggers and was motivated to work on his anger management issues. [98] Dr. Sas noted in the early supervised access notes that the father was somewhat controlling of the mother and "short" with her, but that his behaviour had improved.

He did not lose his temper with Dr. Sas, was not threatening and although frustrated periodically was well able to control his emotions and behaviours even though frequently challenged by Dr. Sas.

She felt the father was capable of being empathic, nurturing and warm in close relationships and he was observed to be warm and affectionate with S.L.M.M. He was viewed as not imposing an immediate risk to S.L.M.M. if placed in his and the mother's care while he awaited and engaged in anger management counselling. [99] The mother's psychological testing disclosed that she suffers from social anxiety and other phobias.

There were cognitive symptoms of depression but no signs of clinical depression just sadness.

There was no evidence of thought disorder.

She had little confidence in her social interactions and would likely subordinate her own needs in favour of the needs of others.

Dr. Sas believed that the mother was definitely capable of parenting S.L.M.M. and that she could do so on her own with appropriate support even though Dr. Sas's assessment proceeded on the basis that the parents were presenting a joint plan. [100] Dr. Sas described her observations of the parents with S.L.M.M. in positive terms.

They were observed to be interactive, nurturing, vigilant for her safety and affectionate.

They stimulated her and worked well together in caring for her.

The parents exhibited a strong attachment to S.L.M.M. S.L.M.M. was comfortable with both parents and was starting to develop an attachment to them despite their restrictive access. [101] Dr. Sas conducted several home visits with the parents and noted that their home was clean with no smell of second hand smoke.

At trial, Dr. Sas stated that body odour of the parents was never an issue. [102] At the time of her assessment, Dr. Sas concluded that notwithstanding their past histories, the father's anger management problems, his reluctance to participate in some programming suggested by the Society (The Men's Group) and lack of extended family support, that the parents, nevertheless, could parent S.L.M.M. and that she should be placed with them on a six month supervision order after an appropriate transition period subject to: 1.

The father committing to attend The Men's Group and "My Dad's" group, both of which could occur concurrently with S.L.M.M.'s return to the parents. 2.

Both parents attending a parenting group together. [103] Dr. Sas recommended that the mother engage in individual counselling and that she be assisted in finding a family doctor for both herself and S.L.M.M. [104] After the Society learned the mother was pregnant with twins it asked Dr. Sas to address a number of issues including: 1.

The effect two more young children would have on her initial recommendations; 2.

Given S.L.M.M.'s asthma, the effect of her parents smoking, her exposure to second hand smoke by the parents and the parents awareness and sensitivity of S.L.M.M.'s fragility in that regard; and 3.

Her recommendations with respect to the father's use of marijuana. [105] In late August, 2011, Dr. Sas responded to the Society's questions and concerns.

She was of the opinion: 1.

That caring for three young children would "tax the parent's competencies".

She would have serious concerns about the ability of both parents to safely parent all of the children; 2.

The parents had demonstrated a willingness to maintain a smoke free environment and that there had been a significant improvement in the parent's attitude and behaviour surrounding this issue.

Dr. Sas had discussed with the parents ways they could reduce their smoking and insure S.L.M.M. was not exposed to second hand smoke as much as possible; 3.

The parents were capable of responding quickly to any medical difficulties S.L.M.M. might exhibit; 4.

As the father was a self-reported minor recreational marijuana user and there being no evidence of any addiction, she had no specific recommendations to make in connection with his drug use. [106] In her viva voce testimony, Dr. Sas noted that the father's unwillingness to participate in The Men's Group other than in the intake portion was because he would be forced to acknowledge that he was an abuser, an accusation he consistently denied both to the Society and Dr. Sas, despite having been convicted of assault on one former partner and of criminal harassment.

She felt that the context of the Men's Group would have been beneficial for the father.

She was not surprised to learn at trial that the father had not completed this program.

She was more interested in the father's attendance in the "My Dad's" program and how he had done. [107] In retrospect, Dr. Sas felt it might have been more useful for the father to explore other anger management programs.

This does not appear to have been recommended to the father by anyone.

She felt that the father was capable of improving his anger management skills.

His distrust of Society workers, for example, was not an indication that he would necessarily be distrustful of school authorities despite his own educational difficulties.

Dr. Sas did not see the same reactions that Society workers saw in the father.

She expressed the view that it was all in the way that the father was approached.

Indeed, in her parenting capacity assessment Dr. Sas suggested that the Society offer the services of a mature Family Support Worker in helping the parents organize themselves and set up routines as part of her recommendations.

She contemplated intensive involvement initially on a twice weekly basis.

I took this to mean that the situation required a worker who would be cognizant of the father's anger issues and distrust of Society workers, a worker who would be patient and understanding in his or her approach. [108] Dr. Sas, in cross-examination, indicated that she had not experienced any body odour issues with the parents. [109] Dr. Sas felt that the mother's social anxiety and its effect on S.L.M.M. would depend on the supports provided to her.

The mother was amenable to receiving such support.

Dr. Sas was not prepared to conclude that the mother would seek to satisfy the father's needs or place them above S.L.M.M.'s needs.

She expressed the opinion that both parents would need to focus on their parenting role and be united in that regard. [110] Dr. Sas did not withdraw at trial her original recommendations respecting S.L.M.M. notwithstanding the birth of the twins.

The issues remained essentially the same.

She expressed the opinion that a six month supervision order was enough time to see if the parents could adequately engage in appropriate services.

It was not suggested that supervision would necessarily end at that point. [111] Dr. Sas recommended that the parents participate in couples counselling as a term of a supervision order.

This would follow participation in individual counselling for each parent.

She was aware at the time she made her original recommendations that there was a waiting list for counselling in Owen Sound. --- ### EVIDENCE OF THE FATHER [112] The father testified that he had been in a common law relationship with the mother for four years and that he considered her his "wife".

He described their relationship as a good one and that they rarely had any major disagreements.

He loved her and she and the three children were the most important things in his life.

