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.

45.— (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.

45.— (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: 2014-07-30

COURT FILE NO.: CFO 12 11124 00 A3

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO, Applicant,

— AND —

A. A. AND S. H., Respondents.

Before: Justice Ellen B. Murray

Heard on: April 1-4 and July 7-11, 2014

Reasons for Judgment released on: July 30, 2014

Counsel:

• Ms. Yvonne Fiamengo — counsel for the applicant society
• Mr. Raymond Sharpe — counsel for the respondent Mother
• Mr. Keyshawn Hyacinth — counsel for the respondent Father

DECISION

MURRAY, E. B. J.:

[1] Introduction

This is my decision on a status review application brought by the Children's Aid Society of Toronto seeking an order of Crown wardship for the children L. A., born […], 2009, and J. H., born […], 2012. The children were found to be in need of protection pursuant to section 37(2)(b) of the Act on April 25, 2013.

[2] Society's Plan

The Society's plan for the children is adoption.

[3] Parents' Positions

The children's parents are A. (M.) A. and S. H. Ms. A. and Mr. H. have had an on-and-off relationship over the past seven years. Ms. A. in her Answer requested an order pursuant to section 57.1 of the Act placing the children in her custody. At trial, she asked for an order placing the children in her care under Society supervision.

[4] Father's Position

In his Answer Mr. H. asked for an order placing the children in his care under an order of supervision. At trial, Mr. H.'s lawyer advised that his client was seeking an order pursuant to section 57.1 of the Act placing the children in the care of his grandparents, A. and R. F.

[5] Alternative Plans

If Ms. A.'s plan is not accepted by the court, she asks that the children be placed with the Fs. If Mr. H.'s plan is not accepted by the court, he asks that the children be placed with Ms. A. under a supervision order.

[6] Access Requests

If Crown wardship is ordered, each parent requests an order of access, a request which is opposed by the Society.

1. Perspectives of the Parties

[7] Initial Protection Concerns

When the children came into care under a temporary care agreement on October 30, 2012, the Society identified the protection concerns as stemming from domestic violence perpetrated by Mr. H. against Ms. A. and as lack of supports for Ms. A.

[8] Expanded Protection Concerns

When the Society commenced its protection application on December 20, 2012, further protection concerns were identified:

• Ms. A.'s untreated mental health problems, stemming from trauma within her own family as well as violence by Mr. H., and lack of family or community supports;
• Ms. A.'s failure to attend for counseling; and
• Mr. H.'s criminal behaviour.

[9] Further Concerns

In January 2013, Ms. A. was charged with firearms offences and lost her housing as a result; the Society's protection concerns expanded. By the time of trial, the Society argued that in addition to the problems identified above, that Ms. A. was a vulnerable young woman, easy prey for predatory individuals, and as such, a risk to the children.

[10] Mother's Position

Ms. A. says that she has always provided good care for the children, and can continue to do so. In her Answer and in her affidavit evidence-in-chief she acknowledged that Mr. H.'s violent treatment of her on more than one occasion did create risk and de-stabilize her for a period. In her viva voce evidence at trial, she testified that although she and Mr. H. had a tumultuous relationship, that he had only been violent to her once, on December 6, 2012, after the children came into care. In any event, Ms. A. says that she terminated the relationship with Mr. H. in December 2012 and has had no contact with him since. She is confident that she will be acquitted on the firearms charges, which are scheduled for trial this September. She argues that she has started to deal with her traumatic history in counseling, and has secured housing.

[11] Father's Position

Mr. H.'s evidence is also that the incident of December 6, 2012 was the sole occasion on which he was violent to Ms. A., despite his pleas of guilt to charges of assaulting her on three other occasions. He also says that his relationship with Ms. A. terminated as of December 2012, and that he has had no contact with her since that time. Mr. H. says that although he is not in a position to parent now, that Mr. and Mrs. F. will provide the children with a safe and nurturing home. He alleges that the Society did not approve them as caregivers because its investigation was inadequate and biased against his family.

[12] Allegations Against Family Service Worker

Both parents allege that Sarah Morris, the family service worker for this case, failed dismally in her duty to assist and support them in parenting. They allege that she decided within a month of the children coming into care that they should be made Crown wards, and that all her decisions have been geared towards advancing that goal.

2. Background

[13] Ages and Family Background

Ms. A. is 23 years of age and Mr. H. is 21 years of age. Ms. A. comes from a Muslim family which emigrated from Afghanistan in 2001 when Ms. A. was 10 years old. Ms. A. testified that her father "attempted to discourage me from getting an education, leaving home or participating in after-school programs". She was not allowed to date.

2.1 Birth of L.

[14] Pregnancy and Birth

Ms. A.'s parents were opposed to her relationship with Mr. H. When she was in Grade 10, she became pregnant with L. She concealed her pregnancy from her parents because she was afraid for her safety and that of her baby. (She in fact concealed her pregnancy from everyone, including Mr. H.). Ms. A. gave birth alone at home without assistance, and then fled the home, intending to go with the baby on public transit to a friend's home. It was January, and on the way Ms. A. encountered a nurse, who got her to hospital and put her in touch with the Society. With the Society's assistance, she was accepted into Massey Centre, a home for young single mothers. She did not return to school.

[15] Society Involvement

The Society opened a file with respect to Ms. A. when L. was born, and maintained service on a voluntary basis up to the commencement of this case.

2.2 Support from N.S.

[16] Move to Paternal Grandmother's Home

After six months in Massey Centre, Ms. A. moved to the home of the paternal grandmother, N.S.. Mr. H. lived there, as did several of his siblings.

[17] Close Relationship

Ms. A. became very close to Ms. S., seeing her as a mother.

[18] Continued Support

In December 2009, Ms. A. obtained her own apartment and moved from Ms. S.'s home. She continued a relationship with Mr. H. Ms. A. continued to receive extensive support from Ms. S., who arranged care for the children for a period when Ms. A. attempted to return to school. After Ms. A. withdrew from school, Ms. S. or one of her teenage daughters or Mr. H. cared for L. on many weekends so that Ms. A. could have some free time.

2.3 Reports of Domestic Violence

[19] Police and Society Reports

Starting in 2010 Ms. A. made reports to police and the Society alleging violence by Mr. H. against her. Police were contacted because of these allegations. Prior to the children coming into care, Mr. H. was arrested five times, and was found guilty on three separate occasions of crimes in which Ms. A. was identified as the victim.

[20] Counseling Referrals

At various times Ms. A. reported to the Society that she and Mr. H. were "through", only to resume contact again. Society workers advised Ms. A. to get counseling, as a victim of domestic violence. In late May 2012, Ms. Morris assumed the role of family service worker, replacing Ms. A.'s former worker, Marianne Bechtold. At her first meeting with Ms. A., Ms. Morris emphasized the importance of her getting help as a victim of domestic violence, and referred her to appropriate agencies. Ms. A. said that she didn't like to talk about her past difficulties with her family or with Mr. H., and that she was not interested in counselling. This is a view that Ms. A. has consistently maintained, and expressed in this trial.

2.4 Pressures on Ms. A.—2012

[21] Stressful Year

2012 was a stressful year for Ms. A.

• As a result of a probation order, Mr. H. was subject to terms not to have contact with Ms. A.; however, he continued to see her.
• Ms. A.'s relationship with Mr. H. was deteriorating.
• J. was born on […]th of that year. Ms. A. advised the Society that having two children made things much more difficult.
• In August 2012 Ms. A. failed to attend a trial of Mr. H. on charges of assaulting her, despite the fact that she was served with a summons. He was acquitted on this charge. She was charged with obstruct police, after telling them that her allegation of assault was not true.
• In September 2012 Ms. A. told Ms. Morris that she and Mr. H. were planning to marry.
• In October of 2012 Ms. A. had chest pains, and underwent tests to determine whether she had a heart problem.

2.5 Temporary Care Agreement

[22] Request for Care

On October 30, 2012, Ms. A. contacted Ms. Morris, saying that she was "overwhelmed" with the pressures of caring for two young children. She told Ms. Morris that when she had taken the children to the H. house three days before (hoping that someone could care for them while she went to a hospital appointment) that Mr. H. had assaulted her and refused to care for the children.

[23] Reasons for Request

Ms. A. asked that the children go into care. She said that Mr. H. and Ms. S. had no idea of the pressures she was under, that no one would help her, and that she saw no alternative.

[24] Agreement Signed

Ms. Morris prepared a three month temporary care agreement, and read the agreement to Ms. A. The agreement stated that Ms. A. required "counselling and support pursuing educational and career goals, child care support and building in other supports". Ms. A. signed the agreement, and the children came into care.

[25] Legal Advice Issue

In cross-examination, Ms. Morris acknowledged that it would have been better if Ms. A. had independent legal advice before signing that agreement and that if she had it to do over again, that she would advise her accordingly. She added, however, that Ms. A. was so frantic to put the children in care that day that she doubted whether she would have taken the opportunity to speak to a lawyer, even if that had been possible.

3. History of the Case

[26] Children in Care

The children have remained in care since October 30, 2012.

[27] Request for Return

By December 10, 2012 Ms. A. was requesting the return of the children in the New Year. The Society by then was of the view that the children could not safely be returned home, and it commenced this application on December 14, 2012.

3.1 Orders

[28] Without Prejudice Order

On December 20, 2012, a without prejudice order was made placing the children in Society care, and providing for access at the Society's discretion.

[29] Lack of Parental Engagement

Neither parent took an active role in this case for a significant period of time. Although Ms. A. retained counsel early in the case, she did not serve an Answer until one year later, in December 2013. Mr. H. did not even appear in court until October 7, 2013. He also did not serve an Answer until December 2013.

[30] Protection Finding

The protection finding was made in April 2013 when both parents were in default.

[31] No Motion for Change

Neither parent ever brought a motion asking for a change of the terms of the December 20, 2012 order with respect to care of the children or the terms of access.

3.2 Access

[32] Limited Initial Contact

After the children went into care, Ms. A. did not see them for over two months. After two visits in January 2013, Ms. A. then chose not to visit until July of that year. She said that it would be "too hard" on the children and herself to see each other.

[33] Inconsistent Visits

After July 2013, Ms. A. began attending supervised visits once a week, for 1 ½ hours. Ms. A. came fairly regularly to the visits until April of 2014. Since that time, she has missed approximately half the scheduled visits. She says that she cannot afford to come to the visits, despite the fact that the Society provides TTC tokens for this purpose and despite what she says is her mother's offer to give her any funds she needs to parent the children.

[34] Father's Initial Incarceration

Mr. H. was incarcerated from December 31, 2012 to April 20, 2013. After his release he took no active steps to see the children until July of 2013, when he met with Ms. Morris. They agreed that, given the long period of time that he had not seen the children, that it was better for him to start contact via telephone conversations with L. Those phone calls began, although Mr. H. was not consistent in his participation.