He acknowledged that they had minor arguments from time to time and that he would occasionally "talk over" the mother and others (including C.A.S. workers) simply to get his point across on a particular subject. [113] He indicated he had limited family support.

His father lives close by and they share a good relationship.

His relationship with his mother has been fractious but said to be improving.

He sees her on special occasions.

He has a number of siblings and a half-sibling that he sees from time to time.

No extended family member testified on behalf of the father. [114] The parents now reside in a two bedroom apartment in Owen Sound.

They moved in late 2011, according to the father, because of the Society's concerns about the number of cats and dogs kept at their former residence.

No animals are kept in their current residence. [115] The father suggested that there is enough room for the three children and that all three would have their bedroom in the largest of the rooms in the apartment.

The Society has not had the opportunity of viewing the premises and assessing it for safety and related issues.

The father concedes that neither he nor the mother have done anything to facilitate a visit to their residence by Society workers although he has no objection to same. [116] The father's plan of care is to co-parent all three children with the mother.

There is a daycare within two blocks of their residence and a subsidy, given their limited income, is anticipated by them.

The children's medical needs would be addressed by the father's family doctor, who is said to have agreed to take all the children on as new patients.

The parents are without a car and accordingly, the father states that he can rely on family, friends and taxis if necessary to attend medical appointments or a hospital if required. [117] The father said that although he and the mother had not discussed how they will raise three children, he assures the Court that they will not be overwhelmed and that they will share parenting responsibilities.

He is not sure how he is going to track the developmental stages of the children. [118] He acknowledged that he has had issues with anger all of his life.

He is on an unidentified prescription medication that he started in 2011 which he says helps reduce his anger but does not eliminate it.

He still experiences anger and frustration at times.

He has not engaged in any group or one-on-one counselling for anger management other than to have completed two or three preparatory sessions for The Men's Group.

The father has developed his own coping strategy when angry.

He simply walks away from whatever triggers his anger.

He admitted having done this on several occasions with Society workers.

He recalled walking away as a result of a suggestion that he take a shower when he had already had one and walking away when it was suggested to him that he have his sweat glands removed to alleviate body odour.

He remembered becoming angry and walking away when he discovered that S.L.M.M. had a black eye and he did not accept the explanation that had been provided by the foster parents in a communication book. [119] The father completed a parenting course known as "My Dad's Group" and provided the court with his certificate of completion.

He acknowledged that he and the mother only completed approximately 50% of the sessions for "Parents in Action" but that their limited attendance was a result of the mother's high risk pregnancy with the twins and mobility issues.

He did not participate in and complete "The Men's Group" other than the preparatory sessions even though it was apparently a term of a past probation order and recommended by Dr. Sas in her parenting capacity assessment.

This anger management course would have required the father to acknowledge his past related criminal offences and his abuse of others which he vehemently denied. [120] The father described his drug use.

He indicated that he smoked "a joint" every weekend even when on prescribed medication.

He had not quit despite the recommendations of his doctor. [121] He acknowledged that he is a heavy smoker who had cut down his smoking from a pack of cigarettes a day to approximately half a pack.

He claimed he did not smoke in his residence and that he would do whatever was necessary to ensure that his children are not exposed to the effects of smoking. [122] He could not explain why others experienced the smell of smoke on his clothing.

He gave up drinking alcohol a number of years ago. [123] The father felt that he was able to read S.L.M.M.'s cues.

He had learned of child cueing in one of his parenting courses.

He liked to tickle S.L.M.M. from time to time to make her happy but admits that he persisted on occasion knowing that she didn't enjoy it. [124] He did not acknowledge a problem with body odour.

He stated that he showered, used deodorants and cologne before access visits. [125] The father described a difficult relationship with Society workers generally and with Ms Boswell in particular.

He had difficulty in accepting feedback because he didn't believe much of what he was told, although he could not explain why.

He felt persecuted about his personal hygiene and singled out over the mother.

He resented the apprehension of his children, believing there was no basis for it and that he had been judged prematurely by the Society.

His refusal to engage with Jennifer Riesberry, he said, was because it was Ms. Boswell's idea and that it hadn't been discussed with the parents in advance. [126] Notwithstanding this difficult relationship, the father asserted that if the children were returned he would abide by any reasonable supervisory conditions, including engaging in one-on-one anger management counselling, taking more parenting courses, participating in drug testing, allowing Society workers into his current residence, engaging with Ms. Riesberry or a worker fulfilling a similar function and not smoking in his residence or in the presence of any of his children. --- ### THE EVIDENCE OF THE MOTHER [127] The mother corroborated much of the father's evidence with respect to their relationship.

She considers him to be her husband.

He is described as a completely different person outside of his interaction with Society workers.

He is respectful, not angry, not abusive, and has many friends.

Whatever minor disagreements the parents have, they are able to work them out.

She said she does not subordinate her needs for those of the father and they have both been able to depend upon and support each other.

She recognized his strong emotions when dealing with Society workers and is able to control hers. [128] The mother has limited extended family support.

She sees her sister A. most days and A. is prepared to provide some support, although she has never seen the twins and her contact with S.L.M.M. has been extremely limited.

The extent of the sister's support is limited by her employment and lack of transportation at least in the short term. [129] The children's maternal grandmother lives in the same building as the mother.

The mother has a number of aunts and uncles in the vicinity but none have been actively involved and none were called as witnesses.

Her father used to live with her but he has moved into an assisted living environment.

He suffers from early dementia and he would not be able to play a supportive role. [130] The mother described being in good health and attends upon a nurse practitioner when needed.

She does not use illegal drugs, has no alcohol issues, but smokes half a pack of cigarettes a day. [131] She was vivid in her description of her children.

It was clear that she loved them all very much.

She viewed them as her "whole life" and she worries about them.

She acknowledged and accepted S.L.M.M. and M.R.P.M.'s asthma and described how she and the father administered puffers towards the end of each visit.

She had never witnessed S.L.M.M. to have a breathing problem during a visit unless S.L.M.M. was otherwise ill or not feeling well.