[35] Father's Visits

In October 2013, Mr. H. requested in-person visits. The Society refused, saying that he had failed to plan for the children and had been inconsistent in his phone calls to L., and that it would not be in their best interest to encourage a relationship now, as the Society's plan for the children was adoption. After this trial began in April 2014 and Mr. H.'s solicitor wrote a letter to the Society demanding visits, the Society changed its position and arranged visits for Mr. H.. Ms. Morris testified that the Society considered that his regular attendance at the trial was evidence of some real commitment to the children.

3.3 Findings of Fact

[36] Credibility Assessment

My findings of fact in the case are set out below. In making those findings, I took into account my assessment of the credibility the witnesses, which is set out at section 8 of this decision.

4. Events from October 31 - December 31, 2012

[37] Lack of Parental Contact

After Ms. A. put the children into care on October 30, 2013, neither parent asked to see the children an extended period. Except for Ms. A.'s phone message of November 13, 2013, set out below, neither parent contacted the Society or asked about the children's welfare. Ms. Morris testified that she made many efforts to reach Ms. A. and Mr. H., efforts which included leaving messages with N.S.

[38] Chaotic Situation

Ms. A.'s situation became increasingly chaotic. She reported further assaults by Mr. H. She did not ask to see the children, or turn her mind to planning for them. She did not follow Ms. Morris's recommendations as to what to do to put herself in a place to be able to care for the children again.

Further report of assault. On November 13, 2012, Ms. A. left a message for Ms. Morris that Mr. H. had come into her apartment and punched her. Ms. Morris responded quickly, urging Ms. A. to contact police and to go to a shelter, suggestions which she declined to follow. (At trial, Ms. A. denied that Mr. H. had punched her that day.)

Mr. H. arrested. On November 20, 2012, police responded to a call from Ms. A.'s apartment about Mr. H., and found him hiding in a bedroom closet. He was arrested for breach of his probation conditions. (Ms. A. did not tell Ms. Morris of this incident, but the Society was advised by a Crown attorney of the particulars in January 2013.)

Further report of assault. On November 28, 2013 Ms. Morris went to Ms. A.'s apartment on an unannounced visit, in an attempt to talk with her. She found Ms. A. and Mr. H. there. Neither parent was willing to discuss any plan for the children's care. Ms. Morris warned them about the timelines in the Act which exist for permanency planning for children under six years of age, stressing that if no plans were made that Crown wardship would be the only alternative.

After this discussion, Ms. A. took Ms. Morris aside and told her in private that Mr. H. had that morning brutally assaulted her (because he had found a condom in her bedroom), punching her in the neck, face, and eye. Ms. A. told Ms. Morris that he had assaulted her before, and that the children had seen him do this. (At trial, Ms. A. denied that Mr. H. had assaulted her that day, and denied telling Ms. Morris that an assault occurred.)

After hearing this, Ms. Morris asked Mr. H. to leave the apartment; he refused. She repeated the request several times, without result. It was only when Ms. Morris advised Mr. H. that she would call police that he finally left.

After meeting with Ms. A. on November 28th, Ms. Morris called a Ms. Homan, a former worker at Massey Centre with whom she believed Ms. A. had a good relationship. She asked that Ms. Homan contact Ms. A.

Further report of assault. On December 7, 2012 Ms. A. called Ms. Morris, reporting that she had been assaulted by Mr. H. the day before, had gone to hospital, and needed help. Ms. Morris went to see her immediately. Ms. A. told Ms. Morris that Mr. H. had come to her apartment with a friend, and that he punched her in the face, pulled her hair, sending her to the ground, kicked her in the ribs and the bum, and punched her in the back of the head. She said that he had then left, taking her cell phone, and that she had gone to the hospital and filed a police report. Ms. A. showed bruises on her torso and hip to Ms. Morris.

(The December 6, 2012 assault is the only incident of violence that Ms. A. and Mr. H. testified actually occurred.)

Ms. Morris took prompt action to help Ms. A.

• She bought pain medication for her.
• She urged her again to move to a shelter, as she seemed unable to prevent Mr. H. from getting into her apartment.
• She had her call Ms. Homan, and then drove her to Richmond Hill, to the shelter where Ms. Homan worked, hoping that she would stay.
• She bought bins to help Ms. A. pack her belongings for a move.
• Ms. Morris assured Ms. A. that if she was able to move to a safe place and develop a plan for the children, that they could be returned. Ms. A. said that she was not sure that she was ready to have the children back, but agreed to move.
• Within three days, Ms. A. had changed her mind, saying that she would stay with a friend in her building, a situation which the Society deemed unsafe. Ms. A. said that she wanted the children back, but at a later date, by L.'s birthday in […].

Application commenced. It was at this point that the Society decided to commence its application. Morris advised Ms. A. that she would continue to support her in developing a better plan, and promised to help Ms. A. to get a priority transfer to another TCH building. Ms. Morris went to the TCH office for this purpose in early January.

Mr. H. arrested. Mr. H. was arrested on December 31, 2012 at Ms. A.'s apartment, where he was hiding on the balcony. (Ms. A. did not tell Ms. Morris about this incident; the Society was advised of the particulars later by police.) Mr. H. was detained, and pleaded guilty to the December 6th assault, and remained incarcerated until April 20, 2013.

Mr. H. did not inform the Society of his whereabouts. When Ms. Morris eventually learned of his detention, she visited him in jail at the end of March, 2013. Mr. H. advised her that he planned to reconcile with Ms. A. upon his release.

5. Events from January 2013 - April 2014

[39] Continued Chaos

Ms. A.'s life continued to be chaotic in the New Year, despite efforts made by Ms. Morris to assist her. She incurred very serious new criminal charges. She lost her housing, and was unable to establish a new residence. She did not see the children for six months. She failed to keep in contact with Ms. Morris, who made many efforts to contact her.

Rejection of counselling, literacy training. At a service plan meeting on January 8, 2013, Ms. Morris reviewed with Ms. A. what from the Society's perspective was required for the Society to support a return of the children. Ms. Morris again urged Ms. A. to get counseling for herself because of her history of trauma in her own family and with Mr. H. Ms. Morris was also concerned about Ms. A.'s apparent difficulties in reading English beyond a basic level, and urged her to participate in literacy training. Ms. A. was not interested in pursuing either counseling or literacy training.

Rejection of an adult protective services worker. Ms. A.'s lack of basic life skills needed for independent living were a recurring concern for Ms. Morris in her work with Ms. A. Ms. A. was hesitant to take public transit or to go to appointments on her own. When Ms. Morris went with Ms. A. to a TCH office to advocate for a priority transfer, she discovered that Ms. A.'s rent had been raised to market level because she had neglected to respond to a request for income information. Ms. A.'s OHIP card had expired because she ignored a letter requiring her to attend to have it renewed. Ms. Morris suggested to Ms. A. that she apply for the assistance of an adult protective services worker, who would help her with some of the basics involved in independent living. She thought that Ms. A. would qualify for this assistance because her school record indicated that she suffered from a mild cognitive delay. Ms. A. said she has no interest in this assistance.

Ms. A. visited the children on January 7 and January 23, 2013. After the January 23rd visit, two scheduled visits went by without Ms. A. appearing. Ms. Morris was unable to contact her.

Firearms charges. Ms. Morris later learned that Ms. A. was arrested on January 25, 2013, when police executed a search warrant at her apartment. Police executing the warrant arrested Ms. A. and two males in her unit. One of the males, Maurice D., was living in the unit, on what Ms. A. testified was a temporary arrangement. Mr. D. was arrested in Ms. A.'s bed, where she testified he was watching television. Firearms and ammunition were discovered under her bed. Ms. A. faces five charges related to this event, including possession of a restricted firearm with ammunition. She denies any knowledge of the firearms.

Ms. A.'s evidence is that she met Mr. D. through a friend, but that she did not know his name until the charges were laid. At her bail hearing Ms. A. testified that she knew him only as "T.J.". At the trial of this case, Ms. A.'s evidence was that she knew him only by the name "Kossa"—she had never heard him referred to as "T.J.".

Loss of apartment. Ms. A. was detained from January 25, 2013 to February 13, 2013. As a result of these charges, she lost her TCH apartment.

On her release, Ms. A. went to stay in a youth shelter. Ms. Morris contacted a worker at the shelter, trying to get in touch with Ms. A. and attempting to put in place a plan to help her with housing, literacy, and education issues. She also attempted to contact Ms. A. through her bail program manager and through Ms. S. Ms. A. did not reply.

Ejection from shelter. On April 2, 2013, Ms. A. was discharged from the shelter, after being involved in a fight with two other women. The police report of this incident states that she was "very belligerent" to the police.

Ms. A.'s evidence is that she then "couch-surfed" with various friends and, briefly, with her parents. During some of this time she worked as a waitress.

Ms. A. failed to respond to Ms. Morris's many attempts to contact her (directly and through third parties, including her lawyer and probation officer) until June 27, 2013, when she left a message saying that she wanted to see her children, but leaving no contact information. She called back in July, and finally met with Ms. Morris on July 9, 2013.

At this meeting Ms. Morris emphasized the need to put in place a plan to care for the children. She specified that the plan should include safe housing, trauma counseling, a plan to attend school or work, and a resolution of her charges that would permit her to care for the children. Ms. Morris also asked that she get a mental health assessment. Ms. A. refused to cooperate in a mental health assessment, but reluctantly agreed to start counselling. Ms. Morris phoned the Schlifer Clinic on her behalf for this purpose, but Ms. A. did not follow through. Ms. Morris sent a letter to Ms. A.'s counsel setting out the Society expectations of her.

Ms. Morris started the process for Ms. A. to obtain housing again through TCH.

Plan to live with "Greg". Later in July Ms. A. advised Ms. Morris that she had a new plan for housing — to move in with "Greg", whose last name she did not recall — a 36 year old man who worked in the restaurant where she worked. She was angry when Ms. Morris told her that this did not sound like a good plan.

Visits begin again. On July 30, 2013, Ms. A. had her first visit with the children in six months. At trial Ms. A. testified that it was "Sarah's (Ms. Morris') fault" that she had not seen the children for so long; Ms. A. did not explain her reasoning for this allegation.

Conviction on obstruct police charge. On August 9, 2013 Ms. A. was found guilty of obstructing police with respect to the statement which she had given to them alleging an assault by Mr. H. in April 2012, a statement which she later said was untrue. She was sentenced to probation. One condition of her probation prohibited contact with Mr. H.

Most of Ms. Morris's contacts with Ms. A. after the end of July 2013 up to the commencement of this trial in April 2014, involved her efforts to support Ms. A. in getting new housing, or issues surrounding visits. Ms. A. did not pursue the recommendations Ms. Morris made with respect to counseling, but in October 2013 she did contact Jacinthe Fennell at the Scarborough Women's Centre (following a recommendation made months before by her bail program manager) and set up an appointment for counselling. It is not clear whether Ms. A. was required by the terms of her probation to take this step.