She felt that she and the father were capable of caring for all three children because they had demonstrated this ability during access visits. [132] If the children were returned to the parents care, the mother said that they would get a larger residence.

They would use the Inuk Daycare initially on a part-time basis and increase involvement as the children grew more comfortable in that setting.

The father's doctor would become the children's family doctor and transportation would be arranged with her sister, aunt or members of the father's family.

The parents would continue the twins physiotherapy if still required. [133] The mother acknowledged the circumstances and concerns under which her oldest three children became Crown wards including but not limited to issues of her personal hygiene, missed medical appointments, her smoking and her exposure of the children to conflictual relationships.

She felt that there had been significant changes in her life and that she was better prepared to parent her three youngest children.

She viewed herself as more mature and no longer in an abusive relationship. [134] With respect to the known concerns of the Society the mother testified: 1.

She did not smoke in her home and her building was now "smoke free".

She would do whatever was required to secure the return of her children.

She was prepared to go on "the patch"; 2.

She had undertaken two or three sessions of counselling but was not able to provide any particulars of same; 3.

She had participated in a couple of parenting courses.

She had enjoyed her participation in "Parents in Action" and "Right from the Start" and, like the father, was able to identify course content and what she had learned.

She had a number of parenting books and magazines at home.

She was unable to complete "Parents in Action" because of her high risk pregnancy with the twins and otherwise feeling "worn out".

Walking was a problem and some of the sessions conflicted with the timing of some access visits.

She was prepared to take this course again; 4.

She acknowledged that she did not arrange or attend any programming with S.L.M.M. at the Early Year's Centre as had been recommended by her worker.

She suggested that the Centre closest to her was closed during the summer and that she would not be able to walk up hill to the other.

She called and left messages but did little, if anything by way of follow-up.

By the time she became more serious about the recommendation she was advised that it was too late because the Society was pursuing a different plan; 5.

Despite having been given an opportunity to increase the frequency of visits with the children the mother acknowledged turning this opportunity down.

She suggested that she had too much going on in her life trying to find a doctor, attending counselling, participating in parenting groups and just having moved; and 6.

The mother indicated that she had no difficulty with Society workers or accepting feedback and recommendations.

She thought Amanda Boswell was nice who made recommendations that she tried to follow.

She didn't engage with Jennifer Riesberry because she and the father couldn't agree on Ms. Riesberry's involvement although she believed the father would now engage if it meant that the children would be returned to their care.

She had no objection to Society workers inspecting their current residence. --- ### EVIDENCE OF A.G. [135] A.G. is the half-sister of the mother who resides two blocks from the mother and father.

Her contact with the parents was more frequent in the four months preceding the trial than before as a result of a move by the parents. [136] A.G. observed that the parents live in a nice apartment that is animal free and "smells nice".

It has always been clean when she has visited and she noted that the parents did not smoke in their residence, but only outside.

She was aware, through the mother, of the respiratory difficulties experienced by the children. [137] She described the parents as ones who got along well who fought verbally from time to time"like anyone else".

She had no concerns about the mother's safety during these verbal disputes.

She described the father as very abrasive in the way he speaks to others including the mother, but it was just "his way" and he was working on it. [138] A.G. expressed a willingness to support the mother and give her a break when needed.

She pointed out however, that she worked Monday to Friday at a day job and at the time of trial had no car.

She'd babysit in the evenings and weekends and supply food and diapers when needed.

A.G. had had infrequent contact with the children since their birth. --- ## FINDING IN NEED OF PROTECTION [139] The Society seeks a finding that B.G.M.M. and M.R.P.M. are children in need of protection pursuant to s. 37(2)(b)(i) and s. 37(2)(g) of the Child and Family Services Act, which read: **(2) Child in need of protection** – 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 or caused by or resulting from that person's, **(i)** failure to adequately care for, provide for, supervise or protect the child, or **(ii)** … **(g)** there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child; [140] The evidence adduced at trial satisfies me on a balance of probabilities that B.G.M.M. and M.R.P.M. should each be found to be a child in need of protection both under s. 37(2)(b)(i) and s. 37(2)(g) of the Act. [141] The parents consented to such a finding with respect to the child S.L.M.M. approximately one year prior to the birth of B.G.M.M. and M.R.P.M. The finding at that time was based on the circumstances surround the coming into care and eventual Crown wardship orders made in respect of the mother's three oldest children which circumstances included poor hygiene, the effect of smoking on one or more children, and missed professional appointments.

Although the mother was much younger, less mature and living in an abusive relationship at that time, the mother has continued to struggle with her own hygiene issues, her smoking and its effect on the children and her ability to consistently follow through with the father with respect to referrals to third party professionals and community agencies.

For example: 1.

The mother failed to seek out any sustained counselling for herself to assist her in dealing with her residual post-traumatic stress disorder as recommended by Dr. Sas in her initial report.

Her efforts were limited to a couple of sessions at a local hospital with a counsellor whose name she could not remember; 2.

The mother has not attended any community programs with S.L.M.M. to meet other mothers and thereby reduce her social isolation as described by Dr. Sas.

An Early Years Program was suggested by the Society but she didn't attend or arrange to attend any programming.

Her efforts were limited to a couple of phone calls where she says she left messages on an answering machine. 3.

The father has consistently refused to attend the Men's Group to assist him with his anger issues.

His refusal is based on that program's requirement that he acknowledge his guilt and/or abusive behaviour in relation to a prior criminal domestic assault proceeding (not involving the mother), which acknowledgment he refuses to give.

Knowing that the return of S.L.M.M. could well depend on his participation in the Men's Group, the father refused to participate as a matter of principle, but more importantly, he has made no effort to seek out any other form of group or individual anger management counselling. [142] Other concerns based on the evidence that support the finding include: 1.

The father's admitted recreational use of illegal drugs; 2.

The father's criminal history; 3.

The effect of both parents smoking even if not in the presence of the children or in the parent's residence on S.L.M.M. and M.R.P.M.'s reactive airway disease. 4.