Ms. A. met with Ms. Fennell only twice, in November 2013 and January 2014. She missed other appointments, and did not follow through with further counseling. Ms. Fennel's report to the Society in January was that she had nothing to report. Ms. A. called Ms. Fennel as a witness. Ms. Fennell said that she was willing to work with Ms. A. if she took the initiative to make an appointment and actually attend for counseling.

Hospitalization/possible pregnancy. In February 2014, Ms. A. was hospitalized for three days. She advised Ms. Morris that she thought that she was pregnant, but this turned out not to be the case.

In February 2014, Ms. A. advised Ms. Morris that she was living with her parents; at trial, Ms. A. testified that this arrangement had only lasted for one day.

New apartment and possible move. Ms. A. obtained a new TCH apartment in April of 2014, at the time this trial commenced. The apartment was difficult to obtain, as Ms. A. had accumulated a debt to TCH of $3,000—whether it was for arrears of rent or for damage to her former unit is unclear. Ms. Morris had written a letter to TCH advocating on Ms. A.'s behalf as a victim of violence.

Ms. A. advised Ms. Morris that friends of Mr. D., who live in the area of her new apartment, had confronted her, displeased that she may be giving evidence against him, and that she might have to ask for a transfer to another building.

Ms. Morris drove Ms. A. to the Furniture Bank, so that she could furnish her apartment.

[40] Relationship with Family Service Worker

Ms. A.'s relationship with Ms. Morris has been punctuated regularly by displays of anger from Ms. A. Ms. A. swears at her, yells at her, and sometimes hangs up or abruptly walks away when disappointed that something has not gone her way. Ms. A. acknowledged her rudeness to Ms. Morris: "What do you expect—she took my kids!"

[41] Anger Management Issues

One example of Ms. A.'s inability to control her anger involves her reaction to a change made by the Society last year to the schedule for Ms. A.'s visits with the children. The agency removed the responsibility for coordinating the logistics of visits and transportation of the children to those visits from the service team to a special unit, and this unit wished to change the visits for the A./H. children from Tuesday to Monday. Ms. Morris was on vacation at the time, and according to Ms. Molloy's evidence, she asked Ms. A. if the change was acceptable and was told that it was. When Ms. Morris returned from vacation, she was contacted by Ms. A. who, on a day's notice, demanded that her visit take place on Monday. Ms. Morris was unable to arrange this on short notice. Ms. A. called Ms. Morris an "evil f..king bitch", and yelled "I hope you and your family die!" Ms. A. later conceded that the change of visits from Tuesday to Monday posed no problem to her schedule, saying that she was angered because she felt that Ms. Morris and Ms. Molloy were "trying to make me look bad".

[42] Comparison to Prior Worker

Ms. A. said many times in her evidence that she had had a wonderful relationship with her prior family service worker, Marianne Bechtold, who was much more helpful to her than Ms. Morris. She did not call Ms. Bechtold as a witness.

6. Ms. A.'s Plan

[43] Housing Plan

Ms. A.'s plan is to live with her children in her new apartment. She put into evidence the lease for the apartment; counsel advised that the address on the lease was redacted in order to protect her from Mr. H. The apartment is only 1 bedroom, but Ms. A. has applied for a transfer to a 3 bedroom unit.

[44] Employment and Support

At the time of trial, Ms. A. was not working. She testified that she had just obtained employment at an ice cream store with regular daytime weekday hours, a job she would start as soon as the trial ended. If the children are returned to her, Ms. A. plans to quit work, and she and the children will be supported by Ontario Works.

[45] Future Education

Ms. A. testified that she wishes to return to school at some time in the future.

[46] Children's Care and Education

Ms. A. plans to enroll L. in a school near the building in which she now lives. She plans that J. will be enrolled in daycare nearby. When asked what plans she would make for the children's care during her criminal trial, which is scheduled for ten days in September 2014, Ms. A. stated that she would take the children with her to court every day.

[47] Willingness to Participate in Programs

Although Ms. A. does not wish to participate in any type of counselling, she testified that she would enroll in any program ordered by the court.

[48] Views on Father's Access

Ms. A. testified that she thought that any access by Mr. H. should be supervised as long as the Society determined was necessary. She later said that she did not believe that any supervision was necessary, as Mr. H. is a good father.

[49] New Relationship

Ms. A.'s evidence is that she has a new boyfriend, "Duane". She met Duane when she was waiting for a bus, and he stopped his car asking if she wanted a ride. Ms. A. testified that Duane has two children. She said that they are "taking it slow" in their relationship. Duane was not called as a witness.

[50] Supports

When questioned about supports for her plan, Ms. A. acknowledged that Ms. S. had moved from Toronto to Windsor, that she no longer communicates with her, and that their relationship had broken down. She testified that her two supports were her friend L. and her mother. Neither L. nor Ms. A.'s mother were called to testify.

[51] Desire to Reconcile with Father

In May 2014 Ms. A. told Ms. Morris that she planned to ask her criminal lawyer to try to change the terms of her probation so that she could communicate with Mr. H.; she explained that he "is the only one who will help us".

7. Mr. H.

[52] Background and Support

Mr. H. did not complete secondary school. He is supported by payments from the Ontario Disability Support Program, available because of his diagnoses of ADHD and a learning disability. In addition, he works seasonally as a labourer.

[53] Criminal Record

Mr. H. has a significant criminal record which includes multiple findings of guilt for assault, break and enter, theft, and failure to comply with terms of probation orders. In most (but not all) cases, the victim was Ms. A. He is also currently facing multiple charges of speeding and operating a vehicle without a license.

[54] Rehabilitation Efforts

Mr. H.'s probation (which ended in April 2014) required him to complete a PARRS course. He failed to do this—his explanation is that he missed some sessions because he slept in. Mr. H. testified that he plans to return to complete the program and finish if he is permitted to do so. Mr. H. testified that he also intends to enroll in a parenting course, recommended to him by his lawyer.

[55] Residence

The affidavit evidence-in-chief from Mr. H. and his sister S. H., was that they live with their sister, T., in a 3 bedroom TCH townhouse at 104 Bxxxxxxxx Square in Scarborough. As will be seen below, Mr. H. testified in cross-examination that he sometimes resides at another address.

[56] Visits with Children

Society workers who have observed visits since April 2014 agree that Mr. H. has been very appropriate with L.—he is affectionate and communicates appropriately with her. He has not, however, attended consistently and on time—he failed to attend one visit, and was 25 minutes late for another.

[57] New Relationship

Mr. H. testified that he has a girlfriend, "Tracey", whom he introduced to the children on a recent visit.

8. Credibility

8.1 The Parents

[58] Credibility Concerns

Each of the parents presented serious issues as to their credibility. I conclude that I cannot rely on either of them to provide accurate and reliable evidence, and where their testimony conflicts with that of other reliable witnesses, I prefer the testimony of those witnesses.

[59] Inconsistencies

The credibility problems of the parents are demonstrated by the inconsistencies in their evidence as to violence between them and as to their residence and contact since December 6, 2012 (the date which each identified as the sole incident of violence between them and the last time which they had contact, except for incidental contact at court or, on one occasion, at the Society's offices).

[60] Prior Conviction for Lying

I start by noting that that Ms. A. has been found guilty of lying to police on the issue of violence between herself and Mr. H.

[61] Ms. A.'s Inconsistent Evidence

Ms. A.'s viva voce evidence before me on the issue of violence between herself and Mr. H. – that there was no violence except on one isolated occasion, after she had asked for the children to come into care — was in conflict with every prior statement which she made to Society workers, with her reports to police, and with her own affidavit, which formed the substance of her evidence-in-chief in this trial. When asked in cross-examination to provide details of what she said was the sole incident of violence between her and Mr. H., Ms. A. stated that she could not remember when or where "it happened" or recall any specific acts of violence. Counsel for the Society put before her descriptions she had previously provided of assaults by Mr. H.; when the details of the December 6, 2012 incident were read to her, she allowed that "maybe it was that one".

[62] Mr. H.'s Credibility Issues

Mr. H.'s credibility is also fragile. His testimony that he lied on all the occasions on which he pleaded guilty to assaulting Ms. A. except one, in order to be released from custody, establishes that he is prepared to tell an untruth under oath when it is to his advantage.

[63] Concealment of Contact

Both parents maintain that except for court appearances and one "accidental" meeting at Society offices on a day scheduled for a visit by Ms. A., that they have had no contact with each other since the December 6, 2012 assault. The evidence of Mr. H.'s sister, S.H., exposed the inaccuracy of this story.

8.2 S.H.

[64] Sister's Evidence

S., was called by Mr. H. to give evidence in support of his plan that the children be placed with the F.s'. She testified that she would be happy to babysit for them if required, and, in answer to a question from Ms. A.'s lawyer, testified that she would also be willing to babysit for Ms. A.

[65] Revelation of Shared Residence

When asked by myself as to when she last had contact Ms. A., S., said that Ms. A. had been living in the house at 104 Bxxxxxxxx—the house she shares with Mr. H. and T.—from the time Ms. A. was expelled from the shelter in April 2013 until she obtained her new apartment, in April 2014.

[66] Credibility of Sister

I found S. H. to be a credible witness. She had no reason to be untruthful about the residential arrangements of the parents. Counsel for the parents did not question her about her evidence on this point, although they were offered the opportunity to do so.

[67] Father's Contradictory Evidence

S. was called to testify before her brother, Mr. H. After hearing S. testify that Ms. A. had been residing at 104 Bxxxxxxxx for a year, Mr. H. testified viva voce that he in fact was maintaining an alternate residence with a friend at an undisclosed location (paying rent for this additional accommodation despite his dependence on social assistance payments). Mr. H. said that he really was at the Bxxxxxxxx address very seldom. He had no explanation for the fact that he consistently advised police that during 2013-2014, when he was arrested several times, that his address was 104 Bxxxxxxxx.

[68] Unbelievable Claims

Mr. H. claimed that he had not had any contact with Ms. A., despite the fact that they had maintained a common residence for a year. Ms. A., who testified before S., made no mention of residing at 104 Bxxxxxxxx, and insisted that she had had no contact with Mr. H. over the past 18 months. I find those claims unbelievable.

8.3 Sarah Morris

[69] Credibility of Family Service Worker

I found Ms. Morris to be a conscientious and credible witness. She offered a balanced view of each of the parents, testifying that Ms. A.'s care of the children was always very good in most respects, and complimenting Mr. H. on the quality of his interactions with L. on visits. She conceded certain areas where she might have made better decisions, such as when she allowed that it would have been better if she had advised Ms. A. to get independent legal advice before signing the temporary care agreement. She kept careful notes.

8.4 The F.s'

[70] Credibility of Grandparents

I found the F.s' to be credible witnesses. Mrs. F. was frank in saying that she strongly disapproved of her grandson's conduct. She did not pretend to have a stronger relationship with L. and J. than she had. She acknowledged that there could be challenges in managing two children whom she did not know well, and in managing access between those children and their parents, especially with Ms. A. I found the evidence of the F.s' as to why they did not think to advise the kinship assessment worker at their initial meeting about Mr. F.'s dated contacts with a children's aid society believable. That issue is discussed further later in this decision.

9. The Children

[71] Children's Well-being

L. and J. are both happy, healthy children. They have lived with the same foster parent, S.F., since coming into care. Both children are meeting their developmental milestones, except that J. is "in the gray zone" with respect to his communication skills. Ms. S.F. takes him to an Early Years Centre regularly, and is working with him on communication skills. J. has been referred to a speech and hearing assessment.

[72] Foster Mother's Relationship with Parents

Ms. S.F. has facilitated telephone calls between L. and each parent. She gets along well with Mr. H., and got along with Ms. A. until February of 2014. Ms. A. was critical of Ms. S.F.'s treatment of a skin condition which L. developed, and became angry when Ms. S.F. advised her not to discuss the dispute in front of the child. Ms. A. has not called the foster home since that time.

10. Ms. A.'s Care of the Children

[73] Capable of Meeting Needs

Ms. Morris testified that "if other factors could be managed", Ms. A. is quite capable of meeting her children's needs.

[74] Good Care Prior to Intervention

Ms. Morris praised Ms. A. at their first meeting in 2012 for the good job she was doing in caring for the children. Ms. Morris testified that prior to the children coming into care that Ms. A. gave the children good instrumental care – she had no concerns about their nutrition or hygiene or supervision. Ms. Morris also observed that Ms. A. demonstrated an awareness of the children's developmental needs. She was able to read their cues, and could redirect them appropriately when necessary. According to Ms. Morris and Ms. Molloy, Ms. A. continued to display these good child care skills during most visits after the children were in care.

[75] Problems in Parenting

Society witnesses testified, however, that there are problems in Ms. A.'s treatment of L. which compromise her parenting ability:

• Ms. A. has allowed very long periods of time—as long as 6 months— to go by without seeing the children. She has little appreciation of the emotional damage this can do to children as young as J. and L.
• In many of the conversations Ms. A. has had with Ms. Morris and Ms. Molloy, she has not demonstrated that she understands the negative effects on children of exposure to domestic violence.
• Ms. A. has attempted to silence L. when she talks about the violence between Ms. A. and Mr. H., and has discounted the feelings of fear the child has expressed. She has told the child not to discuss Mr. H. with Society workers.
• Ms. A. makes promises to L. that she cannot reasonably believe she can keep—such as saying that the child will return home soon—and these promises confuse the child.

11. Plan of N.S.

[76] Kinship Assessment

Soon after Ms. A. placed the children in care, both Mr. H.'s mother, N.S., and his maternal grandparents, A. and R. F., approached the Society with plans for the children. Kinship workers assessed both plans.

[77] N.S.'s Plan Not Recommended

Ms. S.'s plan was not recommended, despite her close connection with L., for a number of reasons:

• Multiple openings concerning her family with the Catholic Children's Aid Society (CCAS), including openings in which Ms. S. was the victim of domestic violence and recent openings concerning her 4-year-old twins because of concerns about lack of supervision;
• Concerns about Ms. S.'s ability to protect the children from the consequences of the violent relationship between Ms. A. and Mr. H., given Ms. S.'s conflicted loyalties;
• Multiple recent changes in Ms. S.'s family circumstances. Ms. S. was recently married, and her plan was that her new husband, Mr. W., be the children's primary caregiver. Ms. S. also had an 8-year old son, B., who was living in Jamaica but was expected to return to her care soon.

[78] Father's Acceptance

Mr. H. through his counsel indicated at trial that he understood and accepted the reasons why Ms. S.'s plan was not approved. Ms. S. was not called to give evidence at trial.

12. Plan of the F.s'

12.1 Particulars of the Plan

[79] Background of Grandparents

R. and A. F. have been together as a couple for 24 years, and married for 15 of those years. They have raised 8 children, and have 21 grandchildren and 3 great-grandchildren. In December 2012 they contacted the Society, saying they wanted to provide a home for L. and J. Juanita Thomas conducted a kinship assessment for the Society. Ms. Thomas worked as a family service worker for ten years before commencing her position as a kinship worker.

[80] Assessment and Recommendation

In February 2013 the F.s' were advised by Ms. Thomas that their plan was not recommended. Ms. Thomas testified that although, because of Mr. F.'s history the plan did not conform to the rules set out in the provincial guidelines for kinship placements, she thought that the plan was promising and deserved a trial. She recommended to the service team that the children be placed with the F.s' under a separate protection file. Ms. Thomas testified that she had no concerns about Mrs. F., who was the primary caregiver in the proposed plan. Ms. Morris and Ms. Molloy, the members of the service team who gave evidence, gave no explanation as to why this recommendation was not followed.

[81] Home and Employment

The F.s' live in a 4-bedroom home owned by them in Brampton. Mr. F. worked for 30 years as a network technician for Bell. In addition, he and Mrs. F. ran a restaurant until 2009 in Brampton, which they say served as a kind of community centre for the neighborhood. The F.s' continue to operate a part-time catering business for special events such as weddings and funerals, a business that provides part-time employment for many members of the extended family. From hearing the F.s' give evidence, it is apparent that Mrs. F. is the manager of the family, and that Mr. F. pitches in for any work that his wife has planned.

[82] Health

Mrs. F. is 57 years old and Mr. F. is 69 years old. As part of the kinship assessment process, they provided medical reports from their family doctor, Dr. Gilman, who reported that they were both in "generally good health". Dr. Gilman noted that Mrs. F. has mild arthritis, and Mr. F., as a result of suffering from meningitis 6 years ago, has mild memory impairment. Mrs. Thomas noted no concerns about the couple's health in her assessment report or viva voce evidence.

[83] Family Support and Commitment

The F.s' are the center of a large, close family. They regularly care for their younger grandchildren, who may stay for a day, a weekend, or even a week during the summer. Just before Ms. A. put L. and J. into the care of the Society, the F.s' had applied to an agency (Maplestar) to become foster parents. Mrs. F. says that their commitment is to raise the children to adulthood. She testified that she has juggled work and childcare all her life, and has no doubt that she can manage what is now a part-time business and the care of L. and J. She says that she has a sister, a niece, and two granddaughters, all of whom live nearby, who can babysit when necessary.

[84] Prior Contact with Children

The F.s' had encountered Ms. A. with Mr. H. (their grandson, S.) on 4 or 5 occasions when the couple attended family parties at their home. They knew L. from her attendance at these gatherings, and from one occasion on which N.S. came with her to spend a weekend. Mrs. F. describes L. as a delightful little girl. The F.s' never met J. before he went into care.

[85] Awareness of Domestic Violence

Mrs. F. testified that N.S. had told her of the violent relationship between Mr. H. and Ms. A. Mrs. F. was "very upset" with this information. She and Mr. F. told Mr. H. that they were ashamed of his behavior. When Mrs. F. learned that Ms. A. had put the children into care, she met with her, and told her that she should not tolerate abuse and that she should stay away from Mr. H. Ms. A. listened, but did not respond.

[86] Plans for Children's Care

The F.s' have looked into services that would be available for the children in their care. L. can attend junior kindergarten at a public school near their home in Brampton. Mrs. F. plans to take J. to an Early Years Centre in the neighborhood.

[87] Willingness to Comply with Court Orders

The F.s' testified that if the children are placed in their care, that they will readily allow the Society workers to make scheduled and unscheduled visits to their home, and that they will respect any conditions that the court orders with respect to the contact that either parent may have with the children. They say that they see their role as protectors of the children's interests, which are more important than the interests of either of the parents.

12.2 Plan Not Approved

[88] Reasons for Non-Approval

Why was the F.s' plan assessed as not meeting kinship standards?

[89] Kinship Assessment Concerns

Ms. Thomas testified that the reasons for her failure to recommend the plan were Mr. F.'s "significant child protection history" and a possible criminal record in New York, his failure to "mitigate" this history, and his failure to readily disclose this history. She testified that there were no such concerns about Mrs. F., who has "raised her three children as a single parent without being involved with a children's aid society".

[90] Initial Assessment

Ms. Thomas's evidence was that she met with the F.s', that they were pleasant and cooperative, and that they signed all the consents she requested for disclosure of information. After speaking with them in an initial visit, Ms. Thomas understood that neither had a previous "history" with a children's aid society or any criminal record. She received reports from Peel police that they had cleared a vulnerable sector check.

12.2.1 CCAS Record

[91] Historical CCAS Openings

Ms. Thomas later received information with respect to Mr. F. indicating a "child welfare history" with respect to his children from two prior relationships. Openings with the Catholic Children's Aid Society of Toronto with respect to three children from his first relationship occurred in 1974, 1979, and 1983. There was concern about the children's mother and step-mother, but no allegation of abuse or neglect by Mr. F.. The children were placed in his care under a supervision order, and the evidence is that all three grew up to be productive adults, including one son who is an RCMP officer.

[92] Mr. F.'s Explanation

When Ms. Thomas discussed this history with Mr. F., he explained that he did not think to mention it, because the record was so long ago and because, in any event, it was not he who had been found by a children's aid society to be abusing or neglecting children—the children were placed with him.

12.2.2 Peel CAS Record

[93] Peel CAS Openings

Peel Children's Aid Society forwarded records with respect to Tanisha, a child born to Mr. F. and his former partner, B. P., in the early 1980's. In 1996 when T. was a teenager, she divided her time equally between her parents' homes. There were two reports to the Society of inappropriate discipline by Mr. F. The F.s' said they were never contacted by a Society worker about these complaints, and Ms. Thomas agreed that the records did not disclose any meetings. However, Mr. F. was charged and pled guilty to assault, received a probationary sentence, did community service work, and was later pardoned, removing the offence from his record.

[94] Daughter's Subsequent Residence

After the charge, T. moved to her mother's; when she was 18 years old, she returned to live with the F.s'.

[95] Daughter's Account

In describing the incident with T., Mr. F. said that they had argued because she planned to wear an inappropriately short skirt to school. He "yanked" a belt out of her hand, and she suffered a scratch as a result. Ms. Thomas interviewed T., who provided the same account as her father of this incident. T. is now an adult with children of her own, and stated that she is very close to her father and Mrs. F., and supports their application to have the children placed with them.