The father's ongoing struggle to control his anger and frustration level. --- ## DISPOSITION – THE PRINCIPLES [143] On the basis of the evidence before me, I am satisfied that a court order is necessary to protect all three children in the future. [144] In the best interests of each child, I must make an order or orders in accordance with s. 57(1) or s. 57.1 of the Child and Family Services Act, which read as follows: **57.

Order where child in need of protection.** (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect 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 best interests: 1. **Supervision order** - 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 specified period of at least three months and not more than 12 months. 2. **Society wardship** - 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. 3. **Crown wardship** - 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. 4. **Consecutive orders of society wardship and supervision** - That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. **57.1 Custody Order.** (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. --- ## SERVICES OFFERED TO ASSIST CHILDREN [145] Pursuant to s. 57(2) of the Act, a court must inquire what efforts the Society or other agency has made to assist a child before the Society's intervention under the Act.

In this case I find that the following services were offered or provided both before and after apprehension: 1.

The parents were referred to several parenting groups including "Right from the Start" and "Parents in Action"; 2.

The father was referred to "My Dad's Group" and "The Men's Group"; 3.

The services of a Family Resource Worker, Jennifer Riesberry to work with the parents was provided and/or offered at two different times; 4.

The mother was referred to the "Early Years Centre"; 5.

The parents were offered a new bed and new carpet; 6.

The parents received a new chair, couch and futon; 7.

A Public Health Nurse was involved; 8.

A Parent Support Worker was arranged through Grey/Bruce Health Unit for the twins; 9.

The Infant Development Team became involved with the twins; 10.

The twins received speech and occupational therapy as well as physiotherapy; 11.

A pre-natal referral was made to the mother for the program "Healthy Babies, Healthy Children"; 12.

A referral was made to the program "Healthy Beginnings"; 13.

The mother was referred to the Community Mental Health Team for counselling; 14.

The parents were offered hygiene products; 15.

Resource materials and hand-outs were provided to the parents. [146] I must, in accordance with s. 57(3) of the Act, also look at less disruptive alternatives than removing each child from the care of the persons who had change of each child immediately before intervention unless I am satisfied that these alternatives including non-residential services and the assistance provided under s. 57(3), if any, would be inadequate to protect each child.

This requires a consideration of the plan of care put forth by the parties which are reviewed herein. [147] Section 57(4) of the Act obliges me to consider whether it is possible to place each child with a relative, neighbour, or other member of the child's community or extended family with the consent of such person. [148] No such placement on a current basis was proposed by any of the parties at trial nor was any evidence advanced to support such a placement. [149] As all three children are under six years of age, I cannot, by virtue of s. 70(1) of the Act, make an order for Society wardship in respect of any of the children unless I am satisfied that it is in each child's interest that I do so, pursuant to s. 70(4).

At this point, S.L.M.M. has been in care approximately 39 months, while B.G.M.M. and M.R.P.M. have been in care approximately 18 months. [150] In determining an appropriate disposition for each child and applying sections 57 and 57.1 of the Act, I am bound to consider the best interests of each child and those factors that I consider relevant to that determination as set out in Section 37(3) of the Act.

I am not required to determine what it is in either the mother's or father's best interests. [151] Section 37(3) of the Act provides: **Best interests of child** - Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: 1.

The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2.

The child's physical, mental and emotional level of development. 3.

The child's cultural background. 4.

The religious faith, if any, in which the child is being raised. 5.

The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family. 6.

The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community. 7.

The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. 8.

The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9.

The child's views and wishes, if they can be reasonably ascertained. 10.

The effects on the child of delay in the disposition of the case. 11.

The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12.

The degree of risk, if any, that justified the finding that the child is in need of protection. 13.

Any other relevant circumstance. [152] I must also consider the paramount and other purposes of the legislation which are set out in paragraph 1 of the Act and which read: **1.(1) Paramount purpose** - The paramount purpose of this Act is to promote the best interests, protection and well-being of children. **(2) Other purposes** - The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are: 1.

To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent. 2.

To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered. 3.

To recognize that children's services should be provided in a manner that, i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children, iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate. 4.

To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences. 5.

To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1. [153] Justice S. Sherr reviewed the relevant legal principles that must be considered by a court in determining an appropriate disposition in [Jewish Family and Child Service of Toronto v. K.(R.), 2008 ONCJ 774](https://www.canlii.org/en/on/oncj/doc/2008/2008oncj774/2008oncj774.html): > [67] "A Crown wardship order is the most profound order that a court can make.

To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies.

See [Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T. reflex, (1996), 90 O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 Carswell Ont 1428 (Ont.

Div.

Ct.)](https://www.canlii.org/en/on/ca/doc/1996/1996canlii1428/1996canlii1428.html).

In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today.

This must be examined from the child's perspective.

See [Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, [1994] S.C.J. No. 37, 1994 Carswell Ont 376](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii83/1994canlii83.html).

It is important not to judge the parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests.

See [Catholic Children's Aid Society of Hamilton v. J.I. I.M. and V.I.O., 150 A.C.W.S. (3d) 406, [2006] O.J. No. 2299, 2006 Carswell Ont 3510 (Ont.

Fam.

Ct.)](https://www.canlii.org/en/on/sc/doc/2006/2006canlii19432/2006canlii19432.html).

It is also important not to impose an unrealistic standard of child care upon a young mother, who has not fully emotionally developed herself, provided that the standard used is not contrary to the child's best interests.

See [Children's Aid Society of Toronto v. Rebecca B.-H. and Sheldon W., 2006 ONCJ 515, 2006 ONCJ 515, [2006] O.J. No. 5281, 2006 Carswell Ont 8484 (Ont.

C.J.)](https://www.canlii.org/en/on/oncj/doc/2006/2006oncj515/2006oncj515.html). > > [68] The significance of the child-centered approach is that good intentions are not enough.

The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his best interests.