[96] Mr. F.'s Explanation

When Ms. Thomas discussed this history with Mr. F., he again said that he did not think to mention it because he had no criminal record (having been pardoned) and he did not realize that the Peel society had records of this incident, as no worker had contacted him.

12.2.3 Alleged Record in New York

[97] Alleged New York Incarceration

The other issue which concerned Ms. Thomas was Mr. F.'s alleged criminal record in New York. After Mr. F. separated from Ms. P. in the early 1980's, the Children's Aid Society of Toronto (CAST) became involved with her. The record the agency forward to Ms. Thomas indicated that Ms. P. alleged in the early '80's that Mr. F. was in custody in New York for drug trafficking. CAST records also indicated that Ms. P. was mentally unstable, and had been hospitalized multiple times because of mental illness.

[98] Mr. F.'s Denial

Mr. F. told Ms. Thomas that he had never been incarcerated in New York State or anywhere else, and that he had never lived or worked in New York.

[99] Criminal Record Check Issue

Although the kinship guidelines specify that the Society should obtain a criminal record check on an applicant, Ms. Thomas requested Mr. F. to obtain this on his own. She provided no information as to how to do this. Mrs. F. made some inquires, and learned that her husband would have to arrange to have fingerprints taken and travel to New York—it was not clear where—in person. She and her husband told Ms. Thomas that they were not willing do this.

[100] Willingness to Cooperate

At trial they F.s' testified that they would cooperate in obtaining this check if the Society could determine the process involved and pay the cost.

12.2.4 Ms. Thomas' Assessment

[101] Credibility of Allegation

Ms. Thomas allowed in cross-examination that Ms. P.'s credibility was shaky, and that the issue of the New York records check was not all that significant.

[102] Basis for Non-Recommendation

She said that Mr. F.'s child protection history was the factor that prevented him from being eligible for approval under the kinship standards. She found that the plan "could not move forward" because of Mr. F.s' "significant history with CCAS", for which he was "unable to provide a viable explanation". In her report, she noted that this history indicated "instability, conflict, lack of judgement and lack of parenting skills".

[103] Mitigation Requirements

Ms. Thomas testified if a kinship applicant has a protection or criminal history of any type, that before an application can be approved that the assessor must prepare a memo to the Society's "CEO" setting out how that history has been "mitigated". An applicant may mitigate his history by, for example, the successful completion of a parenting course or counselling program. Ms. Thomas testified that Mr. F. had not taken these steps, and thus, could not be approved.

[104] Lack of Guidance

In cross-examination, Ms. Thomas testified that she had not suggested to Mr. F. that he might facilitate the application going forward if he took a parenting program now. She testified that she did not suggest to Mrs. F.—who had no "protection history"—that she submit a plan for the children's care by herself.

[105] Lack of Follow-up

When Ms. Thomas advised the F.s' that their application was not approved, they were dismayed. They asked for access, and she told them that someone would "get back to them". No one did.

[106] Lack of Awareness

Mrs. F. testified that she thought that the rejection of their application by the Society was the end of the matter. She was unaware that they could take the issue further until contacted by Mr. H.'s lawyer in preparation for this trial.

13. Statutory Framework

13.1 Options on Disposition

[107] Section 57 Options

Section 57 of the Act provides that if a child has been found to be in need of protection and the court is satisfied that a court order is necessary to protect the child in the future, that the court shall make one of the following orders, or an order pursuant to section 57.1, that is in the child's best interests:

Supervision order

That the child be placed with or returned to a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months.

Society wardship

That the child be made a ward of the Society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71 (1), and be placed in the care of the Society.

Consecutive orders of Society wardship and supervision

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.

[108] Father's Position on Wardship

Mr. H.'s position is that no further order is required to protect the children if placed in the care of his grandparents.

13.2 Section 70 Time Limit

[109] Permanency Planning Requirement

In this case, Section 70 of the Act limits the available options for disposition. Section 70 is a statutory recognition that permanency planning is of paramount importance for children. Section 70(1) provides as follows:

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.

[110] Extension Provision

Section 70(4) provides that this period may in the Court's discretion be extended by a period "not to exceed six months if it is in the child's best interest to do so.

[111] Calculation of Time in Care

In calculating the allowable period for a child to be a Society ward, the Act provides that any time a child has spent in care under a temporary order shall be counted.

[112] Time Exceeded

By the time this trial commenced both children had been in care for a period exceeding the statutory limit.

13.3 Other Considerations on Disposition

[113] Society's Duty to Assist

Under the Act, the Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act which is to promote the best interests, protection and well-being of children. A court is required before making an order of Crown wardship to consider what efforts a Society or other agency has made to assist a parent before making an order that would remove a child from that parent's care.

[114] Less Disruptive Alternatives

Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether less disruptive alternatives will serve the child's best interests and whether it is possible to place the child with a relative or member of the child's community or extended family.

13.4 Best Interests

[115] Best Interests Factors

The decision as to disposition must be based on what is in the child's best interest. The Act provides that in determining best interests the Court shall take into consideration the following circumstances that are considered to be relevant:

• The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
• The child's physical, mental and emotional level of development.
• The child's cultural background.
• The religious faith, if any, in which the child is being raised.
• The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
• The child's relationships by blood or through an adoption order.
• The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
• The merits of a plan for the child's care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
• The child's views and wishes, if they can be reasonably ascertained.
• The effects on the child of delay in the disposition of the case.
• The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
• The degree of risk, if any, that justified the finding that the child is in need of protection.
• Any other relevant circumstance.

14. Analysis

14.1 The Factor of Domestic Violence

[116] Key Questions

An analysis of the competing plans must start with a consideration of two questions:

• What has been the extent and nature of the violence between Ms. A. and Mr. H.?
• What changes has either parent made that would mitigate the chances of a re-occurrence of violence and conflict between them? This involves an assessment of the status of their current relationship.

[117] Relevance of Violence

I say the analysis must start with these questions because of the allegations, admitted to some extent by the parents, that domestic violence and conflict in their relationship was a significant factor contributing to Ms. A.'s feelings that she could not cope in October 2012 when she asked that the children come into care. The extent and nature of the violence is relevant to assessing the degree of risk that was the basis for the protection finding.

14.1.1 What the Parents Say

[118] Parents' Account

Ms. A. and Mr. H. at trial maintained that, except for the incident on December 6, 20012, there was no incident of violence between them. According to Mr. H., they were both jealous, and Ms. A. at times when she was jealous would hit him, and then call police accusing him of violence. According to Ms. A., she phoned police when she was jealous, and needed help managing the relationship—that's "what police are for".

[119] Conflict Without Violence

Ms. A. and Mr. H. agreed that there were multiple incidents when they fought, yelled, swore, grabbed, pushed, or otherwise manhandled each other, but they did not characterize this conduct as "violence". Ms. A. conceded in cross-examination that this environment was not good for the children.

14.1.2 Effect of Conflict on the Children's Environment

[120] Chaotic Environment

The evidence illustrates that the conflict between the parents created a chaotic environment for L.

• L. told Ms. Molloy and her foster mother that she often could not sleep because of the noise of her parents' arguments.
• Ms. A. was unable to keep Mr. H. from entering her apartment, sometimes with uninvited associates, and staying there. According to Ms. A., sometimes she demanded that they leave, and he refused; sometimes she did not push him to leave, because she was conscious that L. loved him.
• Police were called to the home seven times over three years, and on five of those occasions, L. was in the home.

14.1.3 Violence Greater Than What Parents Admit

[121] Evidence of Greater Violence

The evidence indicates that the level of violence between Ms. A. and Mr. H. was significantly greater than they now admit to. I say this for the following reasons.

• L.'s statements. L. told Claire Molloy about her father choking her mother, and demonstrated how he pushed her up against a wall. Ms. Molloy testified that Ms. A. told her that L. had witnessed multiple assaults against her by Mr. H.. L. was in care on December 6, 2012—the day which her parents say was the only incident of violence between them. L.'s statements speak to violence to which she was exposed that necessarily occurred before she came into care.

• Ms. A.'s prior statements. Ms. A. summoned police alleging violence by Mr. H. at least seven times, and they found that there were reasonable and probably grounds to charge him on six of those occasions. Ms. A. reported assaults and threats by Mr. H. to Ms. Morris as well as to her former family service worker, Marianne Bechtold, many times. Ms. A. also told the children's service worker Claire Molloy that L. had witnessed multiple assaults against her by Mr. H.. Although Ms. A. testified that she does not recall making most of these reports, I do not accept her evidence on this point Ms. A.'s reports were made to professionals who had a duty to record what was said, and they documented her reports.

• Mr. H.'s prior statements. Mr. H. pled guilty on three separate occasions—prior to his plea related to the December 6, 2012 assault-- to assaulting, threatening or harassing Ms. A.. Although Mr. H. now says that he was not telling the truth on the three occasions on which he pled guilty, given the other evidence I do not accept that denial.

14.1.4 Have the Parents Changed?

[122] Degree of Risk

Given this evidence, it is apparent to me that the degree of risk which justified the protection finding in this case was high. What has changed since December 2012, with respect to the conflicted and violent relationship between Ms. A. and Mr. H.?

[123] Parents' Argument

Their counsel argue that their clients are now conscious of the damage that conflict between them can cause their children. Counsel submit that Ms. A. and Mr. H. have had no contact with each other since December 2012, and that there has been no contact or violence of any type between them since that time.

[124] Untenable Submission

The submission that the parents have not had contact with each other is untenable. They lived in the same house from April 2013 - April 2014, and made a concerted effort to conceal this fact from the Society as well as from the court. They had contact with each other during a period in which one or both of them were under a criminal court bail condition not to have contact.

[125] Inability to Assess Risk

Mr. H.'s counsel now says, "So what?" He argues that there is no evidence from fresh police reports as to conflict between them. The absence of new reports does not give me comfort that there is no conflict or violence between the parents. The order for disclosure of police records was made in January 2014, so the reports provided do not cover the last seven months. Ms. A. may have determined that it is not in her interests to call police when she is in conflict with Mr. H., since it is now clear to her that conflict between them is an issue in this case. The truth is, we are unable to assess the risk posed by the relationship between Ms. A. and Mr. H. because they are not reliable witnesses on the subject and because they have taken pains to conceal their association from third parties.

[126] Current Relationship Status

The fact that Mr. H. currently identifies someone other than Ms. A. as his "girlfriend" does not assure me that he and Ms. A. do not continue to be involved in a relationship of some type which can again lead to conflict and violence. The nature of their past relationship did not demonstrate that it was exclusive of other involvements.

[127] Lack of Evidence of Change

Both Ms. A. and Mr. H. testify that they have learned how to regulate their emotions and to "walk away" from arguments, and that they understand the damaging effects on children of living in an environment of conflict and violence. There is no evidence to support these assertions. Mr. H. failed to complete his PARRS program. Ms. A. went to two sessions with Ms. Fennell, and did not follow through. She testified that she completed an anger management course in jail in early 2013. However, she does not appear to have been able to apply what she learned; she was ejected from the youth shelter for fighting in April 2013. Since then, she has frequently demonstrated concerning anger in her dealings with Society workers.