There is not to be experimentation with a child's life with the result that, in giving the parents another change, the child would have one less chance.

See [Children's Aid Society of Winnipeg v. Redwood reflex, (1980), 19 R.F.L. (2d) 232, [1980] M.J. No. 245, 1980 Carswell Man 44 (Man.

C.A.)](https://www.canlii.org/en/mb/ca/doc/1980/1980canlii3654/1980canlii3654.html).

There has to be some demonstrated basis for a determination that the parents are able to parent the child without unreasonably endangering the child's safety.

See [Children's Aid Society of Brockville Leeds and Grenville v. C. and J. (2001), 104 A.C.W.S. (3d) 892, [2001] O.J. No. 1579, [2001] O.T.C. 287, 2001 Carswell Ont 1504 (Ont.

Fam.

Ct.)](https://www.canlii.org/en/on/sc/doc/2001/2001canlii1504/2001canlii1504.html). --- ## S. 37(3) AND BEST INTERESTS CRITERIA [154] Upon reviewing the circumstances provided for in s.37(3) of the Act, I find: 1.

Other than the asthmatic condition of S.L.M.M. and B.G.M.M., the children are physically and emotionally healthy.

There are no known mental health issues.

The children's current foster home placements are meeting their needs. 2.

The children are developing physically, mentally and emotionally in a normal fashion. 3.

The cultural background of the children is non-native and the Society proposes to place the children for adoption in their current foster homes which are of the same cultural background as the parents. 4.

The children at apprehension were not of any particular religious faith and there was no evidence called indicating whether any child was being raised in a particular religious faith by their foster parents. 5.

No evidence was led as to the views and preferences of the children.

Given their ages it is unlikely that such views and preferences could be articulated or reasonably ascertained. 6.

The children have all been in care since shortly after birth.

They require a permanent placement.

Further delay is not in their best interests. 7.

The risk that justified the finding that each child is in need of protection remains but to a lesser degree given my assessment of the parent's plan of care which assessment takes into account the remaining criteria set out in s. 37(3) of the Act. --- ## THE PLANS OF CARE ### THE SOCIETY'S PLAN [155] The Society's plan of care is to have all three children made Crown wards without access to the parents.

S.L.M.M. would be adopted by her foster parents with whom she has lived most of her life.

B.G.M.M. and M.R.P.M. would be adopted by their foster parents in similar circumstances.

All of the children are doing well in their current placements.

The Society's plan would ensure continuity of care for all of the children although there is little, if any, evidence to suggest that the children would not be able to adjust to the disruption that would occur in their lives if they were placed with their parents. --- ### THE PARENT'S PLAN OF CARE [156] The parents seek the return of all three children into their care under supervision, if necessary.

With the exception of the father's intransigence in attending The Men's Group, the parents are willing to take whatever steps are needed to secure their children's return.

They are willing to take individual and couples counselling dealing with issues of anger management, mental health, and their own relationship.

They are prepared to utilize daycare services, arrange for a family doctor, seek support from the mother's sister and other extended family members when needed, cooperate with Society workers and do all acts necessary to minimize the effect of their smoking on their children.

Is it enough?

Is it too late?

Are the parents, given past history, able to translate their good intentions into immediate action? [157] Having considered the evidence there are a number of concerns that I have with the parent's plan which can be summarized as follows: 1.

Can the father cooperate and work with Society workers going forward and accept direction and constructive criticism?

He clearly cannot work with Ms. Boswell. 2.

Can the father accept responsibility for his actions and behaviours particularly when challenged and not simply blame others?

Can he accept points of view that conflict with his own particularly the mother's should conflict arise?

He has not done so historically. 3.

Will the parents follow through on a timely basis in completing appropriate programming and seeking out and utilizing supports in the community given their modest extended family support?

The parents have not followed through with some important directives from the Society.

The parents lack initiative. 4.

Does the father's anger, frustration level and impulsivity preclude his ability to effectively parent one or more of the children?

Will the father effectively address his anger issues?

The father has not adequately addressed his anger issues to date. 5.

Will the mother subordinate the interests of her children in favour of the father's or her own?

The father can be overbearing and there is a risk that the mother will acquiesce or defer to the father's views on parenting issues simply to avoid confrontation. 6.

What steps can the parents take and will they take to address their ongoing hygiene issues? 7.

What further steps, if any, can the parents undertake to further minimize the effect on their children of their smoking? 8.

Can the parents safely parent three children in circumstances where they have not exercised any unsupervised access or access for any extended period of time? [158] There are positive elements to the parents past history and their plan.

Factors that support their plan include: 1.

Their plan would allow the children to grow up with one another as part of their biological family. 2.

The parents have a good attendance record in exercising access.

They are punctual if not early.

The evidence discloses that the access visits from the children's vantage point are more positive than negative.

The mother, in particular, consistently talks to, reads, sings, makes eye contact and shows affection on a sustained basis. 3.

The parents have a reasonable understanding of the effect that their smoking can have on their children.

Although they have not ceased smoking, they have complied with directives to change their clothing before visits.

They know how to administer inhalers to the children should the need arise.

There was little, if any, direct evidence that any of the children experienced respiratory distress during access visits.

The smell of smoke on the parents clothing abated over time as was noted by Sarah Grolla. 4.

The parents have no pets and the smell of cat urine is no longer an issue. 5.

The parents are openly loving, affectionate and encouraging with the children.

They present as committed to their children. 6.

The parents understand why the Society has been involved even though the father has difficulty in accepting that involvement. 7.

The parents are in reasonable physical health. 8.

The parents can accept responsibility. 9.

The parents are capable of meeting the children's basic needs such as feeding, clothing and bathing them. 10.

The parents have a strong attachment to the children.

I am satisfied on the evidence, particularly that of Dr. Sas and Karen Cameron, that S.L.M.M. has an attachment to her parents.

It would be distressing for her to lose the relationship she has with her parents.

The evidence respecting the attachment of the twins to their parents is far less convincing. 11.

The mother is able to redirect S.L.M.M.'s periodic negative behaviour. 12.

The mother is able to read, understand and respond to the children's needs.

The father less so. 13.

The mother has demonstrated that she can and does cooperate with Society workers.

She usually accepts their feedback. 14.

Both parents are strong, passionate and emotional in advocating for their children.

I am satisfied that they can understand and assess risk to their children. 15.

The parents effectively communicated with the children's foster parents through a communication book. 16.

The parents are capable of accepting direction and increased responsibility.

The father was an active participant in programming which he undertook and was eager to learn.

Although more restrained, the mother was described as an "active listener". 17.

Even when frustrated or angry the father is quickly able to refocus on the children and stay calm with them. 18.

The parents appear to have a stable relationship. --- ## OPPORTUNITY TO PARENT [159] The parents should have had significantly increased access to all of the children before this case reached trial.

The fact that they did not is partially their fault.

No motion for increased access to any of the children was brought following apprehension.

The parents did not follow the pathway to increased access laid out by the Society including the mother's failure to participate with S.L.M.M. in programming at the Early Year's Centre, the parent's failure to allow Society worker's to view their new residence, their failure to work with the Jennifer Riesberry, Family Resource Worker and their failure to take advantage of an offer to have access three times a week. [160] There is no evidence how the parents managed the children outside of the observations of those in a supervised access setting.

The Court can only speculate how the parents might do in a different setting, unsupervised and for an extended and sustained period of time. [161] Notwithstanding that the parents didn't seize all available opportunities to have their access increased, I find that the Society could have and should have done more.

It should have adopted a less restrictive approach.

It should have been more active in initiating and then implementing alternate and increasing access regimes.

Access should have become unsupervised and moved long ago to a community based setting followed by home visits increasing over time when appropriate.

This could have been accomplished without all three children being together at the same time.

The Society could have provided a Family Resource Worker to the parents to work on their issues and in their home much earlier than almost eighteen months following S.L.M.M.'s apprehension. [162] I find that with the mother's prior history of her three oldest children being made Crown wards and the father's toxic relationship with Ms Boswell that the Society developed "tunnel vision" in their approach to the parents and adopted a more directive and less supportive role than one might have expected. --- ## CONCLUSION [163] In considering the evidence and the positive and negative factors that affect the viability of the plans of care presented, I have come to the conclusion that the parents are capable of and should be given the opportunity to parent S.L.M.M., but that they are not in a position to parent all three children.

I accept the unchallenged evidence of Dr. Sas that the parents cannot safely parent all three children and that their "competencies would be taxed".

This conclusion is consistent not only with the evidence of Society workers but the evidence of the mother herself.

The mother gave telling evidence that she declined increased access when offered because she had too much going on in her life.

She described this as trying to find a doctor, attending counselling, having recently moved and participating in parenting groups.

The mother was unemployed at the time and if she was overwhelmed by these tasks (some of which she did not complete), it seems unlikely that she, with or without the assistance of the father can keep up with the daily demands of maintaining a busy household with three young children under four years of age particularly when she is untested in that regard.

The degree of risk that led to the apprehension of all of the children has reduced but not to the point that both of the parents are sufficiently child focussed to ensure that the best interests of all of the children can be met on a daily basis.

The negative factors affecting the parents plan are magnified and increase risk to the children should they have the care of all of them. [164] The parents have more of an embedded relationship with S.L.M.M..

They are attached to her and she appears to be attached to them.

She has no special needs other than her asthma.

She lives in a separate foster home from the twins.

Although her older half-brother resides in the same foster home as she does, the evidence does not disclose any close or meaningful relationship between them.

He is significantly older.

Although doing well in foster care, it is important that she secure a place as a member of her biological family. [165] The twins should not be split having grown up together in the same foster home since birth. [166] Parenting one child will present fewer parenting challenges for the mother and father than parenting three children. --- ## TRANSITION [167] It would not be in the parent's best interests and more importantly, S.L.M.M.'s best interests for her to come into the parent's full time care directly from a supervised access regime.

A short term and aggressive transition, spread over three months with increasing access leading to full time care is appropriate.

This could be achieved through a three month Society wardship order followed by a supervision order provided I am able to apply s. 70(4) of the Act to the facts of this case. [168] Section 70(4) provides: **Six-month Extension** – 70(4) - Subject to paragraphs 2 and 4 of subsection 57 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so. [169] Section 70(1) provides: **Time Limit** – 70(1) - Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding, (a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or (b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship. [170] Section 70(2) provides: **Same** – 70(2) In calculating the period referred to in subsection (1), time during which a child has been in a society's care and custody under, (a) an agreement made under subsection 29 (1) or 30 (1) (temporary care or special needs agreement); or (b) a temporary order made under clause 51 (2) (d), shall be counted. [171] Though there is conflicting case law as to how long statutory timelines can be extended under s.70(4), I adopt a liberal interpretation of that subsection, it being in S.L.M.M.'s best interests to do so.

I accept and adopt the reasoning of Justice S. Sherr in [The Catholic Children's Aid Society of Toronto v. K.G. [2006] O.J. 5600](https://www.canlii.org/en/on/sc/doc/2006/2006canlii5600/2006canlii5600.html), where he stated: > "…I agree with taking a liberal interpretation and find that I have the discretion in subsection 70(4) to grant a 6-month extension of society wardship from the date the matter comes before the court, provided that it is in the child's best interests to do so.

I find in this manner for the following reasons: > > (a) The paramount consideration set out in section 1 of the Act is the best interests of the child. > > (b) Arbitrary time limits should not be used to defeat the best interests of a child. > > (c) If the Legislature had wished to restrict the applicability of subsection 70(4), it could have done so. > > (d) This interpretation does not diminish the importance of finding a permanent placement for a child in a timely fashion.

It is the clear intention of the legislation that children not languish in care.

Section 70 of the Act provides direction to the court that a child under the age of 6 should not ordinarily remain a society ward in excess of one year.