[128] Ongoing Risk

The nature of the relationship between the parents is unclear. Given their history, the potential for conflict and violence between Ms. A. and Mr. H. is quite real. The dangers to children living in a home in which violence and conflict prevail are well known. The risk which the relationship poses to the children is relevant to the assessment of Ms. A.'s plan, and also, to a lesser extent, to the plan of the F.s'.

15. Ms. A.'s Plan

15.1 The Strengths

[129] Positive Aspects

There are strengths in Ms. A.'s plan.

• This is not a case in which a parent has abused her children or failed to meet their basic needs. Ms. A.'s good care of the children prior to putting them into the Society care is acknowledged. She met their instrumental needs. She was alert to and met their developmental needs.
• Ms. A.'s relationship with L. is strong, and in most respects, positive. I heard little in the evidence about her relationship with J., which is understandable given the fact that he came into care when he was only six months old.
• Placement with Ms. A. would provide the children with some continuity of care. L. lived with her mother the first 3 ½ years of her life. Both children have, since coming into care, had continued contact with her—albeit interrupted by lengthy absences on Ms. A.'s apart. That contact has generally been positive.
• Placement with Ms. A. would insure that the children are able to grow up with a biological parent, and have contact with both the paternal and, potentially, the maternal side of the family.
• L. has told Ms. Molloy more than once that she would like to live with her mother.
• These children are of Afghan/Jamaican/Canadian heritage. I heard no evidence from either parent that this heritage was of significance to them. However, it is reasonable to expect that placement with Ms. A. would give the children the potential to be connected to that heritage.

15.2 The Weaknesses

[130] Serious Negative Aspects

Ms. A.'s plan has serious negative aspects.

15.2.1 Domestic Violence/Conflict

[131] Risk of Violence

I have already discussed the conflict and violence in her relationship with Mr. H., which poses a serious risk to the children if placed with her. In my view, that risk exists for Ms. A. in her future relationships. Ms. A. has failed to take counselling or do any type of programming available with respect to domestic violence which might educate her further about the risk which domestic violence poses to children, and give her an opportunity to demonstrate that she has really changed her thinking on this point. I have no evidence from any professional who has worked with Ms. A. indicating that she has insight into the risks posed by a conflicted, violent relationship, done work with respect to what she brings to such a relationship, and has identified how she might enjoy healthier relationships in the future.

[132] Secretiveness About Relationships

Ms. A. has been secretive with the Society about her relationships other than that which she had/has with Mr. H.. She bristles when Ms. Morris questions her about her current circumstances and cuts off conversation. It was only during cross-examination at this trial that Ms. A. mentioned her new boyfriend, Duane.

15.2.2 Lack of Reliable Supports

[133] Critical Negative Aspect

A critical negative aspect to Ms. A.'s plan is her lack of reliable supports.

[134] Need for Assistance

Ms. A. needs significant assistance in order to be able to care for L. and J. She acknowledged this in her evidence. She needs help in caring for them on a regular basis—to "give me a break", to babysit when she has appointments. That assistance in the past was provided by N.S., her daughters, or Mr. H. Ms. A.'s relationship with Ms. S. has ruptured, and, in any event, she has move from Toronto. Although S. testified she would help Ms. A., Ms. A.'s evidence is that she has asked S. for no help during the past 18 months. As far as help from Mr. H. is concerned, the risks are evident, and are occasionally acknowledged by Ms. A.

[135] Difficulty with Daily Tasks

The evidence demonstrates that Ms. A. also needs help in negotiating the bureaucracy involved in living as a single parent in the city. Ms. A. speaks English and can read basic English, but she has difficulty coping with tasks such as dealing with Toronto Community Housing or OHIP. She has had difficulty understanding travel directions and taking the TTC (although she has improved her abilities in this area). This may be a literacy issue, or an issue of mild cognitive delay, or simply a reflection of the fact that Ms. A. emigrated from Afghanistan when she was ten years old, led a sheltered life before L. was born, and has relied on others, such as N.S. or Ms. Morris, to deal with tasks that confuse her.

[136] Rejection of Support Services

Ms. A. has rejected assistance that might improve her ability to negotiate the business of daily life, assistance like the services of an Adult Services Protection Worker or enrolment in a literacy or life skills class. She has made it clear that she does not want to work with Ms. Morris. Although she says that she is willing to work with another worker, she cautions that she will not tolerate a worker "telling me what to do".

[137] No Reliable Supports

There is no evidence that Ms. A. has reliable supports. The two supports that she identified—L. and her mother—were not called as witnesses. There is no evidence that either has ever offered support to Ms. A. in any significant way.

15.2.3 Poor Judgement in Choosing Associates

[138] Lack of Judgment

Because Ms. A. requires significant support if she is to care for children, it is important to consider the evidence that she has in the past shown a lack of judgment in her selection of the individuals whom she lets into her life.

[139] Examples of Poor Judgment

Ms. A.'s agreement to let Mr. D. stay at her apartment is a good example of this lack of judgment—she knew nothing about this man, not even his name. This was not the first time that Ms. A. demonstrated carelessness about whom she let into her home. For example, in May of 2011 Ms. A. left a man whom she knew only as "Bradley" and his two associates in her home when she went out to shop; upon return, she found that she had been robbed. In cross-examination, Ms. A. agreed that she liked to help people in trouble, and let them "crash" at her home from time to time. More recently, Ms. A. last summer forged a plan to have herself and the children live with a man whom she knew only as "Greg", a man whom she had known only two months.

[140] Limited Insight

I asked Ms. Fennell, the counsellor who saw Ms. A. twice, whether Ms. A. demonstrated any insight into her problems with judgment. Ms. Fennell replied that when she cautioned Ms. A. about the risks of her causal attitude in allowing men into her life and her home, that Ms. A. did not protest that there was no problem with her behaviour. That is a beginning, but not sufficient for me to conclude that Ms. A. has developed better judgment in this area.

[141] Serious Risk

An absence from Ms. A.'s life of reliable supports coupled with poor judgment in determining who can be a support, poses another serious risk to any children in Ms. A.'s care.

15.2.4 Great Need for Support Now

[142] Current Circumstances

Ms. A. is at a point in her life in which especially strong supports are required. Her circumstances are, if anything, worse than those in October 2012, when she found that she could not cope and asked that the children be put into care.

[143] Comparison to October 2012

In October of 2012, Ms. A. had a two bedroom apartment, had support in caring for the children on alternate weekends and at other times (although not as much support as she wanted), was in a deteriorating relationship with Mr. H. (although, according to her, one which did not involve physical violence), and was facing charges of obstruct police (for which she later received a probationary sentence).

[144] Current Pressures

At the present time, Ms. A. has a one bedroom apartment in a building in which she has some concern that she will be subject to harassment by associates of Mr. D. She has no reliable supports to help her with the children. She is in contact with Mr. H., and the status of that relationship is unclear. She will start a 10-day trial on firearms charges in September, and if convicted of those charges could face a sentence of imprisonment. It is not speculative to conclude that Ms. A. is under considerable pressure, and that those pressures would increase if the children were now placed in her care.

15.2.5 Lack of Stability

[145] Instability

All these factors lead me to conclude that there is little stability in Ms. A.'s plan. If I placed the children in her care now, there are many circumstances—renewed relationship conflict/violence, risks posed by inappropriate men in her life, or inability by Ms. A. to cope with her current pressures—which could very well lead to them coming back into care.

15.2.6 Failure to Consider Children's Emotional Welfare

[146] Lack of Awareness

The remaining negative feature of Ms. A.'s plan concerns her lack of awareness or consideration as to some areas of the children's emotional welfare. Ms. A. does not appreciate the confusing and hurtful consequences to the children, particularly L., of her lengthy (and mostly voluntary) absences from visits with them. In addition, Ms. A. has tried to prevent L. from discussing past incidents of domestic violence to which she was exposed, incidents which frightened the child. However, although Ms. A.'s lack of awareness in these areas is concerning, it would not in itself prevent me from placing the children with her.

15.3 Society Supported Ms. A.

[147] Society's Duty

Before I turn to a consideration of the other plans for the children, I wish to deal with the submission that the Society failed in its duty to take steps to support Ms. A. in her parenting so that the children could be returned to her. Parents' counsels' submissions in this regard focussed on what they alleged were the attitudes and deficiencies of the family service worker, Ms. Morris.

[148] Allegation of Bias

Parents' counsel submitted that Ms. Morris decided early in the case that the children should be made Crown wards, and that this view guided her work. They cited Ms. Morris' warning to Ms. A. on November 28, 2012, about the importance of developing a plan for the children in a timely fashion because of the statutory timelines for permanency planning.

[149] Rejection of Allegation

I reject counsel's argument. In my view, the lawyers for the parents are confused in characterizing Ms. Morris' advice to the parents about the importance of keeping in mind the statutory timeline, which was entirely appropriate, as a personal view in favour of adoption.

[150] Extraordinary Efforts

Counsel argued at length that Ms. Morris failed to render appropriate assistance to Ms. A. I reject that argument. My recital of the facts sets out some, but not all, of the extraordinary efforts which Ms. Morris made to support Ms. A. in her attempt to stabilize her situation and regain care of the children. I can add to the list. Ms. Morris helped Ms. A. get a legal aid certificate for this case, and when Ms. A. dragged her feat, gave her names of several lawyers who were available to represent her. She drove her to court, and paid for cabs on other occasions. She took the time to text with Ms. A. outside of business hours. She continued to help Ms. A. even in the face of rude and abusive behaviour on Ms. A.'s part.

16. The Society's Plan

[151] Positive Features

The Society plan has clear positive features.

• As Ms. Molloy testified, L. and J. are "sweet, active children" who are meeting their developmental milestones and who "will be attractive to adoptive parents". Crown wardship and adoption will insure that the children are paced with parents who will meet their "physical, mental and emotional needs".
• The children's present foster mother is not seeking to adopt, so Crown wardship and adoption will mean a move for them. However, once placed with adoptive parents, the children will be assured of a permanent place in a family in which they will have the opportunity to develop a positive relationship with their parents.
• The Society is confident that the children can be placed together, and there seems no reason to doubt that confidence, so the children will have the benefit of continuing their relationship.

[152] Negative Features

There are obvious negatives to the Society's plan.