It stands to reason that the longer a child is in care, the more weight will be given to the factors set out in subsection 37(3) of the Act which deal with planning for a child in a timely manner when determining what order is in their best interests.

Just because a court has the discretion to order an extension will not mean that it is in the best interests of a child to do so. > > (e) There will be cases where, for a variety of reasons, it is in the best interests of a child to return a child to a parent, but a delay is appropriate.

See [Kawartha-Haliburton Children's Aid Society v. K.M. O.J. No. 5047 (Ont.

Sup.

Ct.)](https://www.canlii.org/en/on/sc/doc/2003/2003canlii5047/2003canlii5047.html).

Examples of this can be a parent's needing a little more time to complete a program where participation was delayed because of waiting lists; waiting for an important support service to become available for either a parent or child; waiting for imminent housing to become available or, as in this case, to assist a child making a positive and gradual transition from a foster placement to a home placement.

It would be detrimental to a child to rush this process for the sake of strict compliance with a time guideline. > > (f) If a restrictive interpretation was given to this subsection, courts, to avoid offending it, might adjourn trials to allow implementation of plans that they considered to be in a child's best interests.

It is a preferable practice to address the issue in a straightforward manner consistent with the best interests of the child.

The court should not be constrained in being able to accommodate these situations.

My interpretation of subsection 70(4) is that it provides this flexibility. > > In determining whether to apply subsection 70(4), I agree with the following principles that were summarized in the case of [Children's Aid Society of Ottawa-Carleton v. K.F., [2003] O.J. No. 2326 (Ont.

Sup.Court – Family)](https://www.canlii.org/en/on/sc/doc/2003/2003canlii67559/2003canlii67559.html): > > (a) The decision to extend must be made in accordance with the child's best interests. > > (b) The decision to extend must be viewed from the child's perspective. > > (c) In determining the child's best interests, I must consider the factors set out in subsection 37(3) of the Act. > > (d) I must be satisfied, balancing the factors set out in subsection 37(3), that there are unusual or equitable principles in the circumstances that would justify granting an exception to the general rule "for the child's sake"." --- ## ACCESS TO TWINS [172] There is a presumption against access once a Crown wardship order is made. [173] S. 59(2) provides: **Termination of Access to Crown Ward** - s. 59(2) – Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated. [174] S. 59(2.1) provides: **Access: Crown Ward** (2.1) – A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that, (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child's future opportunities for adoption. [175] The parents have the onus of rebutting the presumption set out in s. 59(2.1).

See [Children's Aid Society of Toronto v. Dora P. and Raymond L., 19 R.F.L. (6th) 267](https://www.canlii.org/en/on/ca/doc/2005/2005canlii34560/2005canlii34560.html).

The parents must meet both prongs of the test.

There is no requirement that the Society establish the adoptability of the twins.

See [Children's Aid Society of Niagara Region v. J.C., S.B., and R.R., 36 R.F.L. (6th) 40](https://www.canlii.org/en/on/sc/doc/2007/2007canlii8919/2007canlii8919.html). [176] While I am prepared to conclude on the evidence that it is meaningful and beneficial for the parents to have access to the twins, I cannot conclude that access is meaningful and beneficial to the twins.

The degree of attachment to the parents is questionable and there appears to be no significant advantage to the twins in having access continue.

The parents have not satisfied the first prong of the statutory test. [177] The Society has a mandate to make all reasonable efforts to place a Crown ward with a family through adoption or custody order (under s. 65.2(1)) pursuant to s. 63.1 of the Act.

No evidence was called by either parent to establish that an access order will not impair the twins future opportunities for adoption either within their current foster home or otherwise.

Accordingly, the parents have not satisfied the second prong of the statutory test.

They have failed to meet the onus upon them to rebut the statutory presumption. [178] I make no order as to sibling access as no evidence was called to suggest that the best interests of all children warrant such an order. --- ## ORDER [179] An Order will go as follows: 1.

The children, B.G.M.M. and M.R.P.M. are made Crown wards without access to the respondent parents. 2.

The child, S.L.M.M. is made a Society ward for three months to be followed by placement of the said child in the care and custody of the respondent parents, subject to the supervision of the Society for a period of six months on the terms and conditions set out in Schedule A attached hereto, which Schedule shall form part of this Order. 3.

While a Society ward, the child, S.L.M.M. shall have unsupervised access to her parents and they shall have unsupervised access to her as follows: a) Commencing on July 29, 2013, each Monday, Wednesday and Friday from 1 p.m. to 4 p.m.; b) Commencing on August 19, 2013, access will be varied to each Monday, Wednesday and Friday from 10 a.m. to 5 p.m.; c) Commencing on September 10, 2013, access will be varied to each Tuesday, Thursday and Saturday from 10 a.m. to noon the following day; d) Commencing on October 4, 2013, access will be varied to each Friday at noon to the following Sunday at 6 p.m. and each Tuesday commencing October 2nd, 2013 from noon until Wednesday at 6 p.m.; e) The child shall then remain in the parent's care following the last visit on October 29th, 2013. f) The Society will provide all transportation for this visitation schedule. g) The parties may agree in writing to change the actual days of the week and times of access as set out herein in consideration of the foster parents schedule provided the frequency and duration of access as ordered herein on a weekly basis does not change. --- Released: 19 July 2013 Signed: "Justice S.P. Harrison" --- # SCHEDULE "A" ## SUPERVISORY CONDITIONS The following terms and conditions shall apply with respect to the supervision order made herein: 1.

The parents shall forthwith advise the Society of their current address and telephone numbers (land line and/or cell phone numbers, if any.). 2.

The parents shall forthwith advise the Society of any change in their address or telephone numbers. 3.

The Society may attend the parent's residence for announced or unannounced visits. 4.

The Society may meet with S.L.M.M. privately or in the presence of one or both parents as the Society chooses on an announced or unannounced basis at any time and at such location as the Society designates, provided that if such location is designated to be outside the City of Owen Sound, the Society will provide transportation for the child and parents (if required) to the designated location. 5.