• Crown wardship without access and adoption will mean that the children lose all contact with their parents and their families.
• This separation is likely to cause at least L. emotional distress. Although no assessor addressed this issue, all the evidence indicates that L. had a strong and positive relationship with her mother. Although L. has in the past expressed some reluctance to see her father because of her perception that he hurt her mother, the evidence from recent visits indicates that the child loves her time with him, and that he is appropriate with her in a controlled venue. An order of Crown wardship without access will mean that these relationships will be disrupted. I have no evidence as to the likely long-term effect of this disruption on L., but it is safe to assume that she will be distressed in at least the short term.
• The Society's plan does not reflect L.'s wishes, which have been consistent. Given L.'s age, her wishes are not a determinative factor in this decision.
• I have no evidence that the Society is likely to be able to find an adoptive family which reflect the children's cultural background. However, I would expect that a successful applicant for adoption would have some commitment to educating the children about this background.

[153] Religious Background

Although Ms. A. and Mr. H.'s evidence was that they were of the Muslim faith, neither testified that this faith was significant to them, that they were religiously observant, or that they were raising the children in this faith. I have no evidence that the Society would seek a Muslim adoptive family.

17. The F.s'' Plan

[154] Promising Plan

The F.s'' plan was considered to be promising by Ms. Thomas, one which "deserved a chance", even though it did not meet the strict standards set out in provincial guidelines for kin placements. The fact that the plan was not approved under provincial kinship guidelines does not prevent a court from considering it.

17.1 The Strengths

[155] Many Strengths

There are many strengths in the F. plan.

• The children will be cared for by members of their biological family. They will be able to have contact and a continuing relationship with their mother and father in a manner which protects them from risk.
• They will be able to have a secure place as a member of a large, close family. They will have regular contact with many cousins and aunts and uncles.
• The placement with the F.s' will be stable. There is no history of dysfunctional conflict or domestic violence in their family.
• The F.s' are committed to raising the children, and acknowledge that this is a long-term undertaking. They have a home that can easily accommodate them, and they have made practical plans for their care, such as determining where L. can attend school.
• The F.s' will be able to meet the children's needs. Mrs. F. successfully raised three children as a single parent. She and Mr. F. regularly care for their grandchildren.
• The F.s' have some understanding of understand the children's emotional needs. Mrs. F. spoke to the damaging effect upon children of domestic conflict and violence, and their need to be protected from this. Mrs. F. also stated that she understood how the children would have a need for emotional reassurance if placed with them, since L. had not seen them for some time, and J. does not know them. She indicated that she would want to get professional help to assist her in explaining to the children why they were not living with their mother and in handling the children's reactions when they visited with each parent.
• Placement with the F.s' would give the children some continuity of care, in that they would continue to have regular contact with Ms. A. and with Mr. H.

[156] Cultural Heritage

Placement with the F.s' would mean that the children were in a home that reflected the children's Jamaican heritage.

17.2 The Weaknesses

17.2.1 Concerns in the Kinship Assessment

[157] Potential Weaknesses

Certain potential weaknesses in the plan were identified by Ms. Thomas in her evidence as to why the plan could not pass the rules for a kin placement.

[158] Assessment of Concerns

The concerns which led Ms. Thomas not to recommend the plan are not factors which persuade me that it should be rejected.

• I agree that Mr. F.'s CCAS history does show that when he was a much younger man that he was in conflicted relationships and that he showed poor judgment from time to time in his choice of partners/caregivers and at times may have failed to protect the children from those caregivers.

Mr. H.'s counsel underlines the fact that this history is 30-40 years old. The spectre of the Jeffrey Baldwin case is a reminder that a dated history involving abuse or neglect of a child can be relevant. But it is the particulars of any particular history which are important. In Mr. F.'s case, he was not identified as abusive. He was trusted by a Society to raise his sons under supervision, and was successful in doing so. Unlike Mr. F.'s situation in the '70's and '80's, he now has a partner—A. F.—about whom there are no protection concerns, and she is the primary caregiver in the plan before the court.

• With respect to the openings with Peel CAS 18 years ago related to T. and Mr. F.'s finding of guilt for allegedly assaulting her, both T. Mr. F. agree that there was no assault. They say that there was parent-teen conflict, which resulted in a tug-of–war over a belt to an inappropriate outfit. T., a mother herself, supports her parents' plan.

• With respect to the alleged incarceration in New York, Ms. Thomas agreed that Ms. P. was not a reliable source of information. Ms. Thomas agreed in cross-examination that this allegation did not a serious difficulty to the plan.

17.2.2 Further Concerns of the Society

[159] Society's Further Negatives

I turn next to what the Society submitted were further negatives in the F. plan.

[160] Mr. F.'s Health

The Society argues that Mr. F.'s "mild memory impairment "would entail a risk to the children if in his care alone at any point. It also argues that this condition will progress, and that Mrs. F. will necessarily be occupied by caring for her husband in the coming years, and unable to devote sufficient time to the children.

[161] Speculation

In my view, this argument is based on unwarranted speculation. Ms. Thomas noted that Dr. Gilman's report that Mr. F. was in general good health, and had mild memory impairment as a result of his bout of meningitis some years ago. Ms. Thomas did not identify this condition as an impediment to the plan. There is no indication in the medical report that this is a progressive condition.

[162] Functional Capacity

There is no evidence that Mr. F. has problems with memory that affect his day-to-day functioning. When asked what her husband's "mild memory impairment" meant in daily life, Mrs. F. described her husband as having occasional forgetfulness about names and appointments—nothing that alarmed her. She said that there was no issue, for example, about her going out and leaving some grandchildren in his care, or any concern about him driving.

[163] Ability to Supervise Visits

The second concern raise by the Society is the ability of the F.s' to "manage" visits by Ms. A. and Mr. H. with the children. The Society argues that, although the F.s' may be willing to follow any rules laid down by the court for these visits, that they may be unable to control Ms. A. if she becomes angry and abusive, or that they may not be able to resist giving in to the demands of their grandson to have visits on his own terms.

[164] Confidence in F.s' Ability

If it is decided that the children should be placed with the F.s', the court may order that visits by the parents may be supervised by them, or may make some other order, such as an order that visits be supervised by the Society. If an order is made that the F.s' supervise, I am confident that they could and would do so. They are both prepared to follow court direction. Despite the fact that Mr. H. is their grandson, they disapprove of his actions and were dismayed that the conflict between him and Ms. A. led to the children being in care. The F.s', and particularly Mrs. F., impressed me as people who have principles and standards and who have no problem letting their family know what their expectations are and in insisting that those expectations be met.

[165] Lack of Commitment

The Society also argued that the F.s' showed a lack of commitment to parenting the children, because they did not "fight harder" after being advised by Ms. Thomas that she was rejecting their plan and after receiving no answer to their request for access. I do not find that a persuasive submission. It was not unreasonable for the F.s' to consider that Ms. Thomas' rejection of their plan decided the matter. Neither Ms. Thomas nor Ms. Morris (whom Mr. F. called after he was told of the rejection) advised the F.s' that there was any possibility of an agency review of the decision or of a motion to the court to be made parties in order to pursue their plan.

[166] Age Concerns

There is a further issue which deserves discussion, an issue which the Society approached obliquely. When determining what plan is in a child's best interests, a court should consider the long term as well as the short term. With caregivers 57 and 69 years of age, there is a concern about whether what looks like a good plan now will be a good plan in ten years' time. My thought is that it is an individual's health, and not his or her age, which is the relevant factor in this assessment. My experience indicates that the Society recognizes this, and places children with family members in their 50's or even '60's. Mr. and Mrs. F. are both in good health.

18. Conclusion on a Plan

[167] Statutory Principles

I have discussed the Act's scheme in dealing with a parental plan in prior decisions:

"S. 37 does not weight or prioritize these factors. Four factors -- numbers 5, 6, 8 and 11 -- relate to a child's relationship to her family and the parental plan. It is trite to say that in making a disposition decision, it is necessary to consider the best interest factors not in isolation, but in the context of the purpose of the Act and other relevant provisions of Part III of the Act. What emerges from such an analysis is the principle that a parent's plan will be preferred under the Act to other plans -- such as adoption -- as long that plan does not undermine the Act's paramount objective: "to promote the best interests, protection and wellbeing of children, both in the short-term and the long-term."

[168] Paramount Principle

As Justice Heather Katarynych has observed: "No order can so profoundly affect the lives of the people involved as that of Crown wardship, without access. That a child would be "better off" in another home is not the test. A child's family should be maintained for her if, on the whole of the evidence, the court finds it likely that her best interests, protection and well-being will be promoted in that fashion, over both the short and the long term".

18.1 Ms. A.'s Plan Not in Children's Best Interests

[169] Rejection of Mother's Plan

With these principles in mind, I have given Ms. A.'s plan very serious consideration. Despite its strengths, the multiple risks to the children in Ms. A.'s plan and the lack of stability in the plan lead me to reject it as an option for L. and J. Given Ms. A.'s lack of candour with the Society and the court, a supervision order is not a viable means of protecting the children. Supervision 24 hours a day would be required to insure that Ms. A. did not associate with Mr. H. – or with another individual whom she might invite into her life with little scrutiny and who would put the children at risk. A strong support network for Ms. A. might mitigate this risk, but that network is not in place.

[170] Rejection of Extended Wardship

I considered the possibility of ordering a further period of the Society wardship pursuant to section 70(4) of the Act, to allow Ms. A. to undertake serious counseling with respect to issues of domestic violence and the traumatic history she carries from her own family, and to allow her to work to put in place the support system which she lacks. I rejected that option. If Ms. A. recognized these issues as important, was committed to working on them, had made progress, and still needed a few months to solidify a safe plan, than that might be a reason to extend. That is not the case, however. An extension of Society wardship would not be in these children's best interests.

18.2 Society Plan Rejected

[171] Rejection of Adoption Plan

The Society plan is attractive. An order of Crown wardship leading to adoption would provide the children with protection from the risks of harm that exist with their mother, and allow them a secure place in a family that could meet their needs.

[172] Statutory Requirement for Less Disruptive Alternatives

However, the Society plan is not the best plan for L. and J., in that it terminates all contact between the children and their parents and relatives in their extended families when less disruptive alternatives can meet their best interests. The Act requires that before making an order of Crown wardship that I consider placement whether placement with family members can protect the children and meet their best interests. The Act requires that I consider whether alternatives other than an order of Crown warship are adequate to protect the children and can meet those interests.

18.3 F.s' Plan in Children's Best Interest

[173] Placement with Grandparents

In my view, placement of the children with A. and R. F. is in the children's best interests. The F.s' are a stable family. They are financially able to care for the children, and have a home that can easily accommodate them. They have turned their minds to practical considerations, such as where L. can attend school and programming for J.

[174] Caregiver Capacity

Mrs. F., the primary caregiver, raised three children successfully. With support from her husband, she regularly cares for grandchildren for lengthy periods. She is energetic, and will have the assistance not only of her husband but of four family members who live close by, if needed for occasional babysitting.

[175] Emotional Sensitivity

Mrs. F. showed sensitivity to the children's emotional needs. She recognized that she would have to answer questions from L. about why she was not living with her mother, and recognized that professional assistance would be helpful in answering those questions.

[176] Understanding of Risks

The F.s' also demonstrated that they recognize the risks to the children's development if exposed to domestic violence and conflict. They confirmed their willingness to comply with any conditions set out by the court with respect to visits between the children and their parents. I am confident that they will comply.

[177] Continuity and Protection

Placement with the F.s' will allow the children to maintain contact with their parents, but be raised in a stable home situation in which they are shielded from the risk that their parents present.

[178] Transition Period

I do not think that a custody order under section 57.1 of the Act is appropriate. A further temporary period of the Society wardship is in the children's best interests, to allow a gradual transition from the foster mother to the F.s'. Placement with the F.s' will be a change for the children. J. has never met them, and L. has not seen them since she came into care.

[179] Supervision Order

The Society in its submissions with respect to the possibility of placement of the children with F.s' suggested a two-month transition period, and in my view, that is appropriate, followed by a twelve-month order placing the children with them under Society supervision.

18.4 Conditions of Supervision

[180] Proposed Conditions

There is debate as to the appropriate conditions for a supervision order. Ms. Morris was asked in cross-examination by counsel what conditions she would suggest if the children were placed with the F.s'. She recommended certain standard conditions (such as allow announced and unannounced visits to the home), and some other specific conditions set out below:

• The F.s' not to allow contact with the children by either of the parents or allow either parent to attend at their home without prior approval by the Society;
• The F.s' not expose the children to adult conflict;
• The F.s' not to use physical discipline with the children;
• The F.s' to insure that both of them, or one of them and a support person, are always present when Ms. A. visits the children.

[181] Society's Requested Conditions

In reply submissions, the Society requested more restrictive conditions on the placement, which are set out below.

• A. F. shall be the primary caregiver of the children.
• A. and R. F. are not to permit access between the children and their parents unless approved in advance by Society
• A. F. or designate approved in advance by the Society will drive the children to scheduled access visits.
• R. F. shall not be left unsupervised with the children or in a sole caregiving role to the children, unless approved in advance by the Society.
• Any alternate caregivers for the children are to be approved in advance by the Society.
• The children shall be enrolled in full-time school or daycare.
• The Fs shall allow the Society Workers to attend at their home for announced and unannounced visits, and permit the Workers to meet with the children privately at home, school or in the community.
• The Fs shall sign consent forms regarding children's wellbeing and for their own healthcare providers, as requested by the Society.
• The Fs shall ensure the children are not exposed to any adult conflict.
• The Fs will report any concerns related to the parents (such as conflict, or unauthorized contact with the children) to the Society and, if appropriate, to the police.
• The Fs shall facilitate access for the children with their former foster mother, S.F., for as long as this access is meaningful and beneficial for the children, as requested by the Society.
• Access to Ms. A. and Mr. H. Access will be supervised by the Society or person(s) approved by the Society in advance, at the Society's offices or other location as approved by the Society in advance, and on the following terms and conditions:
  • Mother and father are to have visits separate from each other
  • Access is not to occur in the Fs' home unless approved by the Society in advance (such as for significant family events)
  • Access not to occur in the home of Ms. A. or Mr. H.
  • Telephone access will be supervised by A. F. and will be initiated by A. F. as she sees appropriate.

[182] Father's Proposed Conditions

With respect to the issue of appropriate access between each parent and the children Mr. H.'s lawyer submitted that conditions of supervision should include the following:

• The F.s' shall not expose the children to adult conflict;
• The F.s' shall insure that the parents do not have access to the children together, unless at a function involving extended family.

[183] Father's Access Proposal

Mr. H.'s lawyer submitted that each parent should have unsupervised, overnight access which could take place at the F.s'' home or at the home of the parent. He suggested that the children alternate weekends between their parents, with the result that they would have no regular weekend time with the F.s'. He suggested that either parent notify the Society if he/she faced further criminal charges, and that neither parent allow non-family members to be present during an access visit.

[184] Rejection of Condition Regarding Mr. F.

In my view, the condition requested by the Society that Mr. F. should not be left alone with the children is not supported by the evidence.

[185] Health Disclosure Condition

The condition requesting that Mr. and Mrs. F. disclose their medical records to the Society, on an ongoing basis, is extremely intrusive. The Society has a report from their physician. Having said that, I want this order to be the framework for an environment in which Society workers make efforts to support the children in their home with the F.s'. Despite what I have noted above, the Society is obviously concerned about possible health problems that either of the F.s' may develop. I wish to give the Society reassurance that it will be advised of any such problems. I expect that this reassurance will help them work to support this plan. I will direct that Mr. and Mrs. F. advise the Society if there is a change in his or her health that negatively affects their ability to care for the children, and that they direct their physician in writing to notify the Society of such change, and forward a copy of this direction to the Society.

[186] Deferred Conditions

I will not make a decision about certain further conditions requested by the Society—that the Society approve any alternate caregivers, and that the J. be enrolled in full-time daycare—at the present time. The service team has never met with F.s', and thus it is not surprising that they may not have much trust in, for example, Mrs. F.'s judgment in selecting babysitters when required. I would like the Society to discuss these proposed conditions with F.s'. They may be able to reach agreement. If so, I may be advised of the agreement in writing, and will include it in my order. If not, then the parties and the F.s' may appear before me on September 18, 2014 at 2 p.m. for brief argument on the issue.

[187] Parental Access

As regards appropriate terms of access to the parents, and whether access should be supervised, I start with the recognition that Ms. A. is able to meet her children's needs in many ways. There is not as much evidence about Mr. H.'s childcare skills, but based on the two months of visits that have occurred, they appear to be adequate for at least short visits. These facts would suggest that unsupervised or at least semi-supervised access is appropriate.

[188] Factors Favoring Supervised Access

However, two factors weigh in favour of supervised access:

• The parents have been deceitful about their association, and have not obeyed prior no-contact orders. There is a risk that the children will be exposed to conflict between them. In addition, with respect to Ms. A. there is a risk that they will be exposed to other inappropriate individuals.
• The period in which the children are settling into the F. household will be important, and access to the parents must be structured so as to support the children's integration into the home. The children must not receive negative messages—such as "I'm getting a new place, and you'll be coming home soon". With Ms. A., there is danger—despite her support for the F.s' as an alternate plan—that she will not act in a fashion that consistently supports the placement. Proper supervision should assist her in this.

[189] Supervised Access

Supervised access, at least for a period of time, is in the children's best interests. It is better that the Society have the discretion as to who should supervise the parents' visits. At the outset, I would expect that it be a the Society worker, in order to allow the F.s' time to bond with the children and let the children get used to their new home. As time goes on, I would expect that supervisory responsibility could be transferred to the F.s'. The Society should have the discretion to permit unsupervised visits in the future.

[190] Frequency of Visits

As for the frequency of visits, the visiting schedule should respect the fact that the children's permanent home is with the F.s', but allow the children to maintain contact with their mother and their father. Even if access did not have to be supervised, alternate weekends with each parent is far too long away from the F.s' to meet this objective. The frequency of appropriate access will likely change as the children become more comfortable in the F. home.

[191] Discretion to Society

In my view, it is best to leave the frequency of access to the discretion of the Society.

[192] Order

My order therefore is as follows.

FINAL ORDER

1. The children shall be temporary wards of the Society for two months. During that period, A. and R. F. shall have access to the children on a schedule determined by the Society, with a view to transitioning the children to the care of the F.s' by the conclusion of that two month term.

2. Thereafter, the children shall be placed in the care of A. and R. F. for a period of ten months subject to Society supervision and the conditions which follow.

3. A. F. shall be the primary caregiver of the children.

4. The F.s' shall not permit access between the children and their parents unless approved of in advance by the Society.

5. The F.s' shall not permit either Ms. A. or Mr. H. to attend at their home unless approved of in advance by the Society.

6. The F.s' not expose the children to adult conflict.

7. The F.s' shall not use physical discipline with the children.

8. The Fs. shall allow the Society workers to attend at their home for announced and unannounced visits, and permit the workers to meet with the children privately at home, school or in the community.

9. The Fs. shall sign consent forms regarding children's wellbeing, as requested by the Society.

10. The Fs. shall report any concerns related to the parents (such as conflict, or unauthorized contact with the children) to the Society and, if appropriate, to the police.

11. The Fs. shall facilitate access for the children with their former foster mother, S.F., for as long as this access is meaningful and beneficial for the children, as requested by the Society.

12. A. and R. F. shall advise the Society if there is a change in her or his health that negatively affects her or his ability to care for the children, and shall direct their physician in writing to notify the Society of such change and forward a copy of this direction to the Society.

13. A decision on the two requested further conditions referred to above is adjourned to September 18, 2014 at 2 p.m.

14. Access to the parents is at the Society's discretion, as to frequency, duration, supervision, and location.

15. Telephone access between the children and each parent will be supervised by A. F., and initiated by her as she sees appropriate.

[193] Further Direction

If further direction is required, counsel may arrange a time with me with the trial coordinator.

Released: July 30, 2014

Signed: Justice Ellen B. Murray

Footnotes

[1] Except for court appearances and an occasion on which he attended at Society offices to see the children when Ms. A. was attending a scheduled visit.

[2] A police report later confirmed that they had been called to the S. home because of this incident.

[3] He did call Ms. Morris on November 28, 2012 requesting visits, but then failed to show up at an appointment scheduled to discuss terms for the visits.

[4] C.F.S.A. s. 57(2)

[5] C.F.S.A., s.57(3)

[6] C.F.S.A., s.37(3)

[7] I found these statements of L. to be reliable, for reasons set out later in this decision. Counsel conceded that it was necessary to admit the statement via hearsay.

[8] Usually Ms. A.'s apartment, but on one occasion to 104 Bxxxxxxxx when Ms. A. and Mr. H. were there.

[9] During the trial, I ruled that the child's statements had threshold reliability and gave reasons for that ruling. Viewing those statements in the context of all the evidence, I find that they are reliable, and I accept them.

[10] This is confirmed by Mr. H. records of arrests indicating charges and complainant.

[11] Aug. 9, 2010, Oct. 22, 2010, and July 11, 2011.

[12] Except for the incidental contact at court or the Society offices already noted.

[13] See, for example, the discussion at paragraph 86 in Children's Aid Society of Toronto v. Ro., 2006 ONCJ 212, 2006 O.J.2283 (C.J.)

[14] Ms. A. testified to this in cross-examination.

[15] Children's Aid Society of Toronto v. Y.B., 2008 ONCJ 800, 2008 O.J. 5698

[16] Catholic Children's Aid Society of Toronto v. P.A.M., 1998CanLII 14476

[17] Catholic Children's Aid Society of Toronto v. P.A.M., supra