The parents shall each sign consents, authorizing the release of information including health records regarding S.L.M.M. in favour of the Society immediately upon the Society's request. 6.

The parents shall each sign consents authorizing the release of information respecting counselling that each parent is required to undertake herein in favour of the Society, immediately upon the Society's request. 7.

The parents shall forthwith take all steps necessary to secure a family physician for S.L.M.M., including the timely execution of all necessary documentation and provision of other information respecting themselves and S.L.M.M. as may be required. 8.

The parents shall ensure that S.L.M.M. promptly attends all medical and health related appointments including counselling as may be recommended by any health care provider for S.L.M.M., which appointments shall include semi-annual check-ups with a qualified medical physician or nurse practitioner.

The parents shall follow all recommendations of any of the child's health care providers including the proper and timely administration of any prescription medication. 9.

The parents shall forthwith notify the Society of any major concerns regarding the physical and emotional health and well-being of S.L.M.M. 10.

The parents individually and collectively shall attend and complete such counselling programs (including, but not limited to anger management, marital relationships, child development and parenting programs) as directed and arranged by the Society at the Society's expense save and except the Men's Program 11.

The parents shall not use any physical discipline on S.L.M.M. 12.

The parents will cooperate with the Society and will meet regularly with Child Protection Workers through announced and unannounced visits. 13.

The parents will abstain completely from the use of non-medically prescribed prohibited drugs and shall provide a drug free home for the child, except for prescribed medications. 14.

The parents will not smoke in the residence of the child or in any vehicle in which the child is transported, nor will they permit any person to smoke in the residence of the child or in any vehicle the child is transported in. 15.

The parents shall not be in an intoxicated condition in the presence of the child or while having the care of the child and shall not permit any other person to be in an intoxicated condition in the presence of the child or to have the care of the child while intoxicated. 16.

The father will participate in random drug testing, including hair, urine and blood analysis, as may be requested by the Society.

The costs of such testing/analysis shall be paid by the Society. 17.

The parents shall ensure that the child is not exposed to any unhealthy verbal conflict or to physical conflict of any kind. 18.

The parents shall not take the child, nor allow any person to take the child to any place where people are smoking indoors or where significant smoking has occurred indoors prior to the arrival of the child without the prior written consent of the Society. 19.

The parents shall not have a pet in the residence of the child or in any vehicle with the child, nor take the child into any place where there are pets without the written consent of the Society or with a letter of permission from a qualified medical physician. 20.

The parents shall not discuss adult issues in the presence of the child. 21.

The parents shall enroll the child in a licensed daycare facility approved by the Society which the child shall attend a minimum of three days a week (unless a different frequency is otherwise agreed upon in writing between the parents and the Society). 22.

The parents shall attend upon a Public Health Nurse or other qualified health professional as determined and arranged by the Society for the purpose of investigation and education surrounding the parents' personal hygiene issues, methods by which the parents may reduce or eliminate their need to smoke and the effects of and minimizing a child's exposure to second and third hand smoke.

Following a custody and access trial and review of prior orders, the court considered whether custody of the child should remain with the mother, whether access terms should be varied, and whether the mother was in contempt of a prior order.

Applying the best interests test under s. 24 of the Children's Law Reform Act, the court found a material change in circumstances and determined that the mother had engaged in a sustained effort to frustrate the child’s relationship with the father, including unfounded allegations of abuse and breaches of access orders.

The court concluded that the father was more likely to facilitate the child’s relationship with both parents and that a change in custody was warranted.

Sole custody was therefore transferred to the father with structured access granted to the mother under geographic restrictions.

The court also found the mother in contempt of a prior telephone access order and awarded costs to the father.

On a family law motion involving multiple interim issues following separation, the court considered custody and access, spousal support, travel restrictions, financial disclosure, and ancillary matters.

The respondent sought sole custody or shared parenting, but the court declined to disturb the existing temporary status quo pending involvement of the Office of the Children’s Lawyer and fuller evidentiary development.

The court ordered mid‑range spousal support under the Spousal Support Advisory Guidelines, adjusted downward to account partially for the applicant’s ongoing expenses maintaining the former family home in another jurisdiction.

The court varied an earlier order to permit the parties to travel with the children within Canada and to Ohio, but declined broader international travel.

Mutual financial disclosure and other interim directions were also ordered.

In a family law proceeding, the respondent brought a motion seeking production of various third‑party records relating to the parties’ children, including therapy, medical, school, and social service records.

The court adopted a procedure similar to that used in criminal third‑party records applications and ordered the records produced to the court in sealed envelopes for judicial review before any disclosure.

After reviewing the materials, the court prepared a judicial summary describing the contents to assist counsel in making submissions on whether disclosure to the requesting party should occur.

The decision outlines the categories of records received from multiple service providers and sets the matter down for a further hearing to determine disclosure.

The court also emphasized that family litigation should not proceed through endless motions and encouraged the parties to move toward trial in the children’s best interests.

Following a family law trial involving custody, access, support, equalization, and divorce, the court considered competing claims for costs.

The moving party, self-represented, sought significant reimbursement of expenses, while the responding party sought partial or substantial indemnity costs.

Applying Rule 24 of the Family Law Rules and considering the divided success at trial, the court held that neither party was clearly more successful.

The court also considered the financial circumstances of the self-represented party and the objectives of fairness and promoting cooperation between the parties.

In the circumstances, the court concluded that the fairest result was that each party bear their own costs.

The appellant father appealed a Crown wardship order regarding his biological child.

He sought to introduce fresh evidence on appeal that he had separated from the child's mother, who had been found incapable of parenting.

The appeal judge refused to admit the fresh evidence and dismissed the appeal.

The Court of Appeal held that the fresh evidence met the test for admission as it was highly relevant and potentially decisive.

However, applying the fresh evidence, the Court concluded that the child's best interests still required Crown wardship, given the child's strong bond with his foster family over the past 17 months.

The appeal was dismissed, but the costs order against the father was set aside